Davidson v The King

[2023] HCATrans 31

[2023] HCATrans 031

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S122 of 2022

B e t w e e n -

SAMUEL WILLIAM DAVIDSON

Applicant

and

THE KING

Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 17 MARCH 2023, AT 9.30 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR S.J. ODGERS, SC appears for the applicant.  (instructed by Legal Aid NSW)

MS H.R. ROBERTS, SC appears with MR D.T.J. SCULLY for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Odgers.

MR ODGERS:   Thank you, your Honour.  The applicant seeks an order for an extension of time in this matter.  It was about a week late, I understand.

KIEFEL CJ:   Is that opposed, Ms Roberts?

MS ROBERTS:   No, your Honour.

KIEFEL CJ:   Yes, you have that extension, Mr Odgers.

MR ODGERS:   Thank you, your Honour.  Your Honours, the first question of general importance raised by this application concerns the totality principle.  Justice Adams considered that the extent of the accumulation in this case should be nine and a half years, where the most severe sentence for an individual offence was 10 and a half years, so it went from 10 and a half years to 20 years.  While Justice Brereton considered that the accumulation should be seven years where the most severe sentence for an individual offence was nine, so it went from nine to 16.

Justice Brereton, at page 100 of the application book, your Honours, referred to South Australian authority which focused on the extent to which the purposes of sentencing for all the offences will be met by the most severe individual sentence, and those purposes, of course, are the purposes referred to by the High Court in Veen (No 2) and reflected in section 3A of the New South Wales Sentencing Act, which is in the application book – but I will not take you to those purposes, they are well known and well understood.

To provide some explanation of how Justice Brereton understood that you would apply that approach as adopted in South Australia, I will give a few examples.  Take the purposes of retribution and denunciation for the offences.  They would have to be assessed in circumstances where, as here, the offender’s culpability for the offences is the same – although the harm resulting is obviously different – but where there may not be the same demand for retribution and denunciation by way of accumulation, where, as here, the offender will suffer significant retribution and denunciation for the most serious individual offence – bearing in mind that her Honour Justice Adams thought 10 and a half years’ imprisonment was appropriate for the most serious individual offence.

It will also be a material consideration that the severity of each accumulating increment is understood to be more severe than a corresponding period of a sentence for the most serious individual offence.  As regards the purposes of specific deterrence, general deterrence and community protection, they would have to be assessed in circumstances ‑ ‑ ‑

KIEFEL CJ:   Mr Odgers – I had not unmuted – Mr Odgers, nevertheless, Justice Brereton’s approach was not that dissimilar to that of Justice N. Adams’, was it?  His Honour said that some degree of accumulation was appropriate to each individual case.

MR ODGERS:   Yes, of course, your Honour.  The issue is not whether there should be accumulation.  The question is how much and how you decide what is the appropriate level of accumulation.  What is the applicable principle that should be applied?

GORDON J:   Can I ask about that, then.  If that is the position, this Court in Nguyen in 2016, following on from Johnson in 2004, said determining the structure where you have two or more requires “flexibility” by reference to the facts and circumstances in order to determine whether:

the overall sentence was just and appropriate –

MR ODGERS:  Yes.

GORDON J:   Why would we constrain it in the manner in which you are proposing? 

MR ODGERS:   Your Honour, the answer I give is the answer I gave in the written submissions and in the reply, which is that if you are sentencing for an individual set offence, no one would regard it as acceptable for a sentencing judge to say, well, I am going to determine what is just and appropriate and then proceed to impose a sentence. 

What has been proposed here and what has been adopted in South Australia – and was adopted by Justice Brereton – is to provide a perhaps more coherent and focused approach to determining what is just and appropriate.  The proposition that is being advanced is that, in deciding what is just and appropriate, just as in determining the sentence for an individual offence, it is appropriate to consider the purposes of sentencing and see how they apply.  And they can operate in different directions at that level.  So, too, it is very helpful, in our submission, and provides a more coherent and focused approach than simply leaving it to what is perceived to be “just and appropriate” to engage in a similar exercise in this context.

