Fuller-Cust v The Queen

[2003] HCATrans 394

[2003] HCATrans 394

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M198 of 2002

B e t w e e n -

CLEM EPHRAIM FULLER‑CUST

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 OCTOBER 2003, AT 4.17 PM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC:   If the Court pleases, I appear with my learned friend, MR L.C. CARTER, for the applicant.  (instructed by Victorian Aboriginal Legal Service Co‑Operative Ltd)

MR J.D. McARDLE, QC:   May it please the Court, I appear with my learned friend, MR T. GYORFFY, for the respondent.  (instructed by Solicitor for Public Prosecutions (Victoria))

GUMMOW J:   Yes, Mr Tehan.

MR TEHAN:   May it please the Court, special leave should be granted in this case because, for the first time in this Court, it raises the issue of the relationship between sentence and membership of the “Stolen Generation”.  By use of that term, we mean what Justice Eames referred to at application book 253, in paragraph 77 of his judgment, as being:

a short hand reference to the experience of Aboriginal people separated from their parents – for whatever reason – at an early age.

HAYNE J:   Now, you say that is the first time the Court will have looked at it.  It would be, I suspect, the first time it would look at it framed in that way, but do you say that the principle to be applied is different from the principle identified by Justice Brennan in Neal’s Case (1982) 149 CLR 305, particularly at 326?

MR TEHAN:   It goes further, your Honour.  I was just about to turn to Neal’s Case, because Neal was the last significant decision, of course, of this Court and what Justice Brennan and Justice Murphy in that case accepted was that factors such as social and economic disadvantage, which arise by virtue of the offender being an Aboriginal, are relevant to sentencing.  This case goes further in this way.  The strong dissenting judgment of Justice Eames recognises the harm caused to Aboriginal offenders who experienced childhood separation, institutionalisation and abuse.  His judgment recognises that explanations for later offending may lie in those factors, which are factors different from mere social and economic disadvantage, and that ‑ ‑ ‑

HAYNE J:   His Honour recognised those as factors applicable in the case of this applicant.

MR TEHAN:   Justice Eames certainly did.

HAYNE J:   And is that not the only relevant question, whether a particular applicant is demonstrated to have particular characteristics, features, consequences, experiences, et cetera, relevant to the applicant?

MR TEHAN:   Yes.

HAYNE J:   And whether he or she shares those with others, and others having a particular background, is of what relevance?

MR TEHAN:   The concept of Aboriginality, your Honour, we would say, is this.  It is the now recognition that there are social, economic and other factors that attach to Aborigines as a race, such as ‑ ‑ ‑

HAYNE J:   That may be, it may not be – I do not know – a convenient and accurate, a useful term in some realms of discourse, but when it comes to sentencing a court sentences an individual.

GUMMOW J:   That is what Sir Gerard was emphasising at 326, actually, not a stereotype.

HAYNE J:   And sentences the individual, as his Honour says, not a stereotype, according to equal application of the law.

MR TEHAN:   Exactly, your Honour, and what we were seeking before the Court of Appeal and did not receive from the majority was attention to those individual factors that attached to the applicant.  The two primary ones of which ‑ ‑ ‑

HAYNE J:   That then reveals, Mr Tehan, does it not, that it becomes simply a complaint about the individual sentencing of this applicant, rather than a point of general application or general principle?  The point I am putting to you, so you can grapple with it, is, the principle is clear and well‑established.  What more could or should the Court say?

MR TEHAN:   The principle goes further in this case, because it extends beyond the bounds of social and economic disadvantage, and I have put the argument in relation to that.  It extends to childhood separation, institutionalisation and abuse.  In the 20 years since Neal’s Case was decided, commissions of inquiry and other bodies have looked at those matters and they are now recognised, we would submit, as being factors which are part of Aboriginality.

Now, in any particular case, of course, one has to ask the question, when faced with an Aboriginal offender, whether those factors exist.  In the present case, they did exist and, indeed, we would submit, as the dissenting judge in this case found, there was a clear connection between the applicant’s offending and his Aboriginality.  That clear connection was not recognised, in our submission, by the majority.

To take the point to the further level that your Honour Justice Hayne was asking about, as I perceive it, in terms of what is special about the case, the aspect of childhood separation as an element of Aboriginality is a matter of importance to sentencing of Aborigines in all States and Territories throughout the Commonwealth.  There is a difference of opinion as to the principles to be applied to that matter in the Victorian Court of Appeal and ‑ ‑ ‑

HAYNE J:   Well, there is a majority and a minority view, yes.

