Carroll v The Queen

[2009] HCATrans 22

[2009] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S472 of 2008

B e t w e e n -

JOSH CARROLL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2009, AT 10.07 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with MS G.A. BASHIR.  (instructed by Legal Aid Commission of NSW)

MR D.C. FREARSON, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

GUMMOW J:   Yes, Mr Game.

MR GAME:   If the Court pleases.  We submit that this case raises questions that go beyond the mere, shall I say, non‑application of the decisions of this Court in Markarian and Wong.

GUMMOW J:   What is the present custodial position of your client?

MR GAME:   Your Honour, he is serving the full‑time sentence that was imposed and that will expire in October of this year.  So that if there were a grant of leave, then clearly enough we would have to ask the Court for some kind of expedition to hear his application.  Your Honours, what we say about this case is this.  As I said, it raises questions that go beyond the mere non‑application of the decisions of this Court in Markarian and Wong.  It goes beyond those cases and raises questions about the exercise of appellate jurisdiction, including the use of statistics, the statements of types of offences within particular offences, the definition of something called a range and then what is described as the increase of penalties for this particular, what is said to be, type of offence.

In a moment I will take you to the chief judge’s judgment to show how, we would submit, thoroughgoing the problem is, but may I first just take your Honours very briefly to a passage in the dissenting judgment of Justice Simpson at page 75?  We submit that her Honour deftly puts her finger on the problem and at paragraph 46 she refers to, “The availability of computer‑aided statistics” with respect to consistency and the availability now of a statutory procedure for the conduct of the very exercise that was conducted, in effect, without a contradictor by Chief Judge McClellan in this case.

Then at paragraph 47 her Honour states what seems transparently correct but not applied and involves a careful consideration of the exercise of appellate jurisdiction and power in the context of a Crown appeal, which I will come to in a moment.  But plainly enough, in our submission, consistency is one thing, but the essential justice of the case is what is involved in the sentencing exercise.  I might take your Honours back to and now I propose to endeavour to show you how thoroughgoing the problem is in the approach taken by Chief Judge McClellan and assented to by ‑ ‑ ‑

GUMMOW J:   Where do we find the passage in which the majority in the Court of Appeal found error supporting the Crown appeal?

MR GAME:   Paragraph 23 is as close as comes but, your Honour, 23 is ‑ ‑ ‑

HEYDON J:   But no error of fact or law or ‑ ‑ ‑

MR GAME:   No, but, your Honour, there is something that needs to be understood about that first sentence and it really is the culmination of my argument, because that so‑called range on careful examination there is no such range and I will explain how deeply that goes with respect to a protean offence such as manslaughter.

KIEFEL J:   You say that the reference to this offence is an offence of a type and that is what ‑ ‑ ‑

MR GAME:   I say that when you get to that point, it has been circumscribed by a definition of type, the type being said to be indiscriminate acts of violence.

KIEFEL J:   A term of imprisonment of three years is not unknown in New South Wales for manslaughter.

MR GAME:   No, your Honour, that is quite true, but in manslaughter in New South Wales we have all voluntary manslaughters which are provocation, diminished responsibility, and all involuntary manslaughters, which is manslaughter by gross criminal negligence and unlawful and dangerous act.  Unlawful and dangerous act has the widest possible range because there is an objective marking stick which is risk of serious injury.  But in answer to your Honour Justice Heydon’s question, there is no identification of error of fact or law. 

So we say that the problem that arises in this – and I will take your Honour to – there is a slightly nuanced aspect of that that I will come back to in a moment that is important for the Court to understand.  But may I go back to paragraph 9?  In paragraph 9 his Honour refers to two things.  Some cases he referred to in another case about a single blow manslaughter in what he describes as the “median sentence for manslaughter”.  As I said, that is manslaughter across all courts and all offences, so it includes all the Supreme Court cases where murderers come down to manslaughter.  In median, if one thinks of the graph as a Sydney Harbour Bridge, well, it is just the middle of the harbour bridge and that is not the median.  That is the median for full‑time imprisonment.  So, there are 15 per cent non‑imprisonment, so it is just the hump of the harbour bridge, but he has left off the first hump, which is the 15 per cent for no full‑time jail.

