Deacon v The Queen

[2000] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B36 of 2000

B e t w e e n -

PETER WILLIAM DEACON

Applicant

and

THE QUEEN

Respondent

Application for bail

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 20 JUNE 2000, AT 10.23 AM

Copyright in the High Court of Australia

HIS HONOUR:   Mr Deacon, you represent yourself, do you?

MR P.W. DEACON:   Yes, that is right, your Honour.

MR D.L. MEREDITH:   May it please the Court, I appear for the respondent.  (instructed by the Director of Public Prosecutions (Queensland))

HIS HONOUR:   Yes, thank you, Mr Meredith.  Mr Deacon, I do not have a copy of the reasons for judgment of the Court of Appeal.

MR DEACON:    Apparently they have not been released at this stage.

HIS HONOUR:   It is very difficult for me to deal with the matter without them.  When did they give their decision?

MR DEACON:    On 13 April, your Honour.

HIS HONOUR:   It is a long time, is it not?

MR MEREDITH:   The Crown has asked for them, but has not received them.

HIS HONOUR:   Is that the usual delay?

MR MEREDITH:    It is an unusually long delay, I would have thought, but extempore judgments are not immediately available and at least up to a month later, well this is more than two months.

HIS HONOUR:   Yes, thank you.  Mr Deacon, I have to be perfectly frank with you.  I cannot grant you bail unless you can demonstrate to me - at the very least you have to demonstrate a number of things – that the Court of Appeal, in imposing the sentence that it did, committed some serious error of principle.  Just as a matter of law, unless you can demonstrate that, I just could not even entertain the possibility of granting you bail, on the legal precedents which govern the position.  Now you go ahead and make your submissions, but I thought it was right to tell you that at the outset.

MR DEACON:    Do you have a copy of the form 61 and 62 that I have submitted to the High Court?

HIS HONOUR:   Yes, I have a form 61 and form 62, I have those.

MR DEACON:   Your have got them both, have you?  There is also a report from my practising psychiatrist.

HIS HONOUR:   Yes, I have read that actually.

MR DEACON:    Your Honour, you would not have seen this one though; this is from a Dr Greg Richardson.

HIS HONOUR:   Mr Meredith, the applicant wishes to tender another psychiatric report, what is your attitude to that?

MR MEREDITH:   As long as I have a copy, I have no objection.

HIS HONOUR:   All right, you may tender that.

MR DEACON:   Well I only have the one copy here.

HIS HONOUR:   Well, give it to Mr Meredith to read first.  Right, that is exhibit 1.

EXHIBIT:              Exhibit 1 … Report from Dr Greg Richardson

HIS HONOUR:   Would you like me to read that?  Yes, I have read that.

MR DEACON:   Your Honour, I am not sure that you have a knowledge of the history of this case at all?

HIS HONOUR:   Yes, I have read the papers.

MR DEACON:    I see, so there is no need to go through all that.

HIS HONOUR:   But tell me this:  you were held on remand for 510 days, is that right?

MR DEACON:   That is correct.

HIS HONOUR:   Perhaps I might ask Mr Meredith.  Mr Meredith, did you argue the matter in the court of ‑ ‑ ‑

MR MEREDITH:   No, I did not.  He was held on remand for 503 days and then he served another 7 days after Judge Robin’s decision, so it makes up the 510, which is 17 months.  I notice Dr Richardson mentions 13, but it was 17 months.

HIS HONOUR:   And what was the sentence that was substituted - his Honour Judge Robin sentenced him to five years ‑ ‑ ‑

MR MEREDITH:   Five years imprisonment.  It is a little confusing whether it was suspended after seven days and therefore, in effect, was taken into account that he would have served then 510 days in relation to these matters.

HIS HONOUR:   Yes.

MR MEREDITH:   I think what the Court of Appeal did was, in fact, backdate the sentence to when he went into custody.

HIS HONOUR:   Well, what term to serve did the Court of Appeal ‑ ‑ ‑

MR MEREDITH:    The Court of Appeal substituted, as you can see from Jacinta Healy’s affidavit, that it be five years and that the period of time in custody be comprising time already served.  So that ‑ ‑ ‑

HIS HONOUR:   So that there is no suspension at all.

MR MEREDITH:    No, what it would then mean, and there was no recommendation for early parole, so it means that he would then have to serve another 13 months before being considered for parole being the 30 months, half of 60 months – the five years.  For some reason, Judge Robin did not backdate the sentence; he just took into account.  Whereas the Court of Appeal backdated it as they can under the Penalties and Sentences Act, so giving effect to the time that he had served in custody and effectively he would have to serve another 13 months before being considered for parole, if he was taken into custody today.

