Buckley v The King

[2022] HCATrans 234

[2022] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M50 of 2022

B e t w e e n -

BEAU BUCKLEY

Applicant

and

THE KING

Respondent

Application for special leave to appeal

GAGELER J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 16 DECEMBER 2022, AT 2.30 PM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR S.C. HOLT, KC appears with MR P.J. SMALLWOOD and MS K.E. BROWN for the applicant.  (instructed by James Dowsley & Associates)

MR C.B. BOYCE, KC appears with MS J.B. WARREN for the respondent.  (instructed by Office of Public Prosecutions (Vic))

GAGELER J:   Mr Holt.

MR HOLT:   May it please the Court.  As the Court knows, Mr Buckley received three years of actual prison time under the statutory regime in issue.  He was 18 years and one month old when he committed the offence of aggravating carjacking.  He was described by the Court of Appeal as being, on uncontested expert evidence, “exceptionally immature” with mental health issues, undiagnosed learning issues, a history of self‑harm and drug abuse from a young age, and his girlfriend of three years had been diagnosed with cancer.  He was remanded during the height of the pandemic.

His imprisonment was described by the Court of Appeal as an injustice to him and a disservice to the community.  But, of course, the court did not need to imprison him if it found substantial and compelling circumstances that are exceptional and rare.  But the court in this case, in our respectful submission, wrongly described the statutory exception as being “almost impossible to satisfy” and Mr Buckley’s circumstances as being “all too common”.  That, in our submission, was to set the statutory bar far too high.  It was inconsistent with the Victorian Court of Appeal’s own earlier decision in the case of Fariah, which we have cited, but it appears consistent with a decision that postdated Fariah but did not cite it, the five‑member decision in Bowen.

At the outset can I say, of course, that this is a dispute about the construction of a bespoke Victorian statute and it has no application to any other State or Territory, but it warrants this Court’s attention because of the profound liberty implications that it has for many people in Victoria as a result of the very wide range of offences, which we have set out at paragraphs 13 and 14, to which it applies.

GAGELER J:   Is it really about construction or is it about application of what is, on any view, a highly evaluative criterion?

MR HOLT:   It is probably both – and I do not mean to avoid the question by saying that, your Honour, in the sense that these are – the words “exceptional” and “rare” are, of course, words in a statute which require construction and must be given meaning.  Given the significant work that they do here – that is, the significant consequences that flow from that – it is critically important, of course, to give them meaning.

The meaning that was given to them by – correctly, in our submission – the Victorian Court of Appeal in Fariah was, essentially, consistent with the way in which the phrase “exceptional circumstances” have been dealt with in many other statutory contexts – that is, to make it truly evaluative, on a case‑by‑case basis and recognising that a combination of circumstances that might not individually be unusual can, nonetheless, meet the statutory definition.

The difficulty here, in our submission – whether it is a question of a misunderstanding of the test or a construction question, I am not sure – but the key error, in our submission, is at paragraph 43 found at application book 44, where the court said:

By adding the words ‘that are exceptional and rare’, the Parliament intended to make the test ‘almost impossible to satisfy’.

Now, that is either a construction of the Statute or it is a description – an unduly limiting description of an evaluative analysis – and either problem is a problem, in our respectful submission, because of course the word “exceptional” and the word “rare” are in many ways synonyms – and they have also, as a synonym, the word “unusual” – this has been recognised previously also.

That simply does not correlate, in our respectful submission, to a conclusion that what Parliament intended was that the test would be “almost impossible to satisfy”.  That error, in our submission, then affected necessarily the way in which Mr Buckley’s case was assessed – but ultimately it affects the way in which the statutory regime is being implemented with its quite remarkable consequences.

GLEESON J:   Mr Holt, you are referring to a sentence at paragraph 44 of the reasons, but the real evaluative test is done in paragraph 43, is it not?

MR HOLT:   We would see 44 and 43 as effectively needing to be read together.  The:

On the contrary, they are all too common.

Is an assessment which, in our submission, can only be read together with the intention that the court has attributed to Parliament to make the test “almost impossible to satisfy”.

