Dinsdale v The Queen

[2000] HCATrans 240

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P42 of 2000

B e t w e e n -

CHRISTIN ROBERT DINSDALE

Applicant

and

THE QUEEN

Respondent

Application for bail

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON TUESDAY, 13 JUNE 2000, AT 1.09 PM

Copyright in the High Court of Australia

MS A.G. BRADDOCK:   May it please the Court, I appear for the applicant.  (instructed by Young & Young)

MR K.M. TAVENER:   May it please the Court, I appear for the respondent.  (instructed by the Australian Government Solicitor)

MS BRADDOCK:   This is an application for bail effectively pending the decision of the High Court, special leave having been granted already in this instance on 14 April.  The circumstances that we would say indicate that this is an appropriate case for bail pending the appeal, your Honour, is that, firstly, the applicant is currently still in custody.  As your Honour may have seen from his affidavit, he has applied for parole on a number of occasions and has not been granted parole for various reasons.

HIS HONOUR:   Ms Braddock, what was the date upon which your client was convicted?

MS BRADDOCK:   Your Honour, bear with me a moment.  He was convicted in Bunbury in September 1998, your Honour, fourteenth of ‑ ‑ ‑

HIS HONOUR:   What date was that?

MS BRADDOCK:   Sorry, the trial was on 24 September, your Honour, 1998.  He was convicted and then he was granted a suspended sentence by way of penalty, a term of 18 months suspended.  There was then, your Honour, a Crown appeal against the sentence to the Court of Criminal Appeal which was heard in December 1998 and the decision was handed down on 2 February 1999 and it is from 2 February 1999 that the applicant was taken into custody.

HIS HONOUR:   2 February – I am sorry, just let ‑ ‑ ‑

MS BRADDOCK:   1999.

HIS HONOUR:   Now, just to be clear of this, he was convicted of two offences; is that correct?

MS BRADDOCK:   Yes, your Honour.

HIS HONOUR:   And what were the offences?

MS BRADDOCK:   They were both, your Honour, charged as offences of indecent dealing with a child under the age of 13.  One, the allegation being of a penetration, and one being, effectively, a looking without touching.

HIS HONOUR:   The sentence that was imposed and suspended was a sentence of 18 months.  Was that cumulative in respect of both convictions?

MS BRADDOCK:   No, your Honour, it was not.  He was sentenced to 18 months in respect of each allegation, to be served concurrently.

HIS HONOUR:   Is that the normal practice in Western Australia or is that dictated by legislation there?  Was it purely discretionary?

MS BRADDOCK:   It was purely discretionary, your Honour, and upon the Crown appeal, that was not principally one of the grounds of appeal that it was dealt with in that way, although Justice Murray in the Court of Criminal Appeal did take the view that perhaps that was inappropriate.  But, in the event, what Justice Murray did – or the Court of Criminal Appeal that Justice Murray wrote the lead judgment ‑ effectively increased the sentence for the more serious count from 18 months to 30 months, but still ordered that the penalties be served concurrently.  So the penalty went up from 18 months to 30 months, your Honour, and the Court of Criminal Appeal did not order that that penalty should be suspended.

HIS HONOUR:   So I can be clear about this, are you saying that the term that was imposed by the sentencing judge, or each term, was imposed cumulatively and not concurrently?  I suppose it did not matter because each term was suspended wholly - is that correct?

MS BRADDOCK:   Each term was suspended wholly but it did matter in the sense that they were both ordered to be served concurrently, so the total period of imprisonment which was suspended was a total of 18 months.

HIS HONOUR:   That is what I thought.  Now, the Court of Criminal Appeal allowed the appeal and substituted a sentence at 13 months for the more serious of the offences and left in tact the sentence of 18 months for the less serious, is that right?

MS BRADDOCK:   That is correct, your Honour.

HIS HONOUR:   And that was done on 2 February 1999.

MS BRADDOCK:   Yes, your Honour.

HIS HONOUR:   When did your client first become eligible for parole?

MS BRADDOCK:   Your Honour, on 2 December 1999 he would have been eligible to take up parole.

HIS HONOUR:   Is that pursuant to some statutory provision in Western Australia?

MS BRADDOCK:   It is pursuant to statute, your Honour.

HIS HONOUR:   What provision is that, Ms Braddock?