KIEFEL CJ:   But, Mr Odgers, was it not one of the principal matters which seemed to influence Justice N. Adams that, in applying the totality principle, she identified that, in this particular case, one act had catastrophic consequences and that when she came to impose the aggregate sentence, she had regard to the fact that one act caused so much harm.

MR ODGERS:   Yes, your Honour, of course, but so did Justice Brereton.  Indeed, if I can go back to page 100 of the application book and that quotation in the middle of the page from the South Australian Full Court, you will see there in that quotation in the middle of the page, four lines down:

the moral turpitude has not changed and all of the purposes of punishment, but for retribution or denunciation . . . have been fully reflected in the sentence for the first count.

Indeed, that was, essentially, that the approach that Justice Brereton took.  So, what had been pointed out was that all of the purposes of sentencing could be met through the sentence for the most serious offence in Wooldridge and in this case, but for the retribution that is required for the harm that resulted.  Of course, that led his Honour to think, ultimately, it was appropriate to accumulate by seven years.  But his Honour engaged in that carefully‑focused approach to determining what was just and appropriate.

The problem, with respect, with Justice Adams’ approach is that her Honour, at the end of the day, referred to the just and appropriate test and expressly rejected the approach – declined to adopt the approach of considering the purposes of sentencing at this stage.  If I can take you to page 184 of the application book, your Honours, at paragraph 328, where her Honour saw some force in the submission but expressly reserved her position.  So, her Honour made it clear that she was not adopting this focus on the purposes of sentencing as a way of giving coherence, in my submission, to the assessment of what is just and appropriate.

Indeed, her Honour’s primary focus in determining what was just and appropriate seemed to be contained in paragraph 319, on page 181, where her Honour, after referring to what Justice Edelman said in the case of Australian Building and Construction Commissioner v Pattinson, said, four lines down at 319:

his Honour said nothing in that judgment that suggests any departure from the principle of proportionality:  a sentence must still be proportionate to the gravity of the crime.  

Your Honours, the problem, with respect, is that that focuses on the offending and the sentencing purpose of retribution, rather than on a synthesis of all of the purposes of sentencing, including considerations of rehabilitation in the light of the particular circumstances of the offender.  So that one of the difficulties with a just and appropriate test is that a judge might come along and say, I am going to give primary importance to the offending and the gravity of the crime and issues – considerations of retribution, and so on.  They are, of course, entirely relevant and matters to be taken into account.  But the whole point about Veen (No 2) was to say that when you are sentencing for an individual offence, you need to take into account all the purposes, which often point in different directions, and synthesise them to come up with a just and appropriate sentence.

So, the point that is being made, your Honours, is that there is a lot to be said in favour of an approach which does require sentencing judges, when they are assessing questions of accumulation, to consider Veen (No 2) considerations – purposes of sentencing – to appreciate that they may point in different directions; to ask questions like, for example, with rehabilitation – in the context, if you apply that here, that would have to be assessed, whereas here a significant degree of accumulation may have a disproportionate impact on prospects of rehabilitation of a relatively young offender of prior good character with good prospects of rehabilitation who is in custody for the first time.

That was the point Justice Brereton made at paragraphs 41 to 42.  So that his Honour did appreciate that there were purposes which pointed in different directions when determining the level of accumulation.  He took them all into account, he synthesised them, he came up with a level of accumulation which was significantly lower than that of Justice Adams who did not adopt that approach – who applied this, what I respectfully submit is an unfocused approach, where she expressly did not adopt this consideration of the purposes of sentencing or synthesise them in the way that I respectfully submit should be done.

This case provides a suitable vehicle for considering whether or not this approach adopted in South Australia – and there is other authority I have drawn your Honours attention to in other jurisdictions which seems to be heading in the same direction – does provide a more focused, a more coherent, and dare I say more principled approach to determining what is a just and appropriate level of accumulation.