HIS HONOUR:   Thank you, Mr Meredith, that makes that clear.  You go ahead, Mr Deacon.

MR DEACON:   The reason Judge Robin gave that unusual order was that after listening to the deliberations for five days, he had formed a conclusion that he thought it was fit and proper that I be released from custody, but, at the same time, he wanted to give a sufficient penalty as a deterrent, I suppose to myself and to anyone else who might be inclined to commit that particular offence, and so that was the reason why there was no backdate.  So, in effect, it was really a seven and a half year sentence and released after 510 days, which is 33 months given that I was in remand.

HIS HONOUR:   Yes.

MR DEACON:   Given that you already have a knowledge of the history I will not go through that at this stage.  As you have already heard, the Court of Criminal Appeal overruled the initial decision that was made by the trial judge.  At the appeal I was represented by Legal Aid.  Unfortunately, legal aid failed to notify me that the appeal had been listed for a hearing.  As a result of that I had no opportunity to have any input into this matter whatsoever and, in fact, I only heard about it when I received a letter from Legal Aid two weeks after the decision had been made and, in fact, the letter was even unsigned.  So the only formal notification, if you like, that I have received about the result of this appeal from the DPP is an unsigned letter from Legal Aid.  So obviously I am very dissatisfied with the way things happened.  I would have liked to have been present, I would have liked to have had some input, to have had my side of the story presented perhaps in a more favourable light.

As a result of that I have decided to embark upon an appeal process with the High Court – it is not something I do without a lot of careful consideration.  I believe that I have a good case to argue.  I am confident that I will be successful with this and what I am asking the High Court to do is to take into consideration the very strong mitigating circumstances in this particular case and those circumstances are:  firstly, that I did enter a plea of guilty from the start; I maintained that plea of guilty for some 13 or 14 months and it was only because of the shifting of recommendation from the DPP that forced me into a position where my own counsel strongly advised me that I needed to change my plea in order to present my version of the facts before a jury, which is, in fact, what I eventually did.

Prior to that I had already appeared in the District Court on two occasions for sentencing and on both of those occasions the recommendation from the DPP, as was told to me by my counsel, had increased from five years to eight years to 12 years.  Every time I went back to try to get this matter over and done with, it seemed that the recommendation from the DPP was escalating.  So, on that basis, my barrister and my solicitor said, “You have got no choice, you have to change your plea, you have got nothing to lose at this stage.  There is your side of the events, which you must present.  If you just go for a contested sentence, you will have no opportunity really to put your version of events; you can only argue some of the minor details.”  That is, in fact, what I did.

In October last year the jury returned with one count of GBH with intent, in that I believe that I used unreasonable force in defending myself against an attack from the complainant.  We both suffered physical injuries, he obviously came off worse than I did, and so, as a result of that, I was arrested and taken into custody where I spent 17 months.

In December last year I was released from custody.  I have been back in the community for the last six months.  So I have already lodged my form 61 and form 62 with the High Court and the basis of my application for bail today is twofold:  firstly, I believe that I have a strong case to argue with the High Court; and secondly, knowing how long it takes for matters to be heard in the High Court – and a good example is, it has taken four weeks just for this bail application to be listed – I have been informed that it could be six months for the application for special leave to be heard and possibly another 12 months for the appeal.  If I am not granted bail at this stage, then by the time all this is decided I would have served all of that time in custody, which would make the whole exercise rather futile and I think it would make a mockery of the legal system if that were allowed to happen.

So, the basis of my appeal are the mitigating circumstances, and I have already mentioned one, and that was the early plea of guilty.  The other mitigating circumstances, which appeared to be totally overlooked by the Court of Criminal Appeal – either overlooked or dismissed, we do not know yet, because we have not got the findings after two months – is that I was undergoing a degree of mental instability at that period of time and I believe that should be taken into consideration.  If you read Dr White’s psychiatric report, he states that I was unaware at the time of my own actions.  I have also showed considerable remorse, I believe, in that the early plea of guilt, I have sent a letter of apology to the complainant, I have apologised in court to the community, I believe I have done everything possible to show remorse for my action.

They are the reasons I am applying for bail today.  There are also a few other factors which I would like your Honour to take into consideration please.  Firstly, I have been released from custody for six months now.  I think I have established quite clearly that I am no risk to the community and no risk to the complainant.  I have not contacted anyone.  I have just tried to get on with my life.  I have come to the Court under my own free will today, in order to pursue this matter and I can give the Court a guarantee that I am no risk whatsoever.

