Bugmy v The Queen

[2013] HCATrans 167

[2013] HCATrans 167

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S99 of 2013

B e t w e e n -

WILLIAM DAVID BUGMY

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 AUGUST 2013, AT 10.15 AM

Copyright in the High Court of Australia

MS D. YEHIA, SC:   May it please the Court, I appear with my learned friend, MS G.A. BASHIR, on behalf of the appellant.  (instructed by Aboriginal Legal Service (NSW/ACT) Ltd)

MR L.A. BABB, SC:   I appear with MR K.H. ALDER, your Honours.  (instructed by Director of Public Prosecutions (NSW))

FRENCH CJ:   Yes, Ms Yehia.

MS YEHIA:   I understand, your Honours, that the outline of oral argument is being distributed.  Perhaps if I could just give your Honours a brief moment to have a look at that outline.

FRENCH CJ:   Thank you.  Yes.

MS YEHIA:   Your Honours, the sole pleaded error of principle in the court below was manifest inadequacy.  The grounds of appeal - and if I can take your Honours to the appeal book at page 163 ‑ ‑ ‑

HAYNE J:   Sorry, what page?

MS YEHIA:   Page 163.

HAYNE J:   Thank you.

MS YEHIA:   The original notice of appeal filed on 29 February 2012 pleaded a single ground of manifest inadequacy.  The additional grounds, which are to be found at appeal book page 165, were filed on 12 July 2012.  Those additional grounds are complaints as to weighting and not, in our submission, errors of principle.  In order to identify the error in relation to the Court of Criminal Appeal’s application of section 5D could I take your Honours to the appeal book at page 196 commencing at paragraph 53 where it was said that in relation to what we say is the sole ground pleading error of principle that it was not necessary to deal with this ground.  The court did not deal with issues of manifest inadequacy explicitly or, as I will go on to address your Honours, implicitly.

At paragraph 54, the court then referred to section 5D - this is at 196 of the appeal book - and, however, failed to consider the scope and limiting purposes of Crown appeals.  The court then proceeded at paragraph 55 to conclude that, as a result of errors found:

in his Honour’s approach to the objective seriousness of the offence and the respondent’s subjective case, that a more severe sentence should have been imposed on the respondent –

There was no consideration at that point, or at any point, indeed, of the discretion.  The Court of Criminal Appeal therefore erred, in our submission, in the application of section 5D, intervening without consideration of the sole pleaded error of principle, the scope and limiting purpose of section 5D or the discretion. 

The situation here, your Honours, is similar to that that presented in Carroll - if I could take your Honours to Carroll v The Queen (2009) 83 ALJR 579 and particularly at paragraph [9]. Your Honours, in that case the Director had relied on three reasons to assert manifest inadequacy, the second reason being that too much weight had been given to the subjective circumstances and that his Honour had failed to appreciate the objective circumstances, or the objective seriousness.

In our submission, grounds 1 to 3 relied upon below are essentially the same as what was relied upon in Carroll as the second reason being too much weight to subjective circumstances, not enough to objective circumstances.  At paragraph [9] the court pointed out that:

none of the three matters identified by the Director was, or was advanced as being, an error of principle or fact such as would have enlivened any of the forms of error identified in House v The King other than the last category. 

In the present appeal the respondent’s grounds 1 to 3 are complaints as to weighting errors and, in truth, particulars of ground 4.       If I could move to the second point in the outline of oral argument and that is our submission that consideration of manifest inadequacy was not implicit and if it was implicit, erroneous, with respect to that submission the reasons are set out in the appellant’s submissions at paragraph 6.8.  If I could briefly take your Honours to those reasons.

Firstly there is no reasoning to support the conclusion of manifest inadequacy.  Although the court is not obliged to employ a particular formula, in our submission considerations and reasoning must be made plain.  That was not done here.  The matters complained of in grounds 1 to 3 did not amount, in our submission, either individually or cumulatively to a conclusion that the judge had imposed a sentence that was unreasonable or plainly unjust as to shock the public conscience.

The respondent had not established that an increase in the sentence was warranted to establish an inconsistency in sentencing or consistency in the application of principle.  The respondent had not established that the sentence imposed on count 3 was outside an appropriate range in all the circumstances of the offence and the offender and the Court of Criminal Appeal had excluded from its consideration those matters in relation to which it said error had flowed, namely, the weight to be given to the appellant’s subjective circumstances. 

There was also a failure to take into account the time spent by the appellant in segregation and there was a failure to take, in our submission, into account the matters referred to in our submissions at 6.22 which were the matters relevant to the subjective case of the appellant.

HAYNE J:   But are those matters that would be relevant if the Court of Criminal Appeal properly got to the point of resentencing or are they matters that come in at stage 1?

MS YEHIA:   In our submission, they are matters that come in at stage 1.  They come in at the point of considering whether the sentence, in the circumstances of the case – that is, the objective seriousness and the subjective matters, was unreasonable or plainly unjust.  They also come in in terms of the exercise of the discretion.  They are not matters that, in our submission, are relevant only to resentence.

HAYNE J:   I wonder whether you ever get to the point, if you make good the first point you start with which is the court expressly says we need not consider manifest inadequacy.  If that point is good, does not the whole house then collapse?

MS YEHIA:   If that point is good, yes, your Honour, yes.

HAYNE J:   Yes.

FRENCH CJ:   That being because the appellant has nailed its colours to the mast of manifest inadequacy as the only identified error of principle.

MS YEHIA:   Yes. 

FRENCH CJ:   Or implying they are a principle under that.

MS YEHIA:   Yes, and that is the position that we say the respondent took in the court below, that the only error of principle relied upon was the fourth category of House error.

FRENCH CJ:   The respondent says, well, that is implicit in the findings I have made on the first three grounds, but one wonders, if it is implicit, why they say they need – expressly need not consider ground 4.

MS YEHIA:   That, with respect, is part of the reasons that we point to in answer to the respondent’s submissions that the finding was implicit.

HAYNE J:   Because the three particular matters raised as additional grounds, if made out, might lead to a conclusion that a different sentence, firstly, could have been passed.  I suspect your opponent will go so far as to say those matters lead to a conclusion that a different sentence should have been passed but I think – and this is really a matter for your opponent rather than for you – that may be a radically different proposition from manifest inadequacy which is bespeaking error of principle.

MS YEHIA:   Yes.  With respect, it is not a situation where it could be said that it was unreasonable or plainly unjust and that is the essence of what has come to be referred to as manifest inadequacy.

BELL J:   Turning to the first of the weighting errors which related to the consideration of the objective seriousness of the offence, the Court of Criminal Appeal considered that the sentencing judge had misapprehended the submission that was put to him.  Is that accepted?

MS YEHIA:   No.  Well, it is not accepted in this sense, your Honour.  There were submissions made, oral submissions made before his Honour that were – if I could put it in this way – more nuanced than what had been in the written submissions.  His Honour had referred to a submission being made – if I could just take your Honours to that paragraph.

BELL J:   If you are looking for the paragraph in the Court of Criminal Appeal, it is at 188 of the appeal book, paragraph 31. 

MS YEHIA:   Yes, it is so that his Honour had said that the submission that had been put on behalf of the appellant was that it was below mid‑range.

BELL J:   Was that something in the written submission because I must say it seemed to me reading the oral submissions, Mr Lawrence made submissions dividing up objective seriousness in an elaborate way and making submissions respecting where in the scale the objective seriousness lay in three categories.

MS YEHIA:   Yes, your Honour, I think that is at appeal book 26.

FRENCH CJ:   Page 26 and following, I think.

MS YEHIA:   So that during the course of oral argument the submission that had been made in relation to the injury – the result of the injury was that it was – this is at point 30:

somewhere between mid-range and somewhere above mid-range –

He then went on to make submissions in relation to the mens rea which is at page 27 of the appeal book.  He also addressed the conduct of the appellant.  The three matters addressed were the injury, the conduct and the mens rea. 

FRENCH CJ:   I think the mens rea submission specifically is at page 29, it talks about “a mens rea that is well below the mid-range”.

MS YEHIA:   Yes, and then the balance appears at about point 26 on page 29.  So that the submissions addressed the injury, the conduct and the mens rea and then at page 29 the balancing of those three issues.  In the remarks on sentence by his Honour – by the primary judge at page 151 of the appeal book, paragraph 29, the primary judge refers to the submissions in relation to seriousness.  That was after an analysis by the primary judge in relation to the facts and also the aggravating factors, all of which the primary judge had accepted.  He then referred to the submissions and then at paragraph 30 on page 151 of the appeal book, said:

In all of the circumstances I am of the opinion that the matter falls within the range of being slightly less serious tha[n] the nominal mid range of objective seriousness of these types of matters that comes before this Court.

So, in our submission, although he had referred to the submissions that had been made, those submissions were nuanced in the sense of addressing the various matters that were relevant to objective seriousness but his Honour came to an assessment of that, having regard to all the matters he had analysed and the aggravating factors that he had taken into account.