If you go to our submissions at page 88, footnotes 11 and 12 – and I certainly do not have time to take you to the monograph – but this is the sort of thing that would be extracted by the Attorney‑General’s intervention in a guideline judgment.  At paragraph 12 you see that 11.5 per cent do not get imprisonment at all; 15 per cent where there is a guilty plea has fallen out of the statistics, but also that includes Supreme Court, and the figures are much lower for sentences in the District Court.  I have not got time to take you to that material, but you see the footnote above that, footnote 10.  Those are the 10 cases his Honour reviewed in KT. 

If you read those 10 cases, we do not know what the reasons were in those 10 cases, but just examination of the acts involved shows that every single one of those was more serious than the one involved here and those sentences included, as we say in paragraph 3.9, one of periodic detention and one of a good behaviour bond.  So when we get back to paragraph 9, we have so far, in our submission, got nowhere in terms of this exercise.  Then we are told, the end of paragraph 9, that sentences should significantly increase for this type of offence. 

Now what his Honour has done there is extract a passage from his own dissenting judgment in another case, in KT.  Then what flows through the judgment there is the Crown attempts to persuade the court, but does so successfully that there is this type of offence.  In paragraph 11:

young men affected by alcohol who congregate in or near licensed premises are particularly prone to –

That is not this case.  That is a characterisation which does not accord with what her Honour found in this case.  At the bottom of paragraph 14:

yet another occasion when a violent act was committed by a young man significantly affected by alcohol –

Not this case, again.  Alcohol was very important for the victim.  He was heavily intoxicated and threatened to get a gun and shoot the whole family.  The offender played no part of the debate about the money, contrary to what the court said.  I will come back to paragraphs 18 and 19 in a minute because that addresses a question Justice Heydon raised with me.  But then we go to paragraph 21 and the type is stated, “Indiscriminate acts of violence of the type committed by the respondent”, et cetera.  That is the type and that is what feeds in then to paragraph 23.  At this point, in our submission, serious questions arise about the exercise of judicial power on a Crown appeal and, in effect ‑ ‑ ‑

GUMMOW J:   Serious question being?

MR GAME:   The serious question being whether or not it is appropriate to – can I just perhaps show your Honours what we have said about that.  It is at page 103.  One would have to say that careful thought about it may require some refining of the questions.  But paragraphs 2(a), (b) and (c) and then 3 is how we put it.  We put it in this sense, that really there is no contradictor to this exercise of finding, shall I say, authority out of the statistics from all cases of manslaughter narrowing them down to unlawful and dangerous act being within unlawful and dangerous act a further categorisation and then jiggling with the case to, as it were, bring it within that categorisation.

HEYDON J:   What do you mean by “no contradictor”?  Do you mean that this precise point was not exposed in argument?

MR GAME:   No, I do not mean that at all, your Honour.  What I mean is this.  If you announce in a judgment that sentences are too low for an offence and then you extract statistics and then you do an examination in that case, then you extract them to say the sentence must increase, that involves a whole series of considerations like incidents of crime, effective general deterrents.  Those are the things that are now statutorily mandated for consideration under guideline judgments.  This individual offender is a respondent to a Crown appeal.  He, as it were, is not to be brought into court, as it were, to deal with the entire subject of, shall I say, the level of penalties for a particular offence and the increase of them where there is no real exposition as to why these sentences should be increased from something undefined to some other thing undefined.

When I said that the question was slightly more nuanced than a direct answer to the first question your Honour Justice Heydon asked me, what I had in mind is this.  In paragraphs 18 and 19 two factors have completely gone out of consideration.  One is the positive finding of provocation by the sentencing judge which is an identified mitigating circumstance under section 21A of the Sentencing Procedure Act and, two, the fact that her Honour regarded the offence as being, and literally in substance, completely out of character for this young man.