While this Court – your Honours have never articulated a totality principle in this way.  So far as I understand it, you have never been asked to.  In my submission, it would provide real assistance to sentencing courts to have this Court adopt a view that it would assist judges to determine a just and appropriate sentence of level of accumulation applying those purposes which operate somewhat differently once you got beyond an individual offence to determining the question of totality.

Moving on then to the second question of general importance raised by this application, it concerns the determination of non‑parole periods in New South Wales and, in particular, the application of section 44(2B) of the New South Wales Sentencing Act, which is extracted at application book 205.  If your Honours look at 205, subsection (2B) says:

The term of the sentence that will remain to be served after the non‑parole period . . . must not exceed one‑third of the non‑parole period, unless . . . there are special circumstances –

Justice Adams considered that there were no special circumstances that would support a variation beyond the one‑third.  At application book 188, paragraph 340, her Honour said ‑ ‑ ‑

GORDON J:   Mr Odgers, can I ask a question about this.  Do you challenge the decision in Simpson’s Case – the five‑judge decision of the New South Wales Court of Criminal Appeal?

MR ODGERS:   No, I do not.

GORDON J:   So, this is, in effect, a visitation aspect?

MR ODGERS:   No, your Honour, it is a bit different from that.  The present case highlights the issue; that is, Justice Adams said:

I am satisfied that the sentence . . . is of sufficient length to provide for an adequate period on parole.

So, her Honour’s focus was on the length of the period of the parole, the eligibility for parole, and whether or not that should be extended.  That was the focus at the last sentence of paragraph 340.  Justice Brereton considered that there were special circumstances, not because of the period of parole, but because there should be a shorter non‑parole period.  At 104, paragraph 47, he specifically rejected the approach taken by Justice Adams, considered that there were circumstances which pointed:

to the desirability of shorter . . . non‑parole period.

Referring specifically to:

prospects of rehabilitation –

KIEFEL CJ:   You can refer to differences of approach, but each of their Honours is exercising a discretion.  You need to identify the error in Justice Adams’ approach.

MR ODGERS:   The error is to focus exclusively on the need or desirability for an extended parole period.  That is the error, because what that does – as distinct from considering both the need for an extended parole period, but also the need or desirability for a shorter non‑parole period, which is different.

KIEFEL CJ:   Mr Odgers, in the Court of Criminal Appeal, I think you acknowledged that the requirement for treatment that the applicant needed supported a longer term.

MR ODGERS:   Your Honour, the argument was put in both ways.  In the Court of Criminal Appeal it was argued that there should be an extended parole period, but also an argument that there should be a shorter non‑parole period.  And responding finally to Justice Gordon, in Simpson, in respect of determining an individual sentence for an individual offence, not the aggregate situation we are in here, the five‑Bench court did accept that it was not – special circumstances were not limited to an extension of the parole period, that they could justify an extension of the – sorry, a reduction of the non‑parole period.

The problem is that I can tell you that the practical reality of sentencing in New South Wales today is that where long sentences are imposed, sentencing courts almost very rarely make findings of special circumstances, even in cases with offenders with very good prospects of rehabilitation.  And the reason invariably given is that there is no need for a longer period on parole longer than one‑third of the overall term, because if it is a long sentence, one‑third will be a number of years and it is said, well, there is no need for a longer period on parole, without consideration being given to the question of whether good character and good prospects of rehabilitation support a shorter than standard non‑parole period.

The problem with a focus on an extended parole period is that an offender with relatively poor prospects of rehabilitation but where the prospects can be improved will be in a better position than an offender who has, at the time of sentencing, good prospects of rehabilitation, because it said, well, we do not need an extended parole period.  So that it is, with respect, very odd that a person with good prospects is worse off than a person with poor prospects.  And that is why Justice Brereton was, with respect, completely correct to say that there can be special circumstances of good prospects of rehabilitation justifying a shorter non‑parole period.

