Brownlowe v The Queen

[2006] HCATrans 131

[2006] HCATrans 131

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S30 of 2005

B e t w e e n -

RAYMOND BROWNLOWE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MARCH 2006, AT 11.09 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear with MS G.A. BASHIR for the applicant.  (instructed by David Leamey)

MR L.M.B. LAMPRATI, SC:   If the Court pleases, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes.

MR GAME:   I am not sure if your Honours are aware – I am not sure whether it makes the application any better for it, but this case was before the Court with the applicant unrepresented by counsel in November 2005 and Justices Gummow and Kirby sought assistance of counsel and that is how I come to be appearing in this application.

GLEESON CJ:   Thank you.  I have just been looking at page 11.

MR GAME:   Page 11 of the application book?

GLEESON CJ:   Yes, line 48.

MR GAME:   Yes, your Honour.

GLEESON CJ:   He spent 25 of his 47 years in custody.  That is the principal point of distinction between him and the co‑offender, is it not?

MR GAME:   Well, yes, your Honour, that is quite true, but there are problems, we submit, with the way in which both the trial judge and the Court of Criminal Appeal dealt with this case.  They can be put fairly shortly.  We have provided your Honours with a copy of section 90A of the Crimes Act as it stood at the time.  I should say, your Honours, I have been acting for Mr Brownlowe for a good part of that 25 years, with limited success.  If you look at section 90A – what I am leading to is this, that there is a double punishment problem ‑ ‑ ‑

GLEESON CJ:   Just give me a moment, Mr Game, I cannot pick that section up.

MR GAME:   Well, I sent that up in a separate set of documents.

GLEESON CJ:   It is at the back of this one.  Yes, thank you.

MR GAME:   Does your Honour have it now?

GLEESON CJ:   Yes, I do, thank you.

MR GAME:   Now, section 90A provides that if you lead or take away or entice away for any other advantage, then that is 20 years, that offence, and then:

if it is proved to the satisfaction of the judge that the person so led taken enticed away or detained was thereafter liberated without having sustained any substantial injury, to penal servitude for fourteen years.

Now, the point about that is that there are two aspects in this in which there is a crossover with the substantive offences.  We have, first of all, the notion of advantage and, without taking your Honours to the cases, it is well accepted in sentencing practice that what happens during the kidnapping is relevant to sentence for the kidnapping; that is to say, the advantage enjoyed, what actually happens.  I could take your Honours to those cases if necessary, but I think that is accepted.

Then we go to the 14 years, and leaving aside the onus question as to who has to prove that, in effect and in substance you are liable for 20 year penalty if there has been – I understand there is an onus problem, but you are liable for the 20 year penalty if there has been substantial injury.  Now, the point about that is I suppose to encourage people to release their victims without having done terrible things to them, and that is what Justice Hunt suggested in a case called Rowe.  Now, what happened to this complainant ‑ ‑ ‑

GLEESON CJ:   It assumes a level of rumination on the law.  I am sure section 90A is well known to a lot of kidnappers.

MR GAME:   I do not know, but maybe if someone calls out over a loudhailer, “Release them without injury and you will get 14 years instead of 20”.

GLEESON CJ:   Well, I mean, what somebody might call out over a loudhailer and what would make sense would be, “You’re going to be a lot worse off if you release them harmed than if you release them unharmed”.

MR GAME:   Justice Hunt makes a point in a case called Rowe which it is not necessary to take you to that quite minor injury could be substantial injury for the purposes of this provision, and that must be so.  Indeed, I would have thought that the sexual assaults themselves might fit that description.

GLEESON CJ:   I would have thought so.

MR GAME:   And the distress might well fit that description.  So what we have here is a real commonality of the elements and it cuts into the parity point because the co‑accused is also liable for the same section 90A activities.  Now, what happened, if you go then to the judgments, just if you look very briefly at the remarks on sentence at page 14, you will see the trial judge – this is Judge Job, the trial judge in this case ‑ ‑ ‑

GLEESON CJ:   Just before you go further, leaving aside concurrency, overlapping and so forth, what was the total of the maximum penalties to which your client was exposed?  How many lifetimes in prison?

