Dinsdale v The Queen

[2000] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P9 of 1999

B e t w e e n -

CHRISTIN ROBERT DINSDALE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 APRIL 2000, AT 12.56 PM

Copyright in the High Court of Australia

MS A.G. BRADDOCK:   If the Court pleases, I appear for the applicant.  (instructed by Messrs Young & Young)

MR R.E. COCK, QC:   If it please the Court, I appear with my learned friend, MR G. MIGNACCA-RANDAZZO.  (instructed by the Director of Public Prosecutions (Western Australia))

GAUDRON J:   The Court is of the view that it might be assisted by hearing from the respondent in this matter.

MS BRADDOCK:   Very well, your Honour.

MR COCK:   Your Honours, there are two points that the applicant makes in this case.  Firstly, they challenge the appropriateness of the Court of Criminal Appeal interfering with the head sentence for the digital penetration.  In our respectful submission, there is ample justification for that.

GAUDRON J:   Yes, but where do we find that?  Where do we find the Full Court making that justification?  Certainly they acknowledge the principles relevant to Crown appeals, but where did they find error on the part of the sentencing judge?

McHUGH J:   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.

MR COCK:   We say your Honours must accept that when he referred to that at page 20 of the application book in the context of his correct appreciation of the relevant principles, he must have found that 18 months imprisonment for an offence carrying the maximum penalty of 20 years committed in the grave circumstances of this particular case was such that it was manifestly inadequate so as to entitle the court to interfere and impose an appropriate sentence.  I accept that the language is not there.

McHUGH J:   I am very reluctant to think that a judge with the experience of Justice Murray in Crown appeals would not have the principles in mind, but when a judge does not state them, you have to feel uneasy about it, because it does not matter how able or how experienced you are in a jurisdiction, if you do not have the principles plainly in mind when you come to apply them, then there is always a chance that you will slip into error.  It is arguable that that is what has happened here.

MR COCK:   I can only restate our proposition that the self‑evident circumstances of the offence were such, despite the absence of any particular tariff, that 18 months imprisonment, bearing in mind his Honour imposed the same sentence for a very minor case of unlawful dealing, which effectively is an assault where consent is not an element, involving particularly minor transgression and, having accepted that as an appropriate disposition, it seems to us at least as the Crown self‑evident and we suggest his Honour accepted the submission, that it was so wrong as to manifest error.  But I cannot take the matter any further.  Your Honours have the very short passage at page 20 of the book where his Honour expresses a view about that.

As to the other element of the appeal, that is, in my respectful submission, the more substantive point so far as special leave at least is concerned of suspension, his Honour does go at pages 22 and following to the relevant principles applied by the Court of Criminal Appeal in Western Australia and his Honour, in our submission, very clearly identifies at the top of page 24 that there was absolutely no basis to suspend the sentence.

GAUDRON J:   But where does this notion that there must be something associated with the rehabilitation process that warrants that course come from?

MR COCK:   Your Honours will have seen the many authorities on my friend’s list and indeed in the reply that canvassed the way in which the Western Australian Court of Criminal Appeal has looked at the matters ‑ ‑ ‑

GAUDRON J:   Let us look at the Sentencing Act.  What does the Sentencing Act say?  You have to find it in the Act, have you not?

MR COCK:   It is an unfettered discretion, your Honour.  It does not express in any respect save ‑ ‑ ‑

GAUDRON J:   But this judgment seems then to fetter it in some way, does it not?

MR COCK:   On one view it does but in a practical effect it does not, you see, because there is no factor, it seems, that his Honour can find relevant to the exercise ‑ ‑ ‑

McHUGH J:   What his Honour says in this case is that there being no rehabilitation process going on, what other justification existed to make the order?  He says that there were none, but one would have thought that there were other factors that could have been taken into account such as the learned trial judge took into account.

MR COCK:   But it is our submission that the only matter the learned trial judge referred to in determining that it was appropriate to suspend the sentence at page 3 of the book from about line 43 was that such action would be needed:

to further a rehabilitation process and whether it’s possible to see whether there is any chance of no – of reoffending.

Then his Honour deals with rehabilitation in a way which Justice Murray of course criticises ‑ in our respectful submission, correctly – then his Honour deals with re‑offending and accepts that “no-one of course can be sure of this” but simply doubted that there would be a re‑offending.  In our submission, those were the only two matters to which his Honour the sentencing judge had regard.

GAUDRON J:   Why would it not be sufficient to take the view that there was a process of rehabilitation already under way and there was no likelihood of re‑offending, or the chances of re‑offending were not great, therefore it was appropriate to suspend the sentence?  Why is that not a permissible approach?

MR COCK:   The approach would be permissible if the facts entitled the inferences or the facts to that effect to be drawn.

GAUDRON J:   But that is not the approach that Justice Murray took.  He seems to suggest that it was necessary to find something that makes it appropriate in mercy to aid a process of rehabilitation or otherwise for good and sufficient reason to order the suspended sentence.

MR COCK:   I do not think his Honour expressed the requirement to find in mercy some element of rehabilitation but I think his Honour is referring to mercy as an additional consideration apart from rehabilitation which might otherwise entitle the court below to suspend.