In my submission, this Court should make it clear that offenders with good prospects of rehabilitation should not be in a worse position than offenders with relatively poor prospects, and that courts could give consideration to whether perceived prospects of rehabilitation – as referred to by Chief Justice Mason and Justice McHugh in Bugmy – support a shorter non‑parole period relative to the overall term.

The point is that, in responding to an argument that the Crown has put where you have already taken good prospects into account in determining the overall term, their Honours – and this is the last thing I will refer you to – at page 222 I have extracted the quotation from their Honours at the bottom of the page, where they say that:

Generally speaking, the perceived prospects of rehabilitation will make a significant difference.

when determining the non‑parole period, given the different purposes behind each function.  The effect of the current position in New South Wales, in reality and practice, is that good prospects of rehabilitation hurt you when you are determining non‑parole period because judges – at least when they are sentencing for long terms – decline to find special circumstances because they focus only on the need for an extended period of parole.  They do not, in practice, look at the question of whether good prospects of rehabilitation justify a shorter non‑parole period.

Your Honours, I am almost out of time.  In respect of the factual question about the ADHD, I accept that there is no question of general importance raised.  I would be seeking to revisit it if this Court did grant leave and allow the appeal and if the matter was remitted to the Court of Appeal, but I am not seeking special leave on that factual issue of the ADHD and its causal relation. 

I do respectfully submit that, notwithstanding the fact that in respect of totality, Justice Adams – there was disagreement as to the level of accumulation, it reflected a fundamental difference of approach in respect of the non‑parole period, the difference between their Honours on that question reflected a fundamental difference of approach which is of very great general importance in New South Wales.

May it please the Court.

KIEFEL CJ:   Thank you, Mr Odgers.  Yes, Ms Roberts.

MS ROBERTS:   Yes, thank you, your Honours.  As to proposed ground 1, it is the respondent’s contention that there is no error demonstrated in the judgment or reasoning of her Honour Justice Adams.  The well‑established principles of totality were considered and correctly applied and incorporated within those considerations that the applicant asserts are necessary for the proper application of the principle.

Your Honours, in any case where multiple offences have arisen as a result of a single criminal act, proper application of the totality principle requires that regard be had both to the consequences of the offences which in this case were of the utmost seriousness.  But also, the fact that it was the one criminal act which caused the catastrophic harm in this case.  And this is the task – so the respondent submits – that is correctly described and applied in the judgement of her Honour Justice Adams, both when coming to her Honour’s determination that the sentence imposed in the District Court was manifestly excessive and when her Honour turned to the resentencing exercise.

Your Honours were taken to application book 181, at paragraph 319 of her Honour’s judgment in support of the submission that her Honour’s primary focus in applying the principle of totality was punishment and that it did not involve advertence to any of the subjective considerations that arise when sentences are necessarily to be accumulated.  Paragraph 319 of her Honour’s judgment is part of a statement responding to the proposition that the principle of assessing whether something is a crushing sentence is a standalone aspect of the totality principle.

Her Honour rejected the submission that it was a standalone aspect of the totality principle, but her Honour did not reject the proposition that questions of rehabilitation and the effect of a long sentence upon an offender are part of the consideration when coming to questions of accumulation and concurrency.  Your Honours will see that in the immediately following paragraphs of her Honour’s judgment, starting at application book page 181, paragraph 320, where her Honour refers to the extracts that her Honour takes from the judgment of Justice Redlich in Azzopardi.

Those passages, which her Honour describes as providing her with particular assistance, discuss both aspects of the application of the principle of totality; that is, when speaking of proportionality, there is the tension between punishment and reflecting the fact that when an offender is being sentenced for multiple offences, the sentence must only fairly and justly reflect the total criminality of the offender’s conduct.

