Bugmy v The Queen

[1990] HCATrans 52

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M56 of 1989

B e t w e e n -

KEVIN FRANCIS BUGMY

Applicant

and

THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ DAWSON J TOOHEY J GAUDRON J

McHUGH J

Bugrny

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 15 MARCH 1990, AT 2.01 PM

Copyright in the High Court of Australia

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MR D. HORE-LACY:  May it please the Court, I appear for

the applicant with my learned friend, MR M.E. DEAN.

(instructed by Director of Legal Aid)

MR L.W. FLANAGAN, QC: May it please the Court, I appear

with my learned friend, MR G.J.C. SILBERT, for

the respondent. (instructed by Solicitor to the

Director of Public Prosecutions).

MASON CJ:	Mr Hore-Lacy.
MR HORE-LACY:	Your Honours, this is an application for leave

to appeal against a sentence which the Full Court

of Victoria endorsed on 21 June 1989. It was an
appeal from a minimum term imposed, I should say,

by His Honour Mr Justice Brooking of the Victorian

Supreme Court which was imposed on 1 May 1989.

MASON CJ:  We are familiar with the history of the matter.

MR HORE-LACY:  Yes, thank you, Your Honour. I will move

on to the outline of submissions which have been

handed to the Court.

MASON CJ:  Yes, we have had the benefit of reading them.

MR HORE-LACY: If I could just, perhaps, paraphrase the

special leave point before I go into some detail

into the submissions, I will and it is this: that

in the Full Court of Victoria in this present

case, in the hearing of the Full Court appeal,

it was a majority judgment; Mr Justice Crockett

dissented on the basis that he did not believe

that principles that had been espoused in

VEEN (NO 2) were applicable or certainly not

applicable to the extent that His Honour the

learned trial.judge thought they were in

applying or imposing a minimum term.

The reason, as set out in the judgment,

was because, in fact, the life sentence had been

imposed and all that His Honour was there doing

was setting a minimum term:  The applicant would

be forever subject to the direction of the parole

board of the State of Victoria. So, consequently,

the principles of prevention as set out in VEEN (NG 2)
or protection of society, as discussed therein, were

not applicable.

In our submission, first of all, that question

is a matter of general importance. It is our

primary submission that what this Court said

in VEEN (NO 1) and VEEN (NO 2) was only meant

to apply to serious cases of violence and, in

particular, cases which had attached to it a

sentence of life imprisonment.

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The principles and what has been said, especially in VEEN (NO 2) have been used and,

in fact, were used for example by the Supreme

Court of Victoria in a recent case of REG V YOUNG

DICKENSON & WEST, an unreported case which has

been provided to the Court. The authority has

been used to set down general principles and

we would submit that VEEN (NO 2), in the sense

that it talks of protection and prevention,

cannot apply to normal principles of sentencing.

As I said before, as well, the interpretation

of section 18A of the PENALTIES AND SENTENCES ACT

and the principles which apply thereto are a matter

of general importance. Furthermore, there is an alternative matter of general importance, in our

submission.and that is this: that courts since

VEEN (NO 1) and cases following that and particular

cases such as HOARE and BAUMER, have in fact set

out principles which could be described as

principles of proportionality. I am not suggesting

that.the law of sentencing in Australia or in Victoria
has not always been that a sentence must be proportionate

but an approach has been suggested whereby the

outer limit of the sentence is arrived at and

then various matters in mitigation, if any,

are subtracted from that particular sentence

arrived at and, indeed, that was the basis of

a recent appeal that I have mentioned to the

Full Court of Victoria in WEST where the Full

Court said that that was not a proper approach;

that the traditional approach that the courts

had been using was the only proper approach.

and our submission is merely this: that it

is a point of general importance, the. question

of whether or not that two-step approach is

a point of general importance and it - - -

DAWSON J:  What is the traditional approach, Mr Hore-Lacy?

MR HORE-LACY: Well, WILLISCROFT is the Victorian case which

has been used principally by the Supreme Court but

I really refer to something a little more than that

and that is the component of punishment;

first, the object of punishment is to protect

society and the three components of that object

is deterrence, rehabilitation and retribution.

DAWSON J:	But WILLISCROFT says that the judge's sentence
is an instinctive synthesis of all of those
things, does it not?

MR HORE-LACY: Well, in its application, yes, that is correct,

Your Honour. The submission is not that in

the end result there may be any difference but

if His Honour the learned trial judge in this

case had started with the outside limit and then moved down in mitigation especially in

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relation to the background of the applicant,

then he would not have been likely to fall into

error which we would submit that he did in

this particular case.

As far as the submissions are concerned themselves, I have commenced with the sentencing

principles. It is hoped that once the Court

is reminded of those then the special appeal

points will be more obvious and if I could

start with, first of all, some general

propositions. The first is this: that prior

to VEEN (NO 2) it was generally accepted in

Australian courts that the sole purpose of

punishment was the protection of society.

Retribution, deterrence and reformation were

said to be its three-fold purposes. I do

not propose to go to the cases that are listed
there as authority for that but it has been

set out quite explicitly in the Victorian cases

of KANE and DOLE and it has been set out in

the Federal Court case of CHANNON which, I think,

was in 1978 by,co-incidently, three judges who

are currently members of this particular Court

and there the principles were quite firmly

stated as being, as I have put before, that

is, that those three aspect were all components

of the sole aim of punishment in criminal law;

that is, the protection of society.

I am reminded, Your Honours, that a book

has been provided which lists photostat copies

of authorities. I apologize for the fact that

that is not numbered, which would have made

it easier for the Court to find the authorities.

However, the cases are set out in the same order as they are listed in the list of authorities

which have been provided for the Court.

The second proposition is this: that

in VEEN (NO· 1) and VEEN (NO 2) the High Court

was faced with a peculiar sentencing problem
of a person who was found guilty or had

pleaded guilty to manslaughter on the basis of diminished responsibility. The Court in both cases declined to follow English authority

which allowed a disproportionate sentence to

be imposed to protect the community from offenders

who constituted a physical danger to the community.

Those cases dealt only with the discretion to

impose a life sentence and one of the considerations

in the exercise of that discretion was that

the offenders would be amenable to treatment

and could be released on licence if and when
an appropriate time was reached.

The principles set out in both VEEN cases in the context of their peculiar circumstances

are as follows - (a):

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The court must, in sentencing a person who

has been convicted of a very serious offence

involving violence, if ..... there is a real

likelihood of his committing that kind of offence again and ..... If it should appear

that.~~~.the imposition of life imprisonment

is necessary to protect the community from violent

harm, then the Court should impose that penalty.

That was taken from the judgment of Mr Justice Mason,

as you then were, Your Honour, at page 468; (b) in

any event a life sentence -

DAWSON J: What is the difference between that and preventative

detention?

MR HORE-LACY:	The difference between that and preventative detention - well, that is, really, preventative
detention.  The submission is not that preventative
detention is not allowed in any circumstances.
The submission is that preventative detention should only be a relevant factor when considering
whether a life sentence is to be imposed and
basically what we say is this: that just about
all the cases that are dealt with in both VEENs
deal with cases of diminished responsibility,
whether they be pursuant to legislation which
provides for a diminished responsibility manslaughter or whether they are convicted of manslaughter or murder and they evince a certain diminished
responsibility which makes them a physical danger
to the community and what our submission is - - -
DAWSON J:	But has not this Court come out and said quite
clearly that preventative detention is no part
of sentencing in this country?

MR HORE-LACY: Well, it has, yes, Your Honour, in BAUMER's case

and, I think, HOARE's case it has and if it was as

clear cut as that, then - - -

DAWSON J; Well, how do you reconcile that proposition that

you say comes from VEEN (NO 1)?

MIE:HORE-LACY:  When I use the words "preventative detention",

I mean it in the sense that a person can be

imprisoned because they are a danger to the

community provided that it is not disportionate,

so there is an element of preventative detention.

In other words, it is an aspect in deciding whether

to impose a life term.

DAWSON J;	In other words, in deciding what is the proportionate
sentence, you take in the need to protect society.
MR HORE-LACY:	Yes, if proportionate sentence is used as

meaning .the final sentence.

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DAWSON J:	No, by proportionate, I meant in the two-stage
approach, the first sentence you arrive at, that
which is the sentence which is objectively called
for without having regard to the personal situation
of the accused.
MR HORE-LACY:	Yes.
DAWSON J:	And you say, in arriving at that sentence, you
take into the account the need to protect society?
MR HORE-LACY:	Yes, as far as VEEN (NO 1) and VEEN (NO 2)
DAWSON J:	And if prevention is necessary, then so be it,
you say?
MR HORE-LACY:	Yes, Your Honour.
DAWSON J:	Yes.
MR HORE-LACY:	But what we say, of course, that .is not a

general proposition and it is not meant to be -

DAWSON J:	And, do you take into account the prior convictions
of the accused in assessing whether there is a need to protect society at that point?
MR HORE-LACY:	According to VEEN (NO 1) and (NO 2), yes,

Your Honour. What it says is that you cannot give

extra because of prior convictions of propensity

but you take them into account in assessing what

is proportionate.

DAWSON J: What is the difference if, in fact you increase

the proportionate sentence because of the danger

of the person offending again, having regard to

his prior convictions? What is the difference

between that and giving him more for his prior

convictions and/or preventative detention?

MR HORE-LACY:  Well, in the end result, possibly nothing and

it has been set out that it can be a very fine

distinction indeed.

DAWSON J:  Or no distinction at all?

MR HORE-LACY: Well, that can be the practical effect,

Your Honour, but as I understand VEEN, VEEN

suggests that there is a distinction but,

nevertheless, it may be more in theory rather

than practice.

But, be that as it may, what we are submitting

is that that can only apply to the very special

circumstances and when a court is asked to exercise

a discretion in imposing a minimum sentence

or in determining whether to impose a sentence

of life imprisonment.

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The second proposition that I was to refer

to was that, in any event, a life sentence should

not be imposed if it is disportionate to the
crime and reasons are set out why the High Court

interfered with the sentence in VEEN (NO 1):

otie, because of the uncertainty as to whether

or not the applicant may have been found not guilty of murder on the additional ground of provocation and, two, that the inconclusive

nature of the evidence suggesting dangerous

propensity.

An examination of VEEN (NO 1) leads to

the conclusion that we have submitted and that

is that the eourt, really, is concerned with

dangerous propensity in the context of one,

very serious crime; two, crimes of violence;

three, where a life sentence is open and four,

where a life sentence is not disproportionate.

If I could just take Your Honours to part

of the sentence set out in VEEN (NO 1) of the

various Judges; first of all, Mr Justice Stephen

at page 467, the second paragraph where His Honour

says:

This sentence of life imprisonment,

imposed predominantly because of what

the trial judge took to be a pressing need

to protect the community from the

uncontrollable urges to violence to which

he regarded the applicant as likely to

be subject in the future, is, then, one

which for the above reasons requires
reconsideration. It does not conform to

those principles in sentencing to which mybrother Jacobs has given expression in

his judgment in this case; instead it is

the result of almost exclusive attention

being given to the notion of protection

franthe applicant. It sacrifices the important	of the community against future danger	factor of proportionality in favour of
this notion of protection.

