Director of Public Prosecutions v Ross Gregory Cartwright
[2015] VSCA 11
•11 February 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0120
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| ROSS GREGORY CARTWRIGHT | Respondent |
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| JUDGES: | WEINBERG, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 February 2015 |
| DATE OF JUDGMENT: | 11 February 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 11 |
| JUDGMENT APPEALED FROM: | DPP v Cartwright (Unreported, County Court of Victoria, Judge Quin, 22 May 2014) |
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CRIMINAL LAW – Crown Appeal – Sentence – Aggravated burglary with intention to assault with intent to rape – Whether judge erred in refusing to make a sex offender registration order – Sex Offenders Registration Act 2004, ss 6, 7, 11 and 34 – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr B L Sonnett | Office of Public Prosecutions |
| For the Respondent | Mr D D Gurvich with Mr P J Smallwood | Turnbull Lawyers |
WEINBERG JA:
I agree for the reasons given by Priest JA that this appeal should be dismissed.
PRIEST JA:
Introduction
On 17 March 2014, the respondent pleaded guilty in the County Court to a charge of aggravated burglary,[1] which alleged that the he entered a part of a building situated in Docklands, Victoria, ‘with intent to commit an offence, namely an assault with intent to rape, to a person therein’. He was sentenced on 22 May 2014 to be imprisoned for six and a half years with a non-parole period of four years.
[1]Crimes Act 1958, s 77(1). The maximum penalty is 25 years’ imprisonment: s 77(2).
The appellant contends that, when imposing sentence on the respondent, the judge erred in that she failed to make a sex offender registration order under s 11 of the Sex Offenders Registration Act 2004 (‘SORA’). Resolution of the appeal requires, first, determination of whether the County Court was empowered in the circumstances of this case to make an order under s 11 of the SORA; and, secondly, if the County Court had power to make such an order, whether it was open to the judge to refuse to do so.
Grounds of appeal
Perhaps somewhat curiously expressed, the grounds of appeal as set out in the DPP’s notice are:
1A. The sentence is manifestly inadequate in that the sentencing judge failed to make a discretionary order pursuant to section 11 of the Sex Offenders Registration Act 2004.
[complaint of general error]
or
1B.The sentencing judge erred in failing to make a discretionary order pursuant to section 11 of the Sex Offenders Registration Act 2004. [complaint of specific error]
Important note:
For avoidance of doubt, the Appellant does not challenge on this appeal the sentence of imprisonment of 6 years 6 months imposed on the charge of aggravated burglary, nor the non-parole period of 4 years imprisonment fixed by the sentencing judge.
Thus, it will be noticed that ground 1A, characterised as a ‘complaint of general error’, contended that the sentence imposed is ‘manifestly inadequate’ due to the judge’s failure to make a ‘discretionary order’ under s 11; and ground 1B, characterised as a ‘complaint of specific error’, alleged error by the trial judge in failing to make a ‘discretionary order’ pursuant to s 11. On the hearing of the appeal, however, counsel for the appellant elected to rely solely on ground 1A.
The offending
On the plea hearing in the County Court, the prosecutor opened the facts as follows:
[A]t the time of offending the [respondent] was employed as the building manager for the apartment complex situated at 2 New Quay Promenade at Docklands ... As building manager he possessed a master key which gave him access to every apartment, all floors via the stairwell and other areas not accessible to residents within the building.
He further oversaw the CCTV system, including camera angles and maintenance and possessed the security code required to access any CCTV footage. As part of his employment he was provided accommodation within the complex, that being Apartment 1602 on Level 16, which he was living in at the time of offending. CCTV cameras situated in common areas throughout the complex captured the [respondent’s] movements on the day of offending.
With regards to the offending: On Sunday 18 August 2013 at 7.41 a.m. the [respondent] left the building manager’s office situated on the ground floor of the complex and caught the lift to the 16th floor. Upon exiting the lifts he walked to his apartment where he remained inside for approximately ten minutes before leaving at approximately 8.01 a.m. He then walked to and entered the secure stairwell on that floor carrying a backpack containing additional clothing.