That is to say – and these passages also appear in her Honour’s judgment – recognising that each year in custody weighs heavier on a prisoner; principles of that nature which accommodate those parts – the sentencing principle – that relate to rehabilitation as part of the overall totality principle.  Her Honour’s focus in reaching her Honour’s conclusion that the sentencing judge had erred in this respect as part of the imposition of a manifestly excessive sentence appears at application book 184 to 185.  In paragraph 330 of her Honour’s judgment, her Honour there makes clear that a:

proper application of the totality principle will invariably mean that an offender will serve less time in custody for –

each individual death than would be the case if there had been only one crime and one death.  Her Honour further illustrates that in the balance of that paragraph 330, where her Honour gives the example of the hypothetical school bus collision.  Her Honour then emphasises, in the dispositive portion of her Honour’s reasons at 333, that whilst the applicant’s “very serious” offending caused “catastrophic consequences”, it was:

also important to consider that it was the one criminal act which caused so much harm.

Distinguishing that circumstance from one in which an offender had embarked:

upon a deliberate series of discrete offences”.

The importance of this latter factor is what leads – when her Honour’s judgment is read as a whole – to her Honour’s conclusion that the aggregate sentence was manifestly excessive because the accumulation – well, the indicative sentences were too long.  Her Honour made that finding as well, but because the accumulation was too much as well.  In those ‑ ‑ ‑ 

KIEFEL CJ:   Ms Roberts, in her Honour’s reasons at paragraphs 327 and 328, is her Honour there dealing directly with Mr Odgers’ argument?

MS ROBERTS:   Your Honour, yes, in the sense that her Honour makes reference, specifically, to the case of Wooldridge, which her Honour makes clear is quite a different case, factually.  And, in that context, her Honour considers that it is unnecessary for her Honour to consider whether, specifically, this principle – or what is said to be a principle, derived from Wooldridge – is necessary to apply in the circumstances of this case.

We would, really, emphasise the fact that paragraph 80 from the judgment of the South Australian Court of Appeal in Wooldridge is part of their Honours’ reasons following a discussion of the facts and circumstances of that case and following the extract of statements of principle concerning flexibility in sentencing, including the extract from . . . . . Justice Wells’ statement of principle about flexibility, particularly, in this area of sentencing – so then giving an expression of reasons as to why, in that case, the Court of Appeal determined that the extent of accumulation ordered should be moderate or should have been less than was so ordered by the sentencing judge.

That is also reflected, in our submission, by what his Honour Justice Brereton says at application book 101, following his Honour’s reference and adoption of what is said in Wooldridge at paragraph 36.  At paragraph 38, his Honour expressly says he does not share her Honour Justice Adams’ reservation.  Then, his Honour goes on to refer to the judgment of Justice Hamill in Moananu.  His Honour says that the application of what his Honour is, perhaps, calling the Wooldridge principle is supported by the approach of his Honour Justice Hamill:

where the accumulation was expressed, in the words of Hamill J, to reflect “the suffering and individual dignity” of each separate victim.

Your Honours, that expression is very similar to the expression that her Honour Justice Adams uses when resentencing – which your Honours will find at application book 188, at paragraph 341 of her Honour’s judgment – where her Honour concludes that, for the reasons earlier provided:

I would apply the totality principle in a manner which would allow for some accumulation –

and it reads:

I am satisfied that the sentence I would impose acknowledges the dignity of each child who was killed by the applicant’s conduct.

That similarity of expression to the expression which Justice Brereton, himself, adopts as supporting the application of the asserted principle from Wooldridge, illustrates or underscores, in the respondent’s submission, our point, which is that it is not – or should not be – described as a separate principle but, rather, all considerations which are relevant to the application of the totality principle which, itself, in its proper application, accommodates the considerations to which the applicant takes the Court.  In our submission, her Honour Justice Adams has in substance and expressly done that. 

We would submit that the difference in accumulation between Justice Adams’ resentence and Justice Brereton’s initial resentencing exercise does not of itself demonstrate that their Honours have applied a fundamentally different principle, because ‑ ‑ ‑

GORDON J:   Ms Roberts, can I ask about that.  If you read paragraphs 40 and 41 of Justice Brereton’s reasons at pages 101 to 102, is that how you read those paragraphs?  In other words, despite undertaking the analysis of Wooldridge and the following cases, his Honour seems to suggest at 40 that you can find no case which is directly comparable, and then undertakes an analysis which is not dissimilar to that of Justice Adams?

