D v Police

[2005] HCATrans 110

[2005] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A53 of 2004

B e t w e e n -

D

Applicant

and

POLICE

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 MARCH 2005, AT 11.02 AM

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court pleases, I appear with my learned friend MR S.H. MacFARLANE, for the applicant.  (instructed by Robert McKenney)

MS G. DAVIDSON:   If the Court pleases, I appear for the respondent.  (instructed by Crown Solicitor’s Office (SA))

GUMMOW J:   You need an extension of time, do you not?

MR WENDLER:   Yes, thank you.

GUMMOW J:   Is that opposed?

MS DAVIDSON:   If the Court pleases, that application is not opposed.

GUMMOW J:   Thank you. Yes, Mr Wendler.

MR WENDLER:   Your Honours, this application raises the question whether the interests of the administration of justice in the particular case of the applicant mandates this Court’s intervention having regard to the Full Court’s treatment of the former sentencing regime imposed by the Youth Court of South Australia and the subsequent resentencing by the Full Court.

As your Honours note from the papers, the applicant was sentenced in October 2003 by a Youth Court in South Australia in respect of four counts of unlawful sexual intercourse.  In respect of that sentence, there was an appeal to the Full Court of the Supreme Court of South Australia and in broad terms, there were some three or four grounds of appeal pressed.  Indeed, all of them, it is fair to say, succeeded in one way or another.  Having succeeded in the appeal, the question then became what to do with the sentence that had been imposed by the Full Court. 

Can I just identify the error of law which the applicant submits occurred in the sentencing process before the Full Court.  Can I invite your Honours to the application book at page 29.  The reasons of his Honour Justice Gray, with whom Justices Perry and Bleby agreed, in that paragraph on page 29 there can be found the following remarks:

Pursuant to these powers –

and his Honour was referring to section 22 of the Youth Court Act –

this court should allow the appeal and set aside the sentence imposed by the Youth Court judge.  However, in so far as it may be necessary, this court should also set aside his refusal to determine that D be dealt with as an adult and his refusal to exercise his discretion to commit D for sentence in an appropriate adult court.  As this court is to resentence, the question of whether D should be resentenced as an adult necessarily arises.

And this is where the legal relationship between the Youth Court Act and the power given to the Full Court on appeal and section ‑ ‑ ‑

GUMMOW J:   Is this the point that is sought to be developed on page 44, 3.5, the statutory construction point?

MR WENDLER:   Yes.  The critical point is this.  Do your Honours have the applicant’s booklet which contains the three pieces of legislation in their entirety?

GUMMOW J:   Yes.

MR WENDLER:   It may be useful to identify immediately what the problem is alleged to be.  Can I invite your Honours to section 17 of the Young Offenders Act which is the second piece of legislation in the book. Your Honours will note that section 17 sets out in effect the procedure in dealing with a particular charge that is brought before a Youth Court. 

GUMMOW J:   It says:

the Court will conduct a preliminary examination ‑ ‑ ‑

MR WENDLER:   Yes, but at 17(3)(c):

the Court or the Supreme Court determines, on the application of the Director of Public Prosecutions or a police prosecutor, that the youth should be dealt with in the same way as an adult because of the gravity of the offence, or because the offence is part of a pattern of repeated offending –

It is the critical words, “on the application of the Director of Public Prosecutions or a police prosecutor”.  No such application was ever made in the Full Court.

GUMMOW J:   Wait a minute:

the Court will conduct a preliminary examination of the charge ‑ ‑ ‑

MR WENDLER:   Yes, which is what the Full Court did to sentence him as an adult.

GUMMOW J:   That is the Full Court.

MR WENDLER:   No:

the . . . Supreme Court determines, on the application of the Director of Public Prosecutions or a police prosecutor, that the youth should be dealt with in the same way as an adult –

The Full Court proceeded to ‑ ‑ ‑

GUMMOW J:   But this was an appeal, was it not?

MR WENDLER:   Yes, it was, and the Full Court ‑ ‑ ‑

GUMMOW J:   Well, how do you read 17(3) into the appeal structure?

MR WENDLER:   Because 17(3) mandates a procedure which is inviolable in respect to sentencing a youth as an adult. What the Full Court relied on essentially was its power in section 22 ‑ ‑ ‑

GUMMOW J:   Yes, 22(3)(c).

MR WENDLER:    ‑ ‑ ‑of the Youth Court Act, not the Young Offenders Act of course.  But when we go back to the reasons for judgment and the orders that were made, your Honours will note at page 32 that the orders that are identified:

D be re-sentenced as an adult.  Pursuant to section 18A of the Sentencing Act ‑ ‑ ‑

GUMMOW J:   Am I right in thinking that the Full Court was vested with jurisdiction by section 22?

MR WENDLER:   Well, they purported to exercise that jurisdiction without ‑ ‑ ‑

GUMMOW J:   Where else would they get the jurisdiction from?

MR WENDLER:   Yes, quite, but that jurisdiction is not devoid of the consideration in section 17 which mandates a particular procedure. You cannot read section 22 and ignore section 17. Both the Young Offenders Act and the Youth Court Act have to be read together because they are inextricably connected legally.

GUMMOW J:   Well, they are read sequentially.

MR WENDLER:   But as a matter of law they are inextricably mixed, so to speak.

GUMMOW J:   You say that.

