Ellis v Director of Public Prosecutions

[2005] HCATrans 751

[2005] HCATrans 751

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M60 of 2005

B e t w e e n -

KAREN LOUISE ELLIS

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 SEPTEMBER 2005, AT 9.00 AM

Copyright in the High Court of Australia

MR R. RICHTER, QC:   If the Court pleases, I appear with my learned friend, MS S.E. CURE, for the applicant.  (instructed by Chester Metcalfe & Co)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with my learned friend, MS R.E. CARLIN for the respondent.  (instructed by Director of Public Prosecutions (Victoria))

KIRBY J:   Yes, Mr Richter.

MR RICHTER:   If the Court pleases, the application raises two issues which, in our respectful submission, are of general importance to the administration of justice insofar as it pertains to the sentencing and insofar as it pertains to the way in which the issue of gender is treated in sentencing.  Could I preface it by saying that so far as our researches have disclosed, almost all criminal offences, until the recent amendments relating to sexual offences Acts, are in fact neutral in terms of gender.  The one exception that I could come up with at that stage would have been the offence of infanticide, for example, which recognises the peculiar position of the female gender insofar as biologically it is the one that gives birth to children and it is the one that is capable of creating conditions that the law recognises as ameliorative or mitigatory ‑ ‑ ‑

KIRBY J:   The amendments are not so recent, are they?

MR RICHTER:   No, the amendments are not recent, they go back to 1980, and they are not recent ‑ ‑ ‑

KIRBY J:   And they express the intention of the Victorian Parliament that the position of men and women as offenders and as victims should be equalised.

MR RICHTER:   That is right, we accept that and that is obvious.  But it is one thing in terms of equalising the position of men and women in terms of culpability for an offence.  It is entirely a different matter when considering an individual case up for sentencing as to what it is that may operate on the sentencing judge’s mind.  For example, I mean, we have always been of the view that if a woman shoplifts or a man shoplifts they are to be treated equally.  In the sphere of sexual misconduct there has been a great deal of debate over the years, philosophical positions taken and so on and so forth. 

But if we just go back to the simple example of the shoplifting, the fact that both of them shoplift a particular item, a man or a woman, does not mean that in the exercise of sentencing one says that, well, a man would go to gaol for this, but a woman also has to go to gaol for this because the sentencing exercise, if undertaken with that in mind as the equality of treatment, requires in a lot of cases a comparison of incommensurables.

By that I simply mean this, that the sentencing exercise is an individual exercise and being an individual exercise, if one takes into account a man who shoplifts out of need, for example, because he is hungry; you take a woman who shoplifts because she has care of young children who are hungry, I would not, in my respectful submission, accept a position that their sentence should be the same, because in the second category the notion of the permissible intrusion of mercy into the process exists.  Every case in the sentencing will, of course, depend on its own circumstances.

KIRBY J:   Yes, so it is true that there has to be the starting point which is one now of equality. 

MR RICHTER:   Absolutely.

KIRBY J:   That is what the Victorian Parliament has said.

MR RICHTER:   The law says so and the law is necessarily right as to that.  It would offend the conscience of members of a democratic society that said otherwise.  In fact, it is a wonder that it took so long to get to that position.

HAYNE J:   So what is the general principle that you say is engaged and was not given effect to?

MR RICHTER:   The general principle that is engaged is, first of all, that although you consider men and women equally guilty of a particular offence, the actual conduct may, by dint of either biological or other reasons, be quite different in terms of evaluating what was done.  Now, in this particular case there is a common feature between both men and women who would be up for sentencing in this kind of situation, and that is the breach of trust by a teacher.  But as against that, when one gets past that and one needs to get past that - and that breach warrants a term of imprisonment, as the learned sentencing judge accepted - it requires a term of imprisonment, but the question of how long is then a matter of looking at the mitigatory circumstances.  The error into which ‑ ‑ ‑

HAYNE J:   Sorry, I am not clear what you say the engagement of principle is.  You have stated the principle.  How was it not engaged – where did the Court of Appeal fail to give effect to it?

