Byron v The Queen; Byron v The Queen

[1989] HCATrans 184

•

'

"

• :,~~·!)!-

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A23 of 1989

B e t w e e n -

THOMAS BYRON

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Adelaide No A24 of 1989

B e t w e e n -

STEPHEN BYRON

Applicant

and

THE QUEEN

Byron

Respondent

Applications for special

leave to appeal

MASON CJ
BRENNAN J
DAWSON J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON wlmSDAY, 23 AUGUST 1989, AT 9.47 AM

Copyright in the High Court of Australia

AlT2/l/FK 1 23/8/89

MR B.R. MARTIN, QC:  May it please the Court, I appear with

my learned friend, MR C.G. CALDICOTT, for the

applicant, Mr T. Byron. (instructed by

Caldicott & Co)

HR P. ROFE: If the Court pleases, I appear for the respondent,

The Honourable the Attorney-General. (instructed

by the Crown Solicitor for South Australia)

MR R.C. HALLIDAY: If the Court pleases, I appear for the applicant

btephen Byron. ~instructed by W.A.G. Morris, Pearce

& Associates)

MASON CJ: Yes, Mr Martin.

MR MARTIN:  Thank you, Your Honour. I hand up an outline

for the applicant.

MASON CJ:  Thank you. Yes.

MR MARTIN:  If the Court please, the applicant is concerned with

two errors of principle of matters of importance that

we will put to the Court were made in the fixation
of the non-parole period of 36 years and which errors
were adopted by the Court of Criminal Appeal.

The first is a principle that emanates, in our submission, from the case of :'.EG V VON EINEM in this

Court where, effectively,the result is that the

younger the offender the longer the non-parole

period which is likely to be fixed because the Court of Criminal Appeal took the view that the non-parole period had to bear a proper or appropriate relationship

to the head sentence which, of course, is life

imprisonment.

The second matter that we are concerned with is

the effect of a plea of guilty. The Court of Criminal

Appeal effectively determined in this case that the

applicant was not entitled to any benefit for the

plea of guilty because of his lack of candour and his
lack of co-operation with the authorities.	It will

be our submission that he is entitled to a benefit

for that plea of guilty because it serves the practical

ends of the administration of criminal justice and

that the decision taken in the Court of Criminal

Appeal on this occasion is in conflict with two

earlier decisions of the Court in South Australia in

REG V SHANNON and REG V SLATER.

If the Court pleases, just to set the factual

background: the applicant was born on 19 September 1961,

therefore he was aged 24 at the time of the offence,

and the offence was committed on 10 August 1986 by the

applicant and his brother. The applicant, in fact,

attempted to enter a plea at the committal proceedings.

The plea was actually accepted by the magistrate but,

AlT2/2/FK	2	23/8/89
Byron

obviously, that matter was corrected and he

entered a plea on the first arraignment in the

supreme court on 24 April 1987. The actual transcript

of the entry of that plea appears at pages 7 to 10

in the appeal book.

The applicant's brother went for trial in March

1988          and the applicant declined to give evidence

against his brother. He was actually called, admitted

his involvement in the crime, but declined to answer

any further questions. In due course the non-parole

period was fixed on 26 August 1988; a period of

36 years to date from 6 November 1986, which was the

date of his arrest. The net result of that, if the

Court pleases, is that if the full period of 36 years

is served, the applicant would be aged 61 at the time

of his release on parole. If, as is usually the case, he was granted the full remissions, which are a third,

he would serve 24 years and would be aged 49 on his

release on parole. The provisions of the CORRECTIONAL

SERVICES ACT provide that he must be released on parole

for a period between three and 10 years assuming he accepts the conditions of the parole, and that on the successful completion of parole, section 70 of the CORRECTIONAL

SERVICES ACT provides that his sentence is deemed to be

"wholLy satisfied" - that is the expression used in the

section.

If the Court pleases, I turn then immediately

to what has been called in this court in South

Australia, the age factor. It is our submission that

in order to justify the 36 years which is the same

as the bench-mark that was set by the Court of Criminal

Appeal in REG V VON EINEM for the most serious type of

murder and for a murder where the offender could claim

no personal circumstances to his benefit such as a

plea or youth, in order to reach that figure the

learned sentencing judge resorted in part to this age

factor principle. The resort to that principle, if the

Court pleases, does not appear in His Honour's

sentencing remarks, but it does appear in his report

to the Court of Criminal Appeal which is set out in

the judg.ment of Justice White on appeal at page 96

of the transcript. His Honour quotes at about line 23

the report of the learned judge, that:

It is notoriously difficult to compare one

crime with another but I considered this case

very close in seriousness to VON EINEM and,
moreover, there was the age factor and the

undoubted fact that non-parole periods had

increased between 1983 and 1986, that

is before 8 December 1986.

