Brock v The Queen

[1989] HCATrans 300

..

,

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M32 of 1989

B e t w e e n -

GREGORY ALLAN BROCK

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M47 of 1989

B e t w e e n -

Brock

BARRY TREVOR BROCK

Applicant

and

THE QUEEN

Respondent

Application& for special leave

to appeal

CZT/1/CM 1 7/12/89

MASON CJ
BRENNAN J
TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OR PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 DECEMBER 1989, AT 9.19 AM

Copyright in the High Court of Australia

MR P.C. DAflE:  May it please the Court, I appear on behalf

of the applicants. (instructed by A. Crockett,

Acting Director of Legal Aid)

MR L.W. FLANAGAN, QC: May it please the Court, I appear with

my learned friend, 1:-'IR C.D .. HOLLIS-BEE, for the
respondent.(instructed by the Director of Public

Prosecutions)

MASON CJ:	Mr Dane.
MR DANE:	If the Court please, the outline of submissions,
on behalf of the applicant have been prepared with

the Court's leave I hand those up.

MASON CJ:  I do not think you need leave. I think you are

under an obligation to hand them up.

MR DANE:  I beg your pardon.

MASON CJ: Yes.

MR DANE:  If the Court please, the initial matter of the

special leave is put forward as being the significant

matter of there being a discrepancy produced by a

Full Court, sitting as the Court of Criminal Appeal

in Victoria, upon an appeal by the Director of

Public Prosecutions in the State of Victoria. It

is the combination of issues,upon a Director's appeal,

the result being what is submitted to be a gross

disparity in the sentences. For_ that proposition, I

rely on the references that are detailed in the

conclusion of paragraph one of the application. I£

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Brock

I might take the Court to the case of

GRIFFITHS V THE QUEEN, (1976) 137 CLR 293, in

particular the judgment of the then Chief Justice

Sir Garfield Barwick, at page 310, beginning at

the top of the page:

It seems to me that the misapprehension as to the effect of this Court's decision in

WHITTAKER V THE KING had led to much more

frequent appeals by the Attorney-General

than might properly have been expected.

Inadequacy of sentence, an expression not

found in the CRIMINAL APPEAL ACT but which is

the form in which the ground of the

Attorney-General's appeal is expressed, is not

satisfied by a mere disagreement by the Court

of Appeal with the sentence actually imposed.

It means, in my opinion, such an inadequacy
in the sentence as is indicative of error or

departure from principle. No doubt,

consistency in the sentences imposed by the

judges of the District Court is a desirable

feature of criminal administration. Gross

departure from what might in experience be

regarded as the norm may be held to be error
in point of principle. Thus, in an appropriate
case, the Court of Criminal Appeal may
exercise its influence towards such consistency

of sentence. But that consistency is not to

be sought or secured, in my opinion, by the

Court of Criminal Appeal substituting in any case which the Attorney-General cares to bring

before it, its own view of the appropriate

sentence irrespective of the presence or

absence of error on the part of the trial judge.

I ought at this point to say that I agree with

the reasons for judgment of Isaacs J. in

WHITTAKER V THE KING and accept the citations

which he makes in support of his views. I

would call attention to what his Honour says

and add that, in my opinion, the views of those

whose daily, or almost daily, task is the

sentencing of prisoners must command respect.

They are in reality in a better position to

assess the proper sentence than, in my opinion,
is a court of appeal, error or breach of

principle being absent.

Just continue down into the next paragraph for a

short distance:

On my view of the proper meaning of s.SD -

the equivalent being the subject of this application -

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Brock

in the context of the CRIMINAL APPEAL ACT,
an appeal by the Attorney-General should be

a rarity, brought only to establish some

matter of principle and to afford an
opportunity for the Court of Criminal Appeal
to perform its proper function in this respect,

namely, to lay down principles for the

governance and guidance of courts having the

duty of sentencing convicted persons.

MASON CJ:  But does it not appear in this case that the

Court of Criminal Appeal must have taken the view

that there was such a manifest inadequacy as to

reflect an undisclosed error of principle.

(Continued on page 5)

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Brock

MR DANE:	That clearly must be the conclusion that one draws
upon a reading of the judgment. In my respectful
submission, that was an error in itself that I would
seek to put in an appeal should leave be granted.
That was the only thing that the Court of Criminal Appeal could possibly have come to the conclusion about what
it will be said is that, it may be considered to be a
light sentence for the offence, but it was within the range, and it is not an appropriate vehicle for a Director of Public Prosecutions appeal to express
another view, and so, merely by bowling up something
that the Director of Public Prosecutions thinks to
be light does not permit the Court of Criminal Appeal
just to impose its own view and say, "We find there is
an inadequacy".
BRENNAN J:	Mr Dane, if you are applying here for special leave,

you must approach it, must you not, on the basis that

this is a case where the intervention by the Court of

Criminal Appeal was justified?