MR RICHTER:   In our respectful submission, the Court of Appeal fell into error in this instance and we would say subconscious error by assuming that she was treated leniently because she was a woman and that, of course, in our respectful submission, is discriminatory against her.  His Honour Justice Callaway talks in terms of the learned sentencing judge falling into subconscious error and presumes that there was some sexual bias in favour of the female or that there was some finding that there was no harm. 

HAYNE J:   But do I understand the Court of Appeal’s reasoning as being, one, manifest inadequacy; two, only explanation available is subconscious differential treatment because of sex?

MR RICHTER:   Yes, except for this.  The error arises from the fact that it failed to take into account the sentencing judge’s finding that the circumstances here were exceptional, indeed, very exceptional.  Now, that is not something that the Court of Appeal took into account in its decision because, as his Honour Justice Callaway himself says, and rightly so, you cannot say that in every case of a breach of this provision someone must go to gaol.

HAYNE J:   But what was exceptional?

MR RICHTER:   What was exceptional was the totality of the circumstances that the sentencing judge found.  Number one, and we list some of the matters in our outline of submissions and I would not go through them because we only have 20 minutes.

KIRBY J:   Yes, we have seen those.

MR RICHTER:   But the “victim”, and I put victim in inverted commas for a reason that your Honours will obviously appreciate, the victim in this particular situation was three or four months off 16.  That makes it very different from having sex with someone who is 14 or 13.  That is number one.  Number two, she is not a predatory paedophile and was never seen as such.  The victim’s account, which makes it exceptional, does not consider himself a victim.  He considers her to be the victim.  If one looks at his statement what one sees there is the notion that he is effectively saying, “Look, if you send her to gaol I, the victim, will suffer”.

CALLINAN J:   That raises a question, if I may just interrupt, that has been troubling me.

MR RICHTER:   Yes, your Honour.

CALLINAN J:   What does the legislation say about victim impact statements?

MR RICHTER:   They are to be taken into account.

CALLINAN J:   But who are the victims?

MR RICHTER:   That is a very interesting question.

CALLINAN J:   Does the Act define them?

MR RICHTER:   Yes, the Act defines them and it is in section 95 – sorry, I think the definition is section 3, is it not?  The Act defines them and they include people who are directly affected by the commission of the offence.

CALLINAN J:   So that would justify the reception of the mother’s statement?

MR RICHTER:   It did justify the reception of the mother’s statement, except for this – and the learned sentencing judge, of course, recognised the suffering of the mother.  But we would say that she may not in fact fall into the category of being directly affected.

CALLINAN J:   That is the area that I am interested in.

MR RICHTER:   Yes, she needs to be directly affected.

CALLINAN J:   That seemed to be heavily influential at paragraph 19 on page 86 in the Court of Appeal’s assessment.

MR RICHTER:   Yes, your Honour.

CALLINAN J:   Now, there is a real problem about some victim impact statements because you would have to be a very brave barrister to seek to cross‑examine on any statement.

MR RICHTER:   Yes.

KIRBY J:   But if Parliament has said that the mother falls into the category of a victim and if the judge can see the victim impact statement, what is the error?

MR RICHTER:   Parliament has not quite said so.  Parliament said that a victim is someone who is directly affected by the crime itself.  There is an argument open that the mother is in fact not directly affected by the crime itself but because the estrangement arose out of what she did.  Instead of discussing it with her son, she went to the police.

KIRBY J:   Yes, well, we are not here trying the mother.

MR RICHTER:   No, not at all.

KIRBY J:   Or dealing with any offence by the mother.

MR RICHTER:   Not at all, not at all.

KIRBY J:   We are dealing with the offence of your client.

HAYNE J:   Where do I find it -in your draft notice of appeal, your application for special leave or your summary?

MR RICHTER:   No, that simply arose out of the question his Honour Justice Callinan asked.

HAYNE J:   I understand that.

CALLINAN J:   Yes, well, I am interested in the matter.

MR RICHTER:   Yes.

CALLINAN J:   And I am interested in anything you have to say on it, Mr Richter.

MR RICHTER:   Well, that was the only reason I was raising it, your Honour Justice Hayne.

CALLINAN J:   Well, continue if you have not finished on that, please.