So His Honour referred to the age factor and

Justice White went on to refer to the fact on page 97 line 7, that:

AlT2/3/FK	3	23/8/89
Byron

In referring to (b), "the age factor", his Honour was referring to the fact that

the appellants were relatively young men with

a long span of life ahead of them, long

enough to accommodate a long non-parole period.

This "age factor" can only be understood in the

context of VON EINEM's case so I will defer

discussion of factor (b) until I discuss

factor (a).

Now, His Honour then went on and dealt with the comparative seriousnesses of the crim2, but I will come

back to that if I may.

The learned manority dealt with the matter;

firstly Justice Bollen, page 133 of the appeal book,

and His Honour,at about two-thirds of the way down

the page in the last paragraph, referred to the

submission that:

The learned judge had wrongly taken into account

the age of each appellant. In VON EINEN the

Court regarded the age of VON EINEM as

important.

And His Honour referred to the remarks of the

Chief Justice in VON EINEM, to:

" ... release at an age at which he is unlikely

to be of any further threat ... " and" ... he
may look forward to release on parole at the

age of sixty-two years". In the passage

which I quoted above from the learned

sentencing judge's report to this Court he

mentioned the "age factor". In my opinion

his Honour did no more than heed the age

of the appellants in the same way as did

the Court in VON EINEM. Thomas was nearly

27 years at the time of sentencing. With

good conduct he may look forward to release

at about 49 years of age ..... Stephen will

of course be younger if released after earning

maximum remissions. The result in my

opinion is a merciful application of the
idea of release "at an age when he is
unlikely to be of any further threat to other
people". That applies in the case of each

appellant. I suppose a man released from

prison at 49 years of age after 24 years of incarceration is older than a man of 49 who

has been continuously at lib-erty. In

considering the age factor it is possible
to get into twisted illustrationswhich could
lead to a suggestion that the older man will
"get less" than the younger for similar conduct.

But that should not, in my opinion, trouble us

here. We are concerned with the facts of this
case. If the period fixed for each appellant

is not manifestly excessive that is that.

AlT2/4/FK	4	23/8/89
Byron

With the greatest of respect, we would submit that

His Honour has not come to grips with the

difficulties of the principle that is enunciated

in VON EINEM. To complete the views of the majority,

Justice O'Loughlin, pages 139 and 140 of the appeal

transcript, beginning at about line - it is really the

whole of the page, where His Honour refers to

VON EINEM, the fact that he was 38 and would not be

released until about 74 years of age, and that:

Thomas Byron's non-parole period commenced

when he was twenty-five; on the same

approach he can look forward to being released

when he is sixty-one.

And His Honour then goes on at line 20, to refer to

the fact that "Thoman Byron can look forward to far

more years out of gaol" and the "age factor" referred

to in VON EINEM is, in the judges opinion, "a matter

of reality and common sense". His Honour goes on

then at the bottom of the page to say that he does

not find the period excessive, and:

In the real sense, Thomas Byron's non-parole period cannot be equated with that fixed in

respect of VON EINEM; VON EINEM was treated

far more severely.

In our submission, the learned majority have turned the test around to say: well, how many years will

the offender be out on parole, what age will he be

when he is released? And that, in our respectful

submission, is not the correct test.

Mr Justice White, in his dissenting judgment, recognized the problems, beginning at page 99, of

an application of the "age factor" and, in fact, he

cites at the top of page 99 the specific passage

from the Chief Justice in VON EINEM that:

"A non-parole period should always bear

circumstances, to the head sentence.	a relation, which is appropriate in the
Where the head sentence is the term of
a prisoner's natural life, regard should
be had, in my opinion, in fixing the non-parole period, ri_ot 011l_y to the number of years which will be spent in prison
by reason of the non-parole period, but to
the relationship of the non-parole period to the normal span of life. This involves some consideration of the age of the
pr:is:Jner. To ignore the last mentioned
factor (of age), would be to fix the
non-parole period as though it were related
to a determinate sentence and would to that extent negate the mandate of Parliament that the sentence for murder is imprisonment for
life."

AlT2/5/FK	5	23/8/89
Byron

His Honour Justice White then refers to the fact that this is a reminder, however, of a principle

which does not override the fundamental sentencing

principles which include the principle of

comparative justice or parity. At the bottom of

page 99 His Honour refers to the problem of the

application of parity when one tries to take into

account this age factor for murderers at, what he

refers to a "plateau age" between 21 and 40 and

it "can work, and appear to work, grave injustice

to them vis-a-vis murderers who are younger or

older", and His Honour then goes on to discuss

the problem of those in the plateau age.

His Honour does not give full support to the

principle, but rather His Honour was concerned with

the issues of parity and the problems created by

the principle. May I take the Court in fact then to

VON EINEM's case to consider the whole context in

which His Honour the Chief Justice made his remarks.