MS BRADDOCK:   It is under the Offenders Probation and Parole Act, your Honour.  I am having difficulty with the section number off the top of my head.  Effectively, your Honour, a person becomes eligible for parole, on a sentence of less than six years, after one‑third of that sentence is served.

HIS HONOUR:   Now, your client applied for parole.  He has applied more than once, I think, is that correct?

MS BRADDOCK:   That is correct, your Honour.

HIS HONOUR:   And the material does not disclose, or does it disclose, why he has not been granted parole?  Do not tell me about it if it is not in the material.

MS BRADDOCK:   Your Honour, it is not specifically in the material.  It is one of those situations which, in fact, is quite commonly well known.  He, being convicted of offences of a sexual nature, has maintained his innocence, he is therefore ineligible for the sex offender treatment program, which is a factor taken into consideration on the grant of parole.

HIS HONOUR:   Let me just ask Mr Tavener whether there is agreement with that please.

MS BRADDOCK:   Very well, your Honour.

HIS HONOUR:   Mr Tavener, do you agree that that is most likely the reason why parole has not been granted?

MR TAVENER:   As I understand matters, your Honour, that is the most likely reason.

HIS HONOUR:   Yes.  All right, thank you.

MR TAVENER:   The difficulty of getting into an appropriate course.

HIS HONOUR:   And that is probably upon the basis that he has not acknowledged his guilt, is that right?

MR TAVENER:   Yes, entry into those courses, as I understand it, is dependent on the person acknowledging their guilt.

HIS HONOUR:   Thank you, Mr Tavener.

MS BRADDOCK:   Your Honour, he has done that as much as he can, as I understand it, and this is in the materials at page 4 paragraph 14 of his affidavit.  He has recently attended an alternative course which ended in May and his application has still not been further considered.  At the moment his status is that he just does not know whether he is going to be granted parole or not.  My information is that, in the circumstances, it has not yet occurred that a person has been granted bail with this alternative course, your Honour.

So, his position is that the appeal is listed in Adelaide on 7 August in some seven weeks time and the applicant is eligible for release without parole – the earliest possible date he is eligible for release without parole is 2 October of this year.  So, in summary, he has a maximum of 15 weeks left to serve.  The jurisdiction of this Court to grant bail pending an appeal is effectively the inherent jurisdiction of the Court and that is the inherent jurisdiction:

to preserve from futility the exercise of the jurisdiction by –

in effect:

preserving the subject matter of a prospective appeal –

but it is a power that is acknowledged to be exercised rarely and it has been said that one of the circumstances where it may be exercised:

is where there is a risk that sentence will have been served or substantially served by the time an application for special leave to appeal is heard and where the application for special leave enjoys a reasonable prospect of success.

I refer in that to the case of Peters v The Queen 71 ALJR 309 and I was quoting from his Honour Justice Dawson, as he then was, on that particular topic.

There are other cases cited both by myself and my learned and in fact the principle is not in issue between the applicant and the respondent, it is a matter of the inherent jurisdiction of the Court and whether, in all the circumstances, the Court considers that there are in effect exceptional circumstances to invoke the jurisdiction to grant bail.  It is my submission that the exceptional circumstances arise out of a combination of factors being the likelihood that the sentence will in effect have been served by the time the judgment of the Full Court of the High Court is likely to have been handed down and, therefore, in that sense, apart from the points of principle which probably is of less interest to the applicant than it is to the Court, the matter will be futile.

Further, the other factors, which added that, I would say, make this an exceptional case is that this was a Crown appeal in the first place.  The applicant has been placed, effectively, in double jeopardy already and, in effect, by his application here will be seeking to place himself again in double jeopardy but,, in my respectful submission, that is a risk that an applicant in this situation should be entitled to opt for, if I might put it that way.  Between seven and 15 weeks is a considerable period of time for a person incarcerated and, in my respectful submission, because it was a Crown appeal in the first place, one would have thought that the punishment effected upon him perhaps of almost more significant weight than it would have been had be been immediately imprisoned following his conviction.