MR RICHTER:   The notion of the ‑ ‑ ‑

KIRBY J:   I am interested too.

MR RICHTER:   The notion of the situation of victim impact statements is sort of central in a way.  In a sense, the community is the victim.  There is no victim impact statement from the community.  The two people most directly affected are the young man who is over 16, was 17 at the time of sentencing, and the mother.  He says he did not suffer.  He says he will suffer if she goes in because he will feel guilt. 

KIRBY J:   That was before the sentencing judge?

MR RICHTER:   Yes, it is in his statement which is a mature statement.

KIRBY J:   Yes, I have read that.

MR RICHTER:   The judge made observations about his maturity.  The judge had him in court and was able to observe him through the proceedings.

KIRBY J:   The Court of Appeal had the statement and had the observations of the judge.

MR RICHTER:   That is right, but not the lad.  The primacy of the sentencing judge is always said in courts of appeal to be that they are there, they hear the witnesses, they see the people, they can formulate their views.  The sentencing judge formulated views about the victim and those views were sustainable and appropriate and not appealable.  What we have in fact in the end is the court gainsaying that, not having seen the lad, or the mother for that matter, but saying that he must have suffered, as it were, because they detect a note of insouciance in his statement.  Now, the fact ‑ ‑ ‑

KIRBY J:   Well, I think you have made as much as you are going to make out of that claim.  You have to really convince us of an error of principle.  We are not the super court of criminal appeal.

MR RICHTER:   Of course, of course.  Well, the principle is this.  In terms of immediate error the court never took into account the primary judge’s finding that these circumstances were very exceptional and that was a finding that the learned sentencing judge was entitled to make and made.  Now, the question then becomes whether, in terms of a case which is very exceptional, and in fact the learned sentencing judge went so far as to say that he doubted that it would arise again, but where there is such a finding, granted that the Court of Appeal, as it were, sets the tariffs for the State ‑ ‑ ‑

KIRBY J:   And upholds of the principles of Parliament.

MR RICHTER:   And uphold – and so does the sentencing judge, of course, and if he does not he falls into error.  But the sentencing ‑ ‑ ‑

KIRBY J:   Well, that is what the Court of Appeal really put its finger on.

MR RICHTER:   Yes, but they put their finger on it in a particular way.  They put their finger on it by saying he must have been subconsciously biased or he must have been taken by the notion that there was no harm and that is a problem.

KIRBY J:   Mr Richter, if this had been a case of a male teacher with a female pupil or a male teacher with a male pupil, I have sat here too long not to know that these are very heavily sentenced cases.

MR RICHTER:   Yes, yes.

KIRBY J:   And then you get a case like this where it happens to be a female teacher and a male pupil and there is no custodial sentence.

MR RICHTER:   There was.  There was a custodial sentence.

KIRBY J:   There was a custodial sentence suspended.

MR RICHTER:   But the authorities say that the custodial sentence is the generally deterrent sentence.  The suspension is an individual and particular application and has nothing to do with equality of the sexes, but has to do, whether in the circumstances it is justified.

KIRBY J:   Well, there are not many.  In my experience there are not many suspended sentences in these cases of teachers.

MR RICHTER:   Well, with respect, your Honour, they would not necessarily come up before this court because ‑ ‑ ‑

KIRBY J:   Well, that is all the more reason why we have to be cautious about getting into the supervision by the Court of Appeal of the sentencing in this State.

MR RICHTER:   With the greatest of respect, that is all the more reason why this Court should enunciate principles in relation to it that will apply Australia wide because we are talking in terms of, when it comes down to the actual examination of the circumstances, a comparison of incommensurables when one is talking about men and women.  Men do certain things for certain motives.  There is a whole lot of feminist learning and other learning in terms of what sex is about, the power relationship, the dominance ‑ ‑ ‑

KIRBY J:   We are talking about a statute of the Victorian Parliament that has adopted a principle of equality.

MR RICHTER:   Yes, indeed.

KIRBY J:   And that is what the Court of Appeal latched on to.