Your Honours have a bound volume of cases; it is

page 5 of the bound volume.	it was,in fact,reported
in (1985) 38 SASR 207.	I will deal briefly with the

facts as set out by the Chief Justice because they

are important for comparison purposes.

If the Court pleases, at page 208 - - -

BRENNAN J:  Mr Martin, before you go to these, what is the provisi0n

which, either authorized or compelled the setting of a

non-parole period in this case?

MR MARTIN:  If Your Honour pleases, it is contained in the

provisions at that time of the CORRECTIONAL SERVICES ACT.

It is now contained in the provisions of the

SENTENCING ACT.

BRENNAN J: Is it section 65 of the CORRECTIONAL SERVICES ACT?

MR MARTIN:  Yes, Your Honour.

BRENNAN J:	Why was this not a case where the court ought, by order, to have declined to have fixed a non-parole
period?
MR MARTIN:	Your Honour, that was a matter of, I suppose,

discretion. The Full Court took the view in

REG V VON EINEM, that not even that case was an

appropriate case where they s11ould decline to set

a non-parole period, and the court discussed briefly the criteria that, perhaps, might be applicable, and this, in our submission, the case of the applicants

was not as serious as that of VON EINEM, and it

could not fall within that category where it would

be inappropriate to fix a non-parole period.	The
discretion always resides in the sentencing -

AlT2/6/FK	6	23/8/89
Byr::m

BRENNAN J:  It is a discretion which is to be exercised by

reason of, inter alia, the gravity of the offence

or the circumstances surrounding the offence.

MR MARTIN:  Yes, I appreciate that, Your Honour, and what we

say is that it did not reach that level of

seriousness in terms of the offence, and then

considering the circumstances of the offender there

were no circumstances to justify it, given the view

taken by the Full Court in REG V VON EINEM.

That, of course, is the exception. When I said

that the non-parole period fixed, once that is fixed,

we have, in effect, a determinate sentence, because

once released on parole, and complete parole, then the

sentence is wholly satisfied. The one exception to

that, of course, is if there is no non-parole period

fixed, well then you are truly in the category, for the

time being, of an indeterminate sentence. But there is

provision, of course, where a court fails to fix a
non-parole period, for applications to be made for the
fixation of periods as the years go by, so one

can turn it into, eventually, a determinable period of

time to be served in prison.

BRENNAN J: It is difficult to contemplate, is it not, leaving

this case aside, how a case such as VON EINEM would

not fall in the category of Cdses where there ought

to be no fixation?

MR MARTIN:  Your Honour, perhaps, in VON EINEM's case,we would

have to concede that it was well within the range of
the discretion to decline to fix a non-parole

period. That was put to the learned sentencing

judge, who, in fact, was Justice White. He declined

and the Court of Criminal Appeal, once they had

interfered, found that His Honour had erred and

therefore had to exercise their own discretion, also

declined, and perhaps I can cover that as I deal with

VON EINEM's case, but we would say it would have been

within the range of the options open to the judge.

BRENNAN J:  One of the difficulties about the exercise in which

you are engaged, which is to take VON EINEM as a kind

of bench-mark of horror and dreadfulness, is to see

VON EINEM as a case where it was appropriate to set

a non-parole period at all.

MR MARTIN:  That is true, Your Honour. We do not challenge the

view in that sense that was taken by the Court of

Criminal Appeal. What we would say is that either

course could have been followed: either the fixation

of a non-parole period, or declining. Now, in that

case the court exercised its discretion to fix a

non-parole period and, in our submission, it could
not be said that they were manifestly wrong in so doing.

It was within the range of the discretion available.

AlT2/7/FK	7	23/8/89
Byron

If the Court pleases, the facts, very briefly, in

VON EINEM were set out by the Chief Justice at

page 208 but more particularly His Honour - there

he sets out the period of the abduction and the period

of detention, the injuries, the dumping of the body
and, the only thing that His Honour has left out in

that summary at page 208 is reference to the fact

that there were traces of drugs found in the body of

the deceased.	His Honour summarized the facts at
page 218.	About point 5, and about half a dozen lines

into that central paragraph on the page, His Honour

refers to the essential features of the crime as

found by the learned sentencing judge:

the appellant, in company with at least

one other person, abducted the deceased

from the street at North Adelaide and

held him captive for five weeks. During

part of that time he was sedated

with drugs provided by the appellant.

The purpose of his captivity was homosexual

abuse. He was subject to such abuse. He

was subject to quite serious violence.

He was ultimately murdered and the appellant

was a participant in that murder. The body

was dumped in a remote spot and the appellant
was a party to the dumping of the body. That

recital essential facts amply justifies the

learned Judge's finding that the crime "stands

at the top of the scale of categories of

murder", and his reference to the "unique

seriousness of this crime".

