Heblos v The Queen

[2001] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M136 of 2000

B e t w e e n -

MAHAMED HEBLOS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 AUGUST 2001, AT 11.54 AM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC:   May it please the Court, I appear with my learned friend, MR C.B. BOYCE, for the applicant.  (instructed by Geoffrey Tobin Pty - Solicitors)

MR P.A. COGHLAN, QC:   If it please the Court, I appear with my learned friend, MR R.M. READ, for the respondent.  (instructed by the Solicitor for Public Prosecutions (Victoria))

MR TEHAN:   If the Court pleases, the sentence received by Mr Heblos from the court below may mean that he will spend a longer period in prison than he has so far spent on this earth. 

GAUDRON J:   That may not be an unusual feature in cases of this kind, and it may not be an unusual feature in any situation in which a person is convicted of murder.

MR TEHAN:   He was only 18 at the time of this offence, your Honour.  He was a youthful offender.  He had an IQ of 80.  He had no prior convictions.

KIRBY J:   He had had a prior incident with the victim.

MR TEHAN:   He had, your Honour.

KIRBY J:   Do you agree with the comment of the Court of Appeal that it was at the very worst end of the range of cases of this kind of violence?

MR TEHAN:   It is very difficult to say what is in the worst category of murder.

KIRBY J:   It is indeed.

MR TEHAN:   Courts of Appeal have often said that.  It is probably fair to concede that it was a bad case because it was a murder that occurred during the course of a robbery.

KIRBY J:   The person who had given him a second chance, really.

MR TEHAN:   Yes, I agree with that, your Honour.  I accept that, your Honour. 

KIRBY J:   And it is said that the primary judge, the sentencing judge did not pay attention to the victim impact statements.

MR TEHAN:   That ground was rejected by the Court of Appeal.

KIRBY J:   I thought it is still advanced before us?  I may have misunderstood?

MR TEHAN:   No, your Honour.

KIRBY J:   Anyway - - -

MR TEHAN:   It was a ground argued by the Director which was rejected by the Court of Appeal.  The sentence of 15 years imposed by the sentencing judge was the first criminal punishment ever received by our client.  The court below said that, in sentencing Mr Heblos, “his youth should be accorded less weight than considerations of specific and general deterrence”.  It is in that statement that the error principle arises.

GAUDRON J:   But it is said in a particular context.  Now, whatever might be the general principles regarding the sentencing of young offenders, you have to remember that in this case it was a murder charge of which he was convicted.  The only explanation for which seems to have been intent upon robbing a previous employer who had, in some respects at least, given him advantages that other employers might not.

MR TEHAN:   All of that is true your Honour, but the ‑ ‑ ‑

GAUDRON J:   There seems to be no mitigating circumstance such as you might find if there were some slight personality disorder or dysfunction, or something like that.  It just seems to be murder for the purpose of private gain.

KIRBY J:   I think you suggest that there are two bases, one, the low intelligence of your client and, secondly, I think there is a suggestion of a drug dependence.

MR TEHAN:   Yes, low intelligence, immaturity, left school at a very early age, a drug problem and only 18 at the time of the offence, and a positive finding by the trial judge that his intent was to cause serious injury but not to kill, a submission which was argued as being erroneous by the Director in the court below and yet the court below accepted that it was open to his Honour to come to that view and, most significantly ‑ ‑ ‑

GAUDRON J:   But, at any event, there was, at minimum, an intent to render the victim unconscious, which I would have thought was serious bodily harm, if not grievous bodily harm.  There was an intent to do that.

MR TEHAN:   Yes.  Most significantly on that point, though, your Honour, in accepting that it was open to the trial judge to come to that view, the Court of Appeal found that that must have been a significant reason for his Honour to reduce the sentence than it otherwise would be.  But this appeal turns upon an error of principle and the principles regarding the sentencing of youthful offenders do not distinguish between crimes of murder or armed robbery or less serious offences.

GAUDRON J:   No, but the principles are not hard set, are they?  The principle can be put no higher than that, as a general rule, allowance will be made for the youth of the offender.

MR TEHAN:   That principle was one which was violated by the Court of Appeal in this way.

GAUDRON J:   But it is only a general rule.  It is not a hard and fast rule, is it?

MR TEHAN:   It is a principle, we submit, that the youth of the offender ‑ ‑ ‑

GAUDRON J:   Where does it find it endorsed as a hard and fast rule?

MR TEHAN:   In Reg v Mills and the cases cited therein.

GAUDRON J:   Can you take us to that?  That is a Victorian report?

MR TEHAN:   Yes.  At page 241 of the report in Mills v The Queen at line 15, his Honour Justice Batt, delivering the judgment of the court, said:

i.  Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

GAUDRON J:   Yes, “where that matter properly arises”.

