D v the Queen B72/1999

[2000] HCATrans 704

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B72 of 1999

B e t w e e n -

D

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 NOVEMBER 2000, AT 10.54 AM

Copyright in the High Court of Australia

MR A.J. GLYNN, SC:   May it please the Court, I appear with my learned friend, MR A.J. RAFTER, for the applicant.  (instructed by Legal Aid Queensland)

MR M.J. BYRNE, QC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

MR GLYNN:   Your Honours, the applicant was convicted of murder ‑ ‑ ‑

GUMMOW J:   This is yet another case requiring an extension of time, is it not?

MR GLYNN:   I am sorry, it is a case requiring an extension of time.

GUMMOW J:   Is that opposed, Mr Byrne?

MR BYRNE:   And, again, there is no objection.  No, it is not, thank you, your Honour.

GUMMOW J:   Very well.  Yes.

MR GLYNN:   The applicant was convicted of murder committed when he was aged 16 years and eight months.  Although a life sentence is mandatory for an adult convicted of murder in Queensland, the sentencing regime for a person who commits murder and is sentenced as a child requires an exercise of judicial discretion.  Section 121(3) ‑ ‑ ‑ 

GUMMOW J:   Well, there is this phrase “particularly heinous”, is there not?

MR GLYNN:   Yes, your Honour.

GUMMOW J:   Yes.

MR GLYNN:   That is the essential threshold test as to whether a sentence of more than 10 years detention can be imposed.

GUMMOW J:   The actual section is section?

MR GLYNN: Section 121(3) of the Juvenile Justice Act.  That should be amongst the materials that your Honours have.

GUMMOW J:   Yes, we have it.

MR GLYNN:   Your Honours will see that the provision requires ‑ ‑ ‑

GUMMOW J:   So the court has to consider:

the offence to be a particularly heinous offence having regard to all the circumstances.

MR GLYNN:   That is right and, of course, it must involve violence to another person, which murder clearly does.

GUMMOW J:   So you say this case was one in which the court could not properly have considered the offence to have this character?

MR GLYNN:   Yes, not properly have considered it to be a particularly heinous offence, that is right.

GUMMOW J:   Why is that?

MR GLYNN:   Your Honour, the court approached it on the basis that the circumstances of the killing must be particularly odious or reprehensible and that approach, or that test, is not disputed, but it is submitted that the circumstances of this offence did not demonstrate it to be a particularly odious or reprehensible example of the offence of murder.

GUMMOW J:   I do not know about that.

MR GLYNN:   Well, your Honour, the fact of ‑ ‑ ‑

GUMMOW J:   What would you have to have in order to cross this threshold, in your submission, that you did not have here?

MR GLYNN:   Your Honour, one would look for something such as ‑ ‑ ‑

GUMMOW J:   I mean, we are assuming the youth of the offender.

MR GLYNN:   Yes, I must start from the basis that he committed the offence.  The offence involved violence, as murder inevitably will.  The violence was of no particularly horrendous kind in terms of what one sees with the offence of murder.  The finding of the sentencing judge in that regard ‑ ‑ ‑

GUMMOW J:   What, are you saying that he killed her quickly or ‑ ‑ ‑

MR GLYNN:   No.  Well, the trouble with it is it is impossible to say a great deal specifically about the offence.

GUMMOW J:   Did he torture her first or something like that?

MR GLYNN:   Well, there is no suggestion that she was tortured.  There was no suggestion ‑ although the trial judge found that it was premeditated, the Court of Appeal, in my submission, correctly rejected that proposition on the basis that there was simply no evidence to support it.  The finding as to the injuries was that the injuries inflicted to bring about her death were most probably caused by her face being struck against a concrete wall with considerable force.  That is at page 59 of the record.  Your Honour, all killings will involve some application of force and will obviously ‑ ‑ ‑

GUMMOW J:   Not all poisonings, for example.