At 8.21 the [respondent] walked down to the complex using the internal stairwell and exited on Level 4. Whilst in the stairwell he changed into tracksuit pants and a hooded jumper and put on a baseball cap, sunglasses and white gloves which he had carried in the backpack. On exiting the Level 4 stairwell he walked towards the CCTV camera situated on that level and repositioned the camera away from the hallway area where it was usually pointed so that it faced the black wall. He then walked to Apartment 403 on Level 4 where the victim [JL] lived and used his master key to open the door to that apartment before closing his backpack inside the door on the floor.
Upon entering the [respondent] approached the victim who was seated with her back to the door at a desk in her bedroom. Upon hearing a noise [JL] turned around and saw the [respondent] standing immediately behind her holding a neck tie, a strip of white fabric and a blindfold. The victim screamed and the [respondent] attempted to muffle her scream by placing his hand over her mouth. [JL] continued to scream and struggled with the [respondent] which resulted in him running back towards the front door. The victim then grabbed a pot from the kitchen and ran after the [respondent] before striking him to the back of the head with the pot causing the handle to break off.
The [respondent] then turned around to face the victim and placed his left hand over her mouth. The victim bit the middle finger of the [respondent’s] left hand causing it to bleed and drop a small amount of blood on the inside of the front door. The [respondent] then moved away from the victim, picked up his backpack and left the apartment, leaving behind several items he had brought, including his baseball cap, neck tie, a strip of fabric and a sports brace. The victim saw the [respondent] go down the hallway and into the stairwell. At 8.41 a.m. the [respondent] exited the 16th floor stairwell and went to his apartment. …
In regard to the investigation: The victim contacted police who attended the complex that day and attempted to contact the [respondent] in his capacity as building manager to obtain CCTV footage. The [respondent] did not answer any phone calls and remained in his apartment throughout that day, that being 18 August.
On 19 August 2013 police re-attended the complex and spoke with the [respondent] in the building manager’s office. The police viewed some of the CCTV footage and noted that during their meeting the [respondent] kept his left hand in his pocket throughout. Upon request the [respondent] showed police his left hand which had a bite mark on the middle finger. The [respondent] was then arrested and cautioned and taken to Melbourne West Police Station. The police subsequently located within the complex the backpack which contained some of the items the [respondent] had used to conceal his [appearance]. The glove used with blood on them were also located.
In regards to interview with police following his arrest the [respondent] was interviewed where he consented to providing a DNA sample and having his head and hand examined and photographed. During the examination of the injury to his hand he provided it was a bite mark. He provided full and comprehensive admissions to the charge and narrative of the offending as particularised stating, ‘I basically take full responsibility’.
He stated that in the period prior to the date of offending he had been taking drugs and had had really bad sexual thoughts, which included a level of desperation for sexual contact. In the hours prior to the offending he had consumed alcohol and cocaine before returning home at around 5 a.m. to 6 a.m.; that on returning home he had decided to enter someone’s apartment unlawfully as he needed sexual contact and was going to assault or maybe rape someone with force if he had to; that he picked the victim’s apartment as he knew there was a young girl living there alone and had checked the CCTV footage that morning to confirm she was there alone; that he had sought to conceal his identity immediately prior to the offending by using the internal stairwell, changing his clothes and covering his face, changing the CCTV camera on Level 4; that he had taken items to restrain the victim with. He had also taken condoms, lubricant, Xanax and Aspisol for the purposes of sedating the victim, and Tadalista, which was sort of like Viagra.
He had put his backpack containing the clothes he had used in the garbage chute after the offending for self-preservation. It is noted that the basis of that information provided by the [respondent] in interview led to them locating the backpack …
Competence of the appeal
Section 287 of the Criminal Procedure Act 2009 (‘CPA’), headed ‘Right of appeal — inadequate sentence’, permits the DPP[2] to appeal to this Court against ‘a sentence imposed’ by the County Court, if the DPP ‘considers that there is an error in the sentence imposed’, and ‘is satisfied that an appeal should be brought in the public interest’. By virtue of s 3 of the CPA, ‘sentence’ includes ‘an order made under s 11 of the [SORA]’.
[2]By virtue s 3 of the CPA, ‘”DPP” means the Director of Public Prosecutions for Victoria’.
Pursuant to s 289 of the CPA, this Court must allow an appeal brought by the DPP if the DPP satisfies the Court that ‘there is an error in the sentence first imposed’, and ‘a different sentence should be imposed’. Importantly, if the Court allows a DPP appeal, s 290(1) requires that ‘it must set aside the sentence imposed by the originating court and impose the sentence, whether more or less severe, that it considers appropriate’.