MR TEHAN:   It clearly properly arose in this case.

GAUDRON J:   What was the offence in Mills?

MR TEHAN:   Mills was a case of recklessly causing serious injury.

GAUDRON J:   “should be a primary consideration”, but it does not mean that it outweighs everything.

MR TEHAN:   It does not mean it is the only consideration; it ought to be the primary consideration.

GAUDRON J:   I would have thought in murder the primary consideration would be the nature of the offence and the general characterisation of it as one of the worst offences of the kind.

MR TEHAN:   Then when one turns to matters of mitigation and considerations of deterrence ‑ ‑ ‑

GAUDRON J:   Where does the court endorse your submissions in Mills?

MR TEHAN:   At line 15 on page 241.

GAUDRON J:   No, that is your submission.

MR TEHAN:   In the Court of Appeal, the finding that we challenge is at page 25 of the application book.

GAUDRON J:   No, but where in Mills does the court endorse your submission about the primary significance of youthfulness?

MR TEHAN:   At page 241 of the report, at line 15.

GAUDRON J:   All right.  Well, I am losing something because I read it:

In support of his argument on grounds 2, 3 and 4 Mr Tehan submitted that in general terms the authorities established the following proposition:

i.  Youth of an offender, particularly a first offender, should be a primary consideration –

not “the”, but “a” primary consideration –

where that matter properly arises.

Now, where does the court endorse that in Mills?

MR TEHAN:   It was conceded at line 30, your Honour, by the Crown.

GAUDRON J:   The Crown can concede what it likes, but that does not establish what I understood your submission to be, namely, that there was a hard and fast principle.

KIRBY J:   You say in line 30, it is says:

Mr Ryan, who appeared for the respondent, informed the court that he did not cavil with those proposition as general propositions.

MR TEHAN:   Yes.

KIRBY J:   The inference should be that we take them as general propositions, but the point still remains, as Justice Gaudron is asking you, they are general propositions, but in the end you have to look to the particular case.

MR TEHAN:   Yes, and the court went on to say:

In my view, that attitude as correct –

The court accepted ‑ ‑ ‑

KIRBY J:   You see, the problem is, Mr Tehan, we are not a super court of criminal appeal and we have to leave sentencing to the wisdom and experience of the Courts of Criminal Appeal and Courts of Appeal.  Here you have a unanimous view of the Court of Appeal of Victoria setting the standards for this State that the primary judge did not pay sufficient attention to the need for deterrence and we should not assume that they were not aware of the general principles relating to youth, first offenders and so on; but they still came to the view that this was a case where the sentencing judge under-sentenced.  Now, what is the mistake that warrants our intervention?

MR TEHAN:   The error of principle is at 25 of the application book at line 7:

A conclusion that the sentence was manifestly inadequate must necessarily constitute a conclusion that factors of general and specific deterrence, in the circumstances of this case, should have outweighed the factor of the youth of the respondent, and that the sentence reflects a failure to have balanced the appropriate considerations to such a degree as to render the sentence wrong in law.

KIRBY J:   That is absolutely correct, is it not, that it signals a consciousness of the youth principle?

MR TEHAN:   The error in the approach of the Court of Appeal was to state that principles of “general and specific deterrence” outweigh “the youth of the” offender and principles of rehabilitation.  That is the error of principle in this case.  We submit that in every case where one is dealing with a useful first offender, as a general proposition, the offender’s youth should be the primary sentencing consideration.

KIRBY J:   That is what I take Justice Eames to be meaning by referring to “outweighed”.  He says you put that in and it weights the scales down very heavily, but it is outweighed in this particular case by the considerations of deterrence and the seriousness of the crime.

MR TEHAN:   If one goes to application book page 30, at line 16, the court says:

Notwithstanding the factors personal and favourable to the respondent, the sentence in my opinion so undervalues the need for general deterrence as to constitute the sentence an affront to the public conscience.

KIRBY J:   What worried me about this case when I read it is that it reminded me of a case I sat on in the Court of Criminal Appeal in New South Wales of Champion, I think it was, where there was very substantial evidence about the intellectual incapacity of the accused.  That does not seem to have been before the primary judge.  There was some evidence about his IQ and so on, but there was not a really deep search for why a young man of 18 would do such a thing, an evil thing, and therefore the judge has to sentence on the basis of the material.  In these cases of intellectual impairment, people should look at Champion.

MR TEHAN:   Your Honour, this young man had an IQ of 80.