MR GLYNN:   Certainly, but poisoning almost certainly will involve premeditation, which is missing, and, in my submission, premeditation is one of the types of features that one would look for before one described an offence as particularly heinous.  Now, in this case – I do not say, of course, that there has to be premeditation but it is the sort of feature that one might look for.  Protracted violence might be another.  It is difficult to come up in advance with all of the features that might go to establish it, but when one looks at the killing in particular, your Honour, the submission is that there was nothing about this particular offence that sets it aside from killings involving violence.  What the Court of Appeal and what the learned ‑ ‑ ‑

GUMMOW J:   What about subsequent mistreatment of the corpse?  Is that an irrelevant consideration?

MR GLYNN:   My submission is that it is irrelevant.

GUMMOW J:   Does this concept of killing stop necessarily with the expiry of life?

MR GLYNN:   My submission is that for the purposes of this provision it does stop with the killing and does not go to the circumstances of the treatment of the body afterwards.  Certainly the Court of Appeal reached that conclusion and, in my submission, that was an appropriate conclusion for the court to have reached.  I will just find the passage.  Page 72 of the record, your Honour, the court said in paragraph 8:

To fall within the description of “a particularly heinous offence” the offence must be one that was particularly odious or reprehensible.  The circumstances which are relevant to this issue are the circumstances of the killing itself and not the offender’s subsequent conduct in dealing with the body.

In my submission, that was a correct view of the legislation.  Now, your Honour, whilst the conduct in dealing with the body may have been revolting – and I am not going to submit that it was not – it is not a feature ‑ ‑ ‑

GUMMOW J:   But you have to show that there is an error of law really, that these circumstances fell outside what could be considered to be “a particularly heinous offence”.  Views might differ.  Obviously views might differ, but it seems a rather heavy task to say that this case fell outside the permissible ambit of this phrase and that, therefore, there has been this error of law.

MR GLYNN:   Your Honour, in my submission, there is simply no feature to which the court has pointed which would put it within that category.

KIRBY J:   Yes, it did.  It did.  It pointed to a number of features.  It pointed to the fact that the victim was a total stranger, that she was a stranger to your client and that she was a stranger to our community.  She was a Japanese tourist, a young woman peacefully in our community as a guest and she was just set upon.  He showed no remorse and she was left in a vault and then her corpse was dealt with in a truly appalling manner.

Now, I would point out also that it is the indefinite article, it is “a particularly heinous offence”.  It is not “the most heinous offence”.  It is simply “a particularly heinous offence”.  Now, in those circumstances, it seems very difficult for you to try to persuade us that it was not open to the primary judge and to the Court of Appeal to hold that these events which I have just shortly described do not fall within that statutory classification.

MR GLYNN:   Your Honour, my submission is that the fact that it is the killing of a stranger, which is effectively a summary of the features to which your Honour has pointed, cannot in themselves justify such a finding.

KIRBY J:   It is not just that she was a stranger.  She was a foreigner.  She was a stranger to him and a stranger to our community and I think most – even in ancient times communities showed respect to strangers who came within their walls and I think we still feel that way about people who come to this country and they are entitled to walk along our streets, at least in Australia, and not be set upon and murdered.

Just imagine being a parent at long distance to hear news of – that you have lost contact and you wonder what has happened and you have no knowledge.  I mean, it is a terrible thing and even in ancient times that was regarded as particularly heinous.  Anyway, that is how I respond to it and I do not put these – I mean, your client is a young person and it is a terrible sentence that he has suffered, but as against that we have to look at whether or not this Court should intervene in the matter.  This is a Queensland statute of a peculiar kind that is given a special interpretation and I just do not think it is arguable that it is not one that was open to the Court of Appeal and to the primary judge.

MR GLYNN:   I am obviously not going to persuade either of your Honours on the first point.  May I move to the second?  The second is that the court was still required to exercise a discretion as to the appropriate level of sentence for this young man convicted of this murder, as to whether it fell into the worst category of offence, before the court could impose a life sentence, because even the finding that it was “particularly heinous” simply made available a sentence of 10 years detention, but up to and including a sentence of life imprisonment.

The court accepted that to make such a finding it was necessary to show – and this is at page 73 paragraph 10 ‑ where the court accepted the test in Twala, which is an unreported decision of the New South Wales Court of Criminal Appeal, where the court said:

in order to characterize any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed).