MR RICHTER:   Equality of guilt, not necessarily equality of sentence where differentiation is warranted on grounds other than sex and this is the problem here.  There was differentiation here required on grounds other than sex.  You cannot sentence a man teacher for this in the same way as a woman teacher for this if the difference be that, for example, the woman has primary care of young children and lives her life, and in this particular instance a 13-year old girl to whom she is utterly devoted, to whom she devotes her time, the kind of suffering ‑ ‑ ‑

KIRBY J:   Yes, but there would be many fathers who have gone into prison who have equal relationships with their children and in every other way are fine citizens and good people.

MR RICHTER:   No, but if they are in a particular situation which persuades a judge that a proper exercise of mercy is excited, then they do not necessarily have to go in.

KIRBY J:   What is that case in South Australia where Chief Justice King – I have quoted it myself – said that appellate courts have to respect the entitlement of sentencing judges to have regard to features special to the case and even the feature of mercy in a particular case.

MR RICHTER:   Yes.  I think it is Osenkowski and it is referred to in our authorities in the Victorian case of Miceli and the quotation is in fact ‑ ‑ ‑

KIRBY J:   Chief Justice King was very experienced in criminal law.

MR RICHTER:   He certainly was.

KIRBY J:   He said that in a case in a very powerful passage which I often had to refer to in the Court of Criminal Appeal in New South Wales.

MR RICHTER:   Yes, it is R v Osenkowski (1982) 30 SASR 212 at 212 to 213 where Chief Justice King said this:

It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges.  There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case.  There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.

It is that passage, I think, that your Honour has in mind.  Of course, your Honours would bear in mind that this is a case in which the application of special deterrence had no place.  Everyone agrees, including the Court of Appeal, that special deterrence had no problem.  General deterrence was the issue.  General deterrence says if you are a teacher and you have sex with someone who is under your control, you go to gaol unless there are the most exceptional circumstances.

KIRBY J:   There was the aggravating circumstance that this was not a spontaneous action, but something which was, in a sense, planned.

MR RICHTER:   Yes, and the victim describes how that came about.  He essentially created the seduction.  She should have refused.  She should have had systems in place to refuse it.  She did not.  She failed, which is why she was sentenced to a term of imprisonment and we do not quarrel with the notion that ‑ ‑ ‑

KIRBY J:   Suspended.

MR RICHTER:   Your Honour keeps saying that, but the authorities still say ‑ ‑ ‑

KIRBY J:   No, I live in the real world, Mr Richter.

MR RICHTER:   Well, the real world and the authorities ‑ ‑ ‑

KIRBY J:   And I understand the principle, but the sentence is the head sentence but ‑ ‑ ‑

MR RICHTER:   Right, of course.

KIRBY J:    ‑ ‑ ‑ the fact is there are not many cases in my experience in this Court, or in the Court of Criminal Appeal of New South Wales, where in teacher offences there is not an actually served custodial sentence.

MR RICHTER:   But there would not be many sentences which excite that which Chief Justice King talked of to the degree where the sentencing judge makes a finding of fact that the circumstances are exceptional.  The Court of Appeal does not even advert to that. 

KIRBY J:   I think you have made that point now.

MR RICHTER:   Yes.

KIRBY J:   Your time is nearly up, is there any other error of principle in the Court of Appeal’s decision?

MR RICHTER:   No, your Honour, the only errors of principle are, what does the principle of equality before the law mean when it comes to sentencing in specific cases and does it require the comparison of incommensurables, as it were?  Does it preclude the notion of a woman by

dint of her position, vis-à-vis children and all the rest of it, not being accorded the kind of mercy that a man who is not in that sort of position would not be accorded?  That is number one.

Number two, as to the second aspect of suspension, is there another criterion to be employed as to whether it is desirable in the circumstances - it is disposed of by the Court of Appeal simply by the utterance, “Equality requires non‑suspension”.  In our respectful submission it does not.  It requires studying the specific case with the exceptional circumstances found by the judge.  If the Court pleases.

KIRBY J:   Yes, Mr McArdle.

