Gibbs C.J., Murphy, Wilson, Brennan and Dawson JJ.
LEE BRIAN CHRISTOPHER DEAKIN v. THE QUEEN
16 May 1984
Decision
GIBBS C.J., MURPHY, WILSON, BRENNAN and DAWSON JJ. The Court, having carefully considered the submissions of counsel, is of the opinion that there was no substantial miscarriage of justice in the conviction of the applicant. Special leave to appeal against conviction is therefore refused.
2. In relation to applications for special leave to appeal against sentence, the Court has consistently followed the practice of refusing to grant special leave to appeal merely on the ground that the sentence appears excessive. It was recognized by the Court of Criminal Appeal in the present case that the sentence of nine years imprisonment was a high one and this Court concurs in that view. That in itself, however, is no ground for granting special leave to appeal.
3. However, a question of principle does arise in relation to the refusal of the learned trial judge to fix a minimum period. The effect of s.37(1) and (2) of the Offenders Probation and Parole Act (W.A.), as amended, so far as relevant, is that where a person is convicted and sentenced to a term of imprisonment of not less than twelve months, the court shall fix a minimum term during which the convicted person is not eligible to be released on parole, unless it considers "that the nature of the offence and the antecedents of the convicted person render the fixing of a minimum term inappropriate." The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigtion of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence: see Power v. The Queen (1974) 131 CLR 623, at p 629.
4. The circumstances of the present offence, although serious, were not such as in themselves to warrant the judge to decline to fix a minimum period. Nor did the antecedents of the offender appear to justify the course taken. His record of convictions does not include any previous sexual offences. The very severity of the maximum sentence made it the more appropriate to impose a minimum sentence. The Court considers that in all the circumstances the policy of the statute required the judge to fix a minimum sentence.
5. For these reasons the Court grants special leave to appeal against sentence. The appeal is allowed and the judgment of the Court of Criminal Appeal is varied by ordering that a minimum term of four and a half years be fixed in respect of this offence.
Orders
Special leave to appeal against conviction refused.
Special leave to appeal against sentence granted.
Order that the judgment of the Court of Criminal Appeal
be varied to order that a minimum term of four and a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Deakin v The Queen [1984] HCA 31
Case
[1984] HCA 31
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of Deakin against a conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and the proper application of the law relating to self-defence.
The High Court was required to determine whether the trial judge had erred in admitting evidence that the appellant had made a prior threat to kill the deceased, and whether the jury directions on self-defence were adequate, particularly in relation to the appellant's subjective belief as to the necessity of using force.
The Court held that the evidence of the prior threat was admissible as it was relevant to establishing the appellant's intent and disposition towards the deceased, and was not unfairly prejudicial. On the issue of self-defence, the Court affirmed that the jury must be directed to consider the circumstances as they appeared to the accused, including any mistaken belief, provided that belief was honestly held. The legal principles applied included those relating to the admissibility of evidence under the common law and the statutory framework governing criminal defences.
The appeal was dismissed, with the conviction upheld.