Given that the DPP may appeal against ‘an error in the sentence’, and that sentence for this purpose includes ‘an order made under s 11’, the appeal will be competent only if the power to appeal against an error in an order made under s 11 also embraces an error constituted by a failure to make an order under the section.
When the question of competency was raised by the Court, counsel for the respondent sought to submit that the appeal was incompetent on the basis that a failure to make an order under s 11 of the SORA is not ‘an error in the sentence first imposed’.[3] In this case, so the argument proceeds, the judge in the County Court did not impose a sentence, since no order was made under s 11. And since no sentence was imposed, there is no error in the sentence which animates any jurisdiction in this Court. Indeed, there is no sentence which the Court can set aside.
[3]Counsel attempted to draw comfort from R v Chan [2006] VSCA 125, [21] (Nettle JA).
Although it seems to have been accepted that the respondent’s construction might lead to anomalous results, it is contended that the text of ss 287, 288 and 289 is clear. The power of this Court to intervene is conditioned upon the imposition of a ‘sentence’ — as opposed to the non-imposition of a sentence — in which there is an ‘error’.[4]
[4]Cf Achurch v The Queen (2014) 306 ALR 556, 580 [35]–[36] (French CJ, Crennan, Keifel and Bell JJ). In that case, the High Court was called upon to construe s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which permitted a court to reopen sentencing proceedings if ‘a court has … imposed a penalty that is contrary to law’.
Having regard to the conclusions that I have reached on the principal issues agitated, however, it is unnecessary to give any final answer the tantalising questions arising from the submissions concerning competency; since, if the assumption is made that the appeal is indeed competent,[5] then it must nevertheless be dismissed on its merits.
[5]Despite the submissions made by the respondent to the contrary, I also assume that s 5(2BC) of the Sentencing Act 1991 — which provides that in sentencing an offender a court ‘must not have regard to any consequences that may arise under the [SORA] from the imposition of the sentence’ — has no application to the resolution of this appeal.
Was the respondent’s offending amenable to a registration order?
The respondent contended that the judge had no power to make a registration order pursuant to the SORA, since the particular species of aggravated burglary of which he was convicted does not fall within any class of offence which is amenable to the provisions of the Act. In order to determine the correctness of that contention, it is necessary to analyse the key provisions in some detail.
A ‘registrable offender’ is defined by s 6(1) of the SORA as a person whom a court has sentenced for a registrable offence. Section 7(1) defines ‘registrable offence’ as follows:[6]
[6]My emphasis.
7 What is a registrable offence?
(1) A registrable offence is—
(a) a Class 1 offence; or
(b) a Class 2 offence; or
(c) an offence that results in the making of a sex offender registration order.
It is common ground that the offence of aggravated burglary in this case was neither a Class 1 nor a Class 2 offence[7] (nor, for that matter, a Class 3 offence).[8]
[7]It should be noted that Schedule 2 of the SORA, which sets out Class 2 offences, includes:
20. An offence against section 77 of the Crimes Act 1958 (aggravated burglary) in circumstances where the offender entered the building or part of the building as a trespasser with intent to commit a sexual or indecent assault on a child.
The victim in the present case was not, however, a ‘child’.
[8]By s 8(1), Class 3 offences are those listed in Schedule 3. Aggravated burglary is not one of those offences.
Section 8(2) then provides:
8 What are class 3 and class 4 offences?
…
(2) A Class 4 offence is an offence listed in Schedule 4 committed against a person other than a child by a person who is (whether because of, or apart from, that offence) a serious sexual offender for the purposes of this section.
Class 4 offences are set out in Schedule 4, item 9 of which refers to the offence of aggravated burglary:
9. An offence against section 77 of the Crimes Act 1958 (aggravated burglary) in circumstances where the offender entered the building or part of the building as a trespasser with intent to commit a sexual or indecent assault.
Both parties concede, however, that the respondent is not a ‘serious sexual offender’ within the meaning of the Act,[9] so that the respondent’s offence is not caught by s 8(2) or Schedule 4.
[9]See SORA, s 8(3).
The result is that the particular kind of offence of aggravated burglary committed by the respondent is specified neither as a Class 1, 2, 3 or 4 offence. It was contended by the appellant, however, that it was not necessary for an offence to fall within any of the four Classes in order for the respondent to be liable for a registration order. The first step in the appellant’s argument involved recourse to s 7(1)(c), which sets out that — quite apart from a Class 1 or Class 2 offence — a registrable offence is ‘an offence that results in the making of a sex offender registration order’.