Mr Justice Mason said at page 468, at the top

of the page:

The court must, in sentencing a person who has been convicted of a very serious

offence involving violence, if his record

and the expert evidence plainly demonstrate

that there is a real likelihood of his

committing that kind of offence again if he is restored to liberty, ensure by the

order which it makes that he will not be

released whilst that likelihood continues.

If it should appear that the propensities

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or predilections of the person convicted

are such that the imposition of life

imprisonment is necessary to protect the

community from violent harm, then the court

should impose that penalty. In the case

of a very serious offence involving violence,

it will rarely transpire, if at all, that

a sentence of life imprisonment is

disproportionate to the offence of which

the prisoner has been convicted, given
that he has a prior record of conviction

for that class of offence and that he has

a propensity, because he is unstable or

disordered, to commit violent crime.

I would just reiterate the emphasis on the question

of life imµrisonment and the other factors.

His Honour went on to say:

In saying this it is not my intention

to deny, or derogate from, the principle that the punishment to be inflicted must be proportionate to the crime. Rather

it is my purpose to say that the conflict

between that principle and the object of

protecting the community arises in relation

to less serious offences where the proportionality

principle inhibits the imposition of a

long term sentence which might otherwise

be thought necessary to protect the community.

In other words, in our respectful submission,

what Your Honour is there saying is that in

less serious cases you really are unable to

protect the community because it would be

disproportionate and that reinforces our
submission that what the High Court is talking
about and what the authority must be read
subject to is a sentence of of life imprisonment

and the basic submission is this: only a sentence

of life imprisonment can protect the community.

Any sentence less than a sentence of life

imprisonment can merely warehouse, to use a

word that has been used. In other words, it

just delays for a time being and, consequently,

there is no - - -

DAWSON J:  I do not understand that. I mean, if that is

so, then the life imprisonment is warehousing

for an indefinite period.

MR HORE-LACY:  I am sorry, could Your Honour repeat that?

DAWSON J: If what you said is correct, then life

imprisonment in those circumstances is warehousing

for an indefinite period. In other words, if

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a term of years is warehousing then life

imprisonment is also warehousing but for an

indefinite period.

MR HORE-LACY:	Yes, that is correct, Your Honour, and only in that way can members of the community be
truly protected and, indeed, the English cases
make a point that has- not been followed in either of the VEEN cases of emphasizing when
giving a higher sentence, giving a disportionate sentence, as the authorities indicate they are
able to do, that it is a benefit as seen by
the judges to the offender because, in fact, there is a discretion to let the offender out at any time and, indeed, as I understand it, with VEEN, there is a discretion to let out
at any time if he is subject to a life
sentence unlike the applicant in this particular case who must serve really close to 21 years if one counts the 18½ years plus the 114 days,
I think, that His Honour said he took into
account plus the two years which he had already served for the armed robberies which were the
subject of the aggravation, if I could put it that way, in the fixing of the non-parole period.

If I could just move on to the next part

of the judgment of Mr Justice Mason and that

is at page 471.

MASON CJ: Is it worth spending much time on VEEN (NO 1) when, after all, VEEN (NO 1) was overtaken by

VEEN (NO 2)?

MR HORE-LACY: Probably·not, Your Honour, except to just

emphasize the fact that really, in both cases
and the cases which were cited as authority

in both cases, almost if not exclusively the

offenders that were being dealt with were

offenders who were suffering from diminished	responsibility in the context of sentences of	imprisonment which prescribed a life sentence
and, really, that is the main point of that and, indeed, not only the cases that were cited
but the pronouncements of Their Honours but passages have been set out in the outline of
submissions and I will - - -

DAWSON J:	I am not sure what you are saying about diminished
responsibility in this context, Mr Hore-Lacy.

MR HORE-LACY: First of all, Veen himself was a person

who, in the first VEEN case, was fo~nd·guilty

of manslaughter and not murder on the basis

of diminished responsibility.

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DAWSON J:	Yes, but in what way does that. consideration
enter into the sentencing process?
MR HORE-LACY:	Because, first of all, to get to diminished

responsibility ·a jury must be satisfied that

he intended to kill or cause grievous bodily
harm and diminished responsibility, in our

submission, the concept of diminished responsibility,
poses a particular problem for courts because,

on one hand, it can be said that it mitigates an offence but, on the other han~ the concept

of diminished responsibility can point to a

particular danger for the community because of

the fact that a person, if they have diminished

responsibility, that means in itself that a

person does not have the responsibility that

an ordinary person has which includes a diminished

power to exercise self-control and there has
been, of course, a life sentence prescribed for manslaughter and our submission is that

that really puts it in a different class of

offence to ordinary offences where you do not

have a life sentence imposed as a maximum or

which do not entail an offence which provides

a particular threat to the members of the

community.

DAWSON J:	And what should a court do in a case of
diminished responsibility, arrive at a proportionate sentence disregarding the diminished responsibility or to take it into account in fixing the
proportionate sentence, use it at a mitigating factor or use it as an additional - - - ?

MR HORE-LACY: Well, it depends. If it is a diminished

responsibility, say because of a depression

which is being suffered because of matrimonial

circumstances or particular environmental factors

which are passing in nature then it may be

a mitigation and it may lead to a sentence which

is less than it would otherwise be.

DAWSON J: Well, it may be used on this occasion but can

it ever be used to increase the sentence whether
you are looking at it as a proportionate sentence

or otherwise?

MR HORE-LACY: Well, it cannot be, in Australia, ever used

to increase the sentence passed what a proportionate

sentence is but, as I understand the -

DAWSON J:	But can it be used in arriving at the appropriate
proportionate sentence?
MR HORE-LACY:	Yes.

DAWSON J: Well, I really do not see the difference but

still.

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MR HORE-LACY: If there is no difference, it seems to lead

to a submission that the authority in both VEEN (NO 1)

and VEEN (NO 2) is incorrect.

MASON CJ:	The view you are expressing at the moment is a
reflection of your understanding of the joint
judgment in VEEN (NO 2).
MR HORE-LACY:	Yes, that is correct, Your Honour.

GAUDRON J:  Mr Hore-Lacy, what does the question of

proportionality in relation to VEEN have to do with

the question of minimum sentences? It seems to me

that quite different considerations must come into

play when one is talking about a minimum sentence,

a head sentence having already been imposed.	The
head sentence itself must be the sentence which
reflects the questions of proportionality.

MR HORE-LACY:  Yes, Your Honour, but with a minimum sentence,

it is difficult not to concede that similar

considerations apply. In other words, the sentences

that have been imposed in Victoria, both in

applications to fix a minimum sentence for people

who had been sentenced to life imprisonment

before the Act changed which empowered the courts
to fix a minimum sentence when a person is being
sentenced ab initio, which is the position now.

The pattern has been that the sentences that have been fixed have been fixed on the

same sorts of principles that have been used

to really fix punishment in the traditional

sense; and· that is head sentences. In other

words, the gravity of the offence, all the

surrounding circumstances and whether there

was pre-meditation of a large or a greater

degree, whether it was an execution, whether

children were killed, whether there was more

than - well, where there was more than one killing,

other factors would apply but there has, in

practice, been the same sorts of principles

applied in fixing those terms.

DAWSON J:	What dictates the difference between the minimum
sentence and the head sentence?

MR HORE-LACY: Traditionally, and there is authority for

the fact that the minimum sentence can reflect

an aspect of rehabilitation more than the head

sentence -

DAWSON J:	I thought POWER's case was against that.
MOR HORE-LACY:	Well, as I understood POWER's case,

Your Honour, it really fixed no set pattern

as far as the minimum - POWER's case said at

pag~ 627:

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It is true that, in following the legislation

of other States and enacting the PAROLE

OF PRISONERS ACT 1966, the New South Wales

legislature took a large step towards ensuring

that a prisoner can, by his own behaviour

while a prisoner, secure his release from
confinement upon parole without serving
the full term to which he has been sentenced,
but the encouragement to reform so provided
does not and obviously is not intended

to take the sting out of imprisonment.

And, whilst it does say that it does also

endorse, with respect, an encouragement to reform

and that aspect of it.

DAWSON J:	I have not got it in front of me but I rather
recall it saying that the community demands
a certain minimum term for the particular crime
and that is the minimum term but, of course,
the appropriate sentence is the head sentence;
something like that. It is a concept with which
I have difficulty still.
MR HORE-LACY:	Yes, with respect, we would agre·-e' with that,

Your Honour. What we are, in fact, saying really

as far as this application is concerned, is

that all the factors that are set out in VEEN (NO 2)

concerning propensity and danger are, in fact,
matters that His Honour could take into account

in fixing a life term but they were not or,

certainly, the aspect of preventative detention

and danger to the community were not an aspect that he could take into account at all except· inasmuch as .related to other principles; for

example, general deterrence or special deterrence

or rehabilitation. Inasmuch as they related to

those aspects; then they could be taken into
account but as an added aspect then it could not

be taken into account.

(Continued on page 13)

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MR HORE-LACY (continuing):  In our submission, that is

what VEEN (NO 2) suggests can, in fact, happen

because a further aspect of sentencing, namely,

protection of society, if it is not confined to the facts of the case and if it is not confined to the

type of case that it was dealing with, can lead to

a court adding a fourth component to the other

three traditional components, that is, protection

of society. And, in fact - - -

DAWSON J:  You can put it higher than that, can you not?

You can say that it leads to punishment for crimes

already punished and to preventative detention.

MR HORE-LACY:	Yes, that is correct, Your Honour.
DAWSON J:	Yes, the very things the court says, in another breath, that it wants to avoid.
MR HORE-LACY:	Yes, and that is one of the points that we say

is a special leave point, with respect, Your Honour.

And, it can be really -with the greatest of respect

to the majority in the case of VEEN (ID 2), it can

be seen how the concept of protection of the

community really appears as a component of

punishment. At page 475 in the majority judgment,

a proposition made by Mr Justice Gibbs in PEDDER,

which was cited by Mr Justice Brennan in CHANNON,

which has been provided to the Court, is as
follows:

"'REG V GASCOIGNE is no doubt authority for

the proposition that any sentence imposed
must be in respect of and appropriate to

the crime committed but it does not, in
my opinion, decide that the protection of
the public is not a matter that should be
considered in imposing sentence. Indeed
the protection of the community is one

of the most important results that the

And, there is no argument with that proposition at criminal law is designed to secure.'"	all. Indeed, one could even go further and say it
is the only result that the criminal law is
designed to secure in accordance with authorities
that have already been mentioned. But, it is meant
in that sense - it is not meant that it is an
additional component - it is meant that, yes
protection of the community is one of the most
important results and the way the community is
protected isby applying the three-fol:d components of deterents, rehabilitation and restitution.

