Draoui v The Queen

[2009] HCATrans 78

[2009] HCATrans 078

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A17 of 2008

B e t w e e n -

ABDOU KHALIL NASSAR DRAOUI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 1 MAY 2009, AT 12.24 PM

Copyright in the High Court of Australia

MR M.H.L. MEAD:   If the Court pleases, I appear with my learned friend, MR G.J.S.  MANCINI, for the applicant.  (instructed by George Mancini & Co)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia):   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (SA))

HAYNE J:   Yes, Mr Mead.

MR MEAD:   Your Honours, if I could raise one matter very quickly at the beginning.  The applicant has only recently become represented and, while now represented, there is no funding in place.  I make that comment in relation to the grounds of appeal, your Honours, which in my respectful submission do not adequately encompass really the only ground that the applicant seeks to raise before the Court.  My application would be simply to amend the three grounds of appeal into one ground of appeal and that being that the court erred by refusing to discount the limiting term by virtue of the agreement by the defendant of the objective elements of the offences.

HAYNE J:   Perhaps the most convenient course, Mr Mead, is if we proceed on the assumption that that is the ground of an appeal that you would seek to agitate if you were granted leave and if we hear you on that understanding without pausing to consider whether you should have the leave, but if you proceed.

MR MEAD:   Thank you, your Honours.  The applicant seeks to make submissions in relation to the court’s decision in relation to 269O of the Criminal Law Consolidation Act. Section 269O is set out in the application book at page 63 and that is the provision that deals with the court making a supervision order and fixing a limiting term after a person has been deemed subject to a supervision order and that would have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established. There is also a note in relation to that section, your Honours, and that note is set out at the same page and has the effect that the court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant’s mental impairment.

Her Honour Justice Vanstone in the Court of Criminal Appeal sets out her reasoning in relation to that section, beginning at applicant book 63, paragraph 30.  At the bottom of applicant book 63, she sets out her reasoning that the task imposed is a hypothetical one:

first, because in determining what sentence would otherwise have been imposed no account is to be taken of the defendant’s mental impairment and second, because it is based on the premise that the defendant had been found guilty of the offence.

Over at application book 64 her Honour then goes on to determine that to make an allowance for the admission of the objective elements of the offence would require a judge to reason in this way:

I am to determine the sentence I would pass for this offence if a mentally sound person (otherwise of the defendant’s characteristics) were found guilty of it, but because he made admissions on his trial of the objective elements, I shall go further and incorporate an assumption that he was found guilty on his own confession.  To me this is illogical.

Her Honour then goes on to consider this result neither harsh nor surprising.

Your Honours, in my respectful submission, the reasoning in the paragraph I have just referred to has the effect of in fact incorporating the opposite assumption, that being that a person has indeed been found guilty by a court in relation to if a trial was to be held in relation to the offending.  Your Honours, in my submission her Honour falls into the very error that she was seeking to avoid.

HAYNE J: There are, I think, two points that you may need to grapple with, Mr Mead. First is the point that the statute in terms speaks of the term that would be imposed if he had been found guilty which suggests found guilty upon trial, but secondly, the discount for pleading guilty contemplated by a section 10(1)(g) of the Criminal Law (Sentencing) Act 1988 is a discount that is available if the accused person, of his or her own will, admits the commission of the offence. The hypothesis for consideration is that the applicant is not fit to stand his trial, is not fit to make decisions about the conduct of his trial and, therefore, any admission of objective fact that may be made by counsel appearing on his behalf is a decision made by counsel, it is not made by the accused person.

MR MEAD:   That is correct, your Honour, and that was indeed the case in Davey.  However, in my respectful submission, there will be many occasions in relation to Part 8A where a person is well able to instruct his counsel to agree those objective elements of the offence and unlike the decision ‑ ‑ ‑

HAYNE J:   That suggests a misunderstanding of what it is necessary to show for someone to be unfit to stand trial.  The threshold of fitness to stand trial is not especially high.  The difficulty that is presented in this case seems to be presented by the fact that someone is found not fit to stand trial, yet you would have us work on the assumption that although not fit to stand trial that person can give instructions.  That is a rather difficult contradiction, I think.

MR MEAD:   Your Honour, fitness to stand trial is governed by section 269H of Part 8A, and I cannot put the submission any higher than this, simply to say that a person may well be unfit to sit through a month‑long trial, they may be unfit for a multitude of reasons not to be able to instruct their counsel properly in relation to all the procedural or substantive forensic decisions that arise in a trial, but that in no way limits their ability to be able to instruct counsel that the objective elements of the offence may indeed be agreed.

If I could quickly refer your Honour to R v Davey 95 SASR 63, which is in my learned friend’s table of cases, and in particular at page 79. His Honour Justice Gray sets out the reasoning of her Honour Justice Layton in Bartholomaeus’ Case, and when fixing a limiting term she observed:

There are also other factors which I have taken into account which would operate to reduce the individual sentences, particularly the attempted murder.  I consider it appropriate to make allowance for the fact that the defendant, who is currently on medication and is able to make a decision, has instructed his counsel that the objective elements of the offences were accepted.  This is not the same as a discount which is taken into account for pleas of guilty, as indeed there are no such pleas.

But in my respectful submission, your Honours, that is one example of a person who has either been deemed unfit to stand trial or mentally incompetent to commit the offence that indeed has the ability due to the fact they are now on medication to instruct counsel in relation to agreeing objective element.

Further, your Honour, there is an example at page 78 in R v Weiss where again a defendant on his own volition made admissions to the objective elements of the offence.  So in that regard, your Honour, I do say that in many occasions in relation to Part 8A there will be occasions when a person fully has the ability to instruct in relation to the objective elements of the offending behaviour.