MR DANE:	Yes, Your Honour, as I hoped I had indicated that
the point raised by the learned Chief Justice was
something that would have to be addressed in the
appeal. In my respectful submission, when one has -
it is not so much that the Court of Criminal Appeal
interfered, but by reason of its interference there
has been a disparity created and, in my respectful submission, the point of principle is that a Court of Appeal should not use the Attorney General-Director
of Public Prosecutions appeal as a vehicle to achieve
that. When the wide discretions of a Director of
Public Prosecutions appeal are available, then it should err in favour of the sentence that is being
delivered  when an interference with that sentence
would produce this which, I submit, is a gross
disparity, and that is the point which I seek to raise by way of special leave.

BRENNAN J: What that comes to, I suppose, is that consistency

between sentences of co-offenders is a more important
principle than the principle of settling a condign

penalty for a particular offender.

MR DANE:	Yes, in that if a system of sentencing is to be
a structure within itself rather than an individual
tailoring to any offence and offender then, yes and, in
my respectful submission,there must be a certainty and
a framework in the sentencing process, and in order to
achieve that then a Court of Appeal should avoid a
disparity, especially, in my submission, where
there is a judgment within the range, albeit at the
bottom end.

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Brock

The point that His Honour the learned

Chief Justice in GRIFFITHS' case made is

reiterated in the authority that I next refer to,

and that is REG V TAIT & BARTLEY, (1979) 24 ALR 473

at page 475. The Federal Court Full Court in the

joint judgment - in the second paragraph of that

joint judgment, referred briefly to the history of

the matter of Crown appeals - - -

MASON CJ:	You do not need to go into that, do you?
MR DANE:	I would not have thought - it is really reinforced .. - - -

MASON CJ: Is there anything said in this joint judgment that

adds to what was said by Chief Justice Barwick in

GRIFFITHS V REG?

(Continued on page 7)

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Brock
MR DANE:	With respect, no.	It reiterates the matter.

The combination that I seek to draw attention to is raised then in the decision of this Court in

LOWE V REG, (1984) 154 CLR 606 and in particular

Your Honour the Chief Justice's decision, and perhaps it is the corner-stone of my submission as to

disparity on page 610 at the foot of the page.

It is perhaps a portion well known and it is perhaps inappropriate to read it again to the Court.

MASON CJ:	It is also well known that it is in a dissenting
judgment.
MR DANE:	Yes, sir, and the matter that I would also draw the
Court's attention to is a portion of His Honour
Mr Justice Dawson's judgment at page 623, the first
paragraph thereon, and continuing over for four lines
on the following page. Relying as I do upon
Your Honour the Chief Justice's decision in that case, albeit in a dissenting judgment, I find comfort also for my argument in Mr Justice Dawson's decision on
page 623.  It is upon those principles of an
appellate court intervening where there is a gross
disparity that I would submit is the special leave
point because the gross disparity is produced by a
Court of Appeal, the Full Court sitting as the Court of Criminal Appeal in Victoria.
That court has produced a disparity and that court has produced a disparity in a case that, it
is respectfully submitted, is not one of any great
importance.  The Di rec tor's a ppea 1
into that court was not a case of-~ was rarely
used, it was not a case of importance, it was not
a case of principle, it was not a case of any great
significance at all. It was a serious case. It
was a manslaughter case, but that case, in itself did not call for an extraordinary power that the
Director of Public Prosecution has.

TOOHEY J:  You seem to be running two arguments at the one

time, Mr Dane. One is the position of the Crown as

the appellant, the other is the aspect of disparity,
but disparity here, in a sense, is fortuitous, is
it not? It arises by reason of the inability of
the Director of Public Prosecutions to effect
service of the notice of appeal. It is not a disparity
which arises from the consideration by the Court to

the position of all offenders and a differentiation

as a result.

MR DANE:	Yes.
TOOHEY J:	What you really appear to be saying is in a sense the hands of the Court of Criminal Appeal are tied in reviewing the sentence because of the inability of the Director to effect service of the notice of appeal on one of the offenders.

C2T4/l/HS	7	7/12/89
Brock

MR DANE:  Clearly that argument, if I was to rely on that,

could not be sustained. That would be just an

administrative step and I would not be able to rely

upon that as of any significance at all.

The significance is, with respect, Your Honour,

the fact that the Director of Public Prosecutions

chose not to appeal in relation to the fourth

accused, Mrs Douglas. She was released upon a bond

to be of good behaviour for a period of three years.