MR WENDLER:   That is the demonstrable error, in our respectful submission, concerning the way the Full Court approached the fresh sentence ‑ ‑ ‑

GUMMOW J:   What do you say about paragraphs 8 and 9 of the respondent’s argument on page 49 of the application book?

MR WENDLER:   They made application before the Youth Court and that application was not successful.  No such application was made before the Full Court.  In my respectful submission, once the orders of the Youth Court were set aside, the Full Court was in effect in the position of the Youth Court, subject to the consideration as to whether or not the applicant be sentenced as an adult or sentenced as a youth.  Now, the application to sentence a youth as an adult is of course an application of great moment because it leads to a different, as it were, sentencing regime in which a young offender invariable falls and is to be considered.

CALLINAN J:   You say the application made in the Youth Court should have been renewed in the Full Court.

MR WENDLER:   That is right, yes.  It had to be renewed in the Full Court because it had been of course rejected in the Youth Court ‑ ‑ ‑

CALLINAN J:   The whole of the proceedings in the Youth Court were really under attack by the respondent in the Full Court.

MR WENDLER:   Well, no.  What was ‑ ‑ ‑

CALLINAN J:   Is that not right?

MR WENDLER:   No, with respect.

CALLINAN J:   Certainly the outcome.

MR WENDLER:   What was under attack were the legal nature of the orders that were made in the Youth Court, and the errors of law in relation to sentencing principle and also the way the Youth Court judge structured the suspended sentence or the bond.

CALLINAN J:   It was implicit in the appeal that in all relevant respects the Youth Court had not proceeded according to law, is that not right?

MR WENDLER:   Yes.  The Full Court set aside ‑ ‑ ‑

CALLINAN J:   And why would that not include the refusal of the application which had earlier been made that your client should have been dealt with as an adult?

MR WENDLER:   Even if it included that, there was still legal responsibility to proceed according to the procedure in section 17 of the Young Offenders Act, because that application of course is an application of great moment.  It cannot be ignored.  There was nothing in the notice of appeal before the Full Court which sought to agitate the ‑ ‑ ‑

GUMMOW J:   What do you say the Full Court should have done?  If 17(3) has a destination, conducting a preliminary examination and committing:

for trial or sentence (as the case requires) to the Supreme Court ‑ ‑ ‑

MR WENDLER:   Well, the Full Court did all that without any application being made to it, as was required in 17(3)(c).  There was no application by the Director, there was no application by the police prosecutor, there was nothing in the notice of appeal that suggested that such an application would be made.  The Full Court in effect ignored the procedure in section 17(3) and resolved the matter pursuant to 22.

GUMMOW J:   That is what appeal courts do.

MR WENDLER:   Well, of importance is the legal nature of ‑ ‑ ‑

GUMMOW J:   They have the power amply conferred by 22.  After all, it is 22 of the Youth Court Act, it is not a general appeal power that is being exercised.

MR WENDLER:   No, I appreciate that, but when one goes to 22 - and it may be useful to examine the nature or the ambit of the power in 22(3).  In 22(3)(c), for instance, the statutory language is in this form:

It may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.

The words “necessary” and “desirable” must, in my respectful ‑ ‑ ‑

GUMMOW J:   “Or desirable”, not “and desirable”.

MR WENDLER:   I beg your pardon, “necessary or desirable”, must have some connection with the procedure set out in section 17 of the Young Offenders Act.  Otherwise, the Full Court would be embarking, as I say, on a sentencing regime of great moment for a youthful offender in the absence of the mandated procedure in section 17.  Now, the reason why that added procedure exists in section 17, namely an application being required by a police prosecutor or the Director of Public Prosecutions, is because that particular application is of great moment for a youthful offender because it will affect the overall or the eventual sentence that such an offender is likely to attract and the circumstances of his detention.  And ultimately, what is being considered here is at the end of the day is the authority in the court to impose a more stringent or more powerful sentencing regime than otherwise would be available to it if the youth, in this case the applicant, was not subjected to such an application.

GUMMOW J:   But the Full Court decided that there had been an error in ‑ ‑ ‑

MR WENDLER:   Decided there had been in fact three discrete sentencing errors.  I do not argue with the fact or identification of sentencing error.  Our submission concerns what happened after that.

GUMMOW J:   They said that the Youth Court judge had erred in not referring your client for sentencing to the District Court.

MR WENDLER:   Yes, I appreciate that.  I mean, I accept all that.  We are back to square one and the Full Court has then the responsibility to resentence or to make other orders as the case requires.  Now, if it was going to resentence, it had to resentence in accordance with the provisions of the Young Offenders Act, and it did so.  It in fact in its reasons for judgment proceeded to assume that such an application in effect was made.

Now, in my respectful submission, this is a discrete short point; it goes to the legality of the final sentence imposed by the Full Court.  It is of great moment to the applicant because the practical effect for him has been the increase of his sentence by almost two years in practical terms, I think one year and nine months.  And the approach by the Full Court was of such a kind that, in my respectful submission, this application activates section 35A of the Judiciary Act in the sense that it is in the interests of the administration of justice that in the particular case of this applicant that special leave to appeal be granted.  If the Court pleases.

GUMMOW J:   We do not need to call on you, Ms Davison. 

In this matter we are satisfied that the Full Court was authorised to act as it did by section 22 of the Youth Court Act 1993 (SA). There being no prospects of success on any appeal, special leave, accordingly, is refused.

The Court will adjourn to reconstitute. 

AT 11.18 AM THE MATTER WAS CONCLUDED