Green v The Queen

[2007] HCATrans 110

[2007] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D12 of 2006

B e t w e e n -

HARRISON GREEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 MARCH 2007, AT 2.23 PM

Copyright in the High Court of Australia

MR D. GRACE, QC:   If the Court pleases, I appear on behalf of the applicant.  (instructed by the Northern Territory Legal Aid Commission)

MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory:   If the Court pleases, I appear with my learned friend, MR D.N. LEWIS, on behalf of the respondent.  (instructed by Director of Public Prosecutions (Northern Territory))

HAYNE J:   Yes.  Yes, Mr Grace.

MR GRACE:   Your Honours, the general sentencing principle relevant to this application is that a sentencing court should apply the sentencing standards applicable at the time of the commission of the offence when sentencing many years after the date of commission of that offence.  The question is whether that general principle has been qualified in any way by the Northern Territory legislative scheme for indefinite sentences.  At paragraph [61] at application book page 86 his Honour the Chief Justice says this:

Finally, regard must be had to the direction in s 74(1)(b) that when imposing the determinate sentence, the Supreme Court “shall … sentence the offender under [the Sentencing Act] for the violent offence for which the indefinite sentence was imposed”. This is a direct instruction to the court to apply the provisions of the Act at the time of imposing the determinate sentence. The Legislature has chosen to apply the sentencing law found in the Sentencing Act at the time of the imposition of sentence rather than the sentencing law as it stood at the time the offence was committed.

If I could turn specifically to that subsection in the legislation, your Honours. Section 74 of the Sentencing Act 1995 (NT) provides as follows:

(1)      Unless it is satisfied to a high degree of probability that the offender is still a serious danger to the community when a review is made under section 72 or 73, the Supreme Court shall –

(a)      order that the indefinite sentence is discharged; and

(b)      sentence the offender under this Act for the violent offence for which the indefinite sentence was imposed.

There is no legislative warrant, it is submitted, for the Chief Justice’s conclusion that there is a legislative intention evinced by section 74(1)(b) that the current sentencing standards apply in preference to the application of the general principle. Indeed, if one goes back to section 65 of the Act which gives the jurisdiction to the court imposing the indefinite sentence in the first place, subsection (2) provides that:

The Supreme Court may sentence an offender convicted of a violent offence or violent offences to an indefinite term of imprisonment.

I want to focus also for the purposes of another submission I am going to make later that the word “sentence” is used there.  Subsection (5) provides that:

The Supreme Court shall specify in the order imposing an indefinite sentence a nominal sentence of a period equal to the period that it would have fixed had it not imposed an indefinite sentence.

I appreciate there is issues concerning the length of the nominal sentence that was imposed by her Honour the learned sentencing judge in this case but that issue is not really germane or directly relevant to the principle that is sought to be applied in this case.

HAYNE J:   What in this case do you say was the difference in relevant sentencing standards?

MR GRACE:   At the time of the imposition of the sentence it was accepted that the range was between six and eight years.  Those figures were based upon the cases that were tendered at the time of the original sentencing plea which was accepted.

HAYNE J:   But is not the hypothesis then that if that was the relevant sentencing standard that an indefinite sentence was just wholly off the cards?

MR GRACE:   No, your Honour, because that was at the upper limit, that range, of sentences that were imposed at that time for this sort of offending and with the offender’s ‑ ‑ ‑

HAYNE J:   Can I cut to the chase.

MR GRACE:   Yes.

HAYNE J:   Is this not simply another example of the difficulties of sentencing statistics that everything turns on in this sort of case?  You can identify a standard, say it is the relevant one only by making assumptions about this sort of case.

MR GRACE:   Except for this, your Honour, I accept everything you say, but his Honour the Chief Justice at paragraph [26] accepted that sentencing standards had moved significantly.  That is at page 68 of the application book at the bottom of the page:

The crime was committed in 1997.  As it is today, the maximum penalty was life imprisonment.  However, sentencing standards have changed since 1997.  In recent years sentences for sexual assaults, including the crime of sexual intercourse without consent, have increased.  This raises the difficult question as to whether this Court should now sentence according to today’s sentencing standards or whether it is obliged to apply the standards applicable in about 1997 – 1998.

This was not a trifling increase. This was a substantial increase in prevailing standards and his Honour can be taken to have accepted that that was the case, otherwise we would not have been here and certainly the court below would not have been considering this particular issue to the extent that it did. The applicant’s submission is that the sentencing law that is referred to in section 74(1)(b) is the sentencing law as pronounced by the Northern Territory legislature as informed by the application of common law principles to that sentencing law. Without any specific indication from the legislature as to which sentencing standards apply, then there is no warrant for a departure from the application of those particular sentencing principles.

Could I take your Honours to the High Court decision in Radenkovic (1990) 170 CLR 623 and at 632 in the judgment of his Honour Chief Justice Mason and Justice McHugh and in the first substantive paragraph on that page their Honours say this, commencing at the second sentence:

In the context of an appeal against sentence, when a court of criminal appeal is called upon to resentence because it has quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be resentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal.  The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood.  He should not be denied that entitlement simply because the sentencing judge made a mistake, whether that mistake resulted in a sentence that was too harsh or too lenient.  In our view it would require a very clear indication of statutory intention to displace that entitlement.