The other circumstances are clearly that the Court must consider the prospects of the appeal and, clearly, that is a difficult matter in the sense that your Honour was not a party or was not presiding in the special leave application.  But may I simply summarise the situation thus:  the special leave application, effectively, concentrated on two points.  The first was that there was no express finding of error by the Court of Criminal Appeal in relation to the increase in the term of imprisonment from 18 months to 30 months and that, your Honour, was a matter specifically remarked upon by Justice Gaudron during the course of the special leave application.  It was effectively conceded that the judge had not stated – that is Justice Murray – the error that he effectively was acting upon.  Justice McHugh said this:

The most you can say, is it not, is that Justice Murray said the sentence was particularly lenient, but he did not say it was manifestly inadequate.

And that, effectively, is the situation here.  The applicant is saying that the court effectively interfered with the sentence because the court took a different view from the trial judge, without identifying manifest error in relation to the sentencing process.  That was the first point, your Honour.

The second point concerns the exercise of the court’s discretion to suspend a sentence.  There is, your Honour, a difference of view in the Court of Criminal Appeal in Western Australia as to the exercise of the power to suspend a sentence.  The statutory power is unfettered and what has grown up, in effect, is different views as to whether that is simply a completely unfettered discretion or another view, which is the view taken by Justice Murray, that effectively it is necessary to find something that makes mercy an aid to rehabilitation or for otherwise good and sufficient reason, and that is the point which is not supported by statute and with which issue is taken, that there are differences of views that there is similar legislation in other States within the Commonwealth.  That is the point that was of interest to their Honours in the special leave application.

The other point that effectively arose is because of Justice Murray’s view of the purpose of suspending sentence being primarily for rehabilitation, he then purported to find error in the learned sentencing judge’s exposition of why he did impose a suspended sentence, and it is the applicant’s submission that in fact that finding of error was predisposed by Justice Murray’s view of what the appropriate – or the appropriate circumstances for the finding of the appropriate suspension of a sentence.

So, that is the area in which the argument was put which led to the grant of special leave, and it was specifically put to me as to whether it was a proper vehicle to deal with the issue.  And Her Honour Justice Gaudron said this:

Either the discretion is fettered or it is unfettered.  Either all matters are relevant or it seems some only.  The sentencing judge seems to have proceeded on the basis that in general all of the circumstances were relevant.  Either he was right or wrong.  If he was not wrong, then there was no basis for – then, unless he was wrong in some other aspect, there was no basis on which the Crown appeal should have been allowed.

And, in my respectful submission, taking that with the circumstances and the lack of specific finding of error on the extension of the term, I think it is appropriate to say there are reasonable prospects of success in this case.  Either the terms should not have been extended, or it should not have been unsuspended.  In either event, your Honour, the applicant would be eligible for immediate release, not on parole.  So, either, if the sentence was merely an 18 months sentence, he would be eligible for immediate release without parole or, obviously, if the sentence was to be suspended of whatever length of term, he would be eligible for release immediately without the requirements of the Parole Board approving it.

It is not simply a question of a simple sentence being served and expired.  The whole thrust of the appeal, and obviously this application, revolves around the appropriateness of the length of the term and whether it should have been suspended or not.  In my submission, taking the totality of those factors, bearing in mind it was a Crown appeal against sentence that was, in our submission, erroneously allowed by the Court of Criminal

Appeal, then the man should be entitled, at least, to his liberty whilst the High Court of Australia comes to consider the matter.

There does not appear to be a great deal of distinction to be drawn in the cases, your Honour, between pending application for special leave or pending the appeal proper.  But, obviously, if anything, special leave having been granted, the factors relevant to there being reasonable prospects of success are, if anything, perhaps, strengthened, your Honour.  And I would say that the two factors for your Honour to consider, are the futility of the appeal if - it is not handed down before he would be released, in any event,  his prospects of the appeal and the fact that it was a Crown appeal against sentence.  May it please the Court.

HIS HONOUR:   Thank you.  Mr Tavener.

MR TAVENER:   Thank you, your Honour.  The Crown says that as we now speak, the applicant is a sentenced prisoner.  He has been dealt with according to the laws of Western Australia and that is, he has been dealt with by the Parole Board as to whether or not he should be released.  Further, the respondent would say that there is no exceptional circumstances by which the applicant should be released.  It is not an exceptional circumstance that he is in custody.  It is not an exceptional circumstance that he has served a considerable portion of his sentence.  He will still be serving that sentence, as I say, as a result of the decisions of the Parole Board at the time this appeal is heard.