Then, the majority go on to say:

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In VEEN (NO 1) Mason J cited a further

passage from the judgment of Gibbs Jin

PEDDER including the following:

"'In some cases in which it appears that

there is no likelihood that the convicted

person would be a danger to the public if

set at liberty, and that there were

mitigating circumstances, a light term of

imprisonment or no imprisonment at all

may be appropriate. On the other hand there

are cases in which the mental condition of

the convicted person would make him a

danger if he were at large and in some

cases sentences of life imprisonment may

have to be imposed to ensure that society is protected.' 11

Again, I put the emphasis on the words, "sentences of

life imprisonment", because as I say, any sentence less

does not protect the community. I mean, a community

is protected in all sorts of other ways but in the

sense that the protection of the community is being

spoken of in that sense, it is spoken of in a sense

of warehousing or, in other words, by removing a

dangerous person from amongst the rest of the

community's midst but I am really getting away from

the point I was making about the introduction of the

concept of the protection of the community.

MASON CJ:  Mr Hore-Lacy, at the moment, I do not understand

how all this is related to your challenge to the

approach taken by Mr Justice Brooking at first

instance. Now, what are the grounds of challenge to

what His Honour did and how are those grounds related

to these important matters of principle to which you

refer?

MR HORE-LACY:  Well, His Honour and, indeed, the - well, the

Full Court, with respect, did not refer to any principles of sentencing at all, but His Honour used

what was set out on page 477 to justify the imposition

of the sentence he imposed and the passages that

His Honour used, in fact, were taken almost straight

from VEEN (NO 2) and, indeed, Your Honour will see,
as set out in the submissions, that His Honour's

apparent understanding of what principles were to be

applied changed as between VEEN (NO 1) and VEEN (NO 2)

and as after VEEN (NO 2) because, first of all, he

stated in the plea on the armed robbery charge -

Your Honours will recall that when the applicant was

convicted of murder he was also convicted of an

armed robbery charge which the armed robbery was

before the murder by a matter of seconds and which,

I think, the money was taken - the there might have

been a couple of blows before the money was taken -

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but it was separated into a robbery and a murder and,

what has been called the felony murder rule - ·did not

go the jury. But, during the plea for the armed

robbery charg~ and that was on the 5 November 1984,

His Honour said - - -

DAWSON J:	What page is this?
MR HORE-LACY:	I am sorry, page 25 of the application book,

Your Honour, the last sentence of that page:

I am not concerned at all with the preventative detention, but one cannot help wondering what the future holds for

this young man and the community on his

ultimate release, with three such attacks,

the last of them fatal. It is not my

problem for sentencing purposes, I stress.

And then, of course, that apparent view was not

reflected in the sentence that was passed.

At page 97 of the application book, His Honour said,

during the course of the sentence -that was on

1 May 1989:

He is described as a severe management

problem and as one who identifies with

troublesome fellow prisoners. The

applicant has been described as blatantly

anti-social and it has been said that his

demeanour underlies the contempt which he

holds for authority. But for a considerable

part of 1987 his behaviour did improve.

I am sorry, I should have referred - - -

GAUDRON J:	The sentence before.
MR HORE-LACY:	- - - to that paragraph above that, thank you,

Your Honour.

GAUDRON J:	Yes.
MR HORE-LACY:

I mention this not because he is to be punished for lack of remorse, but because

of the need to protect the community.

Again, at page 99, His Honour said at line 4:

It is clear that the law is not so foolish

as to prevent me from taking into account

those convictions which are not previous

convictions when I come to fix a minimum term.

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Indeed, it has been accepted in argument

that I may take them into account.

MASON CJ:	Now, what does that mean? Was there no challenge to his taking them into account?
MR HORE-LACY:	Well, apparently not but that does not mean to

say that it had been accepted that he could take

them into account the way it was taken into account.

I mean, it may have been accepted he could take

convictions into account in balancing, perhaps,

considerations of general or - not so much general

deterrents, but special deterrents. With the

greatest of respect, it does not accept that

Mr Dunn, in fact, was conceding that those

convictions could allow an increase in sentence

which, in our submission, was obviously imposed.

His Honour went on to say:

I refer to VEEN (NO 2) ..... which deals with

antecedent criminal history. Convictions, whether or not prior convictions, may bear

on the question of dangerous propensity and

the need to protect society.

And, at page 101:

The circumstances of the murder and the

circumstances of the armed robberies some

seven months before and the applicant's

behaviour in prison, together with the

other material, suggest to my mind that there

is a great danger that he will re-offend in a

similar way if released. Full weight must

be given to the applicant's relevant youth -

et cetera, and for completeness, I will read down to

the next relevant portion:

Full weight must be given to the applicant's

relative youth and his highly deprived and

tragic background. I have taken into account

everything said in his favour but I must also
give weight to the wanton and vicious nature
of the fatal attack and of its two
forerunners seven months before and to the

need to protect the corrnnunity against similar

attacks in the future. It would be wrong to

refuse to fix a minimum term but the term

fixed must be a very long one.

I have refreshed my memory of what has been

said by appellate courts in recent years on the

problem posed :y cases like the present in

VEEN (NO 1) ..... VEEN (NO 2) ..... and DUMAS.

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I just pause to add this corrnnent, that DUMAS, in

fact, was an appeal to the Full Court from a person

who was found to be extremely dangerous.

Although the judgment does not actually apportion

parts to the head sentence and parts to the

minimum term, it does seem to be more concerned with

the imposition -the question as to whether or not

the imposition of a life sentence was appropriate and

it was not really concerned with a minimum term at

all. In other words, from the judgment, it does not

appear that the minimum term was ever challenged as

a separate item of appeal. There was just merely,

basically,an appeal on the basis that the sentence

was manifestly excessive, the imposition of a life

term. We would say, of course, that on the authority

of VEEN, VEEN may have been very relevant in any

question that His Honour may have had in the

determination of a life sentence and, indeed, it

may have been a relevant matter to take into account

in determining whether or not a minimum term would

be imposed. The application under section 18A is a

discretionary relief. It is not absolutely necessary

that His Honour imposes a minimum term although the

authorities suggest that unless there are

exceptional circumstances one should be applied. And, for completeness, as far as the sentence is

concerned, His Honour said:

it is a very long term. In my desire to

protect the corrnnunity, I have gone to what is appropriate to the crime on the footing that the term proposed is, in all the circumstances, appropriate and not disproportionate.

MASON CJ:  Well, Mr Hore-Lacy, for my part I have great

difficulty in coming to grips with this notion that
in fixing a minimum term you apply the principles

that are appropriate to fixing the head sentence.

MR HORE-LACY:  No, we are submitting that the same principles

do not apply in fixing the minimum term as apply in

fixing the - - -

MASON CJ:	What are the principles we should apply?
MR HORE-LACY:	Well, depending on what approach the Court

takes, the two - - -

MASON CJ:  But, you are supposed to be telling us what

approach the courts take.

MR HORE-LACY:  There are one of two approaches, with respect.

A proportional, or the two-step approach, which would

allow, on the objective circumstances, the court to fix

the outer limit of the sentence - - -

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MASON CJ:	But, are you not taking us back to the principles that should govern, or may perhaps govern, the
fixing of the head sentence?
MR HORE-LACY:	Yes, I am.
MASON CJ:	Well, what we are concerned to know is, what are the principles that should govern the fixing of a
minimum term and that will call for consideration of
what is the purpose, the object, of fixing a minimum
term.
MR HORE-LACY:	Yes, well, in our submission, the same principles

apply to the fixing of the minimum term basically as

would apply to the fixing of a sentence where there is

a fixed period provided for the sentence, where there

is a maximum period proscribed.

DAWSON J:  But less so, presumably.

MR HORE-LACY:  Yes, that is correct, Your Honour. And, that

is, in effect, either by the imposition of the traditional factors such as the two aspects of

deterrence·, retribution and rehabilitation. or the

approach that has been suggested in more recent times,

the fixing of a proportionate sentence and the

deduction by way of mitigation for any relevant

factors. But, what we do say is this, that what cannot
be taken into account is an aspect of preventative

detention and what cannot be taken into account is,

in fact, the antecedents except in as much as they may

be relevant using the traditional way of approaching

punishment- in as much as they may be relevent to the

question of general deterrents and special deterrents.

DAWSON J:  What you really can say about what Mr Justice Brooking

says, is that he in speaking about the permissible

limit was speaking of the wrong limit. He was

speaking of the permissible maximum and he really

should have been talking about the permissible minimum

when he was speaking of a minimum term.

MR HORE-LACY:	Yes, Your Honour.
TOOHEY J:	Are you accepting that as the way in which the

matter should be approached because it seems to be out
of kilter with what you were putting to us earlier?

One of the dangers of accepting invitations from

members of the Bench, I suppose.

MR HORE-LACY:  I am sorry. I understood what I was putting

earlier was this: that whatever approach

Mr Justice Brooking took, he was not allowed to take

an aspect of preventative detention into account as

he did.

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TOOHEY J:  But, in the conventional situation, Mr Hore-Lacy,

a judge decides what will be the head sentence to be

imposed for a particular offence and then decides
what the minimum non-parole period will be

and carries out that function in accordance with cases but although in the present case the judge

is essentially doing the second of those two, or

performing the second of those two functions, are

you suggesting it should be performed according to
the principles which would ordinarily govern the

fixing of the head sentence?

MR HORE-LACY:  No, I am not because there are other factors,

one in particular, which applies to minimum terms

and especially minimum terms for murder and that is

that it provides for the prospect of rehabilitation

and the cases stress that it is by no means automatic

that a person will be released but it gives a

person an opportunity by way of good behaviour to

demonstrate rehabilitation and thereby reduce the

effect of his sentence. But, subject to that- and

what I perhaps should have said more clearly,

subject to those principles it is hard to argue that

with a minimum term there obviously must be some

proportionality between the objective circumstances

of the crime and the term imposed and other aspects

such as remorse which are relevant, perhaps, to special

deterrents and it is difficult to argue that those

sort of principles do not apply as well.

(Continued on page 20)

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TOOHEY J:  Does the fact that there is a mandatory life

imprisonment sentence imposed by force of law have any relevance to this exercise which the Court is required to perform?

MR HORE-LACY: Yes, it does, Your Honour. It has extreme

relevance.

TOOHEY J:	In what sense?
MR HORE-LACY:	Because the aspect of danger to the community

is eliminated.

TOOHEY J:	I am not sure I follow that.
MR HORE-LACY:	That is no longer a consideration.
McHUGH J:	What, under the minimum?
MR HORE-LACY:	No, he has got a life sentence and he will

never get out. As Mr Justice Crockett pointed

out, it is most unlikely that he would ever be

released as long as he shows an attitude similar

to the one that he was showing, at least, some

years ago and, indeed, it is most unlikely -

as I said - that he would ever be released.

So, consequently, as I say, the applicant in

this case is in a much worse position than Veen

is now in because, as I understand the law in

New South Wales, Veen is subject to release

at any time. But the applicant in this case

will not be subject to release until 2003. That

is, in fact, his release date. He has got to

serve his two years for the other two armed robberies,

which has been taken into account in fixing this
sentence, plus he has got to serve the 114 days

and then, on top of that, the 18½ years.

Basically, our submission is that that is,

compared to other sentences imposed, a whacking

amount.	His Honour Mr Justice Crockett, in fact,
set out the statistics in his judgment of the

minimum life terms and he, in fact -

MASON CJ: But, Mr Hore-Lacy, could I just put this to

you? If you look at POWER's case, at page 629,

if you look at the paragraph that first commences

on that page?