KIRBY J:   I am not too sure about that because I think the focus in Queensland is upon the terms of the Queensland statute which, after all, does focus attention on the offence.  The other issues may be relevant if you are not convinced that it is a particularly heinous offence, but I think you have to keep separate – the statute focuses on the offence, not on the offence and the offender.

MR GLYNN:   Yes, your Honour, but once the threshold test which permits the court to detain above 10 years comes into play, then, in my submission, one looks to a test such as that which was applied in Twala and which the Court of Appeal seems to have accepted is appropriate to the second step in the sentencing process, and that is as to what is the appropriate level of sentence or detention above 10 years.

KIRBY J:   Yes, but if you are of the view that the case is, or is to be considered, as “a particularly heinous offence”, then you are in category (b), are you not, not in category (a)?

MR GLYNN:   Yes, that is right.

GUMMOW J:   That must be right, is it not?

MR GLYNN:   That is correct, your Honour.

KIRBY J:   And, therefore, you are not really dealing with the matter as a “not more than 10 year” type offence.  You are dealing with it in the life sentence, “having regard to all the circumstances” the matter is “particularly heinous”.

MR GLYNN:   I am sorry, yes.  I must have put that badly.  That is what I was trying to say, your Honour, is that once you pass the threshold of being “a particularly heinous offence”, then one has to decide what is the appropriate sentence above 10 years, up to and including life imprisonment.  In other words, that raises for the judge a sentence of between 10 years and life imprisonment once it passes the threshold test, that it is a two‑stage process.  One does not automatically go to a life sentence because it is “a particularly heinous offence”.

KIRBY J:   No, that is true, but it would be a precondition to its being a life sentence that it was classified as “a particularly heinous offence”.

MR GLYNN:   Yes, that is my submission.

KIRBY J:   You could not get to a life sentence without coming to that conclusion.

MR GLYNN:   No, you could not.

GUMMOW J:   That is what the judge did.  The judge went in two steps.

MR GLYNN:   Yes, I accept that the process was correctly followed, your Honour.  My submission is that – I had a two‑stage submission.  Firstly, the one that I have said that I will not pursue, namely, that the judge could not have got past the threshold, and then, secondly, the submission is that the sentence, although falling into the second category, should not have been a life sentence because it did not fit into that category of the worst case category, which would justify a life sentence, and that is a test that the Court of Appeal refers to and accepts as being a precondition to the imposition of a life sentence in its reference to the view of the New South Wales Court of Criminal Appeal in Twala.

My submission is that even if one gets over the first step, the court had no basis for taking the second step and finding that it was in the worst category of offence.

GUMMOW J:   No basis?

MR GLYNN:   That is my submission, your Honour.

KIRBY J:   Are not the considerations relevant to determining that it is in the category of a most “heinous offence” somewhat similar to the worst case?  The same considerations ‑ there will be an overlap in the considerations relevant to each determination, will there not?

MR GLYNN:   I have to accept that.

KIRBY J:   One is a qualification that gets you into the territory of life sentence.

MR GLYNN:   That is right.

KIRBY J:   And the other is one that lifts you up definitely to that sentence.

MR GLYNN:   That is right.

KIRBY J:   So it is a question of one’s response, in a sense, to the same factual circumstances.

MR GLYNN:   That is right.

KIRBY J:   A person a stranger to your client, a person who was a stranger to our community and a foreign national who was here, a young person who was then brutally bashed, no sense of remorse, no sense of regret, disputed of the facts and then an appalling circumstances of the disposal of the body.  So it is a question of whether it is not open.  It is not whether we would, if we had the responsibilities of the sentencing judge, sentence in a different way.  It is whether it was really not open to the primary judge to sentence in that way.

MR GLYNN:   That is right but, again, my submission, your Honour, is that you would not have regard to the way in which the body was dealt with after death and, in my submission, your Honour, there is no reason to treat as any more serious the killing of a visitor to Australia than one would an Australian citizen.

KIRBY J:   Well, I do not just agree with that.  It may be because of the fact that I was brought up reading the New and the Old Testament, which talk of our duty to strangers, and I think a lot of Australians would feel that way and even people without religion would feel that way.

GUMMOW J:   Yes.  I mean, it is the same idea in Islam as well.