GLEESON J:   But if the principal matters are correctly described in the first sentence of paragraph 43, in what sense would that observation that they are “all too common” be false?

MR HOLT:   There are two responses to that.  Our respectful submission is the phrase “all too common” really provides more questions than it does answers.  “All too common” by comparison to what?  That is, by – as the second reading speech tends to indicate – all Victorians, or as the court seemed to have interpreted it; all people appearing before the County Court?  Or, as appears to be the case in Lombardo, the most recent decision which we provided to the Bench, by reference to circumstances that are encountered in respect of a particular offence or not?

But what none of it, in our submission, grapples with is what the court had earlier itself said in Fariah, which we have set out at paragraph 21 of our application, which is that:

the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare.

The use of the phrase “all too common” particularly when juxtaposed or immediately followed by a reference to Parliament’s intention being a test being “almost impossible to satisfy”, in our submission, places the statutory bar too high in that sense.

The way, perhaps, of testing that in the context of this case is to say that one had, as the court noted at paragraph 7, uncontested expert evidence, which the court identified as meaning that the applicant here was “exceptionally immature”, even for an 18‑year‑old and one‑month person he was “exceptionally immature”, and together with those other circumstances, in our submission, could not, if the tests were being properly applied even as an evaluative test, have resulted in the conclusion which the court came to, which was that it was not even open in the exercise of a proper discretion of the sentencing judge to have found the statutory test met, our submission, by virtue of just proper inferential reasoning, that is, to set the statutory test too high.

In particular, in our submission, when one takes into account “exceptionally immature” together with those other matters which I have already paraphrased and the Court does not need me to repeat, in our submission, it was at least open to say that these fell into a proper assessment, evaluative assessment, of that constituent phase, in circumstances where it seems to be the addition of the word “rare”, which is one that does not appear to find its way into statute particularly, whereas “exceptional” does, but “rare” really supererogates exceptional, it is difficult to see how it could have resulted in such a significantly higher bar than one would ordinarily expect for the phrase “exceptional circumstances”.

Part of the reason why we then go on to make the submissions that we do about the absence of a denominator and the difficulties with assessing as a matter of evidence when something is rare is because, by virtue of the way in which the statutory regime is now being applied in Victoria, the consequences of the bar being set so high have profound liberty consequences, and so the words must mean something.  To say they are evaluative is, of course, true.  At one sense, everything in the context of a sentencing process is evaluative and intuitive and follows that synthesising process, but the words must mean something, and here they appear to be extremely unusual ‑ ‑ ‑

GAGELER J:   Mr Holt, they appear within a collocation of words that refers to:

substantial and compelling circumstances that are exceptional and rare –

so, the statutory contemplation appears to be that there can be circumstances that are “substantial and compelling” and yet are not either exceptional or rare.

MR HOLT:   Yes.

GAGELER J:   It is a very high bar on any view.

MR HOLT:   There is no doubt of that, and ‑ ‑ ‑

GLEESON J:   Can I just add to that.  It is actually not a collocation of four concepts, it is a collocation of five, because it is:

substantial and compelling circumstances that are exceptional and rare and that justify –

a different order.

MR HOLT:   Yes.  In terms of dealing with your Honour Justice Gleeson’s comment first, the first part of that “substantial and compelling”, if one took out the “exceptional and rare”, it would be difficult to see how that would never then meet the last in the sense that it could only be “substantial and compelling” if it was directed to “substantial and compelling” in terms of leading to a result, which is that the three‑year sentence of imprisonment would not be imposed.

But absolutely, of course, one must get first to “substantial and compelling”, but in terms of the – and again this comes through in the cases from Victoria – there will very often be, particularly historically, particularly in relation to young offenders, substantial and compelling reasons not to put a person into prison for three years.  So, that is not in itself a narrow category.  In fact, one would imagine it is a pretty broad category, that is why this legislation is creating such profound and significant change, of course, because as the Court held here, as the court noted in Bowen and in other cases, there are many, many cases where particularly a young offender would not receive a three‑year term of actual imprisonment.