TOOHEY J:	But is that the disparity of which you complain?
MR DANE:	It now is, clearly, because it is attractive for

the argument to look to Mr Douglas who was not

served. The significance of looking to him only is

served by referring to the learned_sentencing· judge who

equated the _ culpability of the applicants with

Mr Douglas. However, leaving that point to one side,

it falls for the reason that Your Honour has just

put, The disparity is now that the Director of Public Prosecutions considers that Mrs Douglas received an adequate sentence for a lesser role - the

conduct was less - and with a different antecedents

but still there is, in my respectful submission,

a considerable disparity between eight years as a head

sentence, expressing the gravity of the offence
of which she was a co-accused with a minimum of six

years to be served, and a three year bond which is

regarded as being adequate.

Now, with respect, that produces within the one

offence a gap that is inappropriate in a sentencing

framework.

MASON CJ:  But there was a very significant disparity between

her participation in the events and the participation

of the two applicants. First of all, she did not

participate to the same degree and secondly she,

of course, had some justification for resentment at

what had occurred more so than the two applicants had.

MR DANE:	I could not argue with the latter.
McHUGH J:	The sentencing judge described her role as a minor

one.

MR DANE:  Yes, most decidedly. Still charged with the same

offence and her part in it would entitle her to a

lesser sentence.

McHUGH J:	Yes.
MR DANE:	What I submit is a significant point is that

within the same framework, the framework of the case,

she was charged and her part can be assessed with a

sentence but if the sentence that she receives is so

C2TS/l/JH	8	7/12/89
Brock

much less than that which the applicants received,

then within the sentencing framework there is a

disparity that is unacceptable, with respect. And so,

if it was thought that the original sentence, four

years with a minimum of two years, was expressed

a satisfactory separation, a satisfactory disparity

to the Director of Public Prosecutions then, in my

respectful submission, that satisfactory state does

not exist when the disparity turns to eight years

to a bond. It is an extraordinary separation. A

sentencing judge may consider it is appropriate to

sentence this woman to that amount and to express the

varying ranges of conduct.

McHUGH J:  What was the basis of her plea - of the case

against her?	Some sort of common purpose case
obviously.

(Continued on page 10)

C2T5/2/JH	9	7/12/89
Brock

MR DANE:	I do not know if it was actually put at concert.
It was put at aiding and abetting and so probably not as high as an agreement - - -
McHUGH J:	An encouragement case.
MR DANE:	- - - but clearly was there encouraging, participating

to a lesser extent. She did indicate in her record

of interview that she struck him with an open hand

as hard as she could on the side of her head and

clearly there were other injuries associated with

his death.

BRENNAN J:  What did he die from?

MR DANE:  He died from a multitude of injuries. The cause of

death was multiple injuries including extensive

fracturing of face, fractured skull, lacerated lungs,

traumatic rupture of liver, right kidney, fractured

ribs. That is the summary of the post-mort0.m report.

MASON CJ:	One of the defects in the application book, Mr Dane,
is that there is no precise description of what the
injuries were, nor is there material from which we can clearly deduce what the respective roles and
participation was of the individuals concerned.
MR DANE:	Yes, a problem that attracted me.  Your Honours will
appreciate that at the opening of the pleas before
the learned sentencing judge the prosecutor for the
Crown referred His Honour to his opening. The Court
may appreciate that - - -
MASON CJ:	Yes, I follow that, but that is one of the difficulties.

There is incorporation by reference, but the materials

to which reference is made are not in the book. We

do not have, for example, the records of interview

which would have thrown some light on the matter.

MR DANE:  I appreciate that, sir. I have since been provided

with that and have it before me.

MASON CJ:  But it may not come to that in any event. We are

looking at the matter in terms of its appropriateness

for special leave at the present stage.

MR DANE:	Quite. If it is thought of any assistance to the
Court I will be able to read that. If I might then
perhaps return to the outline. It is, as Your Honour
Justice Toohey has drawn to my attention a combination
of two arguments that I seek to put to this Court that, in my submission, creates the s~eciRl leave noint and it is that combination of the Director of Public Prosecution's appeal that ends up with a
disparity and the point that is being made at the
second paragraph of the outline of submission is
that perhaps the third paragraph has been traversed

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Brock

in argument and that one starts out with a

comparison by the learned sentencing judge of a

differentiation between the conduct and antecedents

of Mrs Douglas and the accused producing a result

of four years with a two-year minimum as against the

three-year bond.

That is regarded as appropriate by the Director

of Public Prosecutions by reason of the absence of
any appeal in relation to her sentence and then one

ends up with what is submitted to be a gross

disparity, the disparity between an eight-year

sentence and a three-year bond and, in my respectful
submission, that has all the hallmarks within the

framework of a sentencing system of a gross disparity

that could not, with respect, be tolerated and
in order that that matter be put in order I seek that

there be a special leave granted so that this Court

can consider what is an appropriate sentence having

regard to all the facts and circumstances of this

case. Perhaps that is the point that I desire to make.