GUMMOW J:   Just assuming you succeed in the appeal to this Court, what order do we make?

MR GAME:   You would make an order ‑ ‑ ‑

GUMMOW J:   ..... now reach probably September 2009.

MR GAME:   Your Honour, I appreciate all that, but there have been cases – perhaps I should first answer the question.

GUMMOW J:   What order do we make?

MR GAME:   I am about to introduce another consideration, but the order would obviously be – our submission would be that the order ‑ ‑ ‑

GUMMOW J:   Basically do not re‑exercise sentencing?

MR GAME:   No, I understand that.

HEYDON J:   Appeal to the Court of Appeal be dismissed is the order.....

MR GAME:   Yes, that would be the order we seek, yes.  The reinstatement of the periodic detention.

HEYDON J:   .....sentence.

MR GAME:   Yes.  So you would not re‑exercise any discretion, but you would – it would sound as though I am coming here with my hand out, but it is not unknown and it has happened in a very occasional case that bail has been granted pending a special leave application.  I am not necessarily saying that – I am just saying that there are ways which have occurred in the past for people with short sentences where ‑ ‑ ‑

HEYDON J:   Because then if the appeal fails, how do you balance the – if bail were granted, presumably the periodic detention would continue, would revive.....the balance ‑ ‑ ‑

MR GAME:   No, sorry, the periodic detention would not – if he was on bail, he would just be on bail and then under the sentencing procedure legislation there would have to be – it takes five minutes to work out what it is, but the parties would have to agree as to the dates on which the sentence would resume.

HEYDON J:   Whichever it was?

MR GAME:   Yes, that is correct, but it is not a complicated exercise because the sentencing procedure legislation enables that kind of exercise to be done.  Can I just take your Honours back to that first question that your Honour Justice Heydon asked me.  At paragraphs 18 and 19 one sees this, that two things have gone, as I say, the out of character finding and the provocation finding, but one thing has come into this and this is something that Justice Simpson described as her first point of departure with Justice McClellan.  It is the last sentence of paragraph 18. 

What has happened there is the introduction of the notion of foreseeability.  Foreseeability plays no part of unlawful and dangerous act manslaughter and it was never suggested in this case, because foreseeability is one thing, but all that one requires for unlawful and dangerous act manslaughter – and that is why the sentences are over such a wide range is the risk of serious injury and risk is ‑ ‑ ‑

KIEFEL J:   To be fair though, I do not think the chief judge referred to foreseeability.  It was Justice Simpson, was it not, in her ‑ ‑ ‑

MR GAME:   No, in the last sentence in paragraph 18, page 67 of the ‑ ‑ ‑

KIEFEL J:   I see I was reading paragraph 19.

MR GAME:   Again, while his Honour just said that, it may not seem that significant, but it is at the very heart of his consideration.  He has introduced something which is unknown, unless there is some special aspect of the case, is unknown to any plea to unlawful and dangerous act manslaughter.

KIEFEL J:   Whereas you would say that one of the important features of the sentencing judge’s considerations was that the consequences were so remote from the act itself.

MR GAME:   That is exactly right and that was the point that her Honour Justice Simpson – and really this is at the heart of it.  Page 77, fourth line:

The, most significant aspect, to my mind, is the analysis of the proportion between what the respondent actually did, and its dire consequences.

So her Honour puts that in the central place, whereas, as we would submit, that something seriously has gone wrong in paragraph 18.  May I finish by saying two things.  One, paragraph 23 – and this is certainly not our main point – but paragraph 23 you will see that there is no exposition in the sentencing or re‑sentencing exercise of the Court of Criminal Appeal as to why it is doing what it did and this is against a statutory framework in which the court must deal with specific questions, such as 21A mitigating factors, such as the finding of provocation.