And so, though “rare and exceptional” in that case is limiting something which is not as, perhaps, small a category of cases as might initially appear to be so, our primary submission, as we say, is that the phrase “exceptional and rare” in that context is not one that by virtue of the addition of the word “rare” to the more well-known statutory word “exceptional” or phrase “exceptional circumstances”, changes its meaning beyond that which was identified by the Victorian Court of Appeal itself in Fariah, and if that is so, then the shorthand analysis – I do not mean that disrespectfully – of saying “all too common” fails, in our submission, to answer the actual question.

It does if your conclusion is that Parliament has simply intended that this be a test that is almost impossible to satisfy, or “near impossible” – Sorry, your Honours have just disappeared for a moment, but do your Honours still have me, can I just inquire?

GAGELER J:   I can see you, Mr Holt.

MR HOLT:   Thank you, your Honour.  Your Honours disappeared for a moment, but there did not seem to be any loss of connection.

In our respectful submission, as we say, when here the word “rare” appears to be that which is creating a different and more stringent approach simply by its addition.  There is no doubt that it adds emphasis, but it cannot change meaning unless the word itself has some different meaning, and in our respectful submission, it does not.

The “all too common” point, one only needs to ask, what would happen at a remote Indigenous community where a very significant proportion of people appearing before the courts, for example, had foetal alcohol syndrome.  Would that simply be seen as being “all too common”, or would it be seen as being “exceptional and rare”?  Because it would be by reference to the general Australian population, or even perhaps to the general population of that area, not those appearing before courts.

That is why a reference to sort of extreme rarity – if I can put it that way, rather than simply unusualness assessed in the more classical fashion – is one which is (a), wrong, and (b), has profound liberty consequences in the context of a test of this kind, which as our friends say and as we accept and as was accepted below – is no doubt a stringent one, but it is not one which is almost impossible to meet in our respectful submission.

And to treat it as that as a fait accompli – which is, almost one sense, is what occurs here – in our submission, is wrong.  But our submission simply is that this – that the way in which the court described it in Fariah is a correct statement of the position.  The court walked away from that without citing Fariah in Bowen and came into this “almost impossible to satisfy” test or approach – description of intention, I should say.  And that is continuing to manifest through the cases that follow, with significant liberty consequences.

GAGELER J:   Your opponent refers to a case of – I am sorry, I am looking at paragraph 4 of your opponent’s submissions in response, and I am not sure where it comes from, but there is a formulation there where it is said that the provision set “a very high hurdle that will not often be surmounted.”  This is page 108 of the book, at paragraph 4 of the response.  Is there anything wrong with that, describing it as “a very high hurdle that will not often be surmounted”?

MR HOLT:   The first part is, of course, just true – it is “a very high hurdle”, there is no doubt about that.  That it “will not often be surmounted”, in our respectful submission, is not an improper statement of anything but it is unhelpful – it tells you what one might expect if one looks back, statistically, over time as to what a series of outcomes might be, rather than what approach will be taken in an individual case and that is really the difficulty here.  When one frames a statutory test in terms of how often or not it might be met, in that sense – particularly, when it is set as high as this – then one moves the inquiry away from that which it should properly be, which is the kind of evaluative inquiry that Fariah identifies.

GLEESON J:   Is that not exactly what the word “rare” connotes?

MR HOLT:   The word “rare”, in our respectful submission – interestingly, almost all definitions of the word “rare” include, as a synonym, the word “exceptional” and, also, the word “unusual”.  So, of course, as we well know from ordinary usage, rarity is not something which can be pinned

down in the absence of context.  One has to know what the population is – the denominator is.  One also needs to know for what purpose one is describing something as “rare” or “not rare” because, of course, a particular kind of diamond might be rare if it appears one in ten or it might be rare if it appears one in a million.  It is a phrase that question‑begs and will be intensely context specific.

But that is why, if is to be given this kind of work to do, it must be given meaning in terms of what the word actually means – a little like the word “risk”, which is often just used and said in an evaluative sense, but it is the same kind of a concept.  It must be unpacked if it is to be given this kind of work to do.  To simply say it is “almost impossible to meet” because it has added to “exceptional”, in our submission is not sufficient given the liberty consequences that flow from this particular statutory regime.

I suspect I would repeat myself if I went any further – those are our submissions.  May it please the Court.