MASON CJ:	Mr Martin, I see very considerable difficulty in
your developing an argument along these lines which ask this Court to accept, as a standard or tariff, something that has been set by a State court. This
Court generally does not concern itself with matters of tariff or standard, either in relation to head sentence or non-parole period, and yet the foundation of the argument that you are putting to this Court
is that we should accept the standard set by the
Court of Criminal Appeal in South Australia in
VON EINEM's case.
MR MARTIN:	That is so, Your Honour, for the very reason that

this Court does not concern itself with tariffs and

the Court,in our submission, therefore, should

accept the tariff, so to speak, that has been set

by the State court. For that very reason, therefore,

we have a solid foundation because this Court does

not concern itself with altering tariffs as such.

MASON CJ: Yes, but the problem is that the argument asks us to

endorse, as a foundation point, a tariff or standard

set and then to proceed from that to arrive at a particular solution in this case, and yet, by and

large, this Court traditionally has eschewed approaches

of that kind in sentencing cases.

AlT2/8/FK	8	23/8/89
Byron

MR MARTIN:  We would answer that by saying we are not asking

this Court to endorse, approve, the tariff that

was set in VON EINEM, rather to accept - - -

MASON CJ:  But it would involve an acceptance, would it not?

It would involve an acceptance, and an acceptance

necessarily involves a confirmation or an approval.

MR MARTIN:  It would involve proceeding on the basis of the

tariff that has been set without, in our submission,

endorsing it, but simply accepting that that is the tariff the court in this State has seen fit to set, and this Court, accepting that for the purposes of

considering whether there were errors of principle,

and whether those errors lead to manifest disparity,

such as to - - -

MASON CJ:	I think the distinction between acceptance and
approval is a tribute to your sophistry.
MR MARTIN:	If Your Honour pleases, I really can take the

matter no further than that, but to say the Court has

on more than one occasion refused sentence matters

by saying, well it does not involve - or for that
matter allowed on occasion, appeals against sentence
without - or clearly indicating that the Court's view

is not to be taken as approving of disapproving of

the sentence that has been set and, in our

respectful submission, the Court can proceed in this

matter eschewing any approval at all, but simply saying, ''i-kli that is the standard that exists in South Australia. Now,given that standard, has there

been a gross violation of sentencing principles in
the case of the particular applicants given the

standard which the court in South Australia has

fixed? 11 Now, I can do no better than to put it on

that footing, if Your Honour pleases.

In any event, if Your Honour pleases, even

leaving aside the tariff, so to speak, of VON' EINEM

which comes back to an ultimate question of

manifest disparity, if there have been errors of

principle in the processes of the learned

sentencing judge and Court of Criminal Appeal;

errors which have a significant effect on their

determination of what was the appropriate period
in this case, such as the errors of age factor
and plea of guilty, then, in any event, regardless

of the tariff of VON EINEM, in our submission, this

Court should interfere because those errors have

worked adversely to the applicant and it would

result in a gross violation of the sentencing

principles, irrespective of any tariff of VON EINEM.

BRENNAN J:  You must point to such an error not so much in the

Court of Criminal Appeal as in the sentencing judge's

remarks, must you not?

AlT2/9/FK	9	23/8/89
Byron

MR MARTIN:  Yes.

If Your Honour pleases, that error appears because His Honour has adopted the age factor

princ~ple as he was obliged to do by the decision
of REG V VON EINEM, and therefore that is an error
of significance in his assessment of what was an

appropriate non-parole period, and the Court of

Criminal Appeal, in declining to interfere, has

also accepted that principle from VON EINEM of the

age factor, and that similarly is an error of

significance on a matter of important principle.

DAWSON J:	You are going to develop that, are you, Mr Martin?
MR MARTIN:	Yes, Your Honour, and I go back to the foundations

of the principle in REG V VON EINEM. But by way of

background we have the facts as set out by the

Chief Justice, and then His Honour, at the bottom of

page 218, asks the question:

what, having regard to the age of the

prisoner, is the minimum time which he

must spend in prison -

and His Honour refers to the aspect of general

deterrents taking particular importance in this case

because of the circumstances in Adelaide involving

the disappearance and murders of young men, and

His Honour then asks the question, at point 5 on

page 219:

The further question which a sentencing

judge must ask himself in fixing a non-parole

period for such a crime is: what are the
prospects the the prisoner will respond to

parole -

he refers to the age of 38, and the absence of

personal circumstances; he then refers to the

principles by which a court will or will not

interfere with an earlier decision, and I take the

Court, if I may, to page 220, point 5, where

His Honour says: 

It seems to me that the basis consideration in fixing a non-parole period for the crime of murder is that it is fi.xedin relation to a

sentence of imprisonment for life.  The

legislature has made that sentence mandatory.