MS ROBERTS:   Yes, your Honour.  Our submission is the analysis, when viewed in substance rather than the articulation or the expression of it, it is, in substance, the same analysis.  The different result is not only – one cannot focus only on the accumulation because, of course, his Honour Justice Brereton would have imposed lower indicative sentences, so that is going to have an impact on the extent of accumulation in numerical terms.

That is the fact that her Honour Justice Adams’ amount to notional accumulation is greater.  It runs alongside the fact that her Honour’s indicative sentences were also greater, and does not therefore necessarily evidence a difference of approach in principle – bearing in mind, of course, as well that there is no correct sentence and the nomination of the length of a sentence is part of the exercise of a sentencing judge’s discretion consistently with the proper application of correct principle.

So, it is the respondent’s submission with respect to this ground that this Court would find that an extension to the totality principle in the terms asserted on behalf of the applicant is both unnecessary and undesirable; unnecessary for the reasons that I have already expressed, because we say that those considerations are necessarily incorporated in the proper application of the principle, and were, in this case; and undesirable because of the risk of inflexibility in circumstances where what is expressed in Wooldridge, for example, is a way of expressing the reasons why the accumulation was lesser in that case.

There are different considerations in different cases.  One example in this case is the question of extent of harm, and recognition of that extent in harm as a purpose of sentencing is one of the sentencing considerations that would remain in play when one comes to questions of totality in this case – as well as general deterrence, although I will not – your Honours do not have Wooldridge in front of you, necessarily, so I will not take your Honours through it – but they are our submissions with respect to ground 1.

If I could turn to the second ground – would your Honours just excuse me – the respondent submits that special leave should be refused on this ground because there is no issue as to the law to be applied in New South Wales and that her Honour Justice Adams was coming to a discretionary determination within the principles ‑ ‑ ‑

KIEFEL CJ:   Well, you say, in effect, there is no question of general importance.

MS ROBERTS:   Yes, your Honour, we do say that.  And we just note that her Honour’s reasons at paragraph 40, at page 188 of the application book, follow her Honour’s consideration of each of the features of the applicant’s case that would perhaps be called in aid in support of a submission that he should be afforded the benefit of an adjusted statutory ratio.  They were the matters put before the sentencing judge and the sentencing judge declined to make the finding of special circumstances.

What her Honour expressly revisits is this question of length.  The reason, we would submit, that her Honour does that is because the sentence length has changed as a result of her Honour’s – or will change as a result of the resentence that her Honour proposes to impose; so that her Honour is, in effect, saying that she agrees with the sentencing judge’s determination on this point, but because his Honour made reference – we would submit, because the sentencing judge made reference to the question of length of time on parole, her Honour is readdressing that – is readdressing in her Honour’s reasons because her sentence will necessarily result in both a shorter non‑parole and parole period, because she has reduced the aggregate sentence.

Her Honour notes there the statistic that most offenders in the lower courts do – there is a finding of special circumstances and they do have their sentences reduced.  That authority of Brennan that her Honour cites there makes reference to a Judicial Commission study in the lowers courts – not the Supreme Court – which is described there as almost:

90 out of 100 of sentences imposed in the Local Court, the Drug Court, and the District Court of New South Wales –

have a finding of special circumstances.  Mr Odgers focused, understandably, on much longer sentences which may be those imposed in the Supreme Court – but simply to explain that reference in her Honour’s judgment at paragraph 340.

So, we say there is no point of general importance, and with respect to the final ground of appeal, or proposed ground of appeal 3, we make the

same submission; that is, that it is a question of a factual finding or a different – the applicant is seeking that a different inference be drawn or a different conclusion be reached based upon the same evidence that was before the sentencing judge and was before the Court of Criminal Appeal.  We say that, in substance, their Honours did give consideration to that because of the way in which Justice Adamson expressed her Honour’s reasons when rejecting ground 1 at application book 121, your Honours, at paragraph 129.