HAYNE J:   When your say it is nuanced, I understand the importance and the content of that, but beneath all of this we are ending up analysing particular words used to make a descriptive statement of some conclusion about the quality of conduct or quality of results of conduct which are comparative and really there has got to be some limit, I would have thought, to the extent to which the particular choice of words is somehow critical.  It is becoming ritual incantation then, rather than assessment of human conduct and effects on humans.

MS YEHIA:   And your Honour, in relation to that, if I can take your Honours to Muldrock (2011) 244 CLR 120 – I am sorry, I am a bit slow with the citation – and particularly to page 132 of that judgment at paragraph 28 and this, with respect, is to pick up on Justice Haynes’ comments that:

Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.

In the following paragraph it is not understood – at the middle of that paragraph:

suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending.

It is, in our submission, what the primary judge did here was by a process of instinctive synthesis, take into account all the matters relating to the objective seriousness of the offence, including the aggravating factors and form his own assessment of that aspect of the case.  If I could just move on then to ‑ ‑ ‑

KIEFEL J:   Do you say that the conclusion reached by his Honour is consistent with his Honour having taken into account the factor which is required by statute to take into account, namely that the victim was a correctional services officer?

MS YEHIA:   Yes, your Honour.  Your Honour he certainly took it into account in relation to accepting it as an aggravating factor pursuant to section 21A(2).  He also took it into account in relation to a consideration of issues of general deterrence and how that may be moderated.

KIEFEL J:   When you say took it into account, his Honour states that the fact that the victim was a correctional services officer is an aggravating factor, but whether or not it truly weighed at all in the approach of his Honour really requires you to look at the conclusion reached and whether or not we are really talking about objective seriousness at a particular level.  If it is a factor that must necessarily carry some substantial weight, and could I just finish, if that is the case, are we just talking about a weighting question or are we actually talking about something implied by statute that must be taken into account to carry a particular weight or is it a purely discretionary matter.

MS YEHIA:   In our submission, in this case, it certainly was a matter that his Honour referred to and accepted as an aggravating factor.  In relation to the assessment that he makes, in our submission that remains a discretionary matter.

FRENCH CJ:   I think he treats it as a circumstance in relation to general deterrence – paragraph 59 at page 158.

MS YEHIA:   Yes.  He refers to the position of the victim, as a corrective services officer, at two points.  One, in acknowledging ‑ ‑ ‑

FRENCH CJ:  The general issue of assaulting prison officers, though.

MS YEHIA:   Yes.  So he accepts it as an aggravating factor and then deals with it again when the primary judge is dealing with the issue of general deterrence.  So he has applied his mind to that aspect on two occasions – for different reasons – but on two occasions during the course of his judgment.  That, in our submission, points to the fact that the primary judge had considered fully that aspect of the objective seriousness and had taken it into account appropriately.  Of course, the starting point of the sentence that was imposed by the primary judge of eight years, reduced by the discount for the utilitarian value of the plea, may also be a matter that points to the seriousness with which his Honour viewed the offence, taking into account the position of the victim.

Can I move then to point 3 on the outline of oral argument?  That is in relation to whether the Court of Criminal Appeal considered the limiting scope and the discretion.  In our submission, the court failed to do so and it could not be said that it was implicit that they did so, but if this Court finds that there was an implicit consideration of limiting scope, then, in our submission, it was erroneous for the reasons set out at our submissions, paragraph 6.13.

Perhaps, if I could move on then to point 4?  Given that ground 4, the last category House was argued on the basis that grounds 1, 2 and 3 demonstrate individually and in conjunction that the total sentence was manifestly inadequate and this Court has all the material that was before the Court of Criminal Appeal.  In our submission, this Court would dismiss the Crown appeal for the following reasons.  One, that the grounds 1 to 3, even if established, do not lead to a conclusion that the sentence was unreasonable or plainly unjust; that the material before the Court of Criminal Appeal did not support this conclusion; and (c), that the limiting scope and purpose of Crown appeals the extent of any inadequacy and other discretionary factors warranted the dismissal of the appeal.

BELL J:   Can I just take up with you on the limiting scope and residual discretion?  It is not in issue that, as I understand it, that there remains a residual discretion notwithstanding the introduction of section 68A.  But the introduction of that section does have consequences for some of the statements made in earlier cases respecting the reason for the residual discretion and the extent of its scope.  So much is accepted?

MS YEHIA:   It is accepted that in consideration of the exercise of residual discretion, court cannot have regard to matters of double jeopardy, but that the discretionary matters are not to be seen in narrow confines, that the doing away with double jeopardy under 68A still leaves a wide range of considerations that would be relevant to the exercise of discretion. 

BELL J:   The matter I am taking up with you is statements such as in Malvaso v The Queen (1989) 168 CLR 227 in the joint reasons of Justices Deane and McHugh at 234, their Honours spoke of Crown appeals as departing from what is proper in the administration of criminal justice because in a practical sense they are contrary to what they described as:

deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy –

Now, ideas of that sort are prominent in the cases relating to the extent of restraint in the exercise of Crown appeals and do seem to have been affected, at least in some degree, by the enactment of section 68A.

MS YEHIA:   Your Honour, our submission is that while affected to some degree but not to such a degree that there are still quite significant considerations to be taken into account in relation to the residual discretion.  Indeed, perhaps if I could take your Honours to Green v The Queen (2011) 244 CLR 462, and specifically if I could take your Honours firstly to paragraph 36.

FRENCH CJ:   Page?

MS YEHIA:   Page 477.  So that:

A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”.  That is a limiting purpose.  It does not extend to the general correction of errors made by sentencing judges.  It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.

So, that limiting purpose is still – have a part to play in relation to the exercise of the discretion.  But also, if I can take your Honours to paragraph 43 at page 479 and particularly to the last sentence that appears on page 479:

The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.

So, in our submission, fairness considerations remain important considerations in relation to the exercise of the residual discretion.

HAYNE J:   Accepting that to be so, and I would have thought it is very hard to dispute the accuracy of what you say, how does that play out in a manifest inadequacy case?  If the Court of Criminal Appeal forms the view that the sentence passed on the particular offender is manifestly inadequate, how does that conclusion relate, whether by reference to this case or generally, to the exercise of discretion?

MS YEHIA:   Those issues in relation to fairness would still operate in - in terms of the exercise of discretion if considerations of the extent, perhaps, of the inadequacy was taken into account it may ‑ ‑ ‑

HAYNE J:   Well, that might counsel against courts of appeal tinkering.

MS YEHIA:   Yes, yes, that is one way, I think, that even in a case where assuming that the finding was made in relation to manifest inadequacy.

CRENNAN J:   There are some examples in footnote (101) which relates to paragraph 36 to which you took us which may assist in answering Justice Hayne’s question.

MS YEHIA:   Yes, your Honour, and, indeed it might be a situation in a case such as Justice Hayne has raised where, by statement that this sentence was manifestly inadequate, the principle is itself corrected without intervention.

HAYNE J:   Yes.

MS YEHIA:   Just in response to Justice Crennan at paragraph 43 in Green:

Other circumstances may combine to produce injustice if a Crown appeal is allowed.  They include delay . . . the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re‑sentencing on progress towards the respondent’s rehabilitation.

So factors such as that still go to residual discretion.

KIEFEL J:   If, as you contend, the Court of Criminal Appeal did not address the question which you say was the sole ground of the appeal whether there was manifest inadequacy in the sentence, ought not the matter to be remitted?

MS YEHIA:   Your Honour, in our submission it ought not for this reason.  This Court has before it all the material that was relied upon below and, in our submission, the grounds 1 to 3 that were relied upon as particulars, either individually or in conjunction to assert manifest inadequacy, do not point to manifest inadequacy in our submission even if accepted that there were weighting errors, which again is not conceded.  So that, in our submission, this Court could deal with the matter rather than remitting it by allowing the appeal and dismissing the Crown appeal to the Court of Criminal Appeal and we would urge that result.

There is a further matter and that is the first matter that I will go to in relation to errors on the part of the Court of Criminal Appeal.  The first error asserted, on behalf of the appellant, was in relation to the error of application of principle in relation to what was referred to as the Fernando considerations.  We would be urging this Court to consider what we say is error in relation to that constraint of the application of the Fernando principles because ‑ ‑ ‑

FRENCH CJ:   This is the asserted diminishing significance of subjective factors over time.

MS YEHIA:   Yes.  In our submission, that error of principle has significant potential consequences, particularly taking into account the overrepresentation of indigenous people in custody and we urge this Court to correct that error of principle and, indeed, we urge this Court to adopt an approach in relation to the sentencing of – principles in relation to the sentencing of indigenous offenders in line with the Canadian cases of Ipeelee and Gladue.  Perhaps if I could go to that ‑ ‑ ‑

KIEFEL J:   Just before you do, what do you say about the sentencing judge’s approach in this regard?

