Buckley v The Queen

[2005] HCATrans 785

[2005] HCATrans 785

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B33 of 2004

B e t w e e n -

JASON CHARLES BUCKLEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 30 SEPTEMBER 2005, AT 11.40 AM

Copyright in the High Court of Australia

MR P.E. SMITH:   May it please the Court, I appear for the applicant.  (instructed by Terry Fisher & Co)

MRS L.J. CLARE:   May it please the Court, I appear for the respondent.  (instructed by Office of the Director of Public Prosecutions (Queensland))

GUMMOW J:   Yes, we will hear first from Mrs Clare.

MRS CLARE:   If the Court pleases.  This is a case where the applicant fell to be sentenced for extremely serious sado‑sexual offending against a background of a serious personality disorder with those aspects of sado‑sexual fantasies and bestiality.  It was a case where the learned sentencing judge ‑ ‑ ‑

KIRBY J:   He was sentenced to an extremely long primary sentence.  What was it?  It was 22 years?

MRS CLARE:   Twenty-two years and there is no complaint, as I understand it, against that sentence.

KIRBY J:   No, I know, but then you want to add indefinite detention to him.

MRS CLARE:   With respect, your Honour, there are two different things.  One is the proportionate sentencing for the punishment of the crime and the other is the issue of preventative detention under the legislative scheme in Part 10 of the Penalties and Sentences Act.  They raise separate issues, although obviously there is some crossover given the nature of the sorts of conduct which gives rise to considerations of an indefinite sentence.  But the consideration that the legislature imposed, or the test imposed, under Part 10 is whether or not the primary judge is satisfied that there is a serious risk of serious physical harm to members of the community from the offender.

KIRBY J:   The question is whether there is a reflection in the primary judge’s approach and in the approach of Chief Justice de Jersey and Justice Davies of what this Court said in Lowndes and McGarry or whether it is simply now just being approached as just another ordinary case in which an indefinite detention or preventive detention is added to a very long sentence.  I just do not see the reflection in the sentencing judge or in the majority judges in the Court of Appeal of what this Court has said and said again and said yet again.

MRS CLARE:   Yes.

GUMMOW J:   I think it comes to this, Mrs Clare.  We must not forget that the Court of Appeal considered the matter afresh, did it not?

MRS CLARE:   One judge did, that is Justice Holmes.

GUMMOW J:   I am looking at page 40.

KIRBY J:   I think Justice Holmes did, but the other judges said, “No, it is fine.  We just dismiss the application.”

MRS CLARE:   Yes, Justice Holmes found an error ‑ ‑ ‑

GUMMOW J:   That is right.

KIRBY J:   She was right.

MRS CLARE:   ‑ ‑ ‑ in relation to three aspects of the facts.  She thought that there was a risk that they had influenced the sentencing judge.  She then ‑ ‑ ‑

KIRBY J:   Do you dispute Justice Holmes’ finding of error?  I mean, there was no reference to age, no reference to antecedents and no specific reference to the effect on the community of releasing the applicant.  It seems to be pretty clear.  These are very serious things.  They are not to be dusted over lightly.

MRS CLARE:   I take your Honour’s point, but in respect to that I would say that his Honour’s sentencing remarks were very comprehensive, very detailed and he did in fact deal with each of those matters in turn through the course of his judgment, but he did not specifically label them.  As her Honour Justice Holmes said, he did not specifically label them by reference to the subsections in section 163 of the Act, but, nonetheless, he considered them.  Her Honour, even though she was in the minority on the other point, accepted that his Honour had in fact fairly considered those matters.  If, for example, his Honour – your Honour Justice Kirby has mentioned age.  His Honour did consider age.  He raised the fact that he was 27.  He went on to consider what he was ‑ ‑ ‑

KIRBY J:   But that was in the description of the background where the statute requires a number of criteria to be specifically taken into account at the time of determining whether an indefinite sentence should be imposed.  This Court has followed what Justice Hayne said in the Victorian Court of Appeal, if you are going to do this, you have to do it extremely carefully and in accordance strictly with the statute.  It is a very serious departure from normal principles.