MR HORE-LACY:  I am sorry, page?

MASON CJ: Page 629. That gives some indication of the

object of fixing a minimum term and it contemplates

the prospect of rehabilitation. In other words,

a minimum term is fixed which, in a sense, is

the least term of imprisonment, the appropriate

punishment for the crime could conceivably contemplate.

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Is there any reason why what is stated in that

paragraph is not applicable to fixing a minimum

term in the case of a life sentence?

MR HORE-LACY:	No, Your Honour.
MASON CJ:	Did Mr Justice Brooking give effect to that

object in fixing the minimum term in the present

case?

MR HORE-LACY:  In our respectful submission, no, because

he did not apparently consider that there was

any prospect of rehabilitation at all which,

in our submission, is wrong, especially when

one is dealing with a person who is aged 20 at

the time of the commission of the offence and

when one is looking down the track at least 12

years. He, in fact, really based - I mean, the

whole emphasis in the sentence was on dangerousness

and it was dangerousness that was taken from

VEEN (NO 1), VEEN (NO 2) and DUMAS, according - - -

DAWSON J:  How do you go about determining the minimum

time that justice requires as opposed to the

other time that justice requires, namely the

head sentence?

MR HORE-LACY: Proportionality would be, in our submission,

probably the preferable way to do it but, for

this particular sentence, there has been really

built up in the court, not a scale but a number

of statistics which the court have looked at

to see what like sentences have been imposed.

For example, on the Stone brothers, I think,

22 years minimum was fixed. They killed a mentally

retarded girl after demanding from her, who had

no 0r little or reduced capacity to consent to

sexual acts -·after abusing her in that way they

killed her in the most cruel fashion.

Julian Knight has been sentenced to 28 years,

from memory, that is the hallmark as far as

the minimum - I am reminded I was referring to the minimum, a minimum of 28 years. The other

sentences have been between eight and 14.

TOOHEY J:  Very often, a judge is trying, by the head sentence,

as it w~re, to mark the seriousness of the offence

and, I suppose~ this occurs in manslaughter cases
perhaps more than anywhere else because of the
range of circumstances that can exist and marks

out the seriousness of the offence by imposing

a fairly substantial head sentence because somebody

has lost their life as a result of what has happened

but then, having regard to the particular

circumstances - it may be a domestic situation

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or it could be a whole range of circumstances -
this particular case does not warrant anything
other than a moderate minimum non-parole period
because the person is not likely to offend again,

the circumstances were of quite a special nature

which is not likely to be repeated. That is

the sort of situation you see happening almost

every day but I am not sure that it has got much

application here.

MR HORE-LACY:  The same factors are relevant, apart from

rehabilitation but, yet, a head sentence can

reflect in the example that Your Honour gave.

A head sentence can reflect the retributive aspect

of punishment. In other words, what the punishment

is worth, what the crime calls for, but aspects
of rehabilitation, personal considerations applying
to the offender may very well, in that case,
call for - I will not use the word "disproportionate"

but a lower than normal minimum sentence.

We are not saying that exactly the same -

we are saying the same principles may apply but they do not have to take effect in the same way because in the normal sentence situation, where

there is a maximum and minimum, different

considerations do apply to the imposing of a

minimum. When I say "different consideration",

there are aspects of the punishment which play

a different part and, in our submission, there

is no reason why that should not be the case

in fixing a minimum term on a charge of murder.

As we suggested before, dangerousness may

be an aspect that can be taken into account in

the considering of whether or not, first of all,

a maximum term of life imprisonment is fixed and, alternatively, whether or not, to fix a

minimum term or not. As we said, a discretion

remains open to decline to fix a minimum term. But, once that discretion is exercised and the

learned sentencing judge decided to fix a minimum

term - he said he thought it was appropriate -
then, to that extent, in our submission, either

the concept of dangerousness was not relevant

or, if relevant, then relevant in a marked lesser

degree.

If I could just take Your Honours to

page 477 of VEEN (NO 2).

TOOHEY J:  Could I just ask you this, Mr Hore~Lacy, at

the time that the applicant was convicted and

was sentenced to life imprisonment, was there

any machinery available at that time by which

he could be released?

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MR HORE-LACY:	Yes, there was, Your Honour.	At that time

the release was at the discretion - as I understand

it - of the executive and it was on the recommendation

of the parole board.

TOOHEY J: Without any minimum period being involved, is

that the position?

MR HORE-LACY:  That is correct and there had been vastly

varying minimum periods involved. The average,

I think, was somewhere - it sort of vacillated

between about 12 and 14 years, the average that

a person stayed in detention that was sentenced

to life imprisonment for murder.

TOOHEY J:	And the parole board, presumably, had some power to recommend to the executive?
MR HORE-LACY:	Yes, Your Honour, and, of course, in some

cases, people served very very long sentences;

indeed, some people were in there in excess of

30 years. I think in the case of LOWERY and

~ING, their sentence has been well in advance

of what is the average but it was on the recommendation

of the parole board.

TOOHEY J:  Thank you.

MR HORE-LACY: Just a.part of VEEN (NO 2) to which I wished

to refer was where it said:

There are two subsidiary principles

which should be mentioned. The first is

that the antecedent criminal history of

an offender is a factor which may be taken

into account in determining the sentence

to.be imposed. but it cannot be given such

weight as to lead to the imposition of a

penalty which is disproportionate to the

gravity of the instant offence ..... The antecedent

crimirial history is:rel~vanti however, to

show whether the instant offence is an

uncharacteristic aberration or whether the
offender has manifested in his commission

of the instant offence a continuing attitude

of disobedience of the law. In the latter

case, retribution, deterrence and protection

of society may all indicate that a more

severe penalty is warranted. It is legitimate

to take account of the antecedent criminal

history when it illuminates the more

culpability of the offender in the instant

case, or shows his dangerous propensity

or shows a need to impose condign punishment

to deter the offender and the other offenders

from committing further offences of a like

kind.

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It is that passage, in our submission, principally

which can lead to courts in imposing sentences

overall if it is taken as a general proposition

to impose a separate and distinct aspect under

the heading of protection of society. And that

is what, in our submission, has happened in this

particular case as evidenced by the words of the

learned sentencing judge.

Indeed, in the case of YOUNG, to which

Your Honours have been referred.- - -

TOOHEY J: Is that in the book?

MR HORE-LACY: Yes, that is in the book. It is towards

the end, it is YOUNG DICKENSEN AND WEST. It

was an example of how what has been said can

be misunderstood and used as a general proposition.

First of all I would refer Your Honours to ,

page 11 of that judgment, at the top of page 11

where - in fact, I should go to the bottom of

page 10:

It is worth drawing attention to that

quotation to the words "appropriate

proportionate" for there has been some tendency
to suggest that an appropriate sentence

must be less than a proportionate sentence

and can never be more. Such suggestions

tend to become no more than words, but we

do not thereby mean to suggest that a sentence

should be more than what is "proportionate

to the gravity of the offence" "unless,

perhaps, the applicant's history warrants some departure from the pr;inciple. 11

With respect, that proposition was never said

in VEEN. In fact, what was said was fairly similar

to that in VEEN (NO 1) but there was not a

suggestion that if some aspect of the applicant's

history was present then a sentence which was,

in fact, more than what was proportionate could
be imposed.	The relevant part of the sentence

is towards the end of the judgment of

Mr Justice Jacobs, at page 490, where His Honour

says:

I do not think that the applicant's history

is such that any punishment should be

awarded which is not strictly proportionate

to the gravity of the offence.

In light of .what else has been said, His Honour

can only be suggesting that in some circumstances

a lesser sentence can be imposed than is proportionate.

At page 12 of the judgment in YOUNG's case, the

Full Court of Victoria said:

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The judgment of the majority in

VEEN (NO' 2) also contains the following

passage which emphasizes, for instance, that

an offender's antecedent criminal history

may well be relevant to the assessment of the appropriate penalty and not merely to

a claim for leniency. The passage in the

judgment of -

the majority -

reads:

"The antecedent criminal history is relevant,

however, to show whether the instant offence

is an uncharacteristic aberration~

and there it sets out the very words that are

referred to in section 477.and, in our submission,

that is an indication of how the words set out

therein have been taken as being a general

proposition and, as I said, in our submission,

they can really only apply to the question of

whether or not a life sentence is imposed in

a case of diminished responsibility or the like.

I think, to answer the question that was

asked some time ago by the learned Chief Justice

about the special leave point, the special leave

point is this: whether or not what is set out

in that part of the judgment of VEEN (NO 2) is
of general application in the question of sentencing

or whether or not it is confined to its own

peculia~ circumstances. And, our submission,

of course, is that it is confined to its own

peculiar circumstances. To just summarize, it

is, at best, a consideration that can be taken

into account in deciding in this case .·, whether

a life sentence is imposed as a head sentence

but it cannot be taken into account in assessing

a minimum term which is applicable to the applicant.

Indeed, that is really set out in ·paragraph ·10

of the outline·of submissions.

TOOHEY J: Mr Hore-Lacy, I take it that we get no guidance

from the statute itself?

MR HORE-LACY:  No, there is no guidance - - -

TOOHEY J: Certainly there is nothing in section 18A that

appears to operate as a guide but I wondered
whether there is anything else to be found in

the Act or elsewhere?

MR HORE-LACY:  No, there is the case of IDDON which is

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McHUGH J:	What about section 17,	it gives you some guide,

does it not, subsection	(1)? It shows you at
least what the object -	.....
might be eligible to be	released on parole.

MR HORE-LACY:  Would Your Honours just excuse me, we have a

photostat copy of section 18 but not section 17.

DAWSON J: Section 17 of the Act is in the back of the

materials you handed up.

MR HORE-LACY:  That section appears to allow the court

to fix a minimum term and if it is not a term

of imprisonment for that person's natural life, to

fix a minimum sentence:

that is at least six months less than the
term of the sentence during which the offender

shall not be eligible to be released on

parole.

Is that the sentence that Your Honour - that

section?

McHUGH J:  Yes.

TOOHEY J: That section has been amended, it needs to be

taken into account,·that 1986 amendment,

Mr Hore-Lacy.

(Continued on page 27)

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MR HORE-LACY (continuing) I am sorry, Your Honour, the only

section that we have here is the section that

provides - section 17(1):

Subject to sub-section (2), where any person is convicted by a court of any offence and

sentenced to be imprisoned then, if the term

imposed is not less than two years - - -

TOOHEY J:	Could I just interrupt you? The 1986 amendment
introduces into subsection (1) after the words
"imposed is" the words "for the term of that
person's natural life or is for a term of". In other words, subsection (1), as I read it, is applicable now to cases of life imprisonment or for a term in excess of two years.
MR HORE-LACY:	Yes, Your Honour. Yes,I see that Your Honour.

TOOHEY J: Perhaps the only significance of it is that - it

is rather stating the obvious - it is designed

to ensure that, or to provide that a term can
be fixed below which the offenders shall not be
eligible to be released on parole which, perhaps,

takes you back to the power situation.