Your Honours, if I could turn to the court’s discussion of R v Davey, which her Honour sets out in applicant book 66, and in particular at applicant’s book 69, paragraph 10, her Honour states:

On my reading of the reasons of the members of the court in Davey, only Bleby J acknowledged the force of Cameron’s case such that, absent contrition or remorse, credit for a plea of guilty could be given only where it reflected a subjective willingness to facilitate the course of justice.

Your Honours, in my respectful submission, if one goes to the judgment of Justice Gray in Davey, which is in the respondent’s table of cases, in particular at paragraphs 81 and 82, in my respectful submission, it is not correct to say that his Honour did not incorporate the willingness to facilitate the course of justice because he refers at paragraphs 81 and 82 to the co‑operation that the defendant gave to the police, and also to the defendant’s co‑operation in acknowledging throughout the trial, or the investigation, the objective elements of the offence.

Further to that, your Honours, his Honour Justice Gray sets out at paragraph 75 of Davey’s Case the rationale of the decision in Cameron v The Queen.  At paragraph 75 his Honour sets out the passage of the joint judgment – this is at page 79, the very last paragraph:

Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.

KIEFEL J:   On the question of mitigation and that a plea of guilty may be used in that regard, Justice Vanstone makes the point at paragraph 68 that the fixation of a limiting term is not the imposition of a penalty.  That is a point of important distinction, is it not?  This is a supervision order we are talking about.  We are not talking about a penalty in relation to which a plea of guilty may be relevant.

MR MEAD: That is correct, your Honour, but could I make this point? The limiting term in section 269O is to do with the length of the supervision order. The conditions of the supervision order are made through a process involving section 269T, which incorporates the defendant’s mental impairment. In my respectful submission, the purpose of the sentencing or the licensing process is to equate with how an accused person would normally be treated after being convicted of an offence.

In the two paragraphs after the paragraph your Honour has just referred to, her Honour refers to principles such as adequate punishment, deterrent effect and rehabilitation and she says that there may be some difficulty in having regard to some of those factors, considering that indeed it is not a penalty.  In my respectful submission, the court needs to take into account those factors in determining the length of the licensing term, or the supervision order.  Indeed, it takes into regard adequate punishment for that purpose.  In that context, your Honours, I say that the reasoning that ‑ ‑ ‑

KIEFEL J:   I suppose on one view what her Honour’s comments at paragraphs 68 and 69 may lead to is the notion that the Sentencing Act, section 10, may simply not be applicable as a matter of law to the making of supervision orders and limiting terms.

MR MEAD:   Your Honour, in that regard could I refer your Honours to the note under 269O and can I make the point that in that note ‑ ‑ ‑

KIEFEL J:   Yes, but, as you have said before, that is hypothetical.  It is a hypothetical construct, the section.

MR MEAD:   Indeed it is, your Honour, but in doing the construct, in my respectful submission, all of those factors as contained in section 10, aside from a defendant’s mental impairment, go towards coming to a determination of the length of the sentence.  While it is indeed hypothetical, the hypothetical determinants are those contained within section 10, including general and personal deterrents and the other factors, such as adequate punishment and rehabilitation.

In my respectful submission, it is therefore not consistent to say that simply because the licence does not indeed reflect the punishment that those factors contained in section 10 are not indeed relevant.  Indeed, in cases such as R v Davey, factors such as general deterrence and rehabilitation have played a part and indeed in previous licensing conditions all of those factors play a part in determining the length of the sentence.  So, while indeed, in my submission, it is a hypothetical exercise, it is one that must be determined with reference to section 10 of the Sentencing Act.

In relation to the treatment of defendants, just to repeat, that treatment or the conditions placed on the licence are determined in relation to section 269R, which specifically directs that the defendant’s mental impairment needs to be taken into account, amongst a range of other factors, when determining the conditions placed on the defendant. 

Finally, your Honours, my submission is that it would defeat the purposes or the policy behind setting a limiting term not to provide a discount in relation to the agreement of the objective elements.  The legislation in relation to the fixing of a limited term, in my submission, came about in part because of a hesitancy for defendants to use the old mental incompetency provisions because, of course, a finding in relation to

that meant that an accused was detained at Her Majesty’s pleasure.  If a discount is not allowed to the objective elements of the offence it well may be that people who would otherwise have a mental impairment defence would plead guilty, knowing that they would have a lesser time to serve than, indeed, if they went through the Part 8 procedure and were then subject to a lengthier term of detention or supervision.  If the Court pleases.

HAYNE J:   Yes, thank you, Mr Mead.  Mr Solicitor, we shall not trouble you.

This application concerns a supervision order made in respect of the applicant who was found unfit to stand trial on several charges of dishonesty, including numerous counts of false pretences.  The applicant did not contest evidence led by the Crown to prove the objective elements of the offence and that gave rise to the question of whether the limiting term of a supervision order is to be reduced in the same way as a sentence might be reduced on a plea of guilty. 

The Court of Criminal Appeal of the Supreme Court of South Australia held that the fact of a plea of guilty specified in section 10(1)(g) of the Criminal Law Sentencing Act 1988 (SA) could not apply to the determination of a limiting term required by section 269O of the Criminal Law Consolidation Act 1935 (SA), namely a term equivalent to the period of imprisonment that would have been appropriate if the defendant had been convicted of the offences charged. To do so would involve the assumption of false premises, one of which is that there was an acknowledgement of guilt involved in an admission of objective facts made by counsel on behalf of the defendant in the course of the proceedings concerning proof of the objective elements of the defence.

We see no reason to doubt the correctness of the decision of the Court of Criminal Appeal.  Special leave to appeal is refused.

AT 12.46 PM THE MATTER WAS CONCLUDED