MRS CLARE:   The Court has recently reaffirmed that in Stone, that this is an exceptional case that must be treated with care.  Nonetheless, in my submission, that is exactly what happened in this court.  It was a very careful sentencing process.  His Honour was assisted by extensive reports transferred from the Mental Health Court from four psychiatrists, perhaps five psychiatrists.  He was further aided by the examination or evidence being given in his court by three psychiatrists.  He had the opportunity to consider all of those matters and he concluded, at page 25 of the record from about line 49, at the bottom of page:

When one looks at the very offences themselves, the background of the accused, including his abnormal, deviant sexual behaviour over quite a period of time, most importantly the evidence of the psychiatrists, I come to the firm view that there would be very real risk of serious physical harm to members of the community if an indefinite sentence were not imposed, and the need to protect members of the community from the said risk would require an indefinite sentence.

His Honour then went on, after having detailed earlier summaries of the psychiatric evidence, after this point he went on and looked at the way in which the evidence transpired for prospects for future treatment.  Then at page 27, line 1 he says:

The ultimate conclusion I firmly come to is that within the very tests set down by the legislation, the Crown has met the test here.

Then he goes on to detail further what some of the standards within the legislation are.  There is, in my submission, no ambiguity in the way in which his Honour has dealt with the matter and particularly the way in which he summarised the offences themselves and the evidence of the psychiatrist.  There is no ambiguity at all in his sentencing remarks that he regarded this as an exceptional case, one falling within that very limited category of case that required, called out for protection of the community.

GUMMOW J:   The real question, it seems to me, is whether the Court of Appeal erred in not taking the view of Justice Holmes and in not considering that they had to look at the matter afresh because of the errors referred to by Justice Holmes.

MRS CLARE:   The Chief Justice in considering the position taken by her Honour Justice Holmes identified a basis for disagreeing with her on one of those areas identified as an error, that is, on page 33, paragraph [4], the second point raised by her Honour.

GUMMOW J:   Yes, but one looks at page 34 of the application book – I suppose 33 and 34 really.  Take paragraph [6] on page 34:

I am not satisfied that the first or third of those matters affected the Judge’s judgment to the point where any error should vitiate that judgment.

And so forth.  Now, the trouble is that this is a very special sort of procedure that the trial judge was embarked on here and it not only has to be done, but it very much has to be seen to be done.

MRS CLARE:   The Chief Justice in coming to the conclusion that he did looked at what his Honour said in the context in which he said it and, in particular, the way in which he said it is not permissible to speculate or to take these matters into account.  Indeed, in my submission, the way in which those matters were raised so cautiously by the primary judge suggests that he was really flagging matters for consideration at some stage later by those who may be treating this man or later considering his position in relation to detention, rather than using it as a basis for his decision‑making in relation to the sentence itself.  That, in my submission, is the context in which those remarks were made. 

When one considers how the male members of the court would have concluded the matter had they reconsidered it afresh, it seems there can only be one answer to that because his Honour the Chief Justice referred to this as a compelling case for the imposition of an indefinite sentence – that is at page 34 in the last paragraph, paragraph [7] – and his Honour Justice Davies agreed with the Chief Justice.

GUMMOW J:   Yes, thank you.  Mr Smith, could we just look at the draft notice of appeal, page 43?

MR SMITH:   Yes, your Honours.

GUMMOW J:   If we were to grant leave, it seems to me it may need some reformulation.

MR SMITH:   Certainly.  One area I was going to argue was that there was no reference to any principles expressed by the High Court in any of the authorities and that is not set forth.

KIRBY J:   I think what Justice Gummow is referring to is that the Court of Appeal erred, it is suggested, in failing to conclude that the errors that had occurred required the Court of Appeal to reconsider for itself in the exercise of its powers the ‑ ‑ ‑

MR SMITH:   I understand, your Honour.

KIRBY J:   ‑ ‑ ‑ question of whether a preventive indefinite sentence should be imposed.

MR SMITH:   Would your Honour permit me some time to draft an amendment to the draft notice and file that in the Registry?

GUMMOW J:   You do not have to do that now, so long as you are seized of the point.

MR SMITH:   Yes.

GUMMOW J:   There will be a grant of special leave in this matter with leave to reformulate the notice of appeal as indicated.  The case will be a half‑day case I think.

AT 11.53 AM THE MATTER WAS CONCLUDED