Next, the appellant relies on s 11 of the SORA, which is in the following terms:[10]
[10]Emphasis added.
11 Sex offender registration order
(1) If a court finds a person guilty of an offence that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of this Act.
…
(3) The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.
(4) For the purposes of subsection (3), it is not necessary that the court be able to identify a risk to particular people, or a particular class of people.
(5) The court may only make an order under this section if it has imposed a sentence in relation to the offence …
…
Section 11(1) makes it plain, the appellant argues, that a court has a discretionary power to make a registration order with respect to any offence not being a Class 1 or Class 2 offence (including a Class 3 or 4 offence), so long as s 11(3) is engaged. The appellant draws further support for this submission from the terms of s 34 of the SORA, which spells out the length of reporting periods for offences which are subject to registration under the Act. Thus, for example, s 34(1)(a) provides that a person found guilty of a single Class 2 offence is subject to reporting obligations for eight years; s 34(1)(b) provides that a person found guilty of a single Class 1 offence, or two Class 2 offences, is subject to reporting obligations for 15 years; and s 34(1)(c) provides for reporting obligations for life if a person is found guilty of the specified number of Class 1 or Class 2 offences (or an offence falling within item 2 of Schedule 1). In particular, the appellant relies on s 34(4)(b). The terms of s 34(4) are as following:[11]
[11]My emphasis.
34 Length of reporting period
(4) For the purposes of this Division, a person subject to a sex offender registration order —
(a) if found guilty of a Class 3 offence is deemed to have been found guilty of a Class 1 offence; and
(b) if found guilty of a Class 4 offence or any other offence other than a Class 3 offence is deemed to have been found guilty of a Class 2 offence.
In my opinion, the appellant’s submissions must be upheld. On its ordinary reading, s 11(1) makes offences which are not classified as Class 1 or Class 2 offences (including Class 3 or 4 offences) subject to registration under the SORA. The power to do so is discretionary — the court ‘may order’ — and is subject to the court being satisfied, beyond reasonable doubt, that the relevant person ‘poses a risk to the sexual safety of one or more persons or of the community’. That interpretation is, in my view, buoyed by the terms of s 34(4)(b) which, by their reference to ‘any other offence’, support the contention that the reporting obligations of the Act may extend to offences not specifically falling within the classes of offences provided for.
For these reasons the judge was empowered to make a registration order. Did she err in failing to do so?
The judge’s reasons
In declining to make an order under s 11, the judge noted that both prosecution and defence counsel had agreed, first, that it was not mandatory to register the respondent since he had not committed a Class 1 or Class 2 offence; secondly, that no discretion was enlivened by virtue of the respondent’s being a Class 4 offence within Schedule 4, since Schedule 4 required the commission of two offences as set out in that Schedule before any discretion to register was animated (the respondent having committed but a single offence); and, thirdly, that an application could be made under s 11 in respect of ‘any offence’ — including the offence of aggravated burglary to which the respondent had pleaded guilty — and the judge was required to consider the matters in s 11(3) in the exercise of her discretion whether to make an order.
Despite the concurrence of both parties that it did, the judge questioned whether power reposed in her to make the order sought. But it is clear that, on the assumption that she had the purported power to make the order, in the purported exercise of discretion, the judge determined not to do so. She said:
In any event, the conclusion I have reached in relation to the application pursuant to s 11(3) is that an order should not be made in the exercise of discretion. The court should only make an order if, after taking into account any matter that it considers appropriate, it is satisfied beyond reasonable doubt that the person poses a risk to the sexual safety of one or more persons, or of the community.
In simple terms the question is what is the likely risk that you would pose to the sexual safety of one or more persons of the community upon your ultimate release. The level of risk for future sexual offending as assessed by the psychologists differed, with Dr Daffern indicating you were a moderate risk, while Dr Cunningham thought the risk was low. I know that Dr Daffern refers to treatments that may reduce your risks, relating to alcohol and drug use, and the connection of substance abuse to your sexually deviant thoughts and behaviour.