MR TEHAN:   Yes.  That relates to grounds 2 and 3, and there is a difference of opinion as to the role of an appellate court in re‑exercising the sentencing discretion.  That relates to ground 1.  So that is why we say the case is a special one.  The error we complain of, your Honours, under grounds 2 and 3, is the undermining of the connection between Aboriginality and offending, and we submit that that is demonstrated in two ways.  If we could take the Court to application book 245, in paragraph 60 of the judgment of Justice Batt.  Commencing at the previous page, 244, his Honour said:

That background had two aspects in Mr Tehan’s argument:  first, the sexual abuse he suffered as a child and, secondly, his being placed, from infancy, in unsatisfactory institutional care and highly unsatisfactory foster care, with consequent separation from his natural parents and concomitant disadvantage.  In R v AWF this Court held that childhood sexual abuse suffered by an offender was relevant to moral culpability, rehabilitation and specific deterrence, though it was made clear that its relevance and persuasiveness varied greatly and that its force was not strong where the charges were of the most serious kind, as these are.

Of course, that particular matter of past childhood sexual abuse relates to ground 3 and the reference to AWF, as we have said in our outline, does not stand for the proposition that the force of past childhood sexual abuse is not strong when the charges are serious.  There is nothing, in our submission, in the judgments of AWF to support that proposition:

The court also made it clear that evidence as to an offender’s background may explain, but will rarely excuse, the offending.  It must be remembered that the applicant had obtained a university degree before the present offending.  In any event, as it seems to me, neither aspect can have much weight here in the face of the nature and objective gravity of the two sets of offences and the principal sentencing purpose of protection of the community and other important sentencing purposes applicable. 

HAYNE J:   Now, do you challenge the next sentence?

MR TEHAN:   No, we do not challenge the next sentence.

HAYNE J:   And does not that sentence accurately encapsulate the present state of the law?

MR TEHAN:   It does.

HAYNE J:   And?

MR TEHAN:   But the error, your Honour, is in the next sentence:

(The way of life of the offenders in those cases was far different from that of the applicant in Geelong and elsewhere in Victoria.)  The relevant matter on the evidence here, in my view, is that the applicant was brought up in the care that has been described –

and his Honour had described it –

separated from his natural parents, and I have already dealt with its significance.

What his Honour means by that is, it is worthy of not much weight.  So you have two matters, childhood separation and institutionalisation to which the majority say, that cannot have much weight, and, secondly, sexual abuse during that institutionalisation – its relevance, not strong.  Why?  Because the applicant in this case had a university degree; he was urbanised and not a tribal Aborigine; the offences were serious; and the principal purpose of punishment is community protection.  Those last two matters, of course, we deal with under ground 4.

The error of principle is this, that what the Court of Appeal were putting as a principle was that the applicant’s Aboriginality was of less significance because he was urbanised and university educated.  That, in our submission, is an error of principle; there is no support for the proposition contained within that statement.  There ought be no degrees of Aboriginality.  The focus ought to be upon those factors which arise in the individual case, which may or may not be factors which also arise by virtue of membership of the Aboriginal race.

The judgment of Justice Eames directly confronts this error of principle.  Could we take the Court to application book page 258, where his Honour directly meets, at paragraph 91:

Considerations arising from an offender’s Aboriginality may exist whether the Aboriginal person is living in an urban or a rural situation.  In any instance the Court is seeking to gain a proper appreciation of the circumstances of the individual offender for the purposes of sentencing, including such factors relevant to that offender as the person’s own experience as an Aboriginal person.

When regard is had to the welfare and other expert reports which were tendered before the learned sentencing judge it emerges very clearly that far from his Aboriginality being an irrelevance to the circumstances in which the offending conduct occurred, it is pivotal.  Indeed, the history of the applicant has remarkable similarities to many of the cases reported upon by the Royal Commission into Aboriginal Deaths in Custody.  The impact of a person being separated from family, endeavouring to regain contacts with that family, being rebuffed in those efforts, and thereupon suffering anxiety about being denied the opportunity to fully embrace his or her Aboriginality, was often addressed in individual reports and in the findings of the final report of the Royal Commission.  The Commissioners recognised the impact of a person, in those circumstances, being socialised not into the family and kin network which would otherwise be the experience of an Aboriginal person living in urban circumstances but being socialised, instead, by the need to survive in institutional communities, including juvenile detention facilities and homes.