MR McARDLE:   Your Honours, there was one ground of appeal and that was manifest inadequacy and a number of particulars were offered in relation to that and that is not at all unusual, and it was particular (d) which is reproduced at page 106 of the application book.  You will see that the Director’s appeal notice is reproduced, or most of it is, and you will see particular (d) is an assertion that insufficient weight was given to the nature of the offending and in particular concerning:

the relationship between teacher and pupil;

(ii)      the statutory regime designed to protect persons in the position of the victim -

For these purposes the victim is the young man called “B” in the material before the Court, who was something less than 16.

KIRBY J:   He does not complain as a victim. 

MR McARDLE:   No, he does not.

KIRBY J:   On the contrary, he says that he regards the applicant as the victim, that he initiated the relationship and that he will be victimised if she is sentenced to serve an actual term of imprisonment.

MR McARDLE:   Yes.  Your Honours, this legislation is to protect people of his age.  Now, it is not as if it is a case, for example ‑ ‑ ‑

KIRBY J:   He was four months off 16, as I understand?

MR McARDLE:   Yes, he was, but that is not exactly an end to it because if he was 16 or 17 then you would go to section 48, which is the same offence for all intents and purpose, slightly less serious.  This I think was a maximum of 15 years; that is a maximum of 10 years.  So it is of very little account to say, with all respect, that he is only a couple of months off his 16^th birthday.  He was still a person who could be a victim of this sort of offence for another couple of years at least. 

KIRBY J:   I understand this point, but what do you say about what Chief Justice King said in Osenkowski and where does the Court of Appeal indicate that it has had regard sufficiently to that type of consideration?

MR McARDLE:   Well, your Honour, I cannot ‑ ‑ ‑

KIRBY J:   You have been in too many criminal appeals to know that that is not frequently referred to where a sentence is light.

MR McARDLE:   Yes, yes.

KIRBY J:   And there is wisdom in what Chief Justice King said.

MR McARDLE:   Yes, it is accepted, your Honours, but on the other hand, while I do not have the papers immediately to hand, it would be extremely surprising if Osenkowski’s Case was not brought to the attention of the Court of Appeal.  It is part of the standard armoury of someone resisting one of these appeals.

KIRBY J:   But why did it not apply in this case given the list of extenuating circumstances which were collected by the applicant?

MR McARDLE:   Well, the list, it is submitted, with all respect, is fairly modest.  Now, it comes down to her not having prior convictions or been in any difficulty in the past, accumulating some references.  But on the other hand you would expect that ‑ ‑ ‑

KIRBY J:   I am thinking of plea of guilty at an earliest opportunity, remorse, lack of prior or subsequent offending, admissions made when interviewed, the fact that the offence was situational, the views of the victim, a whole long list.  I mean, that is only half of the list that is added and they are - particularly the fact that she has lost her job as a teacher, a 12-year vocation.

MR McARDLE:   Yes.

HAYNE J:   And her particular family circumstances.

CALLINAN J:   Well, a mere conviction is absolutely devastating for this woman.  She has lost her career, lost her future.

KIRBY J:   Lots of publicity and shame.

CALLINAN J:   A blaze of publicity.

MR McARDLE:   Yes, well, so far as conviction is concerned ‑ ‑ ‑

CALLINAN J:   Those are themselves serious punishments.

KIRBY J:   Of course, they are true in many of these cases that there is a lot of publicity.  There is shame and there is the stigma of the conviction and the consequences that that leads to.

CALLINAN J:   But it only happens in the case of isolated offences.

MR McARDLE:   All of which is entirely foreseeable.  You would expect people of high moral calibre to be teachers.  They have high responsibilities.

CALLINAN J:   They suffer more with some of the punishments.  You cannot deny that imprisonment on top of everything else is a very heavy penalty. 

MR McARDLE:   Your Honours, with all respect, if it be the case, as it seems to be, that she will not teach again and forfeit her profession from that point of view, if that be the situation that is a matter that is really in the public interest.  I mean, it is a matter of protection.  It is like a person losing their licence to drive or something of that nature.

KIRBY J:   Have there been other cases in Victoria of a female offender under these provisions of the Act?

MR McARDLE:   I suspect so, but I am not sure.  Unless I misread it, I see there is a similar case to this in Tasmania reported in this morning’s newspapers with a similar result.  Now, I read it very hurriedly.  It was quite early this morning.  It might not have been as much as it should have been.  Very hurried read, but ‑ ‑ ‑

KIRBY J:   It is a wonder you did not look it up on the web.