GAGELER J:   Thank you, Mr Holt.  Mr Boyce.

MR BOYCE:   Thank you, your Honour.

GAGELER J:   I would be assisted, Mr Boyce, if you focussed on this expression, “almost impossible to satisfy”.  What are we to make of that?

MR BOYCE:   Can I just say – I will answer your Honour’s question – but any doubt concerning the meaning of the words “substantial and compelling circumstances that are exceptional and rare” may have lingered post the decision in the court below, and in the instant case it is submitted – and I will come to answer your Honour’s question – been resolved by the Victorian Court of Appeal’s decision in DPP v Lombardo, cited at [2022] VSCA 204, and answered in such a way that shows that their Honours in the instant case did not commit any error.

To come directly to your Honour’s point, because this issue is dealt with by their Honours in Lombardo’s Case, the first error that we apprehend is suggested by our friend is to suggest that the court below applied a test other than that which is legislatively mandated, that is by using the words “almost impossible to satisfy” as a proxy for the words of the Act.  The court in Lombardo – if I could take your Honours to Lombardo, it is at paragraph 64 of the decision.  In answer, your Honour, the learned presiding judges’ question here will address the issue.  At 64 of Lombardo, their Honours say:

The Director emphasised authority in this Court to the effect that the “substantial and compelling circumstances which are exceptional and rare” formulation is “almost impossible to satisfy”.

But their Honours go on and say in Lombardo:

Observations of that kind, however, must not be treated as a substitute for the statutory language.  At best they describe the apparent operation of the provision, but without supplying a guide as to its meaning.  That is especially so, given that the subsection applies to multiple offences and the degree of difficulty in satisfying the exception may vary according to which offence is under consideration.

What we submit is that the crucial point which I think Justice Gleeson has hit upon is that if it was permissible for the court below in the instant case to apply the words “almost impossible to satisfy” as a, as it were, description of, as it were, ex post facto of the operation of the section, but otherwise, then, as a term that is to be read in substantively into the test, then it can be seen that in the present case that error was not committed by their Honours; that is to say, in the present case, because, importantly, paragraph 43, we see the test being applied absent those words, and 43 is where the provision is given substantive operation.

What appears at 44 is not the substantive operation of the test, because that has been applied in 43.  Again, it could be said that their Honours’ use of the terminology there at 44, or indeed, perhaps even earlier on at paragraph 3 of the decision in the court below – as describing the apparent operation of the provision, but not describing the test which needs to be applied by reference to its substantive operation.

So, the point that we make in respect of the words that your Honour drew my attention to is to say the use of those words was not causative of any error having regard, of course to Lombardo, in the instant case, because those words were not used substantively, they were used in accordance with the manner in which the court in Lombardo suggested they could be employed, if at all.

Secondly, in light of Lombardo, it would be our submission to say there is no risk of them being used erroneously into the future because the court, subsequently in Lombardo, has made abundantly clear the manner in which those particular words that the learned presiding judge has taken me to are to be or could be employed into the future.

So, for those reasons, it is submitted, with respect, that there is no reason to assume error or there is no reason to assume, even if it might be in any doubt about that, that the question is still a live one, because it has effectively been resolved in Lombardo.

Now, the second error that our friend has focused on is the use of the word “rare”.  He contends, as we understand it, that the court below narrowed the focus by concentration only on what is seen in criminal courts, and it is suggested, perhaps rather faintly that, to the extent to which a denominator against which rarities could be measured maybe may refer to matters that are statistical or anecdotal, that the provision is unworkable.

Again, it is submitted that this is all resolved clearly and concisely in Lombardo’s Case, in particular at paragraphs 64 to 74 of the decision.  To summarise, if I may, the court in Lombardo – and I ought do this, if I may, your Honours because it clarifies some matters that had been raised by my friend – the court in Lombardo teaches us that the process of applying the test is relevantly one involving two stages.