Apart from this one offence, I believe that I am a very responsible citizen.  I have no previous history, I have never been involved in any trouble at all before, I have a productive work history, I have worked all my life in universities in the computer industry.  Also, at the moment, I am receiving medical treatment from a practising psychiatrist.  I have found that to be particularly beneficial and I would like the opportunity to continue with that.  Finally, I have been fortunate recently to be able to gain some work experience in the IT industry.  If I am released on bail, then I am sure I will be able to continue with that work experience and I would be hopeful that it would lead to full-time paid employment.  Obviously, with what has happened in the past, I have not been able to work for the last two years.  This is the first time in my life that I have been unemployed; I am actually on sickness benefits at the moment.  If I have to go back into custody for an additional 13 months it will be three and a half years that I would not have worked and I think, at my age, and in this particular

industry which is changing very rapidly, my prospects of employment, well, to be honest, I think would be very bleak.  Possibly this work experience could be the last opportunity I have to get back into the work force and to be able to support myself in the future and I certainly do not wish to become a long-term recipient of welfare benefits.

So, for all these reasons, your Honour, I would like you to take those into consideration and hopefully I have said enough to be able to convince you that there are strong circumstances in this case and that I do have good grounds to base my appeal on and I believe I will be successful.  If there is nothing else that I can assist you with, that is my case.

HIS HONOUR:   Thank you, Mr Deacon.  Yes, Mr Meredith.

MR MEREDITH:   Your Honour, just to clarify the issues, the applicant was in custody for approximately 17 months, just a little under 17 months.  He mentioned something like 33 months, but that does not make any sense; it is the 17 months.  Maybe he was doubling it, saying that that was the time that he would have, if he had served the 13 months, that is effectively a 33 month sentence.  Well, because the sentence is backdated, that makes nonsense of that submission.  So really he is facing a five year sentence of which he has served not yet a third.

HIS HONOUR:   What were the Crown’s grounds of appeal?

MR MEREDITH:   An inadequate sentence.

HIS HONOUR:   Manifest ‑ ‑ ‑

MR MEREDITH:    Manifest inadequacy and a unanimous decision of the Court of Appeal was that this sentence should be increased so effectively making it five years without a recommendation, taking into account the time he has served.  So he served the 17 months and he would have to serve another 13 months before being considered for parole and 43 months, if he was taken into custody today, before he would have served the whole of the term.  This Court has said on a number of occasions that it is really the ultimate term that is relevant, but parole is also a relevant consideration.

This man has not got special leave.  It is an appeal against the unanimous decision of the Court of Appeal imposing a higher sentence on an Attorney’s appeal, which Courts of Appeal do not do lightly.  They do not take someone out of the community ‑ ‑ ‑

HIS HONOUR:   Double-jeopardy principle.

MR MEREDITH:   Yes, and so, five years is at the bottom of the range.  The schedule that I handed up, because - being a bail application I did not give all the cases, but, in my submission, the range is five to seven, and five is for people who plead guilty.  For all that the applicant says, he did not plead guilty; he went to trial.  He got the benefit of being in custody, of course, because he served that time, and it did ‑ ‑ ‑

HIS HONOUR:   Was there an application for bail, by the way?

MR MEREDITH:   No, I understand not.  I think, as he says he was going to plead guilty, his expectation obviously was that he was going to be convicted, so it was only at the last minute when he decided to go to trial.  There was, as his affidavit material indicates, thought of a contested sentence, but in the end he went to trial.  So it put the complainant through the trial and the defence was self-defence.  Now, the sentencing judge did not find that he had taken the baseball bat there, but he did not make any finding that it was the baseball bat of the complainant.

HIS HONOUR:   The verdict was, with intent, though, was it not?

MR MEREDITH:   Yes.  Now the range for grievous bodily harm with intent ranges for five to 10 years.  There is serious injury, as can be seen from Judge Robin’s decision, but I would be submitting that the appropriate range, given all the circumstances, given his background of no convictions, that, in fact, he had shown some remorse by offering to plead guilty early, even though he went to trial, that the range was five to seven years, he is at the bottom of the range and going to trial.  He would not have got any recommendation - the Court of Appeal by its decision is indicating that no recommendation was appropriate.  He has no chances of getting, in my submission, special leave and no chances of succeeding on the appeal.  There cannot be - although we do not have the decisions of the Court of Appeal, they did not increase the head sentence.  What they did was effectively increase the time in custody.  It is not a significant change.  Obviously, with the Court of Appeal interfering on an Attorney’s appeal, I thought that the ruling of Judge Robin was overly generous.