MR McARDLE:   No, I did not.  I did not.  I had to come here, your Honours.  But it is to be expected.  Now, so far as questions of equality are concerned, the first thing to say about that is that if you look at application book 109 towards the bottom of that page you will see that her counsel in the Court of Appeal, Mr Tehan, began his submissions - you will see that there, the:

reference to the principles governing Crown appeals, with a denial that this appeal raises the question of equality.

It was not in issue in the Court of Appeal.  The legislation is not gender specific either as to victim or as to offender.

KIRBY J:   On the contrary, the preamble makes it clear that Parliament expects that it will not be gender specific.

MR McARDLE:   To put the matter in context, your Honours, the leading judgment, that of Justice Callaway, at the top of 110 says that:

Particular (d) is made out –

and that is the particular I took you to and that would, you might think, be the most striking aspect of what went on in this case.  He makes no remark about the other particulars and that simply says that the sentence is “manifestly inadequate” and it does not reflect those important considerations that are found in subparagraph (d).  Continuing on, there is a discussion of what might be described as equality in sentencing and his Honour says that essentially the proposition is this, that, for example, a woman should not be treated any more leniently solely because she is a woman.

Now, there are going to be a whole lot of other considerations that has to be put in the synthesis of sentencing.  But the fact that she is a woman or he is a man or whatever the situation is does not by itself ‑ ‑ ‑

KIRBY J:   With respect to what Mr Richter said, it does seem to me to be offensive to principle that a female teacher in this circumstance should be treated more lightly than a male teacher would be in analogous circumstances, a victim of 15 years and eight months and so on.  But it is still the question of whether or not the element of mercy that affected the trial judge was sufficiently given weight and attention by the Court of Appeal.

MR McARDLE:   The other considerations, your Honour, the seriousness of the offence, are such as really, it is submitted, to overwhelm those matters.  His Honour says that – this is Justice Callaway – he thinks that it can be explained by an unconscious sympathy with a female offender or belief that no real harm was done to the victim.  He has in mind there the boy, of course.

KIRBY J:   I do not think that is what is my sense of disquiet.  I would have a similar feeling of sympathy for a male offender in equal circumstances, or at least it would be open to a trial judge, a sentencing judge to have that.

MR McARDLE:   What has happened here, it is submitted, is that that has swamped it; that is absorbed, as best one can tell.  I mean, it is an issue of manifest inadequacy.  It is there or it ‑ ‑ ‑

KIRBY J:   Is there any authority of the Court of Appeal of this State in relation to teachers generally?  In other words, that in circumstances of under-age sexual intercourse with an under‑age victim that they will normally go to prison and serve prison sentences?

MR McARDLE:   I cannot tell the Court authorities, but really I would be quite confident in asserting such a proposition.

HAYNE J:   Well, what was said in the case of Hopper?

MR McARDLE:   Hopper appealed, I think, only against his conviction.

HAYNE J:   Did he?

MR McARDLE:   Now, you will see Hopper as a footnote, I think, in these proceedings, or at least in the sentencing remarks of Judge Smallwood, but he appealed only against his conviction.  He was sentenced to a higher sentence, but, I mean, there is no template.  He ran a trial.  It was over a longer period of time and the cases differ.

Now, your Honours, a word or two about the victim impact statements, if I can say just – there is one victim impact statement and that is from the mother.  These events, according to her, caused devastation in the family.  The young man left the family.  He had in fact been detained overnight, I think, on one or two occasions by the applicant in these proceedings.

CALLINAN J:   I am sorry, by the?

MR McARDLE:   The applicant. 

KIRBY J:   Repeat what you said, please.  You are dropping your voice.  It is a long way.

MR McARDLE:   I am sorry about that.  He had been detained overnight, away from his family, I think, on one or two occasions by ‑ ‑ ‑

CALLINAN J:   Why do you say detained?  He was not locked up.

MR McARDLE:   No, no.  They were sleeping together, I think, on one or two occasions.

