HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HEYDON AND CRENNAN JJJASON CHARLES BUCKLEY APPELLANT
AND
THE QUEEN RESPONDENT
Buckley v The Queen
[2006] HCA 7
8 March 2006
B86/2005ORDER
1. Appeal allowed.
2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 7 May 2004.
3. Remit the matter to the Court of Appeal of the Supreme Court of Queensland for further consideration in accordance with the reasons of this Court.
On appeal from the Supreme Court of Queensland
Representation:
P E Smith for the appellant (instructed by Terry Fisher & Company)
L J Clare for the respondent (instructed by Director of Public Prosecutions (Queensland))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Buckley v The Queen
Criminal Law – Sentencing – Indefinite sentence – Appellant pleaded guilty to serious violent and sexual offences – Whether the sentencing judge observed the correct principles in exercising the power to impose an indefinite sentence.
Criminal Law – Sentencing – Whether the sentencing judge made material errors of fact requiring reconsideration of the sentencing discretion.
Penalties and Sentencing Act 1992 (Q), Pt 10.
GLEESON CJ, GUMMOW, KIRBY, HEYDON AND CRENNAN JJ. The appellant, having entered pleas of guilty to serious charges arising out of three violent attacks on women, was sentenced in the District Court of Queensland. An indefinite sentence was imposed, pursuant to s 163 of the Penalties and Sentences Act 1992 (Q) ("the Act"). The principal issue in this appeal is whether, in imposing that sentence, the sentencing judge observed the principles to be applied in the exercise of the power conferred by such legislation. Those principles have been stated in a number of decisions, including decisions of this Court. A subsidiary issue is whether the sentencing judge made material errors of fact requiring reconsideration by the Court of Appeal of Queensland of the sentencing discretion.
Indefinite sentences
In R v Moffatt[1], Hayne JA pointed out that legislative provisions providing for the preventive detention of habitual or dangerous offenders have a long history in jurisdictions which derive their legal systems from England. That case was concerned with Victorian legislation enacted in 1991. Victoria had an Indeterminate Sentences Act in 1907, and similar provisions were contained in later Victorian legislation. Reference was made to legislation providing for indefinite or preventive detention in several other States and the Northern Territory. The corresponding Western Australian legislation was considered by this Court in Chester v The Queen[2] and McGarry v The Queen[3]. The history of similar New Zealand legislation was examined in R v Leitch[4]. In Fardon v Attorney-General (Qld)[5], this Court, in upholding the validity of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Q), discussed some of the issues involved in preventive detention. New South Wales legislation relating to sentencing of habitual criminals was considered in Strong v The Queen[6].
[1][1998] 2…
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- Buckley v The Queen [2006] HCA 7
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- [2006] HCA 7
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CaseChat Overview and Summary
The legal issues before the High Court were twofold. Firstly, whether the sentencing judge had properly exercised the power to impose an indefinite sentence under the *Penalties and Sentencing Act 1992* (Qld), Part 10, by observing the correct legal principles. Secondly, the Court was required to determine if the sentencing judge had made material errors of fact that tainted the exercise of discretion and warranted a fresh consideration of the sentence.
The High Court found that the sentencing judge had made errors in his appreciation of the facts relevant to the exercise of his sentencing discretion. Specifically, the judge had a misunderstanding regarding the sequence of events involving sexual acts with and the killing of animals, and he appeared to have wrongly believed the appellant had a practice of killing animals after abusing them. Furthermore, the judge's characterisation of the appellant's accounts to psychiatrists as boastful was considered harsh, and his attempt to blame alcohol for the appellant's conduct was also seen as significant. These factual misapprehensions, particularly concerning the exceptional nature of indefinite sentences and the protective effect of finite sentences, meant that the sentencing discretion had not been properly exercised.
Consequently, the High Court allowed the appeal, set aside the orders of the Court of Appeal of the Supreme Court of Queensland, and remitted the matter to that Court for further consideration in accordance with the High Court's reasons.
Orders
Orders of the court
1. Appeal allowed. 2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 7 May 2004. 3. Remit the matter to the Court of Appeal of the Supreme Court of Queensland for further consideration in accordance with the reasons of this Court.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: GLEESON CJ, GUMMOW, KIRBY, HEYDON AND CRENNAN JJ
In the result, one member of the Court of Appeal (Holmes J) considered the question of sentencing discretion afresh, and came to the same conclusion as the primary judge. The majority, however, found it unnecessary to undertake that exercise. Leave to appeal was refused.The need for appellate reconsideration of the exercise of discretion If Holmes J were correct in finding that the sentencing judge made material errors in his appreciation of the facts relevant to the exercise of his sentencing discretion, then leave to appeal should have been granted, and all three members of the Court of Appeal should have considered afresh the sentence to be imposed on the appellant. The position is reinforced if the Court of Appeal should have held that all of the issues relevant to a decision to impose an indefinite sentence were not considered by the sentencing judge. A problem in resolving the disagreement between Holmes J and the majority in the Court of Appeal is that, in relation to the first and third matters of fact to which Holmes J referred, it is difficult to know what finding, if any, the learned judge intended to make, and what significance it had for his ultimate conclusion. It is clear that his Honour was under a misapprehension about the sequence of events involved in the sexual acts with and killing of animals, and that he was concerned about what he understood to have been the appellant's practice of killing animals after abusing them. This concern had no foundation in the evidence of the psychiatrists, who did not share the judge's confusion about the sequence. Whether the judge's reference, in his reasons, to his inability to speculate meant that he was dismissing the matter from his final consideration is not completely clear. Nevertheless, as Holmes J said, the misunderstanding appeared to have influenced the exercise of sentencing discretion. Similarly, the issue about an attempt by the appellant to blame alcohol for his conduct was one that was raised by the judge himself, and appears also to have been regarded as significant. As to the second matter, concerning the appellant's supposed boastfulness, when regard is had to the circumstances in which the appellant was speaking to the psychiatrists, to characterise his account of his activities as boasting seems harsh. Holmes J was right to conclude that the sentencing judge's treatment of these factual issues required appellate reconsideration of the discretion[14]. There is, however, a more fundamental concern about the approach of the sentencing judge.[14]cf Strong v The Queen (2005) 79 ALJR 1171 at 1173-1174 [11], 1175-1176 [21]-[25], 1185 [72]; 216 ALR 219 at 222, 224-226, 238. In the authorities earlier mentioned, courts, including this Court, have stressed, and the legislation to be applied in the present case recognises, the exceptional nature of the power to impose an indefinite sentence. A proper exercise of the power involves an understanding of why it is exceptional, and careful attention to the considerations that call for its exercise. The nominal sentence required by s 163(2) of the Act is significant not merely for purposes related to the review provisions of Pt 10. It has an important role in the decision to be made under sub-ss (3) and (4) of s 163. In particular, in considering the risk of serious harm to members of the community if an indefinite sentence were not imposed, a sentencing judge is required to consider the protective effect of the finite sentence that would otherwise be imposed.