So, as I said at the beginning, in our submission, the problems with this case are thoroughgoing, but they do raise quite significant questions about the particular exercise that was embarked upon.  The judgment in this case, in effect, already does and will pervade the whole of the appellate process in respect, at least, to manslaughter appeals into the future.  So it is an important case in that respect. 

Finally, the last comment I wanted to make and I am not trying to provoke trouble for myself, but in a case like this the shortness of the sentence involved should not, in my submission, be a reason to refuse leave because, I mean, it is almost too obvious to say, but what can one do about the fact that the sentence is so short?  That is, in fact, what is the subject matter of the case.

KIEFEL J:   Do you rely on what Justice Simpson said at paragraph 52 in relation to the question of the shortness of the sentence?

MR GAME:   Yes, I do.  There was evidence that was accepted about the serious risks of self‑harm if he served a full‑time sentence.  So those are our submissions, if the Court pleases.

GUMMOW J:   How long would any appeal take do you think?

MR GAME:   I would have thought no more than two hours, your Honour.  It is a half‑day case but, I mean, your Honours we would say one of the – I am not trying to sell your Honours a jalopy, but one of the attractions of this case is that the factual and legal parameters are so carefully and so clearly confined and defined by the differences between Justice Simpson on the one hand and the chief judge on the other, and Justice Simpson being perhaps the most experienced intermediate criminal trial and appellate judge in the country.  If the Court pleases.

GUMMOW J:   Yes, Mr Frearson.

MR FREARSON:   Thank you.  My submission is that this is not an appropriate vehicle for special leave at all.  When one looks at the totality of the remarks, it is obvious, in my submission, that there was no constraint on a judicial discretion.  It is instructive to look at the context of the particular reference as to KT and the real context was as to the significance of youth at application book 61, 50.  The conclusion was that “There remains a significant public interest in deterring antisocial conduct”, application book 62, 40; references to adult behaviour and to the circumstances of the offence, more particularly, at adult behaviour at 63, 20; circumstances of the offence at 63, 23.  The result was that general deterrence and retribution are to be given appropriate significance “when a young person conducts him or herself as an adult” and goes about committing serious crime, application book 64, 30. 

Was it a serious crime?  Well, the chief judge examined that, examined the nature of the crime with reference to the Crown submission.  The Crown submission clearly was that this was a vicious head butting by a very large, fit, strong, young man.  He was a front row forward in a football team.  That was the Crown’s submission 65, 20.  The respondent’s submissions were taken into account.  It was a single head butt but with no anticipation that anybody “would fall down and die”.  That introduces a concept probably not advisedly of foreseeability, at 66, 49.  His Honour was confronted with that.

KIEFEL J:   Is there an innate tension though between the notion of deterrents and a truly random act which is totally out of character as distinct from a group of individuals who habitually congregate around areas where they are going to have alcohol and look for trouble?  That latter example seems to be the category in which the chief judge put it.

MR FREARSON:   Well, thank you, your Honour, but it really depends on on what basis did the chief judge sentence?  My submission is that he actually sentenced on the objective facts of the case confined to the case.  He made some comments that were far more widespread, but he came back to the facts of the case.  Like in KT there are references to cases that have – there is no correlation with the facts at all, but he came back to the facts of this case, a big, strong, young man who had six to eight schooners of beer and who intervened – and he said unjustifiably intervened – into this dispute and head butted. 

Now, the very nature of a head butt is to take a person by surprise, that is a factor, and it is on a hard road – if I can just conclude what I was saying.  The conclusion was that the sentence was manifestly inadequate.  That is the error, 66, 19.  There was no immediate threat.  The violent response was unjustified.  There was potential for serious physical consequences, 66, 20, and the chief judge thought, well, this is not towards the bottom of the range at all in terms of objective seriousness, 67, 35. 

KIEFEL J:   Can you point to factors that the chief judge identified which disclose error on the part of the sentencing judge?