I will come on to this shortly.  The respondent also says that the prospect of success by the applicant is not good and even if the appeal is successful in one way in respect of the manner in which suspended sentences are dealt with by the court, that does not mean the applicant will be released.  There is a number of possibilities as to the outcome of this matter and not all of those would lead to the automatic release of the applicant.

At this time the applicant has been convicted.  There has been no appeal against conviction.  The only appeal that has occurred is that of sentence and that was initiated by the Crown.  The Court of Criminal Appeal of Western Australia all agreed that the sentence should be increased, as our learned friend has informed the Court.  It may well be that, had this been an appeal against conviction, the case would have been stronger but the applicant is a sentenced prisoner.  It is for the Parole Board of Western Australia, in the respondent’s submission, to determine whether or not he should be released.  If he is released at this time, if he is granted bail at this hearing, then in effect the workings of the Parole Board have been circumvented.  In any event, the applicant will be released at this stage either if parole is granted or when he has served two‑thirds of the sentence.

If it was an exceptional circumstance, that is the grant of special leave was a special circumstance, anyone appealing his sentence would then be released.  In the respondent’s submission, there is a number of possible outcomes from the appeal.  This matter may be sent back to the Western Australian Court of Criminal Appeal for resentencing, and that is on the first ground simply stating the principles by which the applicant was sentenced.  Indeed, his Honour Justice McHugh said at page 4 of my report:

Mr Cock –

who represented the respondent at that time –

my problem is – I must say I do not have any real difficulty with the result.  It is the process in the Full Court that worries me, both in the terms in which the sentence was set aside and then requiring this element of positive assistance in reform from the suspension of the sentence.  It is not for us to say whether or not what was being done eventually was justified but it is a question of process and as to whether the learned judge has followed proper process.

So it may well be the result of this appeal is simply that the matter is sent back to the Western Australian Court of Criminal Appeal to be resentenced following the proper process.

The other issue, as I understand it, for consideration is the manner in which suspended sentences are applied in Western Australia.  Again, at the end of the appeal process it may well be that a judgment is given as to how sentences should be suspended in Western Australia.  That may have in fact no impact on the current applicant’s position.  He may still be in a position where, despite whatever the judgment may be of the Court, he may well be required to remain in prison until the completion of two‑thirds of his sentence or the Parole Board releases him.  So it is not clear or definite that, even upon a successful appeal, if I could put it that way, it would result in the release of the applicant.

I would also make mention that the High Court has already accommodated this applicant by altering the hearing dates in that the matter is now to be heard in Adelaide on an earlier date rather than, as I understand it, a later time in Perth.

The respondent would simply say there are no exceptional circumstances in this particular matter and no demonstration of the need to release the applicant at this time.  Unless there is anything further, your Honour.

HIS HONOUR:   No, thank you, Mr Tavener.  Do you have anything in reply, Ms Braddock?

MS BRADDOCK:   Briefly, your Honour, only this:  if the High Court were persuaded that the Court of Criminal Appeal misapplied process, that, logically, would require a finding that the trial judge was not in error.  If that were the case, I think it would be unlikely, as my learned friend has submitted, that the matter would be referred back to the Court of Criminal Appeal.  But if the finding necessarily effectively was that the Court of Criminal Appeal were wrong in finding that the trial judge had erred, then the trial judge was right, then his sentence would be reinstated.  That, as a matter of logic, in my submission, would follow.  That, therefore, goes simply to the point my learned friend made that there would be a number of possible outcomes to this matter.

The other point, your Honour, is that this application invoking your Honour’s jurisdiction has nothing to do with the Parole Board or any suggestion of circumventing the Parole Board.  It is a matter of the Court’s inherent jurisdiction to consider this matter in the light of all the circumstances.  May it please the Court.

HIS HONOUR:   Thank you.  I propose to give judgment on this application now.