CALLINAN J:   Yes.  He spent the night with her.

MR McARDLE:   Yes, I mean, I do not resile from using that expression, your Honour, because this is a situation where you have someone who is in the care and control of the offender.

CALLINAN J:   Well, that is the strong point of the case, of course, the relationship, teacher and student.

MR McARDLE:   Yes.  Now, his ‑ ‑ ‑

CALLINAN J:   And what the reasonable expectations of parents are with respect to the care of their children.

MR McARDLE:   Exactly.  Well, now, what has happened is that the mother saw them together, I think, at the end of the last incident.  She complained to the school.  The school, I think, in turn brought the police into the matter, everything was laid bare.  Our learned friend says that there were full and frank admissions.  That is not exactly the situation.  She denied it until she found out that he had made a statement about the matter.  Now, what happens is that the young man blamed his mother for this.  He has departed the household.  He has failed his Year 10 exams.  The mother would have it that general disruption has led to that.  He apparently had a promising sporting career.  It looks as if he has – that seems to have been abandoned or put to one side as well.  There is no ‑ ‑ ‑

KIRBY J:   Mr Richter challenges the causation of this.  He says that it is caused by the mother’s reaction and the son’s reaction to the mother’s reaction, not – I suppose you would say, well, it was all triggered by the teacher not observing her duties of responsibility?

MR McARDLE:   No question of that, with all respect, your Honour.  Now, the law allows victims to be cross‑examined on their statement.  Her statement I assume was a statutory declaration.

CALLINAN J:   There would not be too many forensic triumphs though, would there, cross‑examining a victim?

MR McARDLE:   No, it is a hazardous thing.  But on the other hand, the downside of that is it is very difficult to come along to court and challenge the thing and say, look, it really cannot be the situation, that the mother is imagining it or whatever, when she is not challenged about the matter.  The court would have, I assume, read the document.  It is a very poignant document.

CALLINAN J:   It does not look as if it has been prepared by her though, does it?  It looks like it has been prepared on advice, not that there need be anything necessarily wrong with that.

MR McARDLE:   No, the practice is to leave people to prepare their own documents, which really means that you have a wide variety of documents and different people have different abilities to express themselves and are hurt in different ways as a result of criminal activity.  Now, there is no father in the family and the mother, who can be described as a victim, the mother would have it that really his academic career and his other interests have been devastated as a result of this incident and the family has been devastated.

Now, the other document that found its way before the court is strictly speaking not a victim impact statement.  What occurred was that the young man did a handwritten note, and that is reproduced in the application book, with the assistance of a local legal aid service.  They in turn sent it on to the solicitor acting for the applicant and it found its way into evidence. 

KIRBY J:   That says something, that he felt sufficiently motivated to go and see a legal aid solicitor, which itself would be unusual at the age of 16 or 17.

MR McARDLE:   Yes, I do not know the answer to that, your Honour, perhaps not as unusual as it might have been some years ago.

KIRBY J:   Maybe not now.

MR McARDLE:   Well, legal studies is a common enough subject in school.  But in any event, little should be made of what he has to say because the whole purpose of this law is to protect male or female children.  Now, if it was, for example, a female, it might be said, well, she thinks that she has a true relationship going here and it might lead to marriage or certainly a longstanding permanent relationship.  Other people might say that is just a nonsense.

There are plenty of cases where you might say that there is a victim and their victim impact statement, if it is favourable at least to the offender, is quite possibly just a nonsense.  For example, a person might be introduced to drugs.  The drug trafficker is brought before the court; the person who has become addicted would be a victim.  That person may well, who is silly, young, silly, whatever, say, “I don’t see myself as a victim.  I rather like drugs.”

KIRBY J:   Well, I do not think we have that problem here, fortunately.

MR McARDLE:   No, but it is perhaps ‑ ‑ ‑

KIRBY J:   The statement by the pupil appears to be quite a mature statement.

MR McARDLE:   Well, your Honour, that is a matter, with all respect, about which there may be differences.

KIRBY J:   I am only thinking of what could have affected the sentencing judge and the role of courts of appeal to respect the zone of discretion that is still available under our system to sentencing judges.