MR HORE-LACY~ Yes. If I could attempt to pick up the submission,

most of which have been covered in answer to

questions - - -

McHUGH J: But if you come down to what the judge did in

this case, he took into account his previous

convictions on the basis thatit evidenced dangerous propensity and he took the view that there was a

great danger he would reoffend. Now what was

the error in taking account of those two matters?

MR HORE-LACY: Well, we say that those factors can only apply

in the determination as to whether or not he fixes

a head sentence of life imprisonment.

McHUGH J:	But surely_ in determining the minimum period
a person must serve before being released on parole,
it is legitimate to take into account the danger in
reoffending_ when you have already dealt with - you
have already got a head sentence?

MR HORE-LACY: Well, with respect, we say no because the

dangerousness is a concept which has been really

introduced by VEEN or, if not introduced by VEEN,

then authorized by VEEN. But our central submission

is that VEEN must be seen in the context of a court

which is deciding whether or not a life sentence is

appropriate where it is provided for; where the

offender is dangerous, has committed a serious offence

HlTl0/1/JL	27	15/3/90
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and is likely to commit similar further offences.

We say that that is a relevant consideration in

applying the head sentence but that having

been done then the community is secured, is

protected,because - - -

McHUGH J:  I would have thought in a case of a person who has

been given a life sentence for murder the paramount

consideration in determining whether he should be

eligible to be released on parole is the nature of
the danger he will pose to the community if he is

released on parole.

MR HORE-LACY:  Ye .. , Yes,! would agree with that, with respect.

McHUGH J: Well, the learned judge took that into consideration.

MR HORE-LACY:  But that is a consideration for the parole board

I thought Your Honour said - - -

McHUGH J: No, no, no, surely it is a matter for the trial

judge to determine in fixing this minimum sentence.

MR HORE-LACY: Well, in as much as it may relate to deterrents

and other aspects that can be taken into account

but our submission is that it is not relevant in fixing the minimum sentence because~ I mean, for a number of reasons, but first of all the aspect of the protection

of society has been secured in imposing the sentence
of life imprisonment and as His Honour

Mr Justice Crockett pointed out,it is most unlikely that the parole board will ever let him out whilst he

is considered a danger.

Further, all you are doing is or all His Honour

is doing is warehousing for a period of time and imposing

a protection, or preventative detention, which is,

in our submission, not permissible.

McHUGH J: But it would have been open to the legislature to

say, "Well, the judiciary has imposed a sentence.

However, we will institute a system, by executive	discretion or parole board examination, a person
can be let out whenever the parole board or the executive think he ought to be released on parole.
But you cannot and this section has been brought in so that the judiciary can fix the minimum period before a person can be released on parole, even if everybody is unanimously of the view that he poses no
danger to society and he is completely rehabilitated
and you could let him loose in any company anywhere
in a State, still the minimum period has got to be fixed.

MR HORE-LACY: Yes, that is correct,Your Honour. Well, the

first situation was the situation that applied

HlTl0/2/JL	28	15/3/90
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before the amendment, where a person was subject

to the discretion of the executive as exercised

through the parole board, but it was thought that
to give some sort of certainty - not certainty - but to give some indication to a prisoner of how long he

is required to serve before he can apply for parole, then this

section was implemented.

But, with respect, that does not mean- and I know Your Honour is not suggesting this, but that does not

mean to say that a proper consideration in imposing

that minimum term is the danger that a person poses

to the community.

TOOHEY J: It is not just the danger that the person poses to

to the community but the danger the person poses now, or may represent to the community, perhaps, in the next four or five years. There is a real sense in which that sort of consideration might play

a more significant part in fixing the minimum

non-parole period than in fixing the head sentence

because it is impossible,in most cases, to say what

the person's likelihood of reoffending is going to

be in 10, 15 or 20 years time.

MR HORE-LACY:	Yes, but that, with respect, has another side to it and that is any sentence imposed is going to
be a long sentence anyway and we would agree, with
respect, that it is impossible to say what a person
is going to be like in 10 or 15 years time, therefore,
if it is appropriate to have this sort of preventative
detention or - detention because a person is dangerous,
if it is appropriate, then it should only be appropriate
to the smaller type of sentence because, as dismal
as this applicant's outlook may be at the moment or -
not at the moment at the time he was sentenced - I mean
he is looking at some 10, 12, 14 years, in any event,
and one possibly cannot, with respect, with all the
foresight and even taking into account the unfortunate
background and the institutionalization and all the
with any certainty, that he is absolutely irredeemable.
other matters and indeed the other offences say,
TOOHEY J:	Well, I can understand an argument that perhaps went along these lines, that given the youth of the
applicant and his background and a whole number of
other considerations, 18 years is an excessive period
during which to remove from any consideration by the
parole board his possible release.  I am not suggesting
that that argument of itself can carry the day but I
can see the force of that argument but you appear to want to, as it were, eliminate the number of the
considerations that one might expect to take into
account in approaching it that way and, as it were, equate this situation with the fixing of a head
sentence.

HlTl0/3/JL	29	15/3/90
Bugmy

MR HORE-LACY:  Yes, well if we are doing that I would like to

correct that. They are matters to be taken into

account and they are matters to be taken into

account in the fixing of a proper sentence and we

do not -

McHUGH J:	But what about minimun sentence that is what we are
taliking about?

MR HORE-LACY: Well, yes,feeling- yes,in fixing a proper

minimum. There are matters set out at the end

of the submi$ions which deal with matters such
as those. At the moment we are dealing with the

matters in the context of special leave -

MASONCJ: Well, you want to be aware of invitations given

to you from the Bench, but that is a real problem.

If you are going to put the case that way would you

be able to attract a grant of special leave?

MR HORE-LACY:  I am sorry,if I am going to put the case the

way that Mr Justice Toohey outlined?

MASON_~CJ:  Yes.

MR HORE-LACY: Well, I would like to say yes.

MASON CJ: But how do you get a matter of fundamental principle

out of it that would attract our jurisdiction?

MR HORE-LACY:  Well, that might be so, Your Honour. The matter

of fundamental principle is whether or not concepts

of dangerousness as set out in VEEN or propensity are

matters that -

MASON CJ: But you are. adverting now to the initial way you

·;v-ere putting the case.

MR HORE-LACY:  For the special leave point. If that

is a special leave point - - -

MASON CJ: But the special leave point has to be related to

the challenge that you are making to the instant

decision.

MR HORE-LACY:  Yes.

TOOHEYJ: :J_fyou could show that the primary judge, the sentencing

judge, fundamentally misconceived the task which he

had to perform in fixing this minimum sentence,

then you would be a long way on the road to arguing

a case for special leave, but I do not really understand

you to have put your. argument in that way.

MR HORE-LACY:  Yes I wonder if the Court could grant an indulgence

of a very short time,

HlTl0/4/JL	30	15/3/90
Bugmy
MASON CJ: Very well.

MR HORE-LACY:  Yes, thank you, Your Honour.

AT 3.17 PM SHORT ADJOURNMENT

HlTl0/5/JL	31	15/3/90
Bugmy

UPON RESUMING AT 3.40 PM:

MASON CJ: Yes, Mr Hore-Lacy?

'MR HORE-LACY:  Yes, I am grateful to that, Your Honour. The

submission is that what His Honour has done is

introduced an aspect of preventative detention

which is specifically forbidden by the High Court

in VEEN - - -

McHUGH J:  Is that right? Perhaps preventative detention

ought to be taken into account in fixing a minimum
sentence when a person is being sentenced to life

imprisonment.

'MR HORE-LACY:  In our submission, it should not be. It is

not an aspect of sentencing, preventative	detention,
which has been set out in subsequent High	Court
cases so -

McHUGH J: That is in terms of fixing a head sentence.but upon

the hypothesis that somebody has been sentenced
to imprisonment for the rest of his life and the
question then arises when he should be allowed to
get out on parole, why should you not take into

account preventative detention at that stage?

'MR HORE-LACY:  There are two aspects of a sentence; there is

the head sentence and there is the minimum term
and, with respect, the same principles are applicable,
they do not apply the same way to both, and the

preventative detention cannot be used to apply to

a minimum term in any circumstances, with respect,

according to the law and for good sense,

because a minimum term does not mean - is not an

order that the applicant will be released on that

day. A minimum term, all it is, is a term, a time

which is fixed before which the applicant will not

be eligible for parole. He can be brought back at

any time as explained by - if he is released on

parole - Mr Justice Crockett in the dissenting

judgment. But, basically, it is not an aspect of

sentencing and it is not an aspect - and I appreciate

the fixing of a minimum term is different to imposing

a sentence but it is not an aspect which has been taken

into account or should be taken into account.

In fact, in our submission, there is more reason

why it should not be taken into account in fixing a

minimum term than there is in . fixing a maximum

term; for that very reason, that it is not a

sentence of imprisonment.

McHUGH J: Supposing you had a case where somebody was sentenced

to life imprisonment for murder and a judge forms the

HlTll/1/PLC	32	15/3/90
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view that this person is a danger to society now

and always will be - almost certainly always will

be. Now, why is he not entitled to say, "Well,

a minimum period, I think, before we can take a

risk on this man is 25 years because he's a real

danger to society" or "likely to be a danger to

society during the next 25 years"?

MR HORE-LACY:  First of all, if he comes to that conclusion,

that may be a reason why he declines to fix a minimum term but once having decided to fix a

minimum term then it should not be a relevant matter.

If he is of that view - - -

McHUGH'.J: Well, if he thinks he will always be a danger to

society, then he would not fix a minimum term but

supposing he thinks, "Well, it will be 25 years

before this man can be safely let out." Why

should .....

MR HORE-LACY:  With respect, there is really no basis, even

theoretically, upon which a sentencing court could
project that far into the future, and one of the

submissions in the outline is that the longer the

sentence the more the dangerous aspect of an
applicant loses relevance because of the inability

to project with absolutely certainty that a person

will be a danger. I mean, it might be - - -

McHUGH J: Yes, well, that is a criticism against this present

system but the co!Illllunity wants the judges to determine

the minimum period a person should serve and not the

Executive Government and in that context the judges

have got to do the best they can.

MR HORE-LACY:  Yes, but that is not the same as a sentence.

A real problem can be if the courts are faced with somebody who is a danger to the co!IllllUnity and

charged with an offence that does not provide for a

life sentence, in which case they cannot do any more

than sentence to a determinate period. But when

fixing a minimum term judges are not even responsible - if there is a head sentence of life, the judges

cannot really be responsible for ever having a

prisoner or an offender released because that is the

responsibility of other authorities. All the

sentencing judge is doing is saying, "You will not

be released before this date."

McHUGH J:	But is this really a call to go back to PORTOLESI and the New South Wales cases that were overruled by POWER?
MR HORE-LACY:	I am sorry, I did not hear the question,

Your Honour.