I will just take you to a number of those cases that are in the schedule.  In Brown it appears on page 7:  there was a trial, a weapon was used, there was minimal criminal history, less serious injuries, six years not disturbed.  Hakkila, which is on the same page:  there was a trial, a weapon used, no criminal history, more serious injuries, not disturbed.  Ishibashi:  was a sentence, no weapon, nil criminal history, less serious injuries and four years down from six years.  So it can hardly be said on recent decisions in the Court of Appeal that this is outside the range.  The only one that is below that, in that schedule, is Ishibashi, where there is not an accumulative sentence or something other that makes it non-comparable to the present situation and in that case there was no weapon and less serious injury.  She lost a small finger; this man has a plate in his head and will have it for the rest of his life.

Of the cases that I handed up, Kostikidis and Another, Justice Dawson, when refusing bail, said that where there had been no grant of appeal it was a relevant consideration where there had been a unanimous decision of the Court of Appeal increasing a sentence on a Crown appeal.  There is no question of general principle shown by the applicant in this case, nor any error of law.  It is really just a quantum argument.  It is not saying that they proceeded on the wrong principles; just that they have got the quantum wrong. 

As to his co‑operation, he has been serving documents on the Crown with the address for service blacked out; hardly been showing any co‑operation there.  Two of those months he should have been in custody after the judgment of the court, so the six months he claims really ought to have been only four.  He should have been serving a sentence now and he has avoided apprehension.  When the Crown found out what the address was on the documents by making application to the Registry of this Court, found that the address was an address that the police did know of and had been calling at for some time and it can be seen from Jacinta Healy’s affidavit Friday, Saturday and Sunday of this week and he has not been there.  The report from the doctor that was just handed up does not really assist him much.  There is no reason why he cannot be dealt with in prison, get medication and there are psychiatric services available to prisoners.

I believe that covers all of the issues.  I should say, the only cases where bail is granted pending appeal is where there has been a grant of special leave so that there seem to be some issues.

HIS HONOUR:   Well, Bull and Marotta, I granted bail there.

MR MEREDITH:   Yes.

HIS HONOUR:   I thought it was a fairly strong case and of course their appeal has been allowed.

MR MEREDITH:   Yes, and Peters was another one, and that is one that it was allowed.  I suppose that is ex post facto justification, but we do not know here ‑ ‑ ‑

HIS HONOUR:   And, of course, they were appeals against conviction, not against a sentence.

MR MEREDITH:   Yes.  This is sentence alone and he has not yet been granted special leave.  If he were granted special leave, subsequently, even at six months, and it was shown that the Court of Appeal had proceeded on a wrong principle, then that would be the time to make application for bail.  He fails in the basic test of showing that there is a question of law and, in the absence of the Court of Appeal judgment, I have attempted to show by reference to the schedule and to Judge Robin’s findings that the sentence was an appropriate sentence – the sentence of the Court of Appeal that is.  I do not know that I can assist you any further, your Honour.

HIS HONOUR:   Do you have anything in reply, Mr Deacon?

MR DEACON:   Yes.  Firstly, the case that has been highlighted by the DPP, Paul John Brown, in no way bears any resemblance to my situation.  This was a totally unprovoked attack from someone with a criminal history who showed no remorse.  My case is totally different from that.  I was attacked by the complainant with a baseball bat, I defended myself vigorously.  Unfortunately for me, and I suppose for him, a little bit too vigorously, and he suffered some injuries.  I have shown remorse.  It is totally out of character for me and I have done everything possible to try and make up for that and I do have no criminal history.

The strength behind my appeal to the High Court is that I am not arguing against the head sentence of five years; I accept that, that is reasonable.  But it is the fact that no consideration has been given by the Court of Appeal for the strong mitigating circumstances in this case, namely the early plea of guilt, and it is only because of the DPP that I was forced to change that plea, otherwise this whole matter would have been resolved a long time ago and we would not be wasting the community’s money and time on this.  There are very strong circumstances, I believe I have a case to argue and all I am asking for today is an opportunity to pursue this.  I am biding for time in order to pursue this with the High Court.  If I am unsuccessful with my appeal, I will accept the verdict and I will serve the time without complaint, but at this stage, I am still confident, I am still trying to fight for my freedom and my rights and, on that basis, I am asking for consideration.  Thank you.

HIS HONOUR:   This is an application for bail.  The applicant was convicted of the offence of grievous bodily harm with intent in October 1999.  On 14 December 1999, the primary judge, Robin DCJ, sentenced him to a term of five years imprisonment to be suspended after seven days.  By that date the applicant had already served on remand a period of 503 days so that the effect of the trial judge’s sentence was that he would actually serve, in custody, a period of some 510 days.  He was released from custody on 21 December 1999. 