MS YEHIA:   Your Honour, the sentencing judge accepted the relevance of the background factors that were referred to as the Fernando/Kennedy factors and relied upon the totality of the evidence in relation to the appellant’s mental condition, or mental health issues, and social issues to give some moderation to general deterrence.  So the primary judge had taken it into account and had acknowledged the relevance of it in the circumstances of the case.

FRENCH CJ:   Now, if it were remitted to the Court of Criminal Appeal, you would seek – I know this is not your primary position but let us assume it as a fall‑back position – if it were remitted to the Court of Criminal Appeal, on your argument it would be remitted on the basis that they had to consider whether there was manifest inadequacy.  They had to consider the residual discretion and they had to get it right in respect of Fernando.   

MS YEHIA:   And in relation to the application of the principle in relation to mental illness which, we also assert, was error on the part of the Court of Criminal Appeal and, indeed, in relation to considerations of the scope and the limiting purpose of Crown appeals.

FRENCH CJ:   Well, that is the residual discretion exercise, is it not ‑ ‑ ‑

MS YEHIA:   Yes, and deterrence also and I can go on to those errors, but certainly our primary position is that if the Court upheld the appeal that the Court would not remit to the Court of Criminal Appeal.

BELL J:   Before you go to the Canadian cases, it seemed to me, Ms Yehia, that however the respondent put the matter in terms of the Fernando principles before the Court of Criminal Appeal, in this Court the respondent does not take issue with the proposition that the social isolation or difficulties that may be present in sentencing an Aboriginal offender do not lose any value, as it were, merely because the person stands for sentence after many, many previous convictions. 

The point that the respondent makes, which I think you need to address in this part of your argument, is ultimately the Court of Criminal Appeal accepted that the Fernando ‑ that it had not been an error for the trial judge to take account of the Fernando principles.  Things can be expressed happily or less happily but it must be right, must it not, that at a point other considerations may make the significance of the condition of deprivation an item which in the exercise of the instinctive synthesis forms less weight than, for example, the protection of the community.

MS YEHIA:   Your Honour, in our submission, the Court of Criminal Appeal went further than simply using the form of expression, I think is what it was referred to in the respondent’s submissions, that led to a misunderstanding about what that court was saying in relation to the Fernando principles.  In our submission, the Court of Criminal Appeal erred in the application of the Fernando principles because it did constrain the extent to which those considerations should be taken into account. 

If I could take your Honours in relation to that aspect, appeal book 196 – I apologise, it is appeal book 194 at paragraphs 49 and 50, there are four separate references to limitations on the Fernando considerations.  The first is a reference to the fact that these considerations lose much of their force where the offender has committed similar serious offences in the past.  The second, which appears at paragraph 50 on page 194:

the extent to which social deprivation in a person’s youth and background can be taken into account, must diminish.

So it is the second reference limiting this principle.

BELL J:   The matter I am raising with you is the respondent takes no issue with the principle that you assert is correct which is that consideration of the social and other disadvantages in an appropriate case continues to inform the sentencing exercise notwithstanding that the person stands for sentence with a long criminal record.  The approach that the Court of Criminal Appeal took at paragraph 52 on page 196 was to say that it had not been an error to take into account the:

“Fernando considerations” and reducing the weight to be given to general deterrence –

but that, in the circumstances of this case, any reduction was modest.  That seems to me to be a proposition you need to grapple with.

MS YEHIA:   Your Honour, in the circumstances of this case and the factors that pertain to the appellant’s background which are listed in our submissions ‑ ‑ ‑

BELL J:   Accepting all the disadvantage and difficulties to which he had been subject, in the context of this offence committed in prison against a corrective services officer, there were other sentencing considerations that necessarily had to inform the exercise.  How do the Fernando principles for which you contend play in in this context - protection of the correctional staff giving weight to the aggravating circumstance that the assault was an intentional assault of violence on a correctional officer.

MS YEHIA:   Your Honour, as I have said, those matters are certainly matters that the primary judge took into account including the circumstance of aggravation but, your Honour, in limiting what must be taken into account in any sentencing exercise on the other side of the ledger, particularly in relation to an offender who stands before the court with the extent of social deprivation that this appellant had, fails to give full weight to those subjective matters and those matters that point to social deprivation of the type that might well inform the court or shed light on the offending behaviour, the moral culpability of the offender, the type of sentence that should be imposed or the length and structure of the sentence.

So, for instance, by what we say the Court of Criminal Appeal did in constraining the application of the Fernando principles, the error in that approach is that it fails to give full weight to the matters personal to an indigenous offender in the position of this appellant, that ‑ ‑ ‑

FRENCH CJ:   Or any offender in the position of this appellant, is it not?  There are other sources of social deprivation, other occasions of social deprivation.

MS YEHIA:   We certainly say that in any case of social deprivation, whether the offender is indigenous or non‑indigenous, those factors must be given full weight and they have a part to play in informing the court in relation to those matters that I have indicated - moral culpability ‑ ‑ ‑

KIEFEL J:   But are they given full weight on each occasion in which someone is sentenced throughout their history of their offences, including a history of offences which culminate in a serious crime, because I think even the Canadian Supreme Court has recognised that once you get to serious and violent crimes you are more likely, as a practical matter, that the terms of imprisonment will be the same and that these factors will not intrude.  I am referring to Gladue [1999] 1 SCR 688 at 739.

The Court of Criminal Appeal may not have expressed it sufficiently when referring only to the passage of time, but if you add to that the escalating seriousness and violence of offences there must surely be less room for personal circumstances to play a part than say earlier in the history of any offender where there are circumstances to mould to try to prevent imprisonment and mould rehabilitative procedures.  That must as a practical consequence be the case, must it not?

MS YEHIA:   Your Honour, firstly, in our submission, it is the case that in every sentencing exercise, even after a passage of time or the accumulation of a record, those factors of social deprivation and those background factors should be taken into account and given their full weight because they always have a part to play in informing the sentencing court in relation to the fit and proper sentence.  It may be that after a period of offending for offences of a particular type that that would inform the court in relation to whether the sanction should be a custodial/non‑custodial or the length of that sanction.

But, in our submission, it is not the situation that simply because there has been an offending, or a pattern of offending, even for violent and serious offences, that those matters that are personal to an offender and that go to the social deprivation of that offender lose weight.  Your Honour referred to Gladue and after Gladue and before Ipeelee it was the situation that there did not appear that the statement of principle from Gladue really operated to make any change or any significant difference in relation to the sentencing of indigenous offenders to terms of imprisonment.  Ipeelee dealt precisely with this point and if I can take your Honour to it - it is at page 484, paragraph [84]. 

KIEFEL J:   Does the court in Ipeelee say what that passage was meant to mean?

MS YEHIA:   If your Honour then goes to paragraph [87], the court goes on to say that failure to apply Gladue in any case involving an Aboriginal offender runs afoul of the statutory obligation, even in cases where there has been serious offending or violent offending.

KIEFEL J:   That is because it is a statutory duty under the Canadian legislation.

MS YEHIA:   I will come to, your Honour, what we say is the broad equivalence between the statutory provision – the Canadian statutory provision – and our own statutory framework in New South Wales.  Just before I do that, at the bottom of paragraph [84], the court in Ipeelee said that it was an error to interpret the Gladue principles as not applying to serious offences.  Also, your Honours, if I could take your Honours to paragraph [86] in Ipeelee, about the middle of that paragraph: 

Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to “the relative ease with which a sentencing judge could deem any number of offences to be ‘serious’” . . . 

Who are courts sentencing if not the offender standing in front of them?  If the offender is Aboriginal, then courts must consider all of the circumstances of that offender, including the unique circumstances described in Gladue.

As I say, the court held that it would be error not to apply those principles in cases where an offender has a record, in effect.

HAYNE J:   Now, is the proposition for which you ultimately contend any more complex than expressed in paragraph [86] in that sentence you directed us to:

Who are courts sentencing if not the offender standing in front of them?  If the offender is Aboriginal, then courts must consider all of the circumstances of that offender –

You could pause there and say whoever the offender is, all of the circumstances relevant to that offender must be taken to account.  Is your basic proposition more complex than that?

MS YEHIA:   Our basic proposition is probably contained at point 7 of our outline of oral argument and that is that in order to ensure equality before the law and proportionate sentencing, the unique or systemic background factors which may have played a part in bringing a particular indigenous offender before the court and the material facts pertaining to the individual must be taken into account by a sentencing court without diminishment, including in cases of recidivist offenders.

CRENNAN J:   Are you saying automatic consequences follow or are you, in truth, saying what was said in Gladue as pointed out by Justice Hayne that deprivation is a circumstance or a factor to be balanced in relation to all other relevant factors for a particular individual being sentenced? 

MS YEHIA:   That is what we say but we say that that exercise cannot be properly undertaken without giving full weight to the circumstances of the offender alongside other relevant factors.