That is exactly what the present case was about.  This notion that Aboriginality is of less significance because one is dealing with a man who is urbanised, who has a university degree from Deakin University, is completely and totally wrong and it undermines the majority judgment, in the sense that it is the reason why the majority say that his childhood separation experiences are of little weight.  In our submission, that is one of the errors of principle under grounds 2 and 3. 

The other error of principle I have already dealt with, and that is to say that childhood sexual abuse – and this applicant suffered it between the ages of 6 and 11 – to say that evidence of that matter is not strong and to use the authority of AWF in the Victorian Court of Appeal to buttress that is wrong.  There is no statement in AWF that the experience of childhood sexual abuse is of less relevance merely because of the seriousness of the offences.  They are the errors under grounds 2 and 3.

If we could turn now to ground 1.  Ground 1 provides, in some senses, the reason for the errors articulated under the two grounds that I have just dealt with, because, in our submission, it is apparent that the majority judges refused to draw inferences inconsistent with the findings of the sentencing judge and they were unduly constrained by those findings.  One simply has to compare what the majority said at application book 239:

Before re‑exercising the sentencing discretion it is appropriate to summarise other reports and other parts of the reports which were before the sentencing judge so far at least as not inconsistent with his Honour’s unchallenged findings. 

We meet this aspect of whether the findings were unchallenged or not in our reply, but, for present purposes, what the major majority judge’s analysis of facts reveals is nothing more than a restatement of the findings of the primary sentencing judge.  If one compares that with the approach of Justice Eames at application book 273, one sees that his Honour notes, at the top of that page, that:

Counsel for the respondent, Mr Gyorffy, accepted that in exercising my own discretion in re‑sentencing the applicant I am entitled to draw my own conclusions from the material which was available to the judge on sentencing.

We see the stark difference in the approach of an appellate court to a resentencing exercise.  On the one hand, the majority is saying, “We are, in effect, bound or constrained by the findings of the primary judge”; the dissenting judge – and, we would submit, a powerful dissenting judgment from Justice Eames – saying, “I am entitled to draw my own conclusions from the facts”.  In our submission, that does raise a matter of importance for this Court, calling for the grant of special leave.  We submit that the approach taken by Justice Eames is the correct approach. 

A stark example of the way in which the two approaches can be seen is in the dealing with the expert evidence of Dr Vine, where the majority did no more than state what the primary judge had done, and the dissenting judge, Justice Eames, referred specifically to Dr Vine’s evidence showing the connection between the offending and the applicant’s Aboriginality.  We would submit that the sentencing discretion, for this reason, the reason encapsulated under ground 1, was not genuinely re‑exercised by the majority.

If we could turn then to ground 4 of the grounds of appeal, we submit that the majority erred in giving no weight to the applicant’s prospects of rehabilitation, as appears from what was said by the major majority judge at application book 244, line 19:

But the sentencing purpose of rehabilitation must take a subordinate position in the face of the other purposes I have mentioned and particularly the primacy of protection of the community.

That statement, in our submission, is inconsistent with what this Court said in Veen [No 2].  The various purposes of punishment do overlap.  They are not to be seen ‑ ‑ ‑

HAYNE J:   That is a proposition about the operation of sentencing, is it not?

MR TEHAN:   It is, your Honour, but it has been held in R v Connell in the Victorian Court of Appeal that section 6D is in conformity with the common law, and, insofar as this is a statement as to what common law is, our submission is that it is inconsistent with what this Court said in R v Veen.  Our submission is that rehabilitation is not subordinate to protection of the community, that the two purposes of punishment are balanced together and that the majority, in the circumstances, gave no weight to the applicant’s prospects of rehabilitation.  The final ground, ground 5, complaining of manifest excess, we would submit – I notice the red light is on, your Honour.

HAYNE J:   You are bold going into manifest excess when the red light is on, Mr Tehan, at this hour of the day.

MR TEHAN:   Could I just finish by saying, your Honours, this is an exceptional case, where we would submit that the powerful dissent of Justice Eames is the correct judgment in this case, and that is a further reason, in addition to those that I have advanced, for the grant of special leave.  If the Court pleases.

GUMMOW J:   Thank you.  We do not need to call on you, Mr McArdle.

The governing principle which is immediately relevant is that stated by Justice Brennan in Neal v The Queen (1982) 149 CLR 305 at 326. We are not satisfied that there are sufficient prospects of success in demonstrating error by the Court of Appeal in the application of sentencing principles in this matter to warrant a grant of special leave. Accordingly, special leave is refused.

AT 4.40 PM THE MATTER WAS CONCLUDED