I take these opinions into account along with the other matters set out. Having regard to the mitigating circumstances that I have set out, particularly your previous good character, remorse, and importantly, your insight into this offending, and your recognition of the need to address issues, I am unable to be satisfied beyond a reasonable doubt, a high very high test, that I should make an order. I am satisfied that the lengthy term of imprisonment that I have imposed will have a deterrent effect on you. You have indicated the willingness to participate in various programs in custody, including for sexual offenders which would assist your rehabilitation. You will have the advantage of parole supervision and continued family support. Despite the very serious nature of this offence, I am not satisfied to the requisite degree, and I therefore, in the exercise of my discretion, will not make the order sought.
The submissions on the appeal
In this Court, counsel for the appellant set the bar for success on the appeal very high. He submitted that, before the appellant could succeed, it had to be demonstrated that the judge’s decision not to impose a registration order was unreasonable in the Wednesbury[12] sense (that is, that no reasonable judge could have reached that decision). He submitted that it simply was not open to the judge not to be satisfied within s 11(3) that the appellant posed a risk to the sexual safety of one or more persons or of the community; and that, once so satisfied, it was not open to the judge not to make a registration order. Counsel submitted that the evidence of Dr Aaron Cunningham — a forensic psychologist, who assessed the respondent’s risk of ‘sexually violent reoffending’ as ‘low’ — and Dr Michael Daffern — a Professor of Clinical Forensic Psychology, who assessed the respondent’s risk for ‘future sexual offending’ as ‘moderate’ — compelled that view.
[12]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (‘Wednesbury’), 230 (Lord Greene MR). See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (‘Li’), 364–5 [68]–[71] (Hayne, Keifel and Bell JJ).
Counsel for the respondent submitted that the judge was required to be satisfied beyond reasonable doubt as to the existence of the risk. The evaluation of the risk related to the risk upon the respondent’s release in to the community. Her Honour was required to consider the magnitude and nature of the risk, the degree of likelihood of the risk eventuating and the gravity of any anticipated harm, balanced against the serious consequences for the respondent flowing from the onerous registration and reporting regime under the Act. The decision that the judge made clearly was one that was open. It was submitted that the judge took all relevant matters into account; that she did not take any irrelevant matters into account; and that there was no error in her reasoning.
Discussion
In Bowden,[13] the Court said made it clear that the decision whether to make a registration order involved a two stage process. The first step required satisfaction beyond reasonable doubt that the conditions for making the order are present. If the court is so satisfied, a discretion whether to make the order arises. The Court observed:
The inquiry into whether to make a registration order is a two-stage process. Because s 11(3) operates to confine the circumstances in which the power to make a registration order may be made, its requirements must first be satisfied. The sentencing court must be satisfied that the conditions for making such an order are present — namely that the person has pleaded guilty to qualifying offences and that the judge is satisfied to the criminal standard that they pose the relevant risk. Second, exercising judicially the discretion reposed in it by s 11(1), the court must determine whether, in all of the relevant circumstances, to make a registration order.
The court must be satisfied that the person poses the requisite risk. Risk refers to the exposure to a chance of the harm in question occurring. The type of risk is described as a risk to the sexual safety of one or more persons or of the community. It is not necessary that the court is able to identify a risk to particular people, or a particular class of people. No issue is raised on this appeal that requires consideration of the term ‘sexual safety.’ For present purposes it suffices to say that a risk that a person may reoffend by committing an offence of a type described in a schedule to the Act would be a risk to the sexual safety of one or more persons or of the community.
[13]Bowden v The Queen [2013] VSCA 382 (Redlich and Coghlan JJA, and Dixon AJA) (‘Bowden’).
Having adverted to relevant aspects of Nigro,[14] the Court went on to emphasise that the risk must be ‘real’:[15]
… The legislature has said nothing as to the quality or degree of likelihood of the risk. In other statutory settings the risk is sometimes described as ‘probable, ‘unacceptable or ‘substantial.’ Although no characteristic has been added to the risk, a fanciful risk would fall outside its compass. That must be so because ipso facto, a fanciful or imagined risk would not be sufficient to satisfy the criminal standard. To enliven the discretion to make a registration order under s 11(1), the risk must be assessed to be real. The court must be satisfied beyond reasonable doubt that the risk that the offender poses is a real risk. If the risk posed by the offender is unreal, or fanciful, the court must not make a registration order.
[14]Nigro v Secretary to the Department of Justice (2013) 304 ALR 535, 552 [64] (Redlich, Osborn and Priest JJA).