MR McARDLE:   Yes, yes.  It was characterised, I think, by his Honour as displaying an insouciance about some of the issues and that, it is submitted, is a finding open to him.  I mean, it is something you might think quite odd, with all respect, assuming this thing is a victim impact statement, where you have a victim impact statement made by someone who is being protected – the purpose of the law is to protect them from sexual intercourse or from sexual relationship – saying that, well, “Really no harm was done, I thought it was pretty good and I’m worried about her”, or something to that effect.

It is not the same sort of case where you might have a physical injury.  There you might think a victim impact statement would be quite reliable as to the effect of the injury, or some other offence.  It is not at all unknown, it is submitted, not outside the experience of this Court that sexual relationships of this abusive nature have effects much later on in life.  Now, I do not know if that is going to be the case here, do not know at all.  But a victim impact statement such as this should be viewed with a high level of circumspection, it is submitted, with respect. 

KIRBY J:   Yes.  Well, I think we have the problem from – and your written submissions were very helpful.  Is there anything else?

MR McARDLE:   No, unless there is something the Court wishes to raise with me.  If the Court pleases, thank you.

KIRBY J:   Yes, Mr Richter.

MR RICHTER:   Your Honour, B’s statement ought not to be viewed as a victim impact statement at all.  It appears to be a statement that was put before the court relating his experiences and relating what impact it had upon him.  He was there available to be cross‑examined by the prosecutor, no one asked for that to happen.  It was put in not in the form ‑ ‑ ‑

KIRBY J:   The same comment can be made to you, that that would be a very foolhardy thing to attempt because the prosecutor says it really is not relevant.  This is a statute for the protection of the community and for the laying down of principles and standards.

MR RICHTER:   I accept that, your Honour, but whereas you would not cross‑examine the mother for obvious reasons, you would cross‑examine Benjamin at least to determine his degree of maturity and experience.  These are things that the sentencing judge found.

HAYNE J:   What, put the victim on trial?

MR RICHTER:   No, no, the ‑ ‑ ‑

HAYNE J:   That seemed to be what you were suggesting, Mr Richter.

MR RICHTER:   No, your Honour.  The victim wants to give evidence.  He wants to give evidence saying “I’m not the victim, she is”.  So it is very different.  The gauging of his maturity and experience is pretty crucial because even though one is talking about a maximum of 15, you have to slot it in somewhere in the hierarchy.  We are not talking about an 11 or 12‑year old. 

CALLINAN J:   Mr Richter, you know, I think your impressions of maturity can be rather illusory.  Mr McArdle’s point about the uncertainty of the long-term effects are probably well made.

KIRBY J:   You had better move to your next point, Mr Richter.

MR RICHTER:   I agree with that, except, as Justice Kirby pointed out, there is still in the sentencing judge a discretion to make findings which ‑ ‑ ‑

KIRBY J:   Well, that is a different point.

MR RICHTER:   Yes.  The next point that I wanted to make was this.  In relation to the notion that equality was not in issue in the appeal, of course it was not in issue in the appeal because everyone assumed that equality before the law means equality before the law.  But there was a difference presumably in the way in which that took effect consequentially when considering individual circumstances and therefore it would appear not to have really been argued.  In that sort of sense, although it is not part of our appeal, it has really sprung as the determinative feature, whereas it had not been argued and that is important from the point of view of procedural justice.  That is really the only thing that I wanted to say, if the Court pleases.

KIRBY J:   The will adjourn briefly to deal with the matter.

AT 9.41 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.48 AM:

KIRBY J:   The Court of Appeal of the Supreme Court of Victoria saw this case as one of manifest inadequacy in the sentence imposed by the sentencing judge.  In our view, it is unlikely in the extreme that the Court of Appeal gave no attention to the discretions available to the sentencing judge and his entitlement to be affected by considerations such as those referred to by Chief Justice King in Osenkowski (1982) 5 A Crim R 394 at 394.

There are no reasonable prospects of success were special leave to be granted.  We are not convinced that a miscarriage of justice has occurred in this case.  Accordingly, special leave is refused.

AT 9.48 AM THE MATTER WAS CONCLUDED