Parliament could take a different view of the appropriate sentence for murder. In

some places the court is empowered to impose

a determinate sentence for that crime as for

other crimes. But it is for Parliament and not the court to make a change of that kind.

It would be wrong·f6r the courts to approach

the task of fixing non-parole periods in a manner which disregarded the fact that the

mandatory head sentence is imprisonment for life.

AlT2/10/FK	10	23/8/89
Byron

A sentence of imprisonment for life means

a sentence of imprisonment for the term of the

prisoner's natural life. This is the only

sentence which the law, which Parliament has

enacted, permits for the crirreof murder. The

stringency of this mandatory sentence is
mitigated to some extent by the power entrusted
to the courts to fix a non-parole period, having
the effect that the prisoner will be released on
parole at the expiration of that period if he

accepts the conditions ..... A non-parole period

should always bear a relation, which is

appropriate in the circumstances, to the

head sentence. Where the head sentence is the

term of the prisoner's natural life, regard

should be had, in my opinion, in fixing the

non-parole period, not only to the number of

years which will be spent in prison by reason

of the non-parole period, but to the

relationship of the non-parole period to the

normal span of life. This involves some

consideration of the age of the prisoner.

To ignore the last-mentioned factor, would be to

fix the non-parole period as though it were related

to a determinate sentence and would to that

extent negate the mandate of Parliament that the

sentence for murder is imprisonment for life.

That is the foundation of the principle and

Justice Jacobs, page 224, without expressly taking up those sort of words, second half of the page, referred

to, in fact,the issue of "special reasons" if

Your Honour pleases, but then at the bottom of the page
referred to the need to do "sentencing gymnastics",

and at page 225, looked at the age at which the

prisoner could be seen to be released.

Justice Olsson simply referred really, in the last

part of his judgment, to the question of his being

released - should:

not be released until it appears clear

that he will no longer constitute a

danger to others.

In our submission, in essence, that is an erroneous

approach; it is adverse to the young offender and the
well-accepted principle in law that youth is generally
to be regarded as a mitigatory feature, and it

creates the obvious difficulty if there are two

co-offenders, one aged 20 and one aged 50, how :~en

does the court make proper allowance for the youth
of the younger offender and respective roles et cetera.
The younger offender is penalized and, in our submission,
penalized because of a view of Parliament's intention

that is not justified given the history of the

legislation, and I mention that very briefly, it is the
history of the legislation and the practical effect of

the legislation to which we refer.

AlT2/ll/FK	11	23/8/89
Byron

MR MARTIN (continuing): In 1969 the Parole Board was first

created by an amendment to the PRISONS ACT and was

given an unfettered power to release on parole when it saw fit to do so. At that time courts were also
given the power to fix non-parole periods but they

were not obliged to do so.

BRENNAN J: Where do you find any error in the sentencing

judge's remarks with respect to this so-called

"age principle".

MR MARTIN: If Your Honour pleases, as I mentioned, the

reference to the age factor is not in the sentencing

remarks but, in His Honour's report to the Court

of Criminal Appeal, His Honour disclosed more, if

you like, of his thinking and reasoning and that

report is quoted at page 96 in the judgment of

Justice White. His Honour referred to the fact that during the course of his report that he had

reference to the age factor which was understood

by everybody, including the learned judges of the

Court of Criminal Appeal, to mean a reference to the principle enunciated in REG V VON EINEM. So it does not appear in his sentencing remarks, if

Your Honour pleases, but the absence from the

sentencing remarks, in my submission, is not of

significance given His Honour's report to the

Court of Criminal Appeal.

DAWSON J: And you are now attacking the principle?

MR MARTIN:  Yes we are. The situation changed in 1981 when

it became obligatory, under the then PRISONS ACT,

for courts to fix non-parole periods. However,

release at the expiration of the non-parole period

was entirely within the discretion of the Parole

Board. So, effectively, the non-parole period was

a minimum term. That changed in December 1983, by

an amendment to the PRISONS ACT, when release on

parole became automatic at the end of the non-parole

period less the remissions. It was mandatory for

the non-parole period, from that point on, from

20 December, to release on parole within 30 days of

the appropriate date provided the prisoner accepted

the terms of parole.

So, effectively, the non-parole period became

the maximum to be served less the remissions.

Parliament, in our submission, paid no special

attention when enacting these various changes to

the fixation of non-parole periods in the case of

life imprisonment. It really just fell within that

general category of the total wholesale changes

that were occurring. In our submission, when one

looks now at the provisions of section 66 and

section 70 of the CORRECTIONAL SERVICES ACT, what

AlT3/l/DR	12	23/8/89
Byron

has happened is that the courts are Eiven the

responsibility of converting an indeterminate

sentence into a determinable period, because the

court fixes a non-parole period in the knowledge

that at the expiration of that period the parole

board recommends parole to the governor for a period
of between three and 10 years; the g-overnor then
fixes the period; release occurs and at the end of
parole, which might be anything from three to 10 years,
the sentence is "wholly satisfied" is the expression

in the provisions of the CORRECTIONAL SERVICES ACT. I have copies of the relevant provisions, if

the Court pleases, not of the whole Act but of the

relevant provision. It is section 66(3) - provides:

the Board -

(a)	must recommend to the Governor the period,
being a period of not less than 3 years nor more than 10.