The debate as to what standards to apply reached its head in New South Wales when a specially convened bench of five in the case of R v MJR considered the issue in 2002. That is reported in 54 NSWLR 368. At page 373 in the judgment of Chief Justice Spigelman, after quoting from that decision in Radenkovic and the judgment that I have read to your Honours, at point 6 on the page his Honour said this:

It is, of course, clear in the context of statutory interpretation that where Parliament manifests an intention that a new sentencing regime operate retrospectively, the courts will give effect to that intention (see Siganto v The Queen (1998) 194 CLR 656 at 662). It may also be the case that the purpose to be served by a change in sentencing practice would require the court to take into account the new practice even when sentencing for an offence that occurred many years before, eg, an increased emphasis on general deterrence because of prevalence. Nevertheless, that will not necessarily be so.

Section 19 of the Crimes (Sentencing Procedure) Act 1999 and its predecessor reflects a principle of perceived fairness applicable to maximum and minimum penalties, which it is appropriate to adopt for other aspects of the exercise of the sentencing discretion.

And then, over the page to paragraph 29 his Honour says this:

It is sufficient for present purposes to employ the statute as reflecting a principle of fairness that it is appropriate to adopt, in much the same way as the High Court referred to statute in determining issues that involved a change in community attitude about whether it was possible for a man to rape his wife.

Then there is a quotation which I will not read to your Honours from the decision of R v L.  Then at paragraph 31 his Honour says this:

Similarly, I am now satisfied, after assessing the above authorities, that it is, “out of keeping” with the provisions of s 19 of the Crimes (Sentencing Procedure) Act, for this Court to refuse to take into account the sentencing practice as at the date of the commission of an offence when sentencing practice has moved adversely to an offender.  Accordingly, the view I expressed in R v PLV was incorrect.

His Honour’s view prevailed with the majority of the court and in New South Wales, absent special legislative provision, that is the law.  It is clear when, as it is the case here, that the common law of Australia is that, where there is a defined and definitive sentencing pattern that exists at the time of commission of the offence, that should be the sentencing standard that is applied when it comes to sentence the offender many years after commission of the offence.

The key to understanding how it was that Chief Justice Martin came to the conclusions that he did may be inferred through a number of sources.  Firstly, could I take your Honours to paragraph [54] at page 82 of the application book.  There his Honour said in the third sentence:

While it is a pre‑condition of the imposition of an indefinite sentence that the offender be convicted of a relevant violent offence, and while it might be said that in fact the imposition of an indefinite sentence punishes an offender, the purpose of the indefinite sentence is not to punish the offender for committing the crime.  The purpose is protection of the community through preventative detention.

Now, your Honours, in my submission, that statement does not accord with authority.  It is contrary to your Honour Justice Hayne’s statements in Moffatt, it is contrary to this Court’s statements in Chester which both found that an indefinite sentence is a sentence that goes beyond punishing the offender to the extent that it is proportionate to his crime.  So there was a recognition in those cases that an indefinite sentence also punishes.  It cannot be said that the effect of an indefinite sentence does not include punishment of the offender, in any event.  The comments by Chief Justice King in Yardley v Betts which were referred to by both the Chief Justice and Justice Angel in the decision from the court below, in my submission, reinforce that particular submission.

Could I take your Honours to paragraph [53], immediately prior to the paragraph that I have just referred.  There his Honour states the proposition, after quoting from Justice Gummow’s judgment in Fardon, that the applicant was not, in effect, sentenced at the time of the imposition of the sentence of “an indefinite sentence”.  I have already referred your Honours to the words in section 65 of the Act which clearly indicate the word “sentence” and I also refer your Honours to section 7(k) of the same Act which provides that an order made for an indefinite sentence would fall within the definition of a sentencing order under that part of the Act.  So what in effect happens to an offender in the applicant’s position is that in the event of discharge he comes up for sentence, in effect, for the second time.  At paragraph 16.7 at page 120 of the respondent’s submissions the respondent says this in the last sentence of that paragraph:

The imposition of an indefinite sentence, its removal and the subsequent imposition of a finite sentence, perhaps many years after

the offence, are intended to be harsh and extraordinary measures reserved for unique and special circumstances.

What the respondent is seeking to do by that particular assertion is to import into the indefinite sentencing scheme a legislative intention to apply the increased sentencing standards at the time of the imposition of the finite sentence as part of the harsh and extraordinary measures reserved for unique and special circumstances which justify the imposition of the indefinite sentence in the first place.  There is no legislative warrant, in my submission, for that conclusion.

Other than those submissions and the written submissions filed on behalf of the applicant that completes my submissions, thank you, your Honour.

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

The decision of the courts below depended in important respects upon the particular legislative provisions that were engaged.  No point of more general application would fall for consideration if special leave to appeal were granted in this matter.  We are not persuaded that there is a reasonable prospect that if special leave to appeal were granted this Court would set aside the orders that were made in the courts below.

It follows that special leave is refused.

MR GRACE:   If the Court pleases.

HAYNE J:   The Court will adjourn to 21 March in Canberra at 10.15 am.

AT 2.45 PM THE MATTER WAS CONCLUDED