McHUGH J:   But his Honour does say in the passage from his earlier judgment in GP that it only applies where:

the rehabilitation and reformation of the offender will be positively assisted by the making of an order of suspension or that there are special reasons why the court should be merciful.”

If there is a process of rehabilitation going on in fact, why should it be necessary to have to say that a suspended sentence itself will positively assist that process?  That seems too high a burden.

MR COCK:   Perhaps I can approach it this way.  The applicant has never conceded his guilt of the offence.  It is very difficult in that circumstance to ever – and there was no evidence produced of any attempts he had ever made to rehabilitate himself.  It is not of the cases with which we are often familiar where there is an admission of the guilt and an attempt to find the reasons for the transgression and to deal with those matters.  This was not that case at all.  There was no scintilla of evidence to suggest that this applicant in any respect even accepted today that he is guilty of the offence charged.  That is the problem that we say the Crown had with the trial judge’s determination that there was some rehabilitation.  There was simply no evidence of rehabilitation, save for the fact that he had continued to live in his family.  There is no evidence at all.

McHUGH J:   Mr Cock, 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.

MR COCK:   Can we advance another submission, that this case does not provide a vehicle appropriate for your Honours to resolve the conflicts between the many members of the Supreme Court in Western Australia as to the proper approach to the determination of whether a sentence of imprisonment should be suspended.  I know my friends have gone to great lengths to set out the various approaches.  They have referred, I think, in the one position of Justice Ipp, who quite clearly takes the view, as it may indeed be correct, that there are no matters to be excluded.  All matters are relevant and it is simply a question of whether or not it is appropriate.  There are others, and I think Justice Murray is probably in the extreme end of them, who believe that it has got to be rehabilitative or merciful alone.  There are many judges in the middle and I think the Chief Justice and perhaps Justice Steytler, whose judgments have been referred to, who take a more moderate position, not as far as Justice Ipp, but suggesting there is a predominant need for rehabilitation, although acknowledging it is not the principal basis upon which a sentence can be suspended.

The concern the Crown have of course is that this particular case does not have the sort of elements that enable the proper analysis of discussion of those conflicting views to be determined.  As I say, this is an unusual case because ‑ ‑ ‑

GAUDRON J:   I am not too sure that that is right.  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.

MR COCK:   That, with respect, clarifies the point that I was seeking to develop, that the sentencing judge seems to have looked at the need for there to be rehabilitation assisted by suspension and then, in our submission, wrongly concluded that rehabilitation is going on and will be interrupted by a term of imprisonment immediately served.  The point I make is simply ‑ ‑ ‑

McHUGH J:   I do not say in this particular case that you should be suspended by reason of the matters I am going to put to you, but if you take into account the fact that he was of prior good character, that there was a lack of any further offences and his otherwise good character, the effect on his family and other matters to which the applicant refers, why might not they in a particular case be relevant to him suspending the sentence?

MR COCK:   Even if that be so and even if that be the view of the court, the problem with this particular case is that the gravity of the offending itself is so significant in the Crown’s submission that in any event imprisonment immediately served is the only appropriate disposition.  In other words, we do not really get to a case where we do not have ‑ ‑ ‑

GAUDRON J:   That is not what is said, however, by Justice Murray as a ground for allowing the Crown appeal.

MR COCK:   I have already readily conceded, your Honours, that his Honour does not set out the detail of his reasoning process and I cannot find any when there is none there.  I just simply make the submission that this case is probably not the best case.  The applicant seems to have been already released from prison.  I am sorry, my friend says he has not.  He seems to have been sentenced to 30 months imprisonment with parole and required to do therefore only one third of that.  I do not know on the basis of which my friend does not agree with my proposition he has already been released.  He was sentenced to 30 months by the Full Court.  He was given eligibility for parole.  His sentence was imposed on 2 February last year and he is required to do one third of that time and one third of that time is 10 months.

GAUDRON J:   It looks like 2 October 1998.

MR COCK:   That was the original judgment, I think, of the trial judge and the Court of Criminal Appeal issued its order on 2 February last year, your Honour.

GAUDRON J:   That would not expire until the end of this year.

MR COCK:   But he was given parole, you see, and therefore he is only required to serve one third of the time before being eligible for parole.

GAUDRON J:   That is 20 months.

MR COCK:   No, one third.

GAUDRON J:   Yes, he would have to serve 20 months.

MR COCK:   No, one third.  It is 10 months, your Honour.

GAUDRON J:   Right, thank you.

MR COCK:   Those are my submissions, your Honour.

GAUDRON J:   Thank you.  Ms Braddock, are you in a position to tell the Court what is the position with your client’s sentence?

MS BRADDOCK:   Yes, your Honour.  My client remains in custody at the present time in, I think, the Canning Vale complex on some form of course there.  He has not yet been granted parole.  Obviously it is not for me to speculate as to the reasons.  There may be many factors but, if he is doing a course in Canning Vale, that might well have something to do with the grant of parole in cases of this nature where there was a plea of not guilty.