On 13 April this year the Crown successfully appealed against sentence.  The effect of the order of the Court of Appeal of Queensland was that the suspension be withdrawn and that the applicant be ordered back into custody to serve the remainder of his sentence.  No recommendation for parole has been made.

The applicant did not surrender himself to the authorities.  He has served papers upon the Crown in which his address has been either obscured or certainly made unreadable.  The applicant has now applied for special leave to appeal to this Court.  He has made a number of submissions with respect to the orders of the Court of Appeal but he has been unable to point to any errors of principle on the part of that court.  The submissions he has made are submissions of the kind that would be made on trial to an intermediate court of appeal.  They are not submissions which would suggest that any error of principle has been made by the Court of Appeal which would attract a grant of special leave by this Court. 

It is accepted that it is within the inherent jurisdiction of this Court to grant bail.  By the time, however, that an applicant in a criminal case seeks to invoke the jurisdiction of this Court he or she will have had two hearings, and a sentence will have been confirmed, reduced or increased by an intermediate court of appeal well acquainted with matters of local or particular relevance to sentence within the jurisdiction of that court.  Accordingly, a grant of bail by this Court is likely to be a very rare occurrence, especially in a case in which the application is made in respect of sentence and would need to be based, to enjoy any prospects of success, upon rather exceptional circumstances of a kind which are not present here.  The appellant’s crime was a very violent one.  He inflicted grave injuries on the victim.  In all of the circumstances I would refuse the application.

Mr Deacon, there is one thing that I can do for you.  I could have your application for special leave expedited to August, but if I were to do that you would have to do it on the papers.  In other words, you would have to make all of your submissions in writing.  In those circumstances, the matter would be heard in Sydney in August.  Now, I can give you expedition but I would need to know whether you are prepared to have your application heard on the papers.

MR DEACON:   I am not quite sure what you are meaning.

HIS HONOUR:   Just written submissions.  You do not have an opportunity to make oral submissions.

MR DEACON:   Yes.

HIS HONOUR:   But if you do not accept that, if you want to make oral submissions, then you would need, I think – your application would not, in the ordinary course, come on before about this time next year.

MR DEACON:   For the grant of special leave?

HIS HONOUR:   Yes.

MR DEACON:   Not even for the appeal?

HIS HONOUR:   No.  For the grant of special leave, when this Court is next in Brisbane.  The Court only comes to Brisbane once a year.  I am sorry, there is one other possibility.  We sometimes hear matters by video link, that is that you actually appear in a court and a lot of appeals are dealt with that way, but there will not be a video link from – there is not one scheduled at the moment from Brisbane and the Registrar tells me that she does not think there will be one for about six months.

MR DEACON:   That is the video link?

HIS HONOUR:   Yes.  So those are really the alternatives:  video link perhaps in six months and you would be able to submit your submissions orally, because I understand the practice here is that a person in custody is allowed – is that right, Mr Meredith, he is allowed ‑ ‑ ‑

MR MEREDITH:   Yes, your Honour.  Yes, Mr Fox appeared before the Court.

HIS HONOUR:   It is not the same in all of the States.

MR MEREDITH:   Well, in April this year it was the prisoners who were in custody appeared.

HIS HONOUR:   Right.  So those are the alternatives.  If you want to appear in person before the Court, you will not get your application on before June next year, that is your application.  If you want to appear personally but the video would suffice, that will be on in December possibly – probably, I think, November or December is likely.  Alternatively, if you want to do it on the papers, that is make all your submissions in writing with no appearance at all, your application can be heard in August.

MR DEACON:   Okay.  I think I would like to appear in person.  Appearing after June of next year would be a total waste of time because I would have served my period of incarceration by then.  So the only viable option I think is the video link in November or December.

HIS HONOUR:   Right.  Well, I am prepared to make an order for expedition so that the matter is heard on the first occasion of a video link between Brisbane and the Court in Canberra or elsewhere.

MR DEACON:   The problem I will face, of course, in custody is being able to gain access to the appropriate legal books because I have obviously a very difficult task ahead of me to prove that there has been a breach of a general principle of law in this case.

HIS HONOUR:   Well, that is what I can tell you you would need to be able to show.

MR DEACON:   Yes.

HIS HONOUR:   All right.  Nothing further?

MR MEREDITH:   No, your Honour.

AT 11.00 AM THE MATTER WAS CONCLUDED