Then section 70 provides in subsection (l)(b) that:

A prisoner ..... will ..... remain on parole -

(b) in any other case -for the period

recommended by the Board and approved by

the Governor.

Then in subsection (2):

Upon the expiry of the parole of a person

pursuant to subsection (1), the sentence of

imprisonment will, subject to this Part, be

taken to have been wholly satisfied.

So that, in our submission, His Honour's view that

Parliament intended that the non-parole period should be fixed, vis-a-vis the natural span of life is not the correct view and not supported by

the practical result of the fixation to the

non-parole period in cases of murder where life

imprisonment was originally imposed.

In our submission, Parliament would be

concerned only with the fixation in accordance

with the usual principles of the seriousness of the crime, et cetera. If the Court pleases, to

complete the picture of how this principle has

operated in South Australia, there are two other

cases which may be of some assistance to the Court.

The first is REG V FOWLER AND HART, (1986) 127 LSJS

and it is the bound volume of cases, its page 39.

AlT3/2/DR	13	23/8/89
Byron

On this occasion Fowler and Hart were aged

18 years. Now, there were various offences by

virtue of the circumstances but His Honour the

Chief Justice discussed this particular principle

at page 333 of the Law Society Judgment Scheme

report in the last paragraph on that page:

In favour of leniency are the circumstances

that Fowler was only 18 years of age at the time

of the crime and that it undoubtedly resulted from the foolish use of drugs by a young man.

There are two sides to the factor of youth in fixing a non-parole period in respect of a

life sentence. Irrnnaturity is, generally

speaking, a circumstance making for a degree

of leniency. On the other hand it must be

borne in mind that a non-parole period in
respect of a life sentence is fixed in

respect of a sentence for the term of the

prisoner's natural life. The Court must

have regard, not only to the period which

will be spent in prison, but to the

proportion of the life sentence which is likely
to be spent on parole. If a non-parole period
of twenty years were fixed, Fowler would be

released

et cetera -

at the age of 38 years. That would enable him

to be free for a considerable portion of a

normal life expectancy. A non-parole period

of that period would seem to me to hold a

fair balance between the demands of punishment

and deterrence on the one hand and of

rehabilitation.

Now, if the Court pleases, the final case - and I will not read from it, but it is in the

Court's bound volume at page 66, is an unreported

judgment of the Court of Criminal Appeal in

REG V WALTON. Justice Bollen, who delivered the

majority judgment at pages 9-11, referred briefly

to the fact that the age issue had been raised

before him. He took the view that, in that case,

the appellant who was 24 was, in fact, a mature

person and therefore did not discuss the pros and

cons of the particular principle.

So, if the Court pleases, that is what we

wish to put to the Court in respect of this principle:

that it is contrary to the fundamental principle of

youth being generally regarded as a factor in

mitigation. It is inappropriate and unfair to
penalize youth by the use of this principle and it

is not a principle that can properly be said to

arise out of the legislation and Parliament's intention.

AlT3/3/DR	14	23/8/89
Byron

If the Court pleases, the second principle

of concern is that of the extent to which a plea
of guilty at the earliest opportunity may be said
to be a factor in mitigation, notwithstanding a

lack of candour and co-operation on the part of the

applicant. As indicated in the summary at the

beginning, the plea was at the very earliest

opportunity and the learned sentencing judge said

that he took this into account. It is in his remarks

at pages 81 line 25, and 83 line 6.

So, if the Court pleases, we cannot point to the

sentencing remarks and say, "Well, His Honour has

ignored this entirely." If he did, and I appreciate

that this brings me back to a foundation of the

tariff in VON EINEM' s case - but if as His Honour

said, during the course of his remarks, he took into

account the plea then he must have started with a

figure of non-parole period that was higher than

36 years. In our submission - and it is based on the

tariff in VON EINEM' s case - that, in itself, is an

error to have started at a level that was so high.

BRENNAN J: That is not the way in which a sentencing judge

work, surely? He takes into account all the

circumstances of the case and then makes a global

assessment.

MR MARTIN:	Yes, he does, Your Honour.
BRENNAN J:	He might care to test it against something that

he regards as a satisfactory bench-mark, or he may

not, and what is appropriate is not necessarily

to be determined by a reference to any so-called

bench-mark.