The first stage is one whereby the sentencer must ask whether there are “substantial and compelling circumstances” which, in the relevant context, means circumstances that are weighty and profound – we see at paragraph 64 of the decision in Lombardo.  The second step is to ask, if that first step has been satisfied, whether those circumstances are “exceptional and rare”.  That latter phrase must be examined as a composite phrase.  We find that at paragraph 67 of Lombardo and – to cut to the chase, if I may – the meaning to be given to the words “exceptional and rare” was to ask whether they were – and this we find at paragraph 70 of Lombardo:

circumstances of a kind ‘wholly outside “run of the mill” factors typical of the relevant kind of offending.

Or which is, to say much the same thing at paragraph 71:

circumstances that are wholly outside the ordinary factors typical of the relevant offence –

At 72 of Lombardo, this is an:

‘evaluative judgment’ once the underlying facts have been established, and unaffected by notions of burden of proof.

At 72 also, in citing Fariah with approval – the case to which my friend referred – importantly:

It is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly, or even wholly, ‘relatively common’.

In further refinement of how the test is to be applied, the court in Lombardo tells us at paragraph 87 that:

the subjective evaluation required in this context may well be informed by the sentencing judge’s experience and observation of the panoply of cases which come before the courts at first instance.

Again, to give further colour to how that was performed in Lombardo, because ultimately when you come to compare how it was done in Lombardo with how it was done in the present case, there is no material difference.  Their Honours in Lombardo said the offence of dangerous driving, which was the offence in that case, causing death, has “long been recognised” as being:

committed by young people of previously impeccable character, who are racked with remorse and grief for what they have done and have the best prospects for rehabilitation.

If one was to compare that analysis to paragraph 43 in the present case in terms of its form one would, in our submission, find no material difference.  So, the duty ‑ ‑ ‑ 

GAGELER J:   Mr Boyce, may I just ask a question about the precedential value of the two decisions.  I see that Lombardo is a decision of three judges given on an appeal.

MR BOYCE:   Yes.

GAGELER J:   We are concerned with it here with a decision of two judges given on an application for leave to appeal, which is refused.

MR BOYCE:   Yes.

GAGELER J:   Is there an understanding in Victoria as to the status of such a judgment?  Is it precedential?

MR BOYCE:   Is there a difference in precedential value as between the two?

GAGELER J:   Yes.

MR BOYCE:   To answer your Honour, I am not aware of any.  Your Honour, I would have thought though that the decision in Lombardo would carry a great deal of weight, given that their Honours have self‑consciously turned through the various matters to which – and analysed the section in rather greater detail that occurred in Buckley’s Case and indeed from paragraph 64 we see that.  But I am rather caught on the hop in terms of whether in and of itself that would carry greater precedential – I would have thought that it would, but I am sorry, your Honour, that is the best answer that I can give you.

But the point, in the end, is that the duty that the legislature has entrusted to sentencing judges is not to rely on anecdotes or statistics, as my friends would have it, the function that the legislature has assigned to judges is, in one sense, as old as the sentencing itself – that is to say, they are entrusted to rely upon judicial experience insofar as the panoply of cases that come before it to determine whether, in a particular case, the circumstances are substantial and compelling and if they are – if those circumstances are also exceptional and rare.

My friend has said that he would rely upon – or that he does rely upon – Fariah’s Case as, I think – certainly in his document – it was described as a case that would provide a workable and just outcome.  The relevant part of Fariah is extracted in the judgment of the court below in the present case, at paragraph 42, and we see – if we read through that extraction, or the part that is extracted – that, again, there is really no difference between what the court has done in Buckley and what the court considered was appropriate in Lombardo when one has regard to that passage.  If I could just take your Honours to that passage, it is at 42 of the decision in Buckley at application book, 44.  Their Honours say:

the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare.

Obviously, if I can just interpolate there, but they may:

Every case will necessarily depend on its particular facts.  Circumstances which individually are relatively common may in combination enliven the exception in s 5(2H)(e).

But the important point to recognise is, insofar as our friends made this argument concerning anecdotal statistics, the court in Fariah – which is described by our friend as presenting a test that is workable and just – the circumstances to which appeal is to be made, be they common, uncommon or either individually or in combination, are those encountered by sentencing judges in the County Court.

So, in other words, judicial experience in the criminal courts may be consulted, and this form of decision, in making such a decision, it cannot be

seen, in the end, that at paragraph 43, their Honours in Buckley, have done anything different to that in terms of principle.