KIEFEL CJ:   I think Mr Odgers has conceded this ground.

MS ROBERTS:   Well, in those circumstances, your Honour, unless there is anything further, those are the submissions on behalf of the respondent.

KIEFEL CJ:   Yes.  Thank you, Ms Roberts.  Mr Odgers, do you have anything by way of reply?

MR ODGERS:   Yes, thank you, your Honour.  In respect of the totality issue, the critical paragraphs are 327 and 328 in the judgment of Justice Adams.  It is clear that Justice Adams declined to adopt what I will call the Wooldridge approach of considering the extent to which the purposes of sentencing would be met by the sentence imposed for the most severe individual offence.  That is the principle which I am asking this Court to grant special leave to consider whether or not it should be adopted as an appropriate way of determining what is just and appropriate. 

It focuses the attention of the sentencing court on whether the purposes of sentencing will be benefited or advanced by a level of accumulation where, in respect of the most severe serious offence, retribution and denunciation and specific deterrence have all been advanced already by the sentencing court, and where those purposes which apply to the other offences may have been essentially met by the sentence that is to be imposed in respect of the most serious offence.  That informs the determination of what is just and appropriate. 

It is all very well for a sentencing judge to say, well, I take into account the harm caused; both judges did that.  It is all very well to say, well, I take into account subjective factors; those judges did that.  The question is how they are taken into account and whether or not a focus on whether the purposes of sentencing will be met by the sentence imposed on the most serious offence or the most severe of sentence, whether that provides a more focused and coherent way of determining what is just and appropriate.

In my submission, the South Australian approach which was applied in that case – similar case – does provide such an approach and should be adopted more generally because, just as with sentencing for an individual offence, we do not think it is appropriate for a judge to say, there are all these factors, I have decided what is just and appropriate.  We expect the judge to engage in the analysis, at least in their own mind, of considering how the purposes of sentencing – different purposes – will be met by a particular sentence.  So, it makes sense to engage in a similar exercise at the stage of determining accumulation, and so I respectfully submit that this case does squarely raise that issue.

As for the special circumstances question, the point is that, in paragraph 340, Justice Adams only focused on the desirability of an extended period in parole.  The reasons lower courts usually find special circumstances is because they are short sentences, and a short period of parole will not be sufficient, and so it needs to be extended – that is why.  But with long sentences, you will get, necessarily, a fairly lengthy period of parole.  The question of principle is:  is that too narrow a focus?  Should there be also a consideration of whether there should be a shorter non‑parole period where a person has good character, good prospects of rehabilitation?  The High Court in Bugmy expressly recognised that good prospects of rehabilitation is one of the most important factors in varying, in reducing, a non‑parole period.

The effect of the current approach taken to lengthy sentences in New South Wales is that a person with good prospects of rehabilitation is worse off than a person with poor prospects of rehabilitation.  That is the practical reality.  The fact that in Simpson the Court recognised, for individual offences, you can take into account good prospects of rehabilitation as justifying special circumstances does not mean that in 2023 that they are – and certainly not in the Supreme Court where they are dealing with lengthy sentences.

As I have said, the general practice is to decline defined special circumstances because there is no desirability for an extended period of parole.  That is an inappropriately narrow focus. This Court should make it clear, with respect, that special circumstances can be found in good prospects of rehabilitation, as Justice Brereton expressly found, expressly adopting a different approach to Justice Adams.

May it please the Court.

KIEFEL CJ:   Thank you.  The Court will adjourn to consider the course that it will take.

AT 10.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.17 AM:

KIEFEL CJ:   In relation to the first proposed ground of appeal, we do not consider there are sufficient prospects of success to warrant the grant of special leave.  The second ground of appeal raises no question of general importance.  Senior Counsel for the applicant rightly concedes that no question of general importance attends the third ground.  Special leave is refused.

The Court will now adjourn until 10.30 am.

AT 10.18 AM THE MATTER WAS CONCLUDED