MR MARTIN: If the Court pleases, I appreciate we founder

on this question of the bench-mark. What we put

to the Court is that Justice White was correct in

his summation when he said that the facts in this

case fell considerably short in seriousness of the

facts in VON EINEM's case. Therefore, in our

submission, if the court has set a standard as was

done in REG V VON EINEM and in a case that is less

serious the sentencing judge starts with, or
assesses a tariff around the same mark or must

start higher if he genuinely has taken into account

a plea of guilty.

BRENNAN J:  Why should he start anywhere at. all? Why should not

he simply come to the final figure and then
consider, if he wishes, how that compares with

another case?

MR MARTIN: Well, if His Honour did that, in our respectful

submission, His Honour was in error because he has

made no proper allowance in arriving at the final

figure for the plea of guilty. If a proper

AlT3/4/DR	15	23/8/89
Byron

allowance were made, inevitably,in a proper range of

the sentencing discretion, in our submission, must

have fallen considerably short of the level - the

tariff, if you like, in VON EINEM's case because

in the case of VON EINEM the facts were more
aggravated; there were no personal circumstances of
mitigation and in the case of this applicant the

features of mitigation were effectively his youth

and his plea of guilty.

So that i~ in the end result, there is an

arrival at the same figure, in our submission, there

must have been an error and that was the view taken by Justice White when he assessed the situation. I

just give the Court the page references: that is,

pages 97 and 98, where His Honour Justice White in

dissent took the view that an error was manifest

as a result. It is line 16, if Your Honour pleases,

on page 97, where His Honour said:

In my opinion his Honour made a mistake of fact

and law and ordered a manifestly excessive

non-parole period for a pre-1986 murder as a

consequence of thinking that this murder was

"very close in seriousness to VON EINEM".

And that quote, of course, is taken from the

trial judge's report. If the Court pleases, the further difficulty has been created in this case

by the approach of the learned majority who

effectively disallowed any fact in mitigation for

the plea. That approach, in our respectful
submission, is in direct conflict with other cases

decided in the South Australian Court of Criminal

Appeal.

So we have, in effect, a conflict between

the courts. The view of the majority: Justice Bollen,

page 110, is the first reference in the appeal

transcript. His Honour simply refers to the fact

of the plea - it is lines 11-23 - and the fact that

the applicant:  had plenty of opportunity over quite a long
period to make a full and frank -

admission and he never did so. At page 118,

His Honour comes back to the question briefly, where he refers to:

the various lying interviews -

line 14, that the applicant -

had with police.

And he refers to that briefly. Then at pages 134 and 135,

His Honour reaches his conclusion on the matter,

AlT3/5/DR	16	23/8/89
Byron

beginning at line 25. His Honour said:

Thomas pleaded guilty. The learned trial

judge was obliged to take that into account. He did so. Well then it is said, his Honour

must have started with more than thirty-six

years. Perhaps so. If so there was no fault

in so starting.

And His Honour says:

in truth here the plea of guilty merited but

the slightest recognition.

And he went on to say:

There is nothing to suggest remorse or

contrition.

His Honour then referred to the absence of remorse,

at page 135, and at line 25 said:

In my opinion Thomas was entitled to very

little credit indeed for the plea of guilty. Justice O'Loughlin referred to the matter at

pages 140 and 141 and said that he agreed with what

had been said by Justice Bollen. In our submission,

that approach is in conflict with the

REG V SHANNON, (1979) 21 SASR 442, page 81 in the bound volume, if the Court pleases. The relevant

passages appears in the judgment of the Chief Justice

at pages 450 through to 453.	On page 450 at point 5,
His Honour says:

The history of sentencing as disclosed in the

law reports leaves on me a strong impression that

courts have generally been willing to recognize
as meritorious a willingness on the part of
an offender to co-operate in the administration

of justice irrespective of the moral purity of

his motives. The reason, no doubt, is that

the proper administration of criminal justice

should be influenced, not only by logic and

consistency, but also by the need to serve

practical ends. Candour and co-operation with

the police have always been recognized as
meritorious independently of remorse.

His Honour goes on to discuss the practical results and comes to his sunn:nary at the bottom of

page 452, He puts forward some propositions:

A plea of guilty may be taken into account in

mitigation of sentence where -

A1T3/6/DR	17	23/8/89
Byron

(a) it results from genuine remorse,

repentance or contrition, or

(b) it results from a willingness to co-operate

in the administration of justice by saving the

expense and inconvenience of a trial -

et cetera.

A plea of guilty is not of itself a matter of mitigation where it does not result from any of

the above motives, but only from a recognition

of the inevitable.

That could not have been said in the circumstances

of this case. At the time that the applicant entered

his plea it could not be-said that he was faced with an

overwhelming case at all.