[15]Bowden, [33].
As to the second step in the process, the Court said:[16]
At the second stage of the process, the sentencing judge’s task is to balance the risk posed by the offender which enlivened the discretion, having regard to the purpose of the statutory scheme with the obligations imposed on registrable offenders which place restrictions on the offender’s right to enjoy freedom and autonomy of actions. It will not always be the case that the relevant risk, though sufficient to pass the threshold of s 11(3), will warrant such restrictions by a registration order.
When determining whether to make a registration order, it is proper to give consideration to the magnitude and the nature of the risk (reoffending by commission of sexual offences with serious consequences for the victim). Both the gravity of the harm and the degree of likelihood of the risk eventuating will be components of the assessment, although the primary question will be the degree to which the risk may materialise.
These considerations are to be balanced against the serious consequences for the offender of being required to submit to an onerous registration and reporting regime. The obligation on the sentencing judge, when exercising this discretion, is to impose the registration obligations under the Act when and to the extent that is reasonably necessary to give effect to the statutory purpose.
[16]Bowden, [40]–[42].
Although the judge described her task in the first place as involving an exercise of discretion,[17] it is clear that the judge understood that she should only make an order if, after taking into account any matter that she considered relevant, she was satisfied beyond reasonable doubt that the respondent posed a risk to the sexual safety of one or more persons, or of the community. Her Honour recognised that she had to determine the likelihood of that risk being present upon his ultimate release.
[17]Above [23].
The judge then referred to the opinions of the psychologists — one that the risk of reoffending was ‘low’, and the other that it was ‘moderate’ — and said that she took those opinions into account together with other relevant matters. Those other matters included the respondent’s previous good character; his remorse; his insight into the offending; his ‘recognition of the need to address issues’; the deterrent effect that a lengthy period of imprisonment will have; his willingness to participate in various programs in custody (including for sexual offenders, which would assist his) rehabilitation; his continued family support; and the advantage of supervision on parole.
Taking all of those considerations into account, the judge was ‘unable to be satisfied beyond a reasonable doubt, a high very high test, that [she] should make an order’, despite ‘the very serious nature’ of the offence.
With respect, it seems to me that it was open to the judge to reach the decision that she did. I can detect no error in her approach. Even were the judge’s decision premised upon its being an exercise of discretion, I cannot see that she acted upon any wrong principle, took an irrelevant matter into account, failed to take account of a material matter or mistook the facts, or that the decision not to make the registration order was unreasonable or plainly unjust.[18] Clearly, in my view, it was open to the trial judge to refuse to make the order sought be the prosecution.
[18]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
I pause for one final reflection. As I have said,[19] counsel for the appellant accepted that he had to confront a high threshold, so that to succeed, the appellant had to demonstrate that the judge’s decision not to impose a registration order was unreasonable in the Wednesbury sense. It should be observed, however, that in Li,[20] the plurality (Hayne, Keifel and Bell JJ) noted that Wednesbury has been criticised for its ‘circularity and vagueness’, and that ‘Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point’.[21] Moreover, their Honours said that, ‘[t]he legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision — which is to say one that is so unreasonable that no reasonable person could have arrived at it — nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury’.[22] And their Honours
remarked:[23]
As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion ‘if upon the facts [the result] is unreasonable or plainly unjust’. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
[19]Above [24].
[20]Li, n 12 above.
[21]Ibid 364 [68].
[22]Ibid.
[23]Ibid 367 [76] (footnote omitted).
Ultimately, however, whether one accepts that unreasonableness is a conclusion which may be applied to a decision ‘which lacks an evident and intelligible justification’, or whether one holds that proving legal unreasonableness ‘would require something overwhelming’,[24] the end result must be the same.[25] The judge in this case took into account all that she should, and did not take into account anything that she should not. Quite plainly, there are rational bases for her decision. In no sense can it properly be described as unreasonable.
[24]Wednesbury, 230.
[25]The contrasts between the approach to legal unreasonableness in Australia following Li, and elsewhere in the common law world, is the subject of an illuminating discussion by Justice Michael Barker and Alice Nagel: Legal unreasonableness: Life after Li, [2014] FedJScol 15.
For these reasons, the appeal should be dismissed.
BEACH JA:
I agree that this appeal must be dismissed for the reasons given by Priest JA.
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