Buckley v The Queen

Case [2006] HCA 7

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HEYDON AND CRENNAN JJ

JASON CHARLES BUCKLEY  APPELLANT

AND

THE QUEEN  RESPONDENT

Buckley v The Queen
[2006] HCA 7
8 March 2006
B86/2005

ORDER

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.

  1. 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

  2. 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
Case
[2006] HCA 7
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by Buckley against the Queen, concerning the sentencing imposed by a judge of the Supreme Court of Queensland. Buckley had pleaded guilty to serious violent and sexual offences, including multiple counts of rape and burglary with violence. The central dispute revolved around whether the sentencing judge had correctly applied the principles governing the imposition of an indefinite sentence and whether material errors of fact had been made, necessitating a reconsideration of the sentencing discretion.

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

The appellant was arrested on 27 April 2000, and taken into custody, where he has remained. A DNA sample implicated him in the three attacks. A question arose as to his fitness to plead. On 1 March 2001, the Mental Health Tribunal found that the appellant was fit to plead. After some further delays for reasons that are not presently relevant, the appellant, in June 2003, entered pleas of guilty to the following charges: five counts of rape, each of which carried a maximum penalty of imprisonment for life; one count of burglary with violence, which also carried a maximum penalty of imprisonment for life; one count of indecent assault, which carried a maximum penalty of imprisonment for 10 years; and one count of inflicting grievous bodily harm, which carried a maximum penalty of imprisonment for 14 years. In September 2003, the appellant came for sentence before Judge Howell.The appellant's background The appellant was born at Cunnamulla in September 1971. He left school at the age of 13. He worked in various occupations in rural Queensland, including kangaroo shooting and professional boxing. At the time of his arrest he had been working for three years as a leading hand on an oil rig. Prior to his conviction for the offences the subject of this appeal, he had a relatively minor criminal history, involving a number of summary offences such as wilful damage, assault of police, and occasioning bodily harm. More significantly, there were offences involving voyeurism. In August 2000, Dr Moyle, a psychiatrist engaged by the appellant's solicitors, wrote a report that included information received from the appellant and the appellant's mother. The appellant complained of a background of victimisation and physical abuse at school. He received many head injuries from fights which were said to be "associated with rage". His mother attributed a change for the worse in his behaviour to injuries he received in a fight when he was 19. However, there was a history of violent outbursts before then. Such violence was sometimes associated with alcohol abuse.The psychiatric evidence At the time of Dr Moyle's first report, there were unresolved questions as to whether there would be a plea of insanity, whether the appellant was fit to plead, and whether, in the event of a guilty plea, there were considerations that could be urged in mitigation of penalty. The appellant was found fit to plead, and he entered pleas of guilty. The psychiatric evidence was ultimately regarded, not as a matter of mitigation, but as a reason for imposing an indefinite sentence. The appellant had been under police surveillance before his arrest. The record does not show why this was so, or why his sanity was questioned. However, much of what concerned the sentencing judge emerged, over time, in information given by the appellant to a number of psychiatrists. The reliability of that information was not in contest during the sentencing proceedings, and the judge took it at face value. In argument in this Court, we were not invited to do otherwise.

Evidence

Evidence Before The Court

In August 2000, Dr Moyle, a psychiatrist engaged by the appellant's solicitors, wrote a report that included information received from the appellant and the appellant's mother. The appellant complained of a background of victimisation and physical abuse at school. He received many head injuries from fights which were said to be "associated with rage". His mother attributed a change for the worse in his behaviour to injuries he received in a fight when he was 19. However, there was a history of violent outbursts before then. Such violence was sometimes associated with alcohol abuse.The psychiatric evidence At the time of Dr Moyle's first report, there were unresolved questions as to whether there would be a plea of insanity, whether the appellant was fit to plead, and whether, in the event of a guilty plea, there were considerations that could be urged in mitigation of penalty. The appellant was found fit to plead, and he entered pleas of guilty. The psychiatric evidence was ultimately regarded, not as a matter of mitigation, but as a reason for imposing an indefinite sentence. The appellant had been under police surveillance before his arrest. The record does not show why this was so, or why his sanity was questioned. However, much of what concerned the sentencing judge emerged, over time, in information given by the appellant to a number of psychiatrists. The reliability of that information was not in contest during the sentencing proceedings, and the judge took it at face value. In argument in this Court, we were not invited to do otherwise. In his August 2000 report, Dr Moyle, under the heading "Sex and Marriage", recorded conversations with the appellant about his sexual experiences. The appellant displayed "body language ... associated with quite intense feelings". The appellant recounted a long history of voyeuristic behaviour. Then he described "another paraphilia". This involved a sexual encounter with a dog during the appellant's childhood. Dr Moyle said:"He has experienced fantasies of sexual sadism. This never reached the extent where killing women was sexually exciting behaviour. However he can recall dreams involving violence to women as well as degradation. He proudly states that he has never mistreated any females nor has he demonstrated any violence towards females. He does acknowledge however a growing thought of torturing women in later years." This is a curious passage. The appellant's statement to Dr Moyle that he had never mistreated any females and never demonstrated any violence towards females was recorded by Dr Moyle after the three attacks on women which had resulted in his being in custody. Whether it was obvious to Dr Moyle at the time is not clear, but it is now obvious that, at least in that respect, what the appellant was telling Dr Moyle was false, if it was intended to include all of the appellant's past conduct. Perhaps, in the context, it was only intended to refer to his conduct before the present offences. It will be necessary to return to Dr Moyle's opinion, but it is convenient for the present to trace the development of the information given by the appellant to other psychiatrists.

Decision

Reasons for decision

GLEESON CJ, GUMMOW, KIRBY, HEYDON AND CRENNAN JJ

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.