KIRBY J:   Anyway, it is simply a response which I have which I feel pretty sure was the response – and it is referred to by the judges below that she was a foreign tourist.

MR GLYNN:   It is.

KIRBY J:   I think we are a country of peace and we are not like other countries where it is a violent place for tourists to be.  Here it has been peaceful and that is how we would like to keep it by our criminal laws.

MR GLYNN:   My submission simply is, your Honour, that it is a standard that must apply equally to Australian citizens as it does to foreign visitors and that it is not a point of distinction.  It is not a basis for ‑ ‑ ‑

KIRBY J:   You may be right that it is not a point of distinction but it is a factual circumstance that is relevant to determining whether the case is one that calls forth the statutory term “a particularly heinous offence”.

MR GLYNN:   Your Honours, I do not think that there is anything else I can usefully advance.  I think I have made the point as strongly as I can.

GUMMOW J:   Yes, thank you, Mr Glynn.  Mr Byrne, can we just hear you on what Mr Glynn described as his second point?

MR BYRNE:   Yes, certainly, your Honour.  Your Honour, in respect of both points, no error of principle is asserted by the applicant.  Both matters, in my submission, are properly categorised, as I think your Honour Justice Gummow said earlier, as matters for judgment by the relevant judicial officer and the way it was approached by the Court of Appeal and the sentencing judge, a two‑stage process, but once gets into the second category by having found that it was “a particularly heinous offence” involving violence, then there is that ‑ ‑ ‑

GUMMOW J:   The crucial passage in the Court of Appeal on the second step starts, I think, at page 73 at line 11 where they say, and what perhaps seems to us correctly, “The same factors which led” to the view of “worst category” and then they went on to consider other factors.

MR BYRNE:   That is so and the other factors are matters which, correctly, play no part in the first categorisation but are additional factors which are of relevance, in my submission, to the second step, and those include the absence of remorse, the dealing with the body and, importantly, the finding by the psychiatrist that this person, the applicant, was highly dangerous to the community.  That, of course, is a well‑recognised consideration taken into account by courts in sentencing.

So after getting to the first stage, namely, “particularly heinous”, there are additional factors, as well as those already considered, taken into account by the sentencing judge and the Court of Appeal.  The test must therefore be, with those factors, it would be wrong in law to reach the conclusion that this fell within the worst category and, as I have said and I will not repeat myself, that is a matter for judgment.

It is clear from the authorities – and my learned friend made it in the course of his submissions this morning – that it is difficult to come up with all the features because one can add additional features as long as one’s imagination holds out.  The real test is whether the Court of Appeal and the sentencing judge here correctly categorised this as being not the worst, but within the worst category.  That being a matter for judgment, there is no special leave point, in our submission, and if the categorisation was open, there is no point of particular justice.

GUMMOW J:   Yes, Mr Byrne.  Anything in reply, Mr Glynn?

MR GLYNN:   No, thank you, your Honours.

GUMMOW J:   The applicant, at the time of the offence, out of which his conviction arose, was 16 years 8½ months of age.  Being under the age of 17 years, he fell to be sentenced as “child” in accordance with the Juvenile Justice Act 1992 (Qld). He was sentenced to life imprisonment.

To sustain that sentence, it was necessary that the sentencing court consider the offence “to be a particularly heinous offence having regard to all the circumstances”. Those are the terms of section 121(3)(b) of the statute. The focus is that one looks to the offence, itself, not to the circumstances personal to the offender.

The deceased was a young woman who was a stranger to the applicant.  She was a Japanese national, a stranger in the community.  In the circumstances, it was open to the sentencing judge and to the Court of Appeal of Queensland, to hold, within the statutory provision, that the offence was “a particularly heinous offence”.

On the leave application, the applicant raised a second argument, namely, that although this was in the category of “a particularly heinous offence”, the case was not one that warranted the imposition of a life sentence.  However, as the Court of Appeal pointed out, there were additional considerations that warranted a conclusion that this was, indeed, a “worst category” case. 

Accordingly, the application must fail.  The time is extended but special leave is refused.

The Court will adjourn to reconstitute.

AT 11.20 AM THE MATTER WAS CONCLUDED