McHUGH J:	You seem to_ be suggesting	that we do something contrary
to POWER.
HlTll/2/PLC	33	15/3/90
Bugmy

MR HORE-LACY: Yes. Well, I am aware of those - no, as I

understand the cases that were overruled, they

virtually provided that a minimum term had

little punitive aspect at all or, in fact, that

there should be no minimum term. It should be

for the executive to decide. But I am not suggesting

that at all, Your Honour, except in the context of

a person - if, for example, His Honour, in this

case, believed that the applicant, because of a properly

proved mental condition was a dangerous, say, homicidal psychopath, who would never ever be

safe in the community, then he would be

expected to decline to exercise a discretion and

impose a minimum term. But once having decided

to impose one then, in our submission, a
preventative detention, even if it may be impossible
to impose an aspect thereof in other sentences,

you cannot do it with a minimum term or it is not

allowed as well. Not only that, but it would be

out of kilter.- the term "imposed" is so far out of kilter with other sentences that that, in our

submission, manifests an error in itself.

McHUGH J:	But that may be the point, may it not, in this class
of case, that there is no meaningful comparison with other sentences. When you are dealing with people
who have been sentenced to. life imprisonment, you have got
to concentrate on the individual.  No doubt, you
have got to take into account the retributive
aspect of the case but apart from that the
question as to whether or not the person can be
safely let out into the community is the dominant
feature, is it not?

MR HORE-LACY: With respect, no. If it was a shorter sentence

it might be but not in this particular case in any

event because there is no basis - even

though His Honour was entitled to take a view that

the future looked very glum, there is no basis upon

which he could say that this offender is never going

to be rehabilitated. As I said before, if there was

a proper basis of saying that, then it may have been

open to him to decline to fix a minimum term in

which case he would be eligible for parole at

any time but what His Honour has done is, in fact,

he has stated that he did not think it was

appropriate that he decline to fix a minimum term

and he gave, in our submission, what is an excessive

sentence or an excessive period of time before which

he is eligible for parole.

Even if there is no parole board, even if

it was automatic that he be released after that

time, all he is doing by that is warehousing the

applicant for a number of years, say, between

12 and 18, and as we submitted before it loses

relevance the longer the sentence. The longer the

sentence that has to be done, the concept of

dangerousness loses relevance.

HlTll/3/PLC	34	15/3/90
Bugmy

We also say that there is no basis upon which His Honour could say - certainly, I think,

Mr Justice Marks - that he was incorrigible and

irredeemable. There is no basis to say that as

there was no basis to say that - yes, that

appears at page 109 of the application book in

the judgment where His Honour states this -

Mr Justice Crockett first of all made mention

of it when he said:

The applicant was properly regarded as

irredeemable or incorrigible.

But His Honour went on to say that he would not

say that he was totally without any chance of

redemption, I think. That was Mr Justice Fullagar

who said that at page 109:

The applicant was properly regarded as

irredeemable or incorrigible.

In relation to that, Mr Justice Crockett said:

However, the applicant appears, at

least to this time, to be irredeemable.

Now, I would commend that to the Court. It is

impossible, in the absence of compelling medical

evidence or some evidence of some mental defect

which would make the applicant psychopathic,

for example, it really is impossible to say that

he is irredeemable, bearing in mind that these
offences were committed when he was 20 and, I think,

the robberies were committed when he was aged 19.

Mr Justice Crockett goes on to say:

That conclusion follows not only from his

behaviour before the commission of the

offence, but particularly from his

behaviour and attitude subsequently.

He is quite without contrition, as perhaps

the pitiless nature of the attack on the victim would lead one to expect. He has been unsusceptible to any attempt at

rehabilitation. He requires close confinement

in order to curb his undisciplined and

rebellious behaviour. Doubtless his

personality and behaviour trends have been

shaped largely, if not entirely, by a

lifetime of deprivation and disadvantage

in a racial context. It was said by counsel,

and doubtless with a good deal of truth,

that he has been brutalised by institutional

living from the age of three.

HlTll/4/PLC	35	15/3/90
Bugmy

However, it cannot be assumed that he

will be locked up for ever. He is only

27 years. This the Judge recognised. In

fixing a minimum term the Court is doing

just that. The punishment imposed has
always been, and will remain, one of

imprisonment for life. This means that he

will always remain subject to detention.

If paroled, and then guilty of a breach of
that parole, he can always be reclaimed.

In practical terms, the fixing of a minimum

term is no more than stating the date after

which the Parole Board may grant parole.

Conunutation of the term of life imprisonment

is no longer a realistic possibility. So

to the day he dies he can be called upon to

suffer incarceration. If at the expiry of

whatever minimum term was fixed the applicant's
no prospect of being paroled.

attitude and behaviour were as they now are,

Now, it is in context of that - what was said

by Mr Justice Crockett that we would support and
we would say, as a matter of conunon sense, he

really would never be paroled unless it was

demonstrated, especially with his background and

in view of the nature of the offence, unless he

showed signs of rehabilitation.

His Honour goes on to say:

On the other hand, no one can say that the stage

might not be reached when the expert advice of

Corrections Department authorities will be

that the applicant is suitable for an attempt

at parole, even though at present that day

may appear far distant.

And then His Honour makes a conunent concerning

the counter-productive nature of the sentence

imposed:

It is for this reason that it seems to

me to be inappropriate, and possibly

counter-productive, to a prisoner's possible

rehabilitation, and so to the conununity

interest, if an inordinately long period,

every day of which must be served, is fixed

as a non-parole period. This, of course,

is not to say that in fixing a minimum

term the elements of deterrence and

retribution are to be disregarded.

And then His Honour -

MASON CJ:  Mr Hore-Lacy, we have read the judgments.

HlTll/5/PLC	36	15/3/90
Bugmy

MR HORE-LACY:	Yes. Well, I am not about to cite any other matters except just one other comment of
His Honour Mr Justice Fullagar who said - and
this is at page 110:

it must also be appreciated that the

increasing use of violence in the community

and the incidence of homicide are so great

that a severe approach to crimes of this

kind may well have become required.

I submit this, Your Honours: there is no evidence

that, in fact there is an increase in use of
violence in the context of murder and there is no
basis upon which, with respect, His Honour could

come to that conclusion.

As far as the offence itself is concerned,

and the objective circumstances surrounding the

offence: in our submission, it is -bearing in mind

that all murders, of course, are serious matters

but there is nothing really spectacular as far as

the surrounding circumstances are concerned. It

was a murder which involved a young man who, like

Veen and like other Aboriginal people who had been

fostered out at a very young age to white parents,

had a - and I think the words that were used were

"brutalized by institutional life" and it was a

judgment or a fixing of a non-parole period which

involved a person who, as I say,was only ·20 years at

the time.

The murder was notpremeditated. It was a spur

of the moment thing. The motive was robbery. A

PLC	total of $5 was taken. As I say, I am not - - -
McHUGH J:	Well, it was to some extent, was it not? I mean he was laying in wait for someone to come along. '
MK-HORE-LACY:	Well, I thou9ht he went looking for somebody,

Your Honour, but either way it was premeditated

~o a certain extent - I am not saying it happened

in the spur of the moment but when I say it was not

premeditated, I am saying the premeditation was

in the vicinity of, say, 10 minutes or perhaps

even half an - - -

McHUGH J:	He took an iron bar along with him.
MR HORE-LACY:	No, he did not, Your Honour.
McHUGH J:	Did he not?
MR HORE-LACY:	He found the iron bar.
HlTll/6 / JH	37
Bugmy ·	15/3/90
MASON CJ:	But, he lay in wait, did he not, for some time:

behind a tree ..... armed with a long

metal pipe -

that appears at page 31.

MR HORE-LACY:  Yes, I see the reference. All I am saying, Your I-bnour,

it was a mtter of - I mean, if I said ha-lf an hour, I do not

know exactly the time sequence but it was

precipitated by his not having any money to get into

a hotel or a hotel discotheque on that very, ni~ht

and he went and, as I said, I was never suggesting

that there was not a certain amount of premeditation.

But, what I did say, he picked up the iron bar,

I a.m confident in the vicinity of the bowling club.

McHUGH J:  Yes, he said that he wanted to:

roll someone ..... bash em and take

the money -

and then he:

found an iron bar and then I went up

to the gardens -

that is in his record of interview at page 82.

MR HORE-LACY:  Yes, that is correct. What I am just suggesting

is this, Your Honours, that as I have said before,

there was no aspect of sadism, in our submission,

in the attack. I know there were 17 blows - - -

TOOHEY J:  That is a fairly dubious proposition, I would have

thought, Mr Hore-Lacy.

McHUGH J:  Yes, I thought Mr Justice Crockett, himself, said

it was sadistic.	He did, at page 105, about half-way
through.	He said it:

might properly be described as sadistic,

sadism being a characteristic that earlier

incidents of violence suggest was one for

which the applicant had a propensity.

MR HORE-LACY:  Yes, well, His Honour qualified that, with

respect:

It was contended that the killing in a

frenzy, such as occurred in this case, by a

perpetrator who has ingested alcohol and

drugs is a classical manifestation of a

purposeless and irrational attack by one who

is acting in the course of an unbridled frenzy.

It was contended that, in fact, the applicant's

conduct should be interpreted as revealing

HlTll/7/JH	38	15/3/90
Bugmy

preparations for robbery, but not for

murder and, accordingly, the killing should

be treated as having been an unpremeditated

act, and that viewed as the product of an

alcohol and drug-induced frenzy, it was an

unremarkable murder.

TOOHEY J:  But, that is not the judge expressing his views.

He is simply echoing submissions that were put to him.

MR HORE-LACY:  Yes, I appreciate that but His Honour does go on

to say that it was - well he did not use the words
"unremarkable" or "not remarkable" but he does go on

to say this, after saying:

He is quite without contrition, as perhaps

the pitiless nature of the attack on the victim

would lead one to expect.

TOOHEY J:  I must say, I do not think dwelling on the

circumstances of the killing really assists the

application. The case as so far presented has dealt

with some principles that ought to be applied.

MR HORE-LACY:  Yes, well whilst I am on the page, in relation

to the sentence imposed at page 107, His Honour said:

The information with which the Court has

been provided discloses that there have been

seventy-eight minimum term applications made,

in respect of each of which a minimum term was,

in fact, fixed. Of those seventy-eight

cases, a minimum term of fourteen years was fixed in nine and, with two exceptions, all the other applications resulted in terms of

less than fourteen years. The first

exception was one in which the minimum term

of sixteen years was fixed and that was a case of double murder; the other is a case in which a minimum term of seventeen years was fixed

and that was a case of triple murder.

The present term, after taking into

account pre-sentence detention for which the

Judge made an allowance, is to be treated as one of nineteen years (and is one which has

to be served immediately upon serving two

years for other offences). The Court cannot

be subject to the tyranny of statistics.

However, they are of real assistance, in my

view, in providing a guide as to what are

the limits of discretion.

I was not meant to be putting the matter down to the

bottom end of seriousness of offences. Periods of

imprisonment as low as eight years have been imposed

HlTll/8/JH	39	15/3/90
Bugmy

in certain circumstances, usually in domestic

circumstances. I am not putting it in the lowest

category but what I am saying, it is by no means the

worst and, in our submission, although I should

perhaps take the hint, the fact that there was

drugs and alcohol involved -although accepting that

those factors are not in themselves a mitigation -

that in the case of a young Aboriginal person with a

background that he had, they can be used as a

mitigation because that is a manifestation or, as
a result that the Court could conclude of, in fact,

his background.