MR GAME:   It would be 100 years or something like that, your Honour.  It would be 20 years times five or six.  It would be at least 100 years.

GLEESON CJ:   So what the sentencing exercise was really about was concurrency.

MR GAME:   Yes, quite, that is exactly so, and that cannot be questioned.  Even totally cumulative sentences, if it were explained, might not lead to double punishment if you scale down the sentences and said while you were doing that – for a time you may recall in New South Wales when your Honour was the Chief Justice, you may recall under the Sentencing Act you had to impose wholly cumulative sentences.  So to avoid totality problems, judges would scale the cumulative sentences right down to quite short periods of time in some circumstances because they could not make them partially cumulative. 

That is not the issue here – well, it could be – but what has happened here is the judge has made the 90A offence totally cumulative on the sexual assault offences without elucidating any reason that would provide a justification, notwithstanding the double punishment problem, for that exercise having been done.  We would submit that were you to do so, you would have to say, “Well, my sentence would have been a lot longer but I have taken into account the dangers of double punishment and I have reduced it accordingly”.  But there is no such reasoning in this case and it does not even appear that the sentencing judge was alive to this problem. 

If you go to the Court of Criminal Appeal – and there are really two critical paragraphs in the Court of Criminal Appeal – paragraphs 28 to 29.  It is at page 39.  Paragraph 29, her Honour Justice Simpson has already accepted that there was commonality of elements, but then her Honour said in paragraph 29, first sentence:

But that does not mean that either of the sentences had to be reduced by reason of the common elements.  It does not mean that the applicant was punished twice for the commission of the elements –

Well, we submit that that cannot be so as a matter of logic unless you do the exercise that I have said, which is a conscious and exposed scaling down of the wholly cumulative sentence.  So we submit that there is a straight Pearce/Johnson kind of problem exposed by the sentencing judge’s sentence and what her Honour has said at paragraph 29.  Now, then we have a discussion about the English cases and so forth, and then that goes all the way through to paragraphs 42 and 43, which is the balance of the reasoning.

Now, what we say – and again these are cases that your Honours are well familiar with, Postiglione, Siganto, Johnson and the like – the whole point of – sorry, I will say that again.  In parity, there will be differences.  There will be commonality of offences and there will be differences and there will be subjective differences, and maybe a point comes in certain circumstances where you cannot satisfy parity or even relative parity, but the whole point of a case like Pearce is to identify specific sentences so you can look at both transparency and issues of parity.  Now, what has happened here in paragraphs 42 and 43 is her Honour has said, you will see at the bottom of the page:

Specific parity complaint was made in relation to the question of accumulation.

As your Honours would appreciate, the co‑accused got all concurrent sentences.  He got all concurrent sentences and then he got a 35 per cent discount for his assistance.  Her Honour says:

I do not see this as a relevant consideration.

Now, that really flies in the face of Postiglione, because Postiglione says you have to have regard to totality when you are looking at the question of parity.  So accumulation is really at the heart of it in consideration of parity. 

Now, my point about double punishment – of course, as I said, the co‑accused got totally cumulative sentences and they were reduced by 35 per cent and he ended up with a non‑parole period which was only a little more than a third than this – sorry, totally concurrent and only a little bit more than a third than this applicant.  So what I say is that this other question of double punishment feeds into the parity issue.  It feeds into the parity issue because the co‑accused is liable for all of the acts of this accused done during the course of the kidnapping. 

There are other matters that we raise, partly, I should say, out of a concern that there were issues that the Court was concerned about that required addressing, and we have addressed all of the issues that we see that

might be relevant to consideration of this application.  That in substance is the matter to be argued.

GLEESON CJ:   Thank you, Mr Game.  We do not need to hear you, Mr Lamprati.  We are obliged to Mr Game for his assistance in this matter.

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.

MR GAME:   If the Court please.

AT 11.22 AM THE MATTER WAS CONCLUDED