FRENCH CJ:   Could you delete the words “unique” or “systemic” and still be saying the same in your proposition at point 7?

MS YEHIA:   Your Honour, certainly we say that for the purposes of this appeal and in terms of whether in relation to this Court upholding this appeal, the argument or the principle that we urge upon this Court in relation to taking into account unique, systemic or background factors is – it does not depend upon this Court adopting that approach.  In answer to your Honour’s question ‑ ‑ ‑

KIEFEL J:   I am sorry, but if, as you say, the background circumstances including deprivation and the like are necessary to be taken into account in the sentencing of any offender, what is it in addition, do you say, apart from Mr Bugmy’s background that you say ought to be taken into account as a factor?

MS YEHIA:   We say that the context evidence that is provided by virtue of a consideration of the unique systemic factors ‑ ‑ ‑

KIEFEL J:   No, but if we just put those words to one side, are we talking about anything more than his personal circumstances and his background?

MS YEHIA:   We are not talking about anything more, we are talking about those factors seen in their proper context.

KIEFEL J:   That is the context of his life, is it not?

MS YEHIA:   It is the context of his life informed by the history of his ethnic group.

HAYNE J:   Is that any more than – I do not mean to downplay it but it is saying, is it not, that those personal circumstances of deprivation are very broad and very deep and it is important to recognise both their breadth and their depth.  Now, the following proposition sounds to dismiss it.  It is not intended to but is it more than that proposition, drawing to attention that the particular circumstances of deprivation in an individual case of which Mr Bugmy is an exemplar, may be very broad and very deep circumstances of deprivation.

MS YEHIA:   That is certainly the principle that we contend for but - I do not think there is a “but” really – it is the depth of those personal circumstances and personal circumstances of deprivation and disadvantage.  For a sentencing court, a local court or a district court to properly appreciate and understand the depth and the extent of the those factors of disadvantage and how they may inform the sentencing exercise in a range of ways they must be seen, or they should be seen in their proper context, and that context, in the case of an indigenous offender, must involve a consideration of historical factors and background factors.  It is a principle that we urge that is not ‑ ‑ ‑

HAYNE J:   Social deprivation does not occur individually in isolation.

MS YEHIA:   Yes, with respect, and it cannot be assessed in a vacuum.

BELL J:   Coming back to the Crown’s concession that social deprivation will always be relevant no matter what the criminal record of the person standing for sentence, you seek some statement of general principle applicable to all Aboriginal offenders, or at least all of whom it can be said they come from circumstances of social deprivation, and that may be a very large proportion. 

But since sentencing does involve the exercise of an individualised discretion, and since there are competing considerations, a circumstance which you say should be given full weight, and you say it should be given full weight in the context of mitigating, is but one of a number of competing considerations and sometimes the extent and depth of the damage done to an individual because of the deprivation may cause other factors to become predominant in the exercise of the individual discretion, so that the protection of the community may become the prime factor to give weight to.

The matter I am raising with you is the utility of the general principle for which you contend once you accept the approach that the Crown acknowledges is the correct approach.

MS YEHIA:   The utility, your Honour, is in this.  We accept of course that there a number of considerations that must be balanced in any sentencing exercise.  The utility in the principle for which we contend is that it allows a sentencing court to take into account those factors, to stop and take into account those factors and give them their full weight in that balancing exercise.  So, for instance, it may be a situation where in a given sentencing exercise because of a record of offending issues of denunciation, general and specific deterrence have a part to play.

In those circumstances, in our submission, the principle for which we contend in relation to taking into account fully the background factors is that it provides a check, first of all, in relation to the imposition of gaol terms and the length of gaol terms and, in the context of indigenous offenders and the overrepresentation of indigenous offenders, that is an important aspect. 

It also provides or informs the sentencing court as to matters that may be reflected in that offender’s criminal history that is not simply about a tallying or taking note of the sheer numbers of the entries on the offender’s criminal record and thereby automatically leading to a situation where a more severe penalty is imposed.

The factors that are personal to an offender and the factors of deprivation and social disadvantage are matters that continue to inform the court, in our submission even where there is a record, even where there are other considerations that have to be taken into account in terms of the appropriate sanction or appropriate penalty and it is only by taking that background into account fully that a fit and proper sentence is imposed.  It is about the principle of equal justice so that by taking into account those matters of deprivation that are unique to an indigenous offender aspects of - or the principles of equal justice are ensured.

In the case of an offender who has a long criminal record or has other entries of violence in the criminal record, the factors that are personal to that offender, in our submission, should still carry their full weight alongside other considerations such as general deterrence and denunciation.

I do not know if I have answered your Honour Justice Bell’s inquiry to your Honour’s satisfaction but I think that certainly it is accepted that there are a number - in any given sentencing exercise there are a number of relevant considerations that must be balanced by the sentencing judge.  Our submission is that even where an offender has a criminal record, even where that criminal record has entries for violence, it is important that the court takes into account fully that offender’s subjective circumstances so as to inform the court about the level of moral culpability, the sentencing and the length of sentence, if a sentence of imprisonment is to be imposed.

KIEFEL J:   Now, you have mentioned moral culpability.  Are you saying that in each case where an Aboriginal person offender has been shown to have a deprived and probably quite violent background domestically and is brought up in that sort of environment, as Mr Bugmy has, that there should be in every case mitigation of the sentence on that count?

MS YEHIA:   Your Honour, we do not say that.  We do not say that any automatic results flow.  We do not argue for, if I could put it crudely, a race discount.

KIEFEL J:   So you are saying that it is contextual but what you are seeking from this Court is some kind of reminder to sentencing courts that these factors are important to understand in relation to the consideration of individual circumstances.

MS YEHIA:   Yes.

KIEFEL J:   That is as far as you need to go on your submissions in relation to the decision of the Court of Criminal Appeal, because you say these factors were denied; that they were not taken into account at all, really.

MS YEIHA:   We say that is one aspect of our argument, but I think we do go further.  Your Honour, we do go further.

FRENCH CJ:   I am sorry, Justice Bell has put this to you already, but do you disagree with, or are you on common ground with the respondent in respect of what they say at 6.26 to 6.28 of their submissions?

MS YEHIA:   We agree with that, your Honour.

FRENCH CJ:   Are they saying anything less than what you would say in relation to Fernando?

MS YEHIA:   I do not understand the respondent to be saying anything less.  I do not understand the respondent to be taking issue with the general principles in Ipeelee or Gladue.

BELL J:   Save, perhaps, for this.  I think in the Canadian cases the view has been taken that there is a legislative mandate in the exercise of the sentencing principle that calls for restraint respecting imprisonment – to give particular effect to that to Aboriginal Canadians.  The court has interpreted that mandate against the notorious circumstance of the high rates of imprisonment of Aboriginal Canadians which, I might observe, may be less than the high rates of imprisonment of Aboriginal Australians.  But in the absence of a legislative mandate of that character, how in the exercise of the individualised sentencing discretion does the court reflect a view, as some of your submissions seem to suggest it should, that the high rate of imprisonment of Aboriginal offenders should be reflected?

MS YEHIA:   Your Honour, this goes back to a point that was raised by Justice Kiefel and I will address it now.  We say that there is a broad equivalence between the statutory provision – the Canadian statutory provision and our own statutory framework and the common law.  Perhaps if I could take – I think your Honours have been provided with the Canadian statutory framework or their relevant provisions.

HAYNE J:   We find it at page 466, paragraph [56] of the decision in Ipeelee.

MS YEHIA:   Yes, your Honour.

HAYNE J:  

“all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders -

and the critical words are -

with particular attention to the circumstances of aboriginal offenders”.

MS YEHIA:   Yes.  Firstly, we say, that those particular words in that provision 718.2(e) must be read in the context of the other provisions in relation to sentencing.  So that under the Canadian Criminal Code at 718 that provision is comparable to the Crimes (Sentencing Procedure) Act (NSW) 3A.

KIEFEL J:   I am sorry, which section is that?

MS YEHIA: Section 3A, your Honour – the purposes of sentencing in the Crimes (Sentencing Procedure) Act (NSW). Your Honour, section 718 also appears in the decision of Gladue at page 699.

BELL J: Section 3A of the Sentencing Procedure Act is an unremarkable statement of the conventionally understood and sometimes conflicting purposes of sentencing. It is absent the provision that really is the springboard in Gladue for taking a different approach in relation to Aboriginal Canadians for that reason.

MS YEHIA:   Your Honour, my intent in taking your Honours to 3A and 718 is to lay the background to the ultimate submission which is, firstly, that there are comparable provisions in relation to the sentencing framework in Canada and in relation to the New South Wales framework.  In relation to those particular words in the Canadian provision that deal with paying particular attention to circumstances of Aboriginal offenders that is reflected, in our submission, in the common law so that in cases such as Neal and Fernando. 