KIRBY J:   Yes, I realise that.  That ought perhaps to have been elaborated because that seems to me to have been quite a significant question, but just put baldly before the judge ‑ ‑ ‑

MR TEHAN:   I mean, one of the reasons why there is the general proposition that youth of an offender should be a primary sentencing consideration is because young offenders are vulnerable, are immature, do have perhaps ‑ ‑ ‑

KIRBY J:   That is true, but you see, if you were presenting this as a question of principle where there had been substantial evidence from psychiatrists, psychologists, from his own life, what he had done, then you might be tendering to us a matter of principle which this Court could look at, but when you simply have the bald fact of his IQ of 80, then it is not a very good vehicle for us to be taking on the responsibility of looking at the general question of the sentencing of people of intellectual handicap which is a very important issues.

MR TEHAN:   Related to that issue in this case and the more important issue in this case is the sentencing of youthful first offenders and the question which arises and upon which special leave should be granted is whether considerations of general and specific deterrence in the sentencing of youthful first offenders outweigh considerations of rehabilitation. 

We submit that the Court of Appeal in Victoria made it quite clear in Mills that considerations of youth and rehabilitation were the primary sentencing considerations.  That does not mean for one moment that general and specific deterrence are not relevant.  It does not mean, in the case of a very serious murder, that considerations of punishment are not very relevant.  But the error of principle that happened in the court below was to accord more weight to general and specific deterrence than to youth. 

GAUDRON J:   In the circumstances of this case.  The court made it clear that it was in the circumstances of that case. 

MR TEHAN:  They did so acting upon an erroneous view of what Justice Batt had said in Mills.  If I could take the Court to page 24 of the application book, at line 18, having set out what the Court of Appeal said in Mills and Justice Eames, speaking for the court, continued:

As Batt, JA noted in that case, the fact that the offence concerns a violent crime does not mean that it therefore ceases to be one to which those usual principles would apply, so that principles of general and specific deterrence would, instead, hold sway.

Now, I stop to observe, your Honours, and submit that that is not what Justice Batt had said in Mills.  Justice Batt had said in Mills that the usual principles in relation to sentencing youthful offenders apply no matter what the crime is and the court went on to say:

However, as Batt, JA emphasised, cases might arise in which the usual principle, and the general rule, would have to be given lesser weight.

Once again, we submit that that is not what Justice Batt had said in Mills at all.

GAUDRON J:   Even if it is not what Justice Batt had said, what is wrong with the view that there may be cases in which the usual principle and the general rule will have to be given lesser weight?  That is to say, what is wrong with the notion that it is a relevant and even a primary consideration in most cases?  But, ultimately, sentencing must take account of the circumstances of the crime and so that there may be cases in which it will not have such significance.

MR TEHAN:   If one had a recidivist youthful offender, one could understand, perhaps, a lot of weight being given to specific deterrence.  That does not mean that youth is not given weight.  This principle applies to the sentencing of youthful first offenders and that was our client.

GAUDRON J:   There is no principle – I mean where is the error of principle, really, in this judgment?

MR TEHAN:   The error of principle, your Honour, arises out of the parts of the Court of Appeal judgment that I have read that lead to the irresistible inference that the Court of Appeal acted upon a principle that there may be cases – and this was one – where general and specific deterrence outweigh youth and rehabilitation.  Now, that it is the error of principle ‑ ‑ ‑

GAUDRON J:   All right, what is wrong with that?

MR TEHAN:   It is an erroneous principle because it is at odds with what courts around Australia have said about the sentencing of youthful first offenders.

GAUDRON J:   You have shown me Mills, but I am not aware of any decision which makes what you say a hard and fast rule.

KIRBY J:   Are you fixing on the use of the word “outweighs”?  Do you say you do not approach it that way, it is a matter of giving each their due weight?

MR TEHAN:   Yes.

KIRBY J:   But that is just a verbal issue.  If I can say for myself, I think the real problem in the case was that nobody paid enough attention to the intellectual handicap of your client and everybody was concentrating on his bare age.  There was a bit of information about his IQ, but it is too late for us to rescue that because that is not the way the matter was presented, either at the primary level or before the Court of Appeal.

MR TEHAN:   No, but it does indicated, your Honour, that the fact of his immaturity, the fact of his lesser moral culpability, should have been given more weight than it was by the Court of Appeal.  I mean, this sentence of 21 years, even accepting it is a bad murder, on an 18 year old who is intellectually handicapped, with no prior convictions, is a very, very heavy sentence and, we would submit, it is tantamount to a sentence which would have been imposed upon an adult committing this offence and, even the, it would be regarded as a heavy sentence.  If the Court pleases.

GAUDRON J:   Yes, we need not trouble you, Mr Coghlan.

Given the nature and circumstances of the murder of which the applicant was convicted and given also the matters that were agitated on the applicant’s behalf on sentence and in the Court of Appeal, it cannot be said that the sentence imposed by the Court of Appeal is infected by error of sentencing principle.

Accordingly, the application for special leave to appeal is dismissed.

MR TEHAN:   If the Court pleases.

AT 12.17 PM THE MATTER WAS CONCLUDED