(Continued on page 41)

HlTll/9/JH	40	15/3/90
Bugmy

MR HORE-LACY (continuing):  Your Honours will recall - I do

not wish to go into all the circumstances but

the witness Mol~y Dyer gave evidence that 90 cent

~ent of cases where Aboriginal people had been

adopted out to white foster parents, in 90 per cent

of cases they had broken down and the children were

then institutionalized.

TOOHEY J:  But this is an argument to the Court of Criminal

Appeal, is it not?

MR HORE-LACY:	I am sorry, Your Honour?
TOOHEY J:	This is an argument that might well be addressed

and no doubt was addressed to the Court of Criminal

Appeal.

MR HORE-LACY:	Yes:
TOOHEY J:	Does it really go in support of the special

leave proposition?

MR HORE-LACY:  No, it does not go in support of the special

leave proposition at all, Your Honour.

MASON CJ:  You have pretty well exhausted it, have you not,

Mr Hore-Lacy?

MR HORE-LACY:	What I have not said is really set out in the submissions, Your Honours, and the authorities are
also set out. It really is - just on the question
of the manifestly excessive nature of the sentence, in our submission, it is out of proportion and, with the greatest of respect to the learned majority,
it is a long way out of proportion to other minimum
terms that have been set.  The particular grounds
of appeal were that His Honour failed to take into
account personal circumstances to such an exten~ they have been set out in the submissions and unless
there is any other matter that the Court wishes us
to address on, they are the submissions.

MASON CJ:	Thank you.	Yes, Mr Flanagan.
MR FLANAGAN:	May it please the Court.	Olir initial submission

on the special leave point, Your Honours, is that

there is no fundamental violation of the principles

which govern the exercise of judicial discretion

being shown to this Court. We would submit on the

merits that the minimum term fixed was within the
permissible discretion of the trial judge and no

error has been shown in the exercise of that

discretion.

We place emphasis on the fact that this is not

an appeal as against a sentence or a review of

another court's review of a sentence. This is not

a matter relating to the imposition of a head sentence.

HlT12/l/HS	41	HORE-LACY	15/3/90
Bugmy

It relates to the exercise of the learned sentencing judge's undoubted discretion to fix a minimum sentence and we would submit that the

principles which relate to the fixing of the head

sentence are not necessartly the same as those which

apply to the fixation of a minimum sentence.

McHUGH J:  That is one thing that worries me about the judgment,

that the learned trial judge seemed to approach the

case on the basis that somehow they were, that

there was a two-tier approach required.

MR FLANAGAN:  Well, with respect, we would say that the

learned judge has not proceeded on that way, Your Honour,

on a two-tier basis.

McHUGH J:  Well, he could not in the circumstances in this case,

but he seemed as though he thought that he had to

determine what was the sentence in this case.

MR FLANAGAN:	Your Honour, he clearly was aware of the fact that he was fixing a minimum sentence to start with
and, indeed, at page 101 of the appeal book he says
towards the foot of the page:

Full weight must be given to the

applicant's relative youth and his

highly deprived and tragic background.

I have taken into account everything said
in his favour but I must give weight to
the wanton and vicious nature of the
fatal attack and of its two forerunners

seven months before and to the need to

protect the community against similar

attacks in the future. It would be

wrong to refuse to fix a minimum term

but the term fixed must be a very

long one.

So, firstly, he is well aware of the fact that he is

talking about minimums and he is exercising his

discretion .to fix one, rather than to decline to fix	one and, when he gets on to the next page, he shows,
with respect, that he is conscious of all the
authorities that relate to sentencing principles and
the sort of problems that are posed, as he says, in
cases like VEEN (NO 1), VEEN (NO 2), DUMAS and he
goes o~ to say that he has refreshed his memory:

of all the cases of which I am aware

in which either single judges or the

Court of Criminal Appeal have been

concerned with minimum terms following

upon a conviction of murder. I am

conscious that the minimum term which

I am about to fix will be said to be,

and plainly is, a very long one when

regard is had to what the statistics

H1Tl2/2/HS	42	15/3/90
Bugmy

and the individual cases show.

I am fully conscious of the fact that,

as a term to be served in full without
remissions, it is a very long term.

In my desire to protect the community,

I have gone to what I regard as the

permissible limit of what is appropriate

to the crime on the footing that the

term proposed is -

and the emphasis is on this -

in all the circumstances, appropriate

and not disproportionate.

Now, our submission is what he is saying there,

in all the circumstances of the case, what is

appropriate to the circumstances of the offence and

the offender because they are the very things that

he took into account on the page before.

McHUGH J:  I appreciate that but I cannot help but think that

the approach to this question of minimum sentence

is altogether different from the approach to a

sentencing problem.

MR FLANAGAN:  We would agree with that, Your Honour, but we

would say, nevertheless - - -

McHUGH J:	Well, how do you go about it?
MR FLANAGAN:	What we do at this table, Your Honour, is to

refer to what this Court said in the past about it

and the one thing that we do know that they have said

is that when you are fixing a minimum there is a

policy behind having an opportunity, or the qccused

having an opportunity to fix a minimum and in POWER's

case, as it says, in truth it is but one sentence,

that imposed by the trial judge which cannot be

altered by parolling authority, and it says there

that the legislative intention to be gathered from

the terms of the particular Act in that case, which

is quite plainly the same in this particular case,

because it is to afford the accused the opportunity

of rehabilitation in the future at such a time as

other authorities other than the court might deem

it appropriate, and they go on to say, '~to provide
for mitigation of the punishment of the prisoner

in favour of his rehabilitation through conditional

freedom, when appropriate, once the prisoner has

served the minimum time that a judge determines

justice requires that he must serve having regard to

all the circumstances of his offence".

McHUGH J:  How does the judge decide what justice requires,

given the hypothesis that you have a head sentence

which has taken into account all those factors?

H1Tl2/3/HS	43	15/3/90
Bugmy

DAWSON J:	Which justice requires.
McHUGH J:	Which justice requires, yes.
MR FLANAGAN:	Well, Your Honour, we hear from time to time,

in discussion of all these principles, some people say, "Well, you take all the principles that apply to sentencing, in fixing the head sentence, and you

do the same again in relation to the minimums"

and thereby giving him the advantage twice, as. it were,

or the disadvantage, as the case might be.	We would not
submit that.	We are not saying that that is the

situation at all.

We say that the fixation of a minimum is, after all - the sentence has been imposed and the

sentence in this case is mandatory life imprisonment

and he is subject to that until the day he dies and,

in this particular instance, all that the court had

a permissible discretion to do was to fix a time

before which he is not to be eligible for parole.

In other words, it concerns itself not at all with

any considerations as to whether he is likely to be

fit to be parolled at that time, or not, or what

the policy of the government or parole boards, or

anybody else might be at that time, but merely, having

regard to the circumstances of the offence and the

offender, what is the minimum time that, as it

were, the community requires a person to be

incarcerated before he can have that consideration,

whatever it might be, and whether it is to be granted

or not at the relevant time.

It is merely a fixation of a minimum period of

time and it is our submission that in doing that
His Honour was very well appraised of the very essence

of that sort of exercise when he went to questions of danger to the public because, clearly, if there is to

be any consideration in working out what is a proper

principle to apply to fixation of a minimum,

the prospective danger to the public, the very

reason that the man is in gaol in the first place,

a la the head sentence, must be relevant and we

would submit, if not paramount in the fixation of

a minimum, certainly a matter to which considerable

importance must be attached and we would put it further

that if it is not to be regarded by the judge who

has the discretion to fix the minimum as the

paramount consideration, it is certainly relevant

as the very minimum and the greater the danger the
greater the importance to be attached to it, the

value to be attached to it.

GAUDRON J:  But Mr Flanagan, that is precisely the consideration

that is going to be made by the parole board when

the day comes, when the day fixed for non-parole

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consideration comes. It is going to be

considered in the context of a then present

situation.

MR FLANAGAN:	I concede that.
GAUDR0N J:	Why would you say the Court must, by way of

guessing, give it such important weight at that

time, when it is known that at a later time somebody

will be in a position to address precisely that

issue in a then current context?

MR FLANAGAN:	But they may not be addressing at that time, with respect, Your Honour, precisely that issue
alone.  There may be many other considerations that
will undoubtedly enter into it and the fact that they
are doing it and exercising their undoubted jurisdiction
or discretion, as you might call it, to do it then does not detract at all from the proposition that
we put, with respect, that the sentencing judge can
only deal with the person as the person is in front
of him.  Now, this, in fact, in this case, was
the original sentencing judge.  Now, that may merely
have been fortuitoui.  He may have died or it may
have been many years before, but he was the original sentencing judge and, as the Full Court has observed, not only in this but in other cases dealing with these very sorts of appeals, they say that it
would be unrealistic - ANAS' s case is orre of them .that we
have cited in the authorities - it would be
unrealistic of the court not to take into account how the person has conducted himself or
behaved himself whilst incarcerated between the
date the mandatory life sentence, in this case,
was imposed and the date upon which it falls to
be the unhappy lot of the now sentencing judge to
fix the minimum sentence.

Equally it is unrealistic not to take into

account what that reveals in terms of the future

and we would submit to this Court it would be totally

unrealistic not to take those matters into account.

Indeed, when this case was conducted before the

Full Court, not by learned counsel for the applicant

on this occasion, if the Court looks to page 110 of the appeal book, the second paragraph from the top:

It was conceded on his behalf that the

applicant's antecedents and the nature

of the crime are such as to have

permitted the learned Judge to

entertain the view that the applicant

was,and remains, dangerous and that

protection of other members of the

community was a very necessary

consideration and one which he was

obliged to bear in mind in fixing a

minimum sentence.

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That was conceded before the Court of Criminal

Appeal, and then the judge goes on to say what he

makes of that concession. So that we would put it

that the argument in so far as this aspect of the case is concerned, addressed by my learned friend to this Court today, is totally contrary to what

was presented to the Court of Criminal Appeal
where the concession was made, and we would say

properly and responsibly made, that potential danger
to the public by sheer logic and common sense must

play some part in the fixation of a minimum.

If the section does not go on to lay down

particular criteria to which the judge should direct

his attention, then one takes the view, of necessity,

I would submit to the Court, that the judge's

discretion is to be unfettered in this regard.

It is not to be hedged around, as indeed the judges

would have suggested here, in terms of statistics.

That may be a matter that you look at to find the range but it is not to hedge your discretion to

act responsibly and judicially and it is not to

require you to impose fixation of a period before

release which you would regard as wrong.

(Continued on page 47)

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MR FLANAGAN (continuing):  That is what the situation is

in this case. This judge, on good material, as is

accepted by those who assessed it in the High Court

and is really conceded by my learned friend,

and certainly was conceded in the Full Court, was

that this man posed himself as a danger to the

public now and his propensities were such,on the

basis of every realistic factor that they were
permitted to take into account at the time, would
pose that danger for a very long time and we say,

in following those principles, it cannot be said_

that His Honour has violated any discretion, any

fundamental principle of his sentencing discretion,

in so far as it applies to fixing a minimum sentence.