So our first submission is that the provision in the Canadian Code that directs particular attention must be seen in the context of the overall statutory framework that exists in Canada and we say there are comparable provisions in New South Wales by reason of section 3A, the statutory provisions in the Crime (Sentencing Procedure) Act that deal with a term of imprisonment being a sanction of last resort.  Then we rely upon the common law principles as enunciated in Neal and Fernando to make the final link in terms of our argument about broad equivalence and in support of which we say that the Gladue and Ipeelee principles can be drawn in.

KIEFEL J:   But Neal 149 CLR 305 at 326, Justice Brennan confirms that the “same sentencing principles are to be applied” to everyone, but makes the point that “all material facts” which exist:

only by reason of the offender’s membership of an ethnic or other group –

is to be taken into account.  What do you say that that means?

MS YEHIA:   We say, your Honour, that that must mean the taking into account of the particular factors that exist by virtue of an indigenous offender’s membership of that ethnic group.  That is why we rely upon the common law as expressed there to submit that, notwithstanding the absence of a statutory provision in the same words as that that exists in the Canadian Code in terms of paying particular attention, the common law certainly does do a similar job here or it is broadly equivalent to the provisions relied upon in Ipeelee and Gladue.

KIEFEL J:   But is Neal saying anything more than an offender’s membership of an ethnic or other group is contextual and explains the person and their history and circumstances because his Honour goes on to say the “weight” to be given to any factors is as it always is.  It is contextual, is it not?

MS YEHIA:   It is and that is precisely what we say, your Honour, in relation to the unique, systemic and background factors; that they are contextual, that in order to understand material facts that may exist by reason of the offender’s membership of an ethnic group that that contextual material must necessarily be taken into account. 

HAYNE J:   Well assume it must.  That invites the next question, “Yes, but how?”

MS YEHIA:   I will go to that now.

HAYNE J:   At some point in your argument if you would grapple with what the Supreme Court of Canada said in paragraph [83] of Ipeelee, now either deal with that later or whenever is convenient to you.  I do not want to set you off on a wild goose chase.

MS YEHIA:   Paragraph [83] of Ipeelee ‑ ‑ ‑

HAYNE J:   Paragraph [83] of Ipeelee, in particular which I take to be saying no individual offender can establish a causal link between social deprivation and criminal offending because causation is far too complex and difficult an area, but what is important is - and this is what I take from the last few lines of page 483 over to the head of page 484, what is relevant is that these are matters which may bear upon particular sentencing elements, I assume, particularly moral culpability and also notions of either general or specific deterrence, but is your proposition more than that?

MS YEHIA:   Your Honours, if I can take you to, in answer to that question, the outline of oral argument at paragraph 9 and perhaps this answers your Honour’s question in broad terms and then what I might do is take your Honours to some practical examples in the way that that would play out in the instant case. 

So that we say that the adoption of what, perhaps, we could refer to as the systemic factors, irrelevant in that they lead to a fuller appreciation of the impact of those factors on an offender’s life, that they operate as a check before a sentence of imprisonment, that they may assist in informing the type, length and structure of the sentence, that they mean that individual factors are not assessed in a vacuum but they are assessed in their relevant historical and contextual framework, they can shed light on the reasons for the offending behaviour and may assist in the assessment of moral culpability, or they may be relevant to considerations of deterrence and other purposes of punishment.  They are the ways in which we say the systemic approach is relevant and may inform the sentencing exercise and perhaps it might be useful to go to some ‑ ‑ ‑

FRENCH CJ:   Now, we are operating, are we not, in a framework in which a sentence of imprisonment is inevitable, so then the range of options are limited?

MS YEHIA:   Certainly.

FRENCH CJ:   What is it – length and ‑ ‑ ‑

MS YEHIA:   Yes.  In this case – in the appellant’s case, for instance, the history – his criminal history is such that one could certainly argue that he had been institutionalised – if not institutionalised close to being institutionalised.  The factors relevant to him in relation to social disadvantage informed by the context – the systemic factors – may go to inform the sentencing court, in his case where a sentence of imprisonment had to be imposed and a lengthy sentence of imprisonment – may inform the court in relation to length and in relation to structure and in relation to any recommendations that could be made as to the period on parole.

So that how the systemic factors add anything to those considerations more than the individual circumstances, perhaps if I could answer that question that might be troubling some of your Honours in this practical way.  If I could take your Honours to our submissions at 6.22?  So at paragraph 6.22 of our submissions, your Honours will see that we have listed the particular factors relevant to the appellant’s background. 

One example of the importance of the proposition that we are putting forward is this.  If your Honours go to 6.22(a) and (d), that is, a history of separation from his family and being housed in institutions from age 12, including separations with foster care, boys homes and juvenile justice facilities and then (d), multiple periods in his youth that were spent in custody.  Those circumstances seen in isolation are important and they are considerations that would be taken into account by any sentencing court, but, in our submission, they take quite a different significance or light when one views them in the context of the systemic factors. 

If your Honours go to footnote 21 which relates to 6.22(a) and the systemic factors that are contained in the Bringing Them Home report that may inform the sentencing court in relation to the significance of this indigenous offender being removed from his home and his community at the age of 12.  So it puts that circumstance in a context that might lead to a situation where the sentencing court properly understands and appreciates the history of that particular offender as opposed to the court proceeding upon the basis, as the Court of Criminal Appeal did here, where the sheer number of offences leads to a situation whereby a more severe penalty is warranted.

FRENCH CJ:   Well, now, does it say more than this, that on your proposition his offending record is not to be considered in a vacuum but in a context of social deprivation which is not unique to him but common amongst a certain subset of indigenous communities and that, having regard to that context, the moral culpability of what he has done is somehow to be measured?

MS YEHIA:   Perhaps not with the example I have just given, but certainly there may be other examples of his history and seen in the context of ‑ ‑ ‑

FRENCH CJ:   I am just looking to see how you are using the context.

MS YEHIA:   Yes.  One aspect might be shedding light on the moral culpability.

FRENCH CJ:   Having regard – in other words, some explanation of the history.

MS YEHIA:   Yes.

FRENCH CJ:   It is not just about this particular offence.  This is about the significance of his history, is it not?

MS YEHIA:   Yes, it is and perhaps a more relevant example to that particular aspect of shedding light on the offence, or the moral culpability, may be at paragraph 6.22 (c), for instance, so that the appellant:

had a history of drug and alcohol abuse from age 12, with thereafter longstanding abuse of alcohol -

seen in the context or seen in the light of the contextual material at footnote 23 from the report of the Little Children Are Sacred where your Honours will see there:

“The use of alcohol in particular as a way of coping with past traumas of colonization and dispossession is a point made by virtually all commentators”.

So that his personal circumstance of a history of substance and alcohol abuse is a factor that may be taken into account but informed by those systemic factors his personal history of disadvantage in this particular example that I have raised, substance abuse, may be seen in a different light that could then impact upon the structure of the sentence.  It could impact upon the length of it.  It could impact upon the need for the appellant who is institutionalised to, notwithstanding the fact that he has to serve a prison sentence, be let out on parole on a certain recommendation.

FRENCH CJ:   So far as the judge’s powers under the Sentencing Procedure Act are concerned, is there anything else that he has power to do, accepting that a term of imprisonment is inevitable, than impose a term of imprisonment and determine parole?

MS YEHIA:   Determine the length and then the structure, yes.  No, that is right.

FRENCH CJ:   That is it.  Structure does not add anything to it.

MS YEHIA:   Only in relation to then a period of supervised parole where he might be able to avail himself of structured supervision and rehabilitation, only in that regard.

FRENCH CJ:   That would be a matter for the executive authority.

MS YEHIA:   Yes.

CRENNAN J:   You are not contending that systematic factors lead to some sort of automatic reduction. 

MS YEHIA:   No.

CRENNAN J:   You are just saying that matters of the offender’s history or race should not be overlooked because they may illuminate the differences in the individual circumstances of an offender.

MS YEHIA:   Yes, with respect, yes.

CRENNAN J:   So it gets back to it being a factor to be balanced in relation to other relevant factors.

MS YEHIA:   That is our submission and thereby ensuring equality before the law for indigenous offenders.

CRENNAN J:   Well, that gets back to your proposition that factors of race and history should not be overlooked because if they are overlooked there is a built‑in assumption that there may be no relevant difference, having regard to those matters.

MS YEHIA:   That is our submission, your Honour, and indeed ‑ ‑ ‑

CRENNAN J:   That was the point that Justice Brennan made in Neal’s Case.

MS YEHIA:   Yes.

CRENNAN J:   I think the difficulty with the argument is that is that it sometimes seems to approach a proposition that the systematic factors should lead to an automatic approach but you have disavowed that.

MS YEHIA:   Yes.  We certainly - in our written submissions and we certainly do not contend that systemic factors that pertain to indigenous offenders lead to an automatic reduction in an otherwise appropriate sentence but simply that they illuminate the unique factors and they assist or inform the sentencing court as to those matters of moral culpability, the structure of a sentence ‑ ‑ ‑

CRENNAN J:   And general deterrence – other factors, I dare say, protection of the community which was a factor mentioned by Justice Bell.