So our submission, insofar as our friend relies upon the conception of exceptionality or rarity, is that there is clearly no error committed in the instant case and the clarification given in Lombardo’s Case reduces to virtually zero, would be our submission, the likelihood of any error going forward, certainly insofar as it might be said that the use of the phrase “almost impossible to satisfy” might be used substantially or otherwise.

So, in the end, our submission is not only no error below, and none has been demonstrated – assuming, of course, that our friend is not seeking a revisitation of the evaluative process itself but is speaking about matters of principle concerning the meaning of the test.  And, secondly, that because there is, we would submit, no tension between Buckley and Lombardo, and Lombardo has stated matters clearly, there is no reason why special leave should be granted to clarify these matters into the future.

Now, I note that my friend is – he has not dealt with a number of other matters orally which concern the purposes of the Act, namely, proportionality.  It is clear in Lombardo, for example at paragraph 20, that these provisions qualify the sentencing principles of proportionality and parsimony.  It cannot be said that this Court or the court below in this case has committed any error by failing to have regard to proportionality.

Similarly, in Lombardo, it is – well, I should say this.  Insofar as the grounds concerning rehabilitation are concerned, I think it is my friend’s ground 4, I am content to rely upon what we have written in response to that.  He certainly has not addressed it orally.

But, in the end, those are the answers that we would give to the contentions that have been made by our friend on this application.

GAGELER J:   Thank you.  Mr Holt, do you have anything in reply?

MR HOLT:   Yes, just two matters, may it please the Court.  The first is in terms of the words – the “near impossible” words and the way in which they were applied in this case.  Can I just draw the Court’s attention to paragraph 4 of the judgment in this matter below, which is at record book 34, where their Honours at paragraphs 3 and 4, and particularly at 4, say:

In deciding whether this near‑impossible test is satisfied –

Which is a clear indication that the court is identifying the test, that is, the statutory test necessarily as having the descriptor of “near impossible” which, of course, draws itself from the reference that we then find in paragraph 43.

Can I then deal with the reference to Lombardo which was a case which was handed down post the filing of submissions in this matter were provided to the Registry.  In our respectful submission, Lombardo makes things in many ways worse, not better, and the reason for that is twofold.  Firstly, when one looks at paragraphs 71 and 72 of Lombardo, it is difficult, respectfully, to see how those two sit together in the sense that in paragraph 71, that there is a reference to:

circumstances that are wholly outside the ordinary factors typical of the relevant offence –

being required.  And, yet in 72, there is the reference to Fariah that our learned friend just referred to indicating that:

constituent circumstances are mainly, or even wholly, ‘relatively common’ –

What sentencing courts are supposed to do beyond that, respectfully, is entirely unclear.  Equally, when one then goes to paragraphs 67 and 68, what one there sees is an attempt to elevate the threshold of the phrase “exceptional and rare” via the existence of two words which, as we have said, are essentially synonyms of each other.  They can be no more than a matter of emphasis.  Describing something as big and large does not make it very big or very large.  They are simply ways of emphasising the same thing.

More fundamentally, and this comes to the question your Honour Justice Gageler asked about precedent, as we have noted this is part of the real difficulty in this space at present, which is that there is, in our respectful submission, no precedential difference between the decision in this matter and the decision in Lombardo.  And the decision in this matter follows on in terms of the phraseology about which we complain from that phraseology being adopted by a Bench of five earlier in Bowen, in circumstances where the Bench of five in Bowen did not cite Fariah at all.  And so, the state of the authorities in Victoria is, in our respectful submission, wholly inadequate and only made worse by Lombardo, which creates more questions than it does answers.

May it please the Court.

GAGELER J:   Thank you, Mr Holt.  We will retire to consider the course we will take.

AT 3.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.11 PM:

GAGELER J:   On balance, we consider that the prospects of this Court being persuaded on appeal that the decision of the Court of Appeal in the present case was affected by error of principle to be insufficient to warrant the grant of special leave.  Special leave to appeal is refused.

The Court will now adjourn until 3.30 pm.

AT 3.12 PM THE MATTER WAS CONCLUDED