MR FREARSON:   The two errors were the unreasonable interpretation of the objective gravity putting it towards the bottom of the range, that was the principal error, and the ultimate error, of course, was manifest ‑ ‑ ‑

KIEFEL J:   But to say it is not at the bottom of the range is to express a conclusion.  What factors in the sentencing judge’s ‑ ‑ ‑

MR FREARSON:   His Honour looked at then the circumstances of the offence and he looked at the circumstances in which the applicant intervened and he considered the suggested provocation to be explanatory, rather than mitigatory.  He said there was a dispute going on.  The deceased had in fact been pushed and sworn at.  The applicant intervened in that and delivered what must have been quite a significant head butt, the result being

the deceased fell on the ground and died some time later.  His Honour looked at the objective gravity and made his assessment of the objective gravity.  It is true that the applicant has got very strong subjective considerations. 

The error was the error in classifying the offence, application book 67, 35, as I said, falling towards the bottom of the range of objective seriousness.  I will not repeat it, but the factual situation was that the applicant was there with his brother, also a large man, and there was another man there.  The deceased is a 51‑year‑old, who is intoxicated, behaves inappropriately to some extent, but he is pushed and sworn at and the chief judge considered that the intervention in those circumstances was aggressive and not justified. 

As to the substituting of the factual finding, what the chief judge effectively held was that the conclusion about the bottom of the range was not reasonably open.  Rejecting the mitigatory nature of provocation, well, I already made a submission about that.  There was no immediate threat.  The applicant was with two other men.  On the question of foreseeability, well, I have submitted that was actually introduced by the submissions in the case.  But when one looks at it – application book 66 and 67, 30 – his Honour was talking about what is stating the obvious really, that if you head butt a man on a road, death is a possibility obviously, severe injury was clearly foreseeable. 

You need to look at the test for manslaughter.  A reasonable sober person would appreciate the risk of serious injury.  That is what makes it dangerous.  There is an objective element there of looking ahead.  In fact, those remarks attributed nothing at all to the applicant.  He was talking about the nature of the manslaughter and, in effect, responding to a submission that had been put to him.  My submission is that when one looks at the totality of what the chief judge said, he actually came back and sentenced and gave what one may think is a reasonably moderate sentence at the end of the day, 13 and a half months.  He sentenced on the objective facts and had well regard to the very strong subjective features and this is not an appropriate reason for special leave.  Thank you.

GUMMOW J:   Yes, Mr Game.

MR GAME:   Just briefly, the question asked by your Honour Justice Kiefel.  If I could just take your Honours to paragraph 11 of the chief judge’s reasons at page 64.  You see that characterisation of that category of case:

young men affected by alcohol who congregate in or near licensed premises are particularly prone to become involved in

violence . . . sufficient to deter other young men from similar conduct.

That is the type.  The offender is brought into that type, but the deterrents relates to that type.  It leaves entirely begging why he should be made the subject or object of the, shall I say, need for general deterrents.  So that begs entirely the question that is raised by the case. 

The Crown also accepted that Chief Judge McClellan rejected provocation, but provocation was conceded and it was a factual finding made by her Honour.  There are a couple of other factual corrections I should make.  One is the deceased cracked his head on the gutter, not from the head blow itself physically and he played no part in the argument.  His only involvement was after he heard the threat to kill the family.  Nothing that has been said by the Crown has undone what I would describe as the central thread in our argument.  If the Court pleases.

GUMMOW J:   We will take a short adjournment.

AT 10.35 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.41 AM:

GUMMOW J:   There will be a grant of special leave in application No 3 and the appeal will be expedited on the footing that it is a half‑day case.  The parties should hold themselves ready for placement of a hearing in the list commencing Tuesday, 31 March 2009.  That may not come to pass, but the parties should be alert to that possibility.  We will take a short adjournment to reconstitute.

AT 10.42 AM THE MATTER WAS CONCLUDED