MS YEHIA:   Just in relation to that point of protection of the community, certainly one way to ensure protection of the community is punishment in terms of imprisonment but in taking into account the unique background factors and the factors relevant to an offender such as the present appellant, the object or purpose of protection of the community might be seen in a broader sense and that is that effective protection of the community may well be served by a consideration of the length of a term of imprisonment and the structure of it so that it is to ensure rehabilitation and in that way the protection of the community may best be served.  So all of those factors are relevant and are illuminated by particular regard to the systemic factors.

BELL J:   In the context of sentencing, one tends to speak of protection of the community as distinct from rehabilitation as involving notions of incapacitation and accepting that rehabilitation is a factor to take into account, I am not sure that changing the language of what is conventionally understood by protection of the community really advances the argument.  It depends on the circumstances of the individual case. 

The matter I was raising with you earlier was to take up the point that is made in the respondent’s submissions that one may continue to give weight to the social deprivation but other factors may, in an individual case, tend to rather predominate which seems to me the difficulty with some of your submissions which seem to invite a principle that applies giving what you describe as full weight to social deprivation in every exercise and I think that is another way of just raising the matter that Justice Crennan has been raising with you.

MS YEHIA:   Perhaps in saying full weight we are not to be misunderstood as saying that other factors in a particular case may not be given prominence but what we are saying is that in the absence of giving full weight to those circumstances that are personal to the offender informed by the context, then even the countervailing considerations may not – or that they inform the countervailing considerations such as deterrence, for instance. 

FRENCH CJ:   Now, does that cover everything in points 1 to 9 of your outline?

MS YEHIA:   Just before I move on, in relation to this aspect of taking into account and the way in which those circumstances personal to the offender are taken into account, it is our submission that the Court of Criminal Appeal did not do, did not approach this particular issue in the way in which the respondent has set out in their submissions, so that there is a point of contention in relation to the construction that should be placed upon the approach taken by the Court of Criminal Appeal.  I just thought that perhaps I should clarify that because we do not concede that, in essence, what the Court of Criminal Appeal was doing was taking full weight of all the relevant considerations and counterbalancing. 

If we can then move to point 10 in the outline which relates to the Court of Criminal Appeal error in holding that mental health issues such as those outlined in De La Rosa did not apply and that error appears at appeal book 191 to 194, paragraphs 43 to 47.  So the court below found error in the primary judge’s approach to mental illness in that he allowed some moderation to the weight to be given to general deterrence by virtue of the mental health issues.

In our submission, the Court of Criminal Appeal erred in holding that the considerations of mental health were erroneously taken into account, as they had nothing to do with any aspect of the offending, and that the evidence that was before the primary judge in relation to the mental health issues pertaining to the appellant in combination with the social issues, that is the history of deprivation, were properly taken into account in giving some moderation to the weight to be given to general deterrence.

KIEFEL J:   How did the sentencing judge apply – I know that his Honour details the submissions and some of the evidence about the mental health issue, but how does his Honour say that he took it into account and to what extent?  Is it at paragraph 47?

MS YEHIA:   It is at paragraph 47, your Honour.

KIEFEL J:  

I am certainly prepared to allow some moderation to the weight to be given to general deterrence because of those issues.

What does that mean?

MS YEHIA:   That having taken into consideration the principles as set out in Engert and Muldrock, in my submission his Honour was referring to the combination of those mental health issues and the offender’s background issues in recognition of the principle that a person who has the types of mental health issues that were in evidence here may not be a suitable vehicle for general deterrence and, indeed, may be a person upon whom the conditions of custody may be more onerous.

It was not an automatic reduction that the primary judge gave to the psycho‑social issues and the weight to be given to general deterrence because at paragraph 47 your Honour will see that the primary judge in fact rejected a submission that was put on behalf of the appellant that:

“significant moderation to the weight to be given to general deterrence –

should be allowed and instead allowed some moderation, taking into account those factors.

BELL J:   An inference might be drawn from the next paragraph of acceptance of the submission that the evidence about mental health lessened the moral culpability of the appellant.

MS YEHIA:   Yes.  Indeed, in relation to this aspect of taking into account the mental health issues, it was accepted both before the primary judge and indeed before the Court of Criminal Appeal by the respondent that the evidence was available from which a finding could be made of mental illness and before the primary judge there was a concession made by the prosecutor that that could be taken into account for the purpose of the weight to be given to general deterrence.

KIEFEL J:   This did not make him a suitable candidate for imposing much weight on that issue.

MS YEHIA:   That is right, yes.

BELL J:   That concession you say is relevant to a failure to look to the residual discretion.

MS YEHIA:   Yes, your Honour.  If I could move to point 11 of the outline of oral argument, and this relates to the ground asserting error on the part of the Court of Criminal Appeal in taking into account a purpose of sentencing, that is, deterrence in assessing the objective seriousness of the offence, in that regard perhaps if I could take your Honours to the appeal book at 190, paragraphs 38 to 39?  This was in the context of the court below considering the objective seriousness of the offence and referring to the cases of Schneidas and Davis and then at paragraph 38 saying that:

In his sentencing remarks, his Honour at no time made reference to the element of personal deterrence.  In this case, that was an important matter which required consideration.  Similarly, his Honour does not appear to have adequately appreciated the importance of general deterrence in the particular circumstances of this offence.

Accordingly, despite the essentially discretionary nature of an assessment of the objective seriousness of an offence, I am satisfied that his Honour erred in his assessment –

In our submission, it was an error on the part of the Court of Criminal Appeal to rely upon a purpose of sentencing, that is, deterrence in holding that the primary judge had erred in his assessment of the objective seriousness.  We submit that the general deterrence was properly taken into account by the primary judge and some moderation given to this purpose of sentencing on account of the totality of the psycho‑social evidence.

The protection of the community is furthered by effective deterrence ‑ and it was going back to the point in discussion with Justice Bell in relation to the other purposes of sentencing or objectives of sentencing – and that considerations of effective deterrence in the context of a marginalised indigenous offender suffering from mental health issues are complex and not necessarily answered by a lengthy term of imprisonment.  It was, in our submission, appropriate for the primary judge to take into account those matters in giving some moderation to general deterrence in this case.

Paragraph 15 of the oral argument, we deal with the errors apparently now relied upon by the respondent to have been found by the Court of Criminal Appeal, and we rely on our written submissions with respect to this aspect of the appeal.  There are raised in the respondent’s submissions errors that were not pleaded, were not raised in the court below and were not found to be errors by the Court of Criminal Appeal.

Your Honours, in conclusion, what we submit is that the sentencing judge had taken into account the objective seriousness of the offence, including all of the factors of aggravation, that he had taken into account the personal circumstances of the appellant and in determining the fit and proper sentence to be imposed.  That starting point was a sentence of eight years, reduced by virtue of the discount given for the plea of guilty. 

In our submission, for the reasons relied upon, this Court would uphold the appeal and dismiss the appeal to the Crown appeal to the Court of Criminal Appeal.  We urge upon this Court to adopt a statement of principle in relation to the sentencing of indigenous offenders that addresses the issues that we set out in our written submissions.  We ask the Court to take into account that a statement of principle in relation to sentencing of indigenous offenders is a matter of profound importance in view of the overrepresentation of indigenous offenders – not just male indigenous offenders but indigenous children who make up over 50 per cent of children detained in juvenile detention centres and women who make up about 30 per cent of female prisoners.  Unless there is anything at this stage.

FRENCH CJ:   Thank you.  Yes, Mr Babb.

MR BABB:   Your Honours, as has been noted, the respondent accepts the specific proposition for the appellant that all relevant factors must be taken into account and given full weight.  Your Honours have already raised with the appellant some of the statutory differences that exist with Canada.  Can I just refer your Honours to one other?  Clearly, there is the difference in section 718.2(e) and that was important in the decision of Gladue.  If I could take your Honours to that decision in paragraph 64 – that is page 722.  About halfway down in that paragraph, you can see how the Canadian courts have interpreted that section:

It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem –

that is, the social problem of over‑incarceration.

The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible –

So really that is a specific statutory that has been interpreted in a specific way in Canada.  The case of Ipeelee is even more distinct because it is a case decided in the context of the long‑term supervision orders provisions in Canada.  Under those provisions, habitual repeat offenders may be designated as long‑term, serious offenders and for the offence for which they are sentenced, as long as they are sentenced to a period over two years, they can then be put on this long‑term supervision order for a period of 10 years.  A breach of that order can see you back in custody as a result of the breach, and then also facing a criminal offence that carries 10 years imprisonment.

In the case of Mr Ipeelee, one of his conditions was abstinence from alcohol.  He was found to have been drinking and was then given a sentence of imprisonment of three years.  There the long‑term, serious offender orders provisions have a different statutory provision in relation to the purpose of those orders, and that was important in the court’s decision.