Justice Zelling concurred in the judgment of

Justice Wells who put forward his propositions at page 454 and 455, really saying that it was a

matter of discretion but in the end result His Honour

indicated, towards the end of his judgment, that he

agreed with:

the Chief Justice's reasoning and conclusions. In respect of the practical effect His Honour said,

in the very last paragraph of his judgment on page 455:

It may, however, be useful to emphasize, with respect to sub-par. (b) -

which dealt with the practical effect -

the willingness referred to in that sub-paragraph

may be permitted to have a mitigatory effect,

not where it stands in isolation, but only
where, in all the circumstances in which it is

public purpose or purposes that the sentencing

found, to give it that effect would advance the

judge is seeking to achieve.

Justice Cox, pages 456 and 457, dissented. The

very last two lines on page 456 is where His Honour

begins his remarks and he was concerned it was

matter of policy and dissented on the view.

Justice Mohr, page 459, concurred with the Chief Justice.

The practical ends of administration was also discussed by the Chief Justice in REG V SLATER.	It
is page 102 of the Court's bound volume. It is

reported in (1984) 36 SASR 524 and at pages 525 and 526

His Honour the Chief Justice dealt with this particular issue beginning in the bottom of the page where he

quoted from the learned sentencing judge:

AlT3/7/DR	18	23/8/89
Byron

"It is the clear policy of this Court, and

perhaps a policy which needs to be restated

in the light of recent congested lists and

abortive trials, that accused persons who

confess their guilt are entitled, generally

speaking, to substantial credit for their plea,
the amount of credit depending to some extent

of course upon the strength of the case against

them.

He refers to cases in England and His Honour then

goes on:

I endorse his Honour's observations, although

I should perhaps point out that the consideration

as to the strength of the case is pertinent

rather to the significance of the plea of guilty

as an indication of a desire to turn over a new

leaf than to the policy considerations relating

to over-coming congestion and delay.

His Honour refers to the practical problems and:

The degree of co-operation in the administration

of justice meriting a reduction in sentence is

obviously considerably greater in the case of

an offender who pleads guilty when he is first

arraigned in the court than in the case of an

offender who delays his plea.

And His Honour says, "it is important that there

.should'be·significant reductions if the practical

ends are to be served.'' Justice Zelling acknowledged,

at page 535, the authority of SHANNON on this point -

that is at about point 3-4- as did Justice Cox,

albeit we can fairly say, reluctantly at page 541

in the second-half of the page.

If the Court pleases, in our submission, an

error has been demonstrated by the Court of Criminal

Appeal by the reasoning: there has been an error

have, in fact, the result of a conflict between the	demonstrated by the learned sentencing judge and we
decisions of the Full Court in this State. There are a number of interstate cases that are set out
in our lis4 which I will not read, which cover the
approach of the various States to this issue of the
plea of guilty. They are authorities in the index
numbers 9 through to 14. If the Court pleases.

MASON CJ:  Thank you, Mr Martin. Mr Halliday.

MR HALLIDAY:  May the Court please, before I embark on what

will be very short submissions, we will, in effect,
adopt submissions made by my learned friend,

Mr Martin, could I draw the Court's attention to the

fact that the notice of application for special

leave was not filed until, in fact, one day out of

time and I apply,pursuant to Order 60 rule 6, for an

AlT3/8/DR	19	23/8/89
Byron

order enlarging the time for the filing of the

notice which I understand to be by consent.

MASON CJ:	Yes. That is not objected to, Mr Rofe?
MR ROFE:	I consent to that, Your Honour.

MR HALLIDAY:  Thank you, Your Honour. If the Court pleases,

with respect to the issue of the youth factor which my learned friend, Mr Martin, has put to the Court,

I adopt, with respect, his submissions. The

appellant, Stephen Byron, does not, of course, have

the benefit of a plea having gone through the trial

process and been found guilty by a jury although

there is, perhaps, a difference favourable to him

that at the end of the day his guilt was acknowledged

by way of submissions through evidence called by a

psychiatrist and by concessions to counsel.

So, in that sense, he is not in the situation,

such as VON EINEM,where there has been no acknowledgement

of guilt and the crime, if you like, is not solved

to avoid the difficulty - - -

MASON CJ:  Do you have a written outline of submissions,

Mr Halliday?

MR HALLIDAY:  Yes, I do. I am sorry, Your Honour, I tender those.

MASON CJ: Perhaps you might hand them in.

MR HALLIDAY:	They are my submissions, if the Court pleases.
MASON CJ: Thank you, Mr Halliday.	The Court will take a

it will take in this matter. short adjournment in order to consider the course that

AT 10.43 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.46 AM: 

MASON CJ:  The Court need not trouble you, Mr Rofe. The Court

is of opinion that these applications raise no

question of public or general importance which would

warrant the grant of special leave to appeal.	The
applications are therefore refused.

AT 10.47 AM THE MATTER WAS ADJOURNED SINE DIE

AlT3/9/DR	20	23/8/89
Byron