GAUDRON J:  Mr Flanagan, can I ask you this? Do you say that

you look at those factors for any reason other than

determining the culpability of the person for the

crime itself?

MR FLANAGAN:	In other words, Your Honour is posing to me the proposition that in fixing a minimum you may look to
something other than, for instance, the objective
circumstances of the offence or the moral blameworthiness of the accused?

GAUDRON J:  Moral blameworth:j.ness. I am asking you,_ d.o you say

that you can have regard to those matters for

something other than determining the moral
blameworthiness or the criminal culpability of the

convicted person.

MR FLANAGAN:  I think, rather, what we are submitting,

Your Honour, is that in fixing the minimum, which

is only fixing a date before you are to be eligible, that

the circumstances of the offence certainly have to

be taken into account in the same way as the

circumstances of the offender and the more horrendous

the offence or the more morally culpable or

blameworthy the accused is, is a consideration which

may well be relevant to the fixation of the minimum.

GAUDRON J:  But, is that what the sentencing judge is limited

to doing when he,,or she is fixing a minim.ml sentence?

MR FLANAGAN:  I suppose, Your Honour, what you are really

asking me is, what are the limits that can be

placed upon a judge in these circumstances?

GAUDRON J:	Yes.
MR FLANAGAN:	Well, I suppose I am starting with the basis

of saying, well, whatever they might be - and I will

come back to it, I am not trying to dodge it - what

has happened here is well within and not without the

limits.

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GAUDRON J:  Well, we will not know that unless we know what

the limits are.

MR FLANAGAN:	Yes, Your Honour. All we would say, in respect of that, Your Honour, is that clearly the judge
has to have a realistic body of evidence or material
before him which he can be said to accept as reliable before he can proceed to do anything.
Now, having that body of material available to him,
then he has to make a realistic assessment of what
he has got in terms of the extent of its relevance.
We would say, in doing that, clearly, danger to
the public is one of those things.  To take into
account the fact that - - -
GAUDRON J:	Yes, but danger to the public by reason of the nature of the crime, that is one thing.
MR FLANAGAN:	Yes, Your Honour.
GAUDRON J:	Or danger to the public by reason of the prospect

that there is something in this personality which

will render it probable that the accused person will

reoffend in the same way.

MR FLANAGAN:  We would put it to Your Honour that the limit

is that the - in fixation of the minimum - that the

limit must be the same as in the fixation of the

head sentence in that - - -

GAUDRON J:  Well, you do then say, in answer to

Justice McHugh, that there is no difference

although you said - - -

MR FLANAGAN:  I am not sure that I am saying that, Your Honour

because I am not sure precisely what His Honour put

to me at the moment.

GAUDRON J:  You said earlier that there was a difference

between - there were different considerations in

relation to the head sentence and the minimum

sentence and now you say to me, I think, that the

limits are the same.

MR FLANAGAN:  I am saying that the limits are the same in this

sense, Your Honour, that when a person is in - we

have got to start with whatever the head sentence is.

We know that that is not to be proportionate to the circumstances of the offence and the offender so

assuming that there has been no judicial violation

of the sentencing discretion in respect of that,

we would say it follows that the limit that applies

there in the sense that you must not give the

offender longer than the crime deserves - his just

desserts~ if I can put it that way - is equally

applicable in the fixation of the minimum but we

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cannot see how that really is realistically a limit

if the head sentence is already said to be

appropriate and it just does not seem to get you

anywhere by taking that view.

GAUDRON J:	The real problem is that in a case such as this a life sentence may well have been imposed without
regard being had - without regard necessarily being had - to the probabilities of the accused person.or the convict, reoffending the like manner again,
might well have been imposed.
MR FLANAGAN:	In this particular case, Your Honour, it is

clear that following his conviction for murder he

just had to get the mandatory life sentence.

GAUDRON J:	That is right, yes.
MR FLANAGAN:	So, there was really none of those considerations

in the judge's mind - this sentencing judge - at

that time, that is clear.

GAUDRON J:  Well then, one does not get any assistance by

looking to the two -

MR FLANAGAN:  The difficulty, with respect, Your Honour,

is this: :that this is a unique situation, in a way,

in that the law - offenders falling within this

group in Victoria who had mandatory life sentences

were reviewed from time to time; some said,

after a sensible period of time~ others suggested,

far from it. But the point of the matter was, _

they were in the hands of the executive, ultimately,

acting on the basis of reconnnendations or abuse

they got along the way from the parole board or other

people or other submissions made to them. Now, when

the mandatory life penalty was abolished -for very

good reasons which appear in judgments - that once

it was removed, this just happened to be a group of

offenders that had never had any minimum fixed and

under the new legislation whereby people did get

fixation of a minimum and whereby that minimum - no

remissions were ever to be given again under the new

situation in Victoria of the minimum - that every day of

that minimum had to be served. So it was deemed

appropriate to amend the Act and this is the

intention, with respect, behind the Act to put that

group of people into a situation where some minimum

sentence could be fixed in the same way as if people

were being sentenced today for murder.

Now, the fact that the man was a mandatory life

sentencee back in 1984 is merely a fact of history.

But, the realistic fact of the matter is, as far as the sentencing judge is concerned in exercising his discretion, here is a person coming before him today,

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the judge has now got a discretion to do something,

he is not to act unjudicially. Our court in

Victoria, our Court of Criminal Appeal, has said in terms of these appeals -which are regarded as a

unique situation in the sense I have described it -

they have said that when people come appealing and

saying there was some miscarriage, or it was

manifestly excessive or some particular error, they

would apply the same principles as have been applied

to ordinary criminal appeals in the past and by that
they meant that they apply the law as handed down in
this Court in the case of HOUSE and

TAYLOR AND O'MEALLY in the Court of Criminal Appeal in

Victoria, which - I do not think I ever got to hand

my submissions up to Your Honours but I will have

them sent up.

MASON CJ:  Well, we have got them, whether you handed them up

or not.

MR FLANAGAN:  Well, I am delighted to hear they got there in spite of me, Your Honour.

The point there, really being, that the court

looks at these appeals in reviewing the minimum

sentencing discretion of the judge on the basis that
seeing whether the judge has made a mistake as to the

facts, acted on an erroneous principle of law or

taken into account some matters which he should not
have taken into account, or failed to take matters
which he should have taken into account or clearly

given insufficient weight, or ex.cessive weight, to

matters taken into account or unless the sentence

is obviously, not merely arguably, too severe or too

lenient, it will not interfere. And, it has applied

those principles, Your Honour, simply because, I

suppose, it had no binding guidance from anywhere

in this un~que· situation other than to say, "Well, we've

got to look to what is a judge's undoubted judicial

discretion. We've got to see that it's exercised

judicially". Whilst it does not relate to the

treatment of head sentences, it does relate to a

discretion to fix a minimum sentence in a situation

where the head sentence may have been fixed many,

many years ago and that it would be totally unrealistic

to fetter a judge in the exercise of his discretion

and would wreak terrible injustice on what the

section seeks to achieve, injustice to the accused

in that, if you could not take into account, for

instance, the previous eight years of - not in this

case, but in another case - wonderful adjustment and

rehabilitation and - in other words, never likely to

offend again - wonderful prospects of rehabilitation,

that would be deprived to the judge in fixing a

minimum unless the court acted realistically in its

assessment of the facts to see where we go from here,

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And, in fixing the minimum, what our Full Court

seems to be doing is looking to like situations

and that is why they have been guided by other

statistics on the matter and looking at situations

where the fixation of the minimum is following

upon not a mandatory life sentence but a

determin~nt sentence which has been applied by the

court in other cases as a way of maintaining

some sort of standard.

I might also say to the Court, with respect, that it has to be recognized, I think, that between

different States, different policies have applied

at certainly different times in relation to the

fixation of minimums. One State might have many ways

of disposing of people sentenced'_ for a criminal offence,

various other forms of disposition which are not

just incarceration, community orders, suspended

sentences; others might not. Some States have

institutions for people who might be mentally

affected or may not be. Theyhave a given number of

prisons or limited ones, limited classifications of
prisoners. So that the context in which the judge
comes to exercise his sentencing discretion may be

different in different places depending upon where the

sentence has been passed. For instance, different

considerations may well have to be applied so long as

they do not depart fundamentally from what is said to

be proper sentencing principles,that Il!ight apply, perhaps,

in say, some part of the Northern Territory·

might apply in-Sydney.

The reason I am addressing these particular

matters is simply to say that the fact, for instance,

that there may be different policies is relevant

because there are circumstances that justify different

policies in different places. Different statutory

sections may inhibit what the court can do or fetter

its discretion in particular ways and particular

places. These are all variables. But, in terms of a

judge in this unique situation now,having some:=years

after a sentence has been fixed by a court, to look

and fix a minimum, it would be unrealistic, it is

submitteqfor him to have to not take into account

factors which are advantageous to the accused be it

by reason of good behaviour in the meantime in

the same way as it would be totally unrealistic

to not take into account the fact that he has got

worse and worse and becoming incorrigible, irredeemable

or whatever and we would submit to the Court that in

this particular case the judge has not proceeded wrongly;

what he has done is taken into account the body of

learning that is available to him from the cases.

He says he is conscious of them, he has refreshed his

memory from all of them. He has specifically pointed

out that one thing that has been paramount in his

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consideration is that whilst he regards protection
of the public hereafter as being relevant to the
fixation of the minimum, in fixing that period

before the prisoner is to be eligible for release,

he is also having regard to the fact that you must

not be detaining the prisoner in the particular

circumstances of this case for the period of the

minimum any longer than the sentence was sufficient

under the sentence or adequate under the sentence

or appropriate.

(Continued on page 53)

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MR FLANAGAN.(continuing):  In that respect, we would say,

Your Honours, there is no error been shown in

what he has done; that whatever the limits which

might be said to perhaps necessarily illogically

to be imposed on a judge in this sort of

unique sentencing - minimum sentencing area.

One thing - it is our strong submission -

is that he has clearly given regard to danger

to the public. We say that that is not only

logical but was his responsibility to do so

in fixing a minmmum and that because he has

stated that he is fixing the minimum highly

aware of the potential danger to the public

and within the limitations that he cannot do

anything disproportionate to the circumstances

of the crime or the offender, he nevertheless

has come to the conclusion - it must be a

long one in the circumstances of th±s case,

having taken into account everything that can

be said by way of mitigation.for the offender

so he is not in the situation where he has,

as it were, disregarded all mitigating factors

on the basis of saying, "This fellow's just

got to be locked up", he has given full credit

to them and, at least, if we accept what he

said he has and there is no reason to suggest

that he has not done exactly as he says.

For those reasons, Your Honour, we would say that there has been no fundamental breach

of sentencing principles shown here or, indeed,

nor has it been shown that he has acted outside

his permissible discretion. I do not think

there are any other matters I wish to - if the

Court pleases.

MASON CJ:  Thank you, Mr Flanagan. Yes, Mr Hore-Lacy.

MR HORE-LACY:  No matters in reply, may it please the

Court.

MASON CJ:  Yes, thank you. The Court will consider its

decision and will adjourn.

AT 4.34 PM THE MATTER WAS ADJOURNED SINE DIE

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