So at paragraph [48] of the decision, your Honours, and that is at the bottom of page 462 of the judgment, the court there talks about the specific provision that relates to long‑term, serious offender orders and says that:

The latter objective may properly be described as the ultimate purpose of –

the long‑term serious offender order, that is, rehabilitating the offender and that is reinforced at paragraph [50] where the court says:

rehabilitation is the key feature of the long‑term offender –

order provision so again it is - and your Honours are aware that in New South Wales section 3A sets out the purposes of sentencing and there is no hierarchy, there is no key provision in relation to the purposes of sentencing in the New South Wales provision, so Ipeelee is a very different statutory context there which must be taken into account.

That does not detract, your Honours, from the general principles that are cited therein and with which the respondent agrees.  However, in looking at the submissions for the appellant, the concept - one of the features pointed to is that the court should always be taking into account background and systemic features and the appellant in the written submissions says, well that would include overrepresentation in the criminal justice system and that is a very difficult concept to maintain at the same time as saying that there is no race‑based discount and no separate system that applies, it is submitted. 

The systemic features that can be taken into account - should be taken into account in the way that is set out in Neal and in the way that is set out by Justice Wood in Fernando (1992) 76 A Crim R 58 at 62 and 63.

HAYNE J:   But the frequency of occurrence of the demonstrated results of deprivation surely emphasises the importance of the deprivation, does it not?  When you observe the overrepresentation of the indigenous community in prison, are you not simply observing the frequency of occurrence of the consequences of the deprivation?

MR BABB:   Yes, your Honour.  What I am really trying to get at is the care that needs to be taken to distinguish between taking into account factors that are relevant to the particular offence, the particular offender by way of background and throwing light on that as opposed to setting up some sort of discount that is to be applied in every case and it has been disavowed in this case and I am just making that point there, your Honour.  I agree.  It is a relevant consideration to take into account in terms of background. 

It is significant that those background – that there not be a race‑based discount.  In many cases, the victims of crime, Aboriginal women and children, and care must be taken that there is no impression given that serious offences against them or, in this case, against prison officers who are charged with maintaining the correction system with such offenders are in some ways treated as less of a significant occurrence than other offences. 

Your Honours, Justice Hoeben’s comments that the extent to which deprivation in a person’s background can be taken into account must diminish with the passage of time and continuing offending did not mean, in the respondent’s submission, that a mandatory diminishment was to take place, the comment was made in the context of holding that it was correct to take the Fernando considerations into account.

Your Honour Justice Kiefel asked at the beginning of submissions what was the attitude towards the sentencing judge’s approach towards Fernando and my learned friend said that was the correct approach and, in our submission, the Court of Criminal Appeal did not find error with the approach of the sentencing judge.  On two occasions they said that the sentencing judge was not in error in the way that he approached the process.  That is at appeal book 195 top of the page.  That is in paragraph 50:

it was not an error on his Honour’s part to have regard to them.

Over the page, in the final paragraph, paragraph 52 it is submitted the court was doing - was not representing the formulation of a new principle but was merely referring to the principles from Veen (No 2) stating that factors such as prior record may illuminate the moral culpability of the offender and that considerations of retribution, deterrence and protection of the community may indicate that a more severe penalty is warranted.

They are unexceptional principles stating that the Fernando considerations may be less where the offender has committed similar serious offences in the past.  That was not to say that the Fernando considerations must be discounted or not taken fully into account but that other factors and, in this case, the lengthy criminal history of violent and other offences may point in a different and competing direction.

Your Honours, in relation to the section 5D Crown appeal, the appellate jurisdiction under section 5D is enlivened by error.  Manifest inadequacy is one category of error.  It is not the only category, nor the prerequisite for engaging the appellate function.  The respondent accepts that as a matter of discretion, a Crown appeal may not be allowed where the sentence is not manifestly inadequate for, in such a case, there may be insufficient reason to intervene and increase the sentence. 

That is consistent with the exceptional nature of Crown appeals because in such a case the appellate court may correct a specific error and clarify a point of principle without necessarily increasing the particular sentence.  In the present case, the errors found in relation to the objective and subjective circumstances were, it is submitted, tantamount to a finding of manifest inadequacy.

GAGELER J:   What does that mean – that there was a finding of manifest inadequacy implicit?

MR BABB:   That is my submission, your Honour.  Because the three grounds of appeal were upheld that they were going to proper determination of the objective seriousness, the proper acknowledgement of the category of the victim as a serving prison officer and the weight given to the subject case, having found those three grounds, really, the court had determined that the sentence was manifestly inadequate.  One can see that because of the fact that the sentence was increased and the extent of the increase that they thought warranted.

BELL J:   What material was before the court, if any, to make good the proposition, taking into account this appellant’s acknowledged background of deprivation, that a sentence that must be taken to have been one of eight years – absent the statutory requirement to reflect the early plea of guilty – fell outside the range that was open to the sentencing judge weighing each of the factors of which the Crown was critical.  But, nonetheless, what leads to that conclusion? 

The offence, under section 33, covers a very broad spectrum because the infliction of grievous bodily harm extends from some serious and permanent form of harm of a relatively minor character, through to those instances where people set upon another, leaving them in a vegetative state but they just happen, by chance, to live.

Bearing that very broad spectrum in mind, and taking into account the particular circumstances of this offender, the proposition that it fell outside the range of discretion, are there cases that might show, by reference to a number of broadly similar instances, that this was so outside as to be plainly unjust?

MR BABB:   Your Honour, such cases were not put before the court.  There were not similar cases where the prosecution pointed to a particular sentence that was able to establish a sentencing range in this case.  The reliance was very much upon the particular offending in this case with a significant focus upon the aggravating feature of the corrections officer, the result that came from the offending, the lack of remorse and contrition and the objective statements that were made straight after the offending.

KIEFEL J:   How do you elevate the question about the aggravating factor relating to the nature of the victim’s duties as a prison officer beyond the question of weight?

MR BABB:   Well, because it is in section 21A as a statutory aggravating feature, it goes to a circumstance that has to be given a particular weight, that is, a real significance as an aggravating feature beyond ‑ ‑ ‑

KIEFEL J:   How do we infer that that was not undertaken in this case by the sentencing judge?

MR BABB:   The sentence that was imposed demonstrates that in this case he did not give sufficient weight to that feature.  Also he made no reference - my learned friend complains that in dealing with the lack of attention given to the fact that the victim was a corrections officer, that in dealing with that the court referred to – no reference at all to personal deterrence.  That objective feature of who the victim was does take into account the need for personal and general deterrence.  It was not a blurring of objective features and deterrence, but that is very much the feature that goes to the requirement that it be given specific weight and why it is in section 21A, the need for order to be maintained in correctional institutions and those working there to be protected from serious violence.

Your Honours, in relation to mental illness in this case, the Court of Criminal Appeal - it was quite open to them to find as they did that there was no definitive diagnosis of mental illness and this was acknowledged by the sentencing judge.  The sentencing judge noted that there was no particular diagnosis given in the first report and that the supplementary report does not appear to advance the matters further.  Despite there being no particular diagnosis, his Honour afforded some moderation to general deterrence because of those issues.  His Honour had earlier noted at page 154 of the appeal books that:

Neither report establishes a link between the mental disorders or illness and the offending behaviour -

which is relevant when your Honour Justice Bell raised the statement at paragraph 48 over the page where you indicated that it might be inferred that his Honour found that there was a reduction in the moral culpability.  The previous finding that there was no established link between mental illness and the offending behaviour seems to work against such an inference, in my submission.

There was no assessment of the nature of any mental illness undertaken, how that illness related to the commission of the offence or the appellant’s moral culpability except for the noting that it was not in any way linked to the offending.  How such an illness may impact on considerations of personal or general deterrence which relates to your Honour Justice Kiefel’s observation; what are we to make of the last sentence in paragraph 46 on page 155 of the appeal book:

I am certainly prepared to allow some moderation to the weight to be given to general deterrence because of those issues.

In the present case a number of possible mental disorders were suggested and it was important for the sentencing judge to assess the degree to which any of the possible conditions may have impacted on the relevant considerations.  Some may have had little relevance - alcohol and drug abuse issues, for example, may have been important in relation to rehabilitation and management within the correctional facility but they appeared to have nothing to do with the commission of this offence where the offender had been put on remand in October 2010 and offended in January 2011 and were of little or no significance in relation to denunciation and deterrence. 

Beyond the finding that there was no causal link, there was really no assessment by the sentencing judge as to how any of the guarded and conditional observations of Dr Westmore could be taken into account and the respondent submits that there was an automatic reduction that took place and that is shown by the way in which the sentencing judge’s words were formulated.