This is an application for bail by a person who was convicted on 24 September 1998 by the District Court of Western Australia of two offences:  that on a date between December 1995 and 31 January 1996 he sexually penetrated a child under the age of 13 years; and, that, on the same day he indecently dealt with that child.  As a result of the convictions the District Court sentencing judge imposed a sentence of 18 months imprisonment in respect of the first count and of 18 months imprisonment in respect of the second count also on 2 October 1998.  The sentences were concurrent sentences but the sentencing judge suspended wholly the service of any period of imprisonment

The Crown appealed against sentence to the Court of Criminal Appeal of Western Australia.  The appeal was allowed.  The Court of Criminal Appeal held that the sentence imposed by the trial judge in respect of the offence of sexual penetration should be set aside and in lieu thereof that there be an order that the respondent be sentenced to a term of 30 months imprisonment with eligibility for parole.  The Court of Criminal Appeal of Western Australia pronounced its orders on 2 February 1999. 

The parties are agreed that the applicant became eligible to apply for parole on 2 December 1999, that is after service of one‑third of the term of imprisonment.  He has applied for, but has not been granted parole.  Both counsel who appear are agreed that in all probability parole has not yet been granted because the applicant had not been admitted to a rehabilitation programme of a particular kind.  He has, however, undergone some rehabilitation and may be expected to persist in his application for parole.  His sentence would, in the normal course, expire in early October this year. 

The applicant has been granted special leave to appeal to this Court.  His appeal is to be heard in early August this year.  There are few cases in this jurisdiction in which this Court does not need to take time to consider its decision before pronouncing it.  In these circumstances, it is likely that if the applicant’s appeal were to succeed, on the prospects of which I abstain from expressing any opinion, the applicant would have, for all practical purposes, served his time and would derive no benefit from such a result.

In Bull & Others v The Queen I granted bail to applicants whose terms of actual imprisonment, after allowance for parole and remissions, had almost expired after they had been granted special leave to appeal  The real difference between those cases and this one is that the former were appeals against conviction and not, as here, sentence.  This is a real difference because, however undesirable it may be that a person serve a longer sentence than he should, it is manifestly more repugnant to justice that it turn out that a person may have served, or has served, a period of imprisonment which he should never have served at all. 

There are other points of distinction.  What is an appropriate sentence may be very much a matter upon which judges can reasonably differ and, generally, the measure of a sentence can, and will often, be peculiarly a matter for the appellate court of the jurisdiction in which the sentence is imposed, having regard, among other matters, to local jurisdictional factors.  This last matter assumes less, or no importance here because the applicant’s appeal is not brought simply upon the basis of any alleged manifest excessiveness.  He seeks to rely upon errors of sentencing principle.  That there was no express finding of error on the part of the sentencing judge by the Court of Criminal Appeal and, although the Court of Criminal Appeal thought the sentence a particularly lenient one, the Court made no express finding of manifest excessiveness.  The other point of sentencing principle which the applicant seeks to raise is whether the discretion to suspend the sentence, wholly or in part, is a discretion at large, or is a discretion which can only be triggered by the prospects of rehabilitation or some like matter.  These are the issues which attracted the attention of their Honours who heard, and allowed, the application for special leave to appeal.

In the event, I have decided that there should be a grant of bail in this case pending the hearing of the appeal or earlier order.  I have reached this conclusion for these reasons:  first, the applicant does have a reasonably arguable case that an error of sentencing principle has been made by the Court of Criminal Appeal of Western Australia; secondly, if the appeal were to succeed, absent bail now, the applicant could be deprived of all of the benefits of a reduced term.

Mr Tavener, as you have heard, I propose to grant bail but what conditions should be imposed?

MR TAVENER:   My learned friend has proposed a number of conditions and the respondent would have no difficulty with those conditions as proposed.  I have them as paragraph 11 under “Outline of Submissions in Support of Applicant’s Application for Bail, 13 June, 2000”.

HIS HONOUR:   Mr Tavener, there is a document dated 9 June 2000 which has been provided to me which sets out the terms of bail proposed.  Is there any difficulty about any of those conditions?  Are they appropriate, do you think?

MR TAVENER:   They are, your Honour.  Those are the matter I was referring to.

HIS HONOUR:   Right.  Well, I propose then to order that the applicant be granted bail upon the conditions set out in the document entitled “Proposed Terms of Bail”, provided by the solicitors for the applicant and dated 9 June 2000.  Is there anything further?

MR TAVENER:   Not for my part, your Honour.

HIS HONOUR:   Is there anything further, Ms Braddock?

MS BRADDOCK:   No, thank you, your Honour.

HIS HONOUR:   Yes, all right, thank you.  Close the Court please.

AT 1.45 PM THE MATTER WAS CONCLUDED