McHUGH J:   In one of the cases we had here a couple of years ago, Suresh, I think we were told that unless they admit their guilt there is some problem, is there not?

MS BRADDOCK:   Yes, your Honour, that has been my experience also.  If you do not admit your guilt, you do not get on necessarily the correct program.  If you have not done the program, you do not get the necessary recommendation to the Parole Board, ergo you do not get parole.  But he has done 14 months, your Honours.  Had the original sentence simply been activated, he would have been released by now on the two thirds provisions.  If he does not get parole, he will not be released until October.

McHUGH J:   What do you say about this case not being a suitable vehicle to determine this question of principle?

MS BRADDOCK:   Your Honour, it seems that it raises fairly and squarely the principle, as my learned friend Mr Cock has indicated.  His Honour Justice Murray has been involved in a number of the authorities and perhaps does state the stronger view that he takes.  Clearly the other views are raised on the issue as to what, if any, other considerations than the unfettered discretion of the statute should be before the sentencing judge.  In my respectful submission, the view probably of Mr Justice Ipp is the correct view that it is all the circumstances that should be considered and there should be no particular rules and regulations as to how that should be gone about.  Your Honours, I would say it is a vehicle.  The interesting factor is, on the authorities that have been cited both by myself and by my learned friends in the last three years of the decisions in this area, and this is not that they were specially selected, there are some 13 cases, eight of which were Crown appeals.  In Western Australia the Crown can appeal as of right against sentence, which makes the application of principle in these matters by the Court of Criminal Appeal exceptionally important and exceptionally important in difficult times.  It would seem to me for those reasons this would be an appropriate vehicle to deal with this particular problem, both in terms of the failure to state the grounds upon which the court acted and the ‑ ‑ ‑

McHUGH J:   It is put against you that there are really no grounds for suspending the sentence in this case, even if you adopted Justice Ipp’s view.

MS BRADDOCK:   All the factors were before the learned District Court judge.  My submission is that in fact it is in error to suggest that his Honour simply acted on the basis of there being rehabilitation.  If one reads his brief remarks at page 3 of the application book, he notes that firstly a gaol term is unavoidable, then he notes the submission of counsel that was made was that the term should be suspended:

Some of the bases for taking this action –

and I emphasise “Some of the bases”, plural –

are to further a rehabilitation process and whether it’s possible to see whether there is any chance of no – of reoffending.

As to rehabilitation, he takes a view and, in my respectful submission, that view was open to him.  He then goes on to mention the other factors being family, character, and then he goes on back to likelihood of re‑offending.  So, with respect, your Honours, he did take into consideration all those matters very briefly.  What you have to remember also of course is this is a matter that was determined after trial, the learned sentencing judge therefore having had the advantage of seeing both the complainant and the accused in the witness box then.  So, your Honours, there are, in my respectful submission, bases upon which, in the totality of all the circumstances, both aggravating and mitigating, the seriousness and the personal, that the judge could have come and did come, in my respectful submission, to that view.

The point is in fact that Justice Murray simply took a different view.  That is the real error that is manifest in this case.  In fact, because of his view upon the appropriateness of suspended sentence, he fell into further error by finding error of the trial judge in that proposition that it was on the ground of rehabilitation.  That is what Justice Murray says the trial judge did but, if you read what the trial judge in fact says, he was pointed to that but he clearly acts on those other factors as well in reaching his determination and he clearly had taken time to consider.  He had taken a week to consider the matter between submissions being made and his determination.  So, your Honours, in my submission, the sentencing discretion of the judge in the District Court did not miscarry.  He had regard to the factors that he was able to have regard to.  He did not simply act on one ground but it is that on which Justice Murray fastened and the other judges supported him in that decision in the Court of Criminal Appeal and that was in fact an error of interpretation of what the judge in the court below had done.  That seems to me to be the situation, in my respectful submission.

GAUDRON J:   Yes, Ms Braddock.  We need not trouble you further.  There will be a grant of special leave in this case.  There is obviously some virtue in suggesting that the parties get this matter ready for hearing with some expedition, is there not?

MS BRADDOCK:   Yes, your Honours, because in the normal course of events October would be our best hope in Perth.

GAUDRON J:   I cannot guarantee this, but there is a possibility that the matter could be heard in Adelaide in August.

MS BRADDOCK:   That would certainly be advantageous, your Honours.

GAUDRON J:   Is there any difficulty about the respondent co‑operating and ensuring that all the steps are taken with expedition perhaps without ‑ ‑ ‑

MS BRADDOCK:   Your Honour, I cannot imagine there would be any difficulty.  My learned friend Mr Cock is shaking his head at me.

GAUDRON J:   Thank you, Ms Braddock.  There is no need to say anything more.  I presume the parties will co-operate in that regard.

MS BRADDOCK:   Thank you, your Honours.  Unless your Honours would hear me on the question of bail.

GAUDRON J:   Not on this occasion, I am sorry.

MS BRADDOCK:   I am obliged, your Honours.

GAUDRON J:   Call the next matter

AT 1.19 PM THE MATTER WAS CONCLUDED