In relation to the residual discretion, it is acknowledged that the Court of Criminal Appeal did not refer to it and it should have referred to the residual discretion.  A number of matters have been raised.  Some of them have more merit than others in terms of whether, and how, they should be considered.  Segregation for that initial period – even though there is no evidence that there would be any segregation going forward and a sentencing court cannot take into account the possibility of institutional breaches and the possibility that segregation might occur like it had later in this sentence.

BELL J:   Perhaps, more prominent to the residual discretion is that before the sentencing judge the Crown accepted that the mental condition – however it be characterised of the appellant – was a matter to be taken into account in the sentencing process in a way that would mitigate and the Court of Criminal Appeal found that was an error and based its decision, in part, to allow the appeal on that error without taking into account whether it was appropriate to do so in that circumstance.

MR BABB:   Certainly.

KEANE J:   Given, particularly, that while the mental issues might not have explained the offending, they might well explain the lack of remorse.  That could have been regarded by the sentencing judge as important.  The fact that the sentencing judge did not address that specifically was regarded as important by the Court of Criminal Appeal.

MR BABB:   Yes, it was, and that is something that could be taken into account and, as your Honour correctly points out in Everett and Malvaso, they are both cases where Crown conduct has been taken into account in the exercise of the discretion.  The Crown’s - the respondent’s submission is that those errors did not necessarily not warrant, not intervene in the circumstances of this case, that should your Honours find error in relation to the assessment of the Crown appeal, notably in relation to the failure to determine, if that is what your Honours find - manifest inadequacy - and the failure to specifically refer to and consider factors that might seem to be relevant in relation to the residual discretion that the appropriate order is a remitter back so that those matters can properly be considered and determined by the appropriate court, the Court of Criminal Appeal, a court that is best placed to consider the question of manifest inadequacy with their experience in relation to sentences in this statutory offence and also best placed to consider any fresh material relied on in the exercise of the discretion.  Unless there is anything further, they are my submissions.

FRENCH CJ:   Thank you, Mr Babb.  Yes, Ms Yehia.

MS YEHIA:   Firstly, if I could respond in relation to the submission that was made about section 718.2(e) of the Canadian Code and in particular the respondent took your Honours to paragraph 64 of Gladue in support of the argument that the distinction in terms of the statutory provision that exists in Canada is a distinction of importance and is a distinction that should be considered by this Court in relation to whether this Court adopts the approach of principle that the appellant contends for.

Can I just say in relation to that, firstly, that the statutory provision in Canada that gave rise to the sentencing principle in Gladue and later in Ipeelee has not been confined to application in cases relating to sentencing where the provision 718.2(e) applies, and I will just take your Honours briefly to our submissions in reply at paragraph 6 on page 3, your Honours, at about point 16 where we state that the Gladue principles continue to be applied in Canada beyond the context of sentencing to ensure the appropriate treatment for Aboriginal people as they interact with the justice system.

Those principles have been applied in cases - Leonard, which dealt with extradition proceedings, and also in Robinson that dealt with disciplinary proceedings.  In Leonard, referring to the Gladue factors, the court said that they:

are not limited to criminal sentencing but that they should be considered by all “decision‑makers who have the power to influence the treatment of aboriginal offenders in the justice system” . . . whenever an Aboriginal person’s liberty is at stake in criminal and related proceedings.  That category includes extradition.

We raise that point in response to the respondent’s submission in relation to the distinction to be drawn because of the wording in 718.2(e).  Also, in response to the submission made about the particular statutory regime under the long‑term supervision orders, we do not rely on that statutory framework and the statutory framework in relation to sentencing – the Canadian statutory framework that I took your Honours to in oral submissions, certainly does not prioritise any of the objectives of sentencing.

The second matter that we respond to is the submission that it is hard to reconcile the principle for which we contend, that is, that the Court take into account systemic factors and the overrepresentation of Aboriginal people in custody with the concession that we make that we are not asking for a race‑based discount.  In relation to that aspect, our submission is that you can have one without the other and that it is important, of course, for victims, women and children in Aboriginal communities to know and to be confident that matters of violence will be dealt with effectively by the court but that does not mean that the sentencing courts should not be directed by this Court to take into account the factors, including overrepresentation of Aboriginal people in terms of sentencing, particularly when it is remembered that the overrepresentation of Aboriginal people in custody and in the criminal justice system does not only affect indigenous adult males.

Your Honours were taken to appeal book 195 in relation to the construction – 194, 195 – in relation to the construction to be placed at paragraph 50, in particular, on the Court of Criminal Appeal’s statement:

that with the passage of time, the extent to which social deprivation in a person’s youth and background can be taken into account, must diminish.

I simply repeat very quickly our submission in relation to that aspect and that this Court would prefer, in my submission, the construction placed upon that statement – that it is an error of principle, that it is a constraining of the application of the Fernando factors.  The respondent, I think, raised in submissions the issue of whether specific error had been found by the Court of Criminal Appeal.  In our submission, grounds 1 and 3 cannot be construed as specific error if specific error is meant to imply patent error.

KIEFEL J:   Well, on the one hand, one would be a failure to take into account a relevant consideration; the other would be taking into account an irrelevant consideration as was referred to in House v The King.

MS YEHIA:   In our submission, grounds 1 to 3 relied upon below in relation to the approach taken by the primary judge would not establish taking into account.

KIEFEL J:   That is different from saying that they do not seek to identify, that you cannot identify a legal error in the way in which they were expressed.  You say they are questions of weight.

MS YEHIA:   They are questions in weight and therefore feeding into the sole ground of pleaded error which is manifest inadequacy.  Perhaps just for completeness, we would make this submission that even if the pleaded errors in grounds 1 to 3 were held to be errors of principle, which we do not concede, it was still necessary for the Court of Criminal Appeal to consider the materiality of the error to the sentence imposed by the primary judge, the scope and limiting purpose of Crown Appeals and the extent of any inadequacy.

In our submission, the combination of scope and limiting purpose and the extent of inadequacy leads to considerations of whether the sentence imposed below was unreasonable or plainly unjust, which is traditionally the way in which the Crown has pleaded cases of manifest inadequacy.  The errors, in our submission, even if patent and if established, which we do not concede, the respondent had not established materiality and had not addressed scope and limiting purpose for the discretion.

Your Honour Justice Bell asked what material was before the court to make good that the sentence of eight years fell outside the range:  none, your Honour.  There were statistics placed before the court – they are in appeal book 134 – on behalf of the appellant.  However, it was conceded by the representative appearing for the appellant that very little value could attach to those statistics because they were small in number and the more significant number related to what was described as the old section 33.  However, there was no material by way of comparable cases that was placed before the court in support for the contention that there was manifest inadequacy. 

In relation to mental illness, the submission was made that there was no definitive diagnosis of mental illness.  We would take your Honours to the appeal book at 124 to 125 and we set this out in our reply submissions at paragraph 5, your Honours.  In relation to that submission, there was evidence before the court of depression, auditory perception disturbance, antisocial personality disorder, multiply stressors associated with his numerous psychological and psychiatric social difficulties and resultant functioning in the lower range.

There was certainly material, in our submission, that brought into play the principles in relation to the way in which mental illness could moderate the weight to be given to general deterrence and, indeed, without there being unnecessary to establish any causal link between the mental illness or mental condition and the commission of the offence.  In respect to that we would take your Honours to Tsiaras (1996) 1 VR 398 at 400 where the court outlined the different ways in which mental illness is relevant to the sentencing exercise:

it may reduce the moral culpability . . . may have a bearing on the kind of sentenced that is imposed and the conditions in which it should be served.  Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence . . . specific deterrence may be more difficult to achieve and is often not worth pursuing as such.  Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.

We also draw your Honours’ attentions to the decision of Engert (1995) 84 A Crim R 67 which was part of the list of authorities put on by the respondent and if I could take your Honours to the judgment of Justice Allen on page 72 where his Honour said in relation:

to the relevance to general deterrence of a mental disorder where the mental disorder did not play a causative role in the commission of the offence.

His Honour went on to say:

The Chief Justice has indicated that even in that circumstance the existence of the mental disorder can be relevant to general deterrence . . . 

General deterrence is simply the deterrence, of others and characteristics personal to an offender might make him an unpersuasive vehicle for the deterrence of others in the sight of those others.

BELL J:   The first three paragraphs of the Chief Justice’s reasons in Engert are also illuminating in this context.

MS YEHIA:   Yes, thank you.  Your Honours, in response to a further submission made by the respondent, it is our submission that the Fernando principles are relevant to the weight to be given to – or relevant to moderate the weight to be given to general deterrence but also relevant to moral culpability.  It is our submission that this Court would find that the Court of Criminal Appeal erred in relation to the application of the Fernando principle – application of the principles in relation to mental illness, the application of section 5D and the way in which the court dealt with the criminal history.  In those circumstances, in our submission, the Court would uphold this appeal and would dismiss the appeal to - the Crown appeal and not remit.

FRENCH CJ:   Thank you.  The Court will reserve its decision.  The Court adjourns until 2.15.

AT 12.57 PM THE MATTER WAS ADJOURNED