(Continued on page 12)

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Brock

McHUGH J: Manslaughter is a crime where you have enormous

disparity of sentences where you can have

anything from life to a bond.

MR DANE: Fifteen years is the maximum.

McHUGH J: This is in Victoria, is it?

MR DANE:  Yes.

McHUGH J: Yes, but at common law, in New South Wales

for example, sentences of life for manslaughter

have not been unknown. On the other hand, bonds

for manslaughter havt:1 not been unknown.

Everything depends so much on the particular participation of an individual. There is no

objective disparity, is there, in the fact that

one person gets eight years for manslaughter and

another person gets a bond even though it is a

common victim?

MR DANE:	With respect, leaving aside the last sentence,
Your Honour refers me to general disparity,
if I might use that phrase, and general disparity
clearly exists in the crime such as manslaughter,
it having many variations.
McHUGH J:	Much more so than, say, in a case like armed

robbery.

MR DANE:	Quite. However, when one moves from general
disparity to a particular case and then one has
particular disparity then, in my respectful
submission, it is not to the point, with res~ect,
that there be a reference to the multitude of ways in which the crime can be committed and the
sentence can be imposed.  When one has a
manslaughter and then one is dividing up the
various aspects of conduct involved in that
manslaughter, and then, of course, looking at
the antecedents of the participants, then to
produce a disparity within that one offence of eight years to a bond, in my respectful
submission, is objectively outside the range.
I say that on the basis that the maximum sentence
in the last three years, as I understand it, for
manslaughter in the State of Victoria has been
10 years. That is for the involuntary manslaughter
class of case, not the manslaughter case as a result
of provocation.

McHUGH J:  This is a very bad case of manslaughter. The

Court of Criminal Appeal said that the evidence disclosed repeated periodic, vicious and what

might even be characterized as a sadistic bashing.

MR DANE:  Yes, one cannot avoid that.

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Brock

McHUGH J:  And there was a question of imprisonment,

four and a half hours of what is almost torture

before Mr Douglas comes home, and then further

assaults.

MR DANE:	Yes, one cannot avoid the facts. It is clearly
not a minor case. There are countervailing points, with respect, to each one of those matters as questions of sentencing_ Delay, the plea under section 4 of the PENALTIES AND
SENTENCES ACT, the absence of a weapon, and
clearly within the domestic setting,reduce
this matter from being sentenced as a most
serious crime. All those matters are clearly matters that would reduce it down to something
less.
McHUGH J:	But would you dispute that eight years - would

you suggest that was too high a sentence?

MR DANE:	Too high in this case, yes, sir.
McHUGH J:	As opposed to the fact that Mrs Douelas was too

low.

MR DANE:	Leavin~ aside Mrs Brock, the eight years ignores
section 4 of the PENALTIES AND SENTENCES ACT.
There has clearly been no discount.  It is a
1986 case; the sentence is provided in 1988. There are no weapons. It has all the asnects of
spontaneity, albeit that it continues once the spontaneity is lost, the clear spontaneity on the part of Mrs Douglas and Mr Douglas and
perhaps to a lesser extent, Barry Brock who
came in second upon Greg Brock who initiated it.
There are aspects of spontaneity about it. All
of those matters clearly reduce the penalty that
would otherwise be imnosed. In particular there
must be a discount, with respect, for a
section 4 plea and the significance of that is
that there was always a plea available, and
recognized as such, to the Crown for manslaughter.
It started off as a murder trial; it miscarried
because of a non-responsive answer and then
in the representation it was compromised.

(Continued on page 14)

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Brock

MR DANE (continuing): With respect, the answer to Your Honour's

question is, yes. It is ojectively excessive, and

suffers from this disparity. If, as Your Honour

the Chief Justice puts to me, that the Court determined

that there was an error inherent in the judgment by

reason of the wide discretion that is available under

the Director's appeal powers, then it has a discretion

as to whether or not it would move to interfere, it is

not obliged to interfere. The discretion, in my

submission, is sufficiently wide to enable it to say, "We

find an error, but should we act upon that error then we will produce a disparity", and it is to that point

that I go and say that the Court of Criminal Appeal

should not have, in this case, exercised its

discretion in the ·way it did, and for the future, this

Court, with respect, should enunciate the principle

that when a Court of Appeal is presented with a set

of circumstances like this on a Director's appeal which

should be used only in rare circumstances, it should

not produce a disparity of the nature that I submit

does exist. They are the matters that I have to draw

to this Court's attention.

MASON CJ:  Thank you, Mr Dane. The Court need not trouble you,

Mr Flanagan. The Court is not persuaded that the

decision of the Court of Criminal Appeal reflects

any error of principle. The application for special

leave is therefore refused.

The Court will now adjourn until 9.30 am in

Sydney tomorrow.

AT 9.53 AM THE MATTER WAS ADJOURNED SINE DIE

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Brock