Henderson v The Queen and Anor

[2013] HCATrans 241

[2013] HCATrans 241

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B21 of 2013

B e t w e e n -

MICHAEL DANIEL HENDERSON

Applicant

and

THE QUEEN

First Respondent

THE HONOURABLE THE ATTORNEY‑GENERAL OF QUEENSLAND

Second Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 11 OCTOBER 2013, AT 12.00 NOON

Copyright in the High Court of Australia

MR J.J. ALLEN:   If the Court pleases, I appear for the applicant in this matter.  (instructed by Legal Aid (Qld))

MR M.R. BYRNE, QC:   If the Court pleases, I appear for the first respondent.  (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ:   Thank you.

MR ALLEN:   Your Honours, this application involves the important question as to the circumstances in which the Queensland Court of Appeal in hearing a Crown appeal against sentence should be prepared to accept submissions of the appellant as to the level of sentence that is appropriate that differ markedly from the Crown’s submissions at first instance.  That is really a subset of the wider and again important question as to how the approach taken by the prosecution at first instance should affect the Court of Appeal’s exercise of jurisdiction on a Crown appeal against sentence at two stages; firstly, at the stage of determining whether to allow an appeal, and if having determined to allow the appeal, at the second stage of determining an appropriate sentence to be substituted.  If I could take your Honours to the ‑ ‑ ‑

GAGELER J:   What is wrong with the statement of principle in paragraph [51] of the judgment at page 85 of the application book?

MR ALLEN:   Can I dissect paragraph [51], because it is important to go to those authorities that are cited therein to see in fact what those authorities said.  Your Honours see that obviously there is no problem with the statement of authority that ultimately is:

the imposition of an appropriate sentence rests with the sentencing judge rather than the prosecutor –

But the next proposition stated, and this is central to the issues in this application, is that –

this Court will intervene –

that is the Court of Appeal –

where the sentencing judge failed to appreciate the seriousness of the offending or it is necessary to maintain public confidence in the administration of justice.

Could I ask your Honours to consider those authorities cited at footnote 9 with respect to the proposition that a proper basis for interference arises where the sentencing judge has failed to appreciate the seriousness of the offending, because that was the reason essentially stated at paragraph [52] of the Court of Appeal’s judgment, where they considered that it was appropriate to intervene, notwithstanding the content of the prosecution’s submissions below.

Now, the first decision cited is the decision of this Court of GAS v The Queen, and in particular at paragraph 40 of that judgment.  That decision is in the respondent’s bundle of authorities at page 213 of the Commonwealth Law Reports judgment, paragraph 40.  The context for that quoted passage later in paragraph 40 at the top of page 214 of the reports is provided.  In GAS the failure to appreciate was one stated – this is at the top of page 214 of the judgment.  The sentencing judge’s:

failure to appreciate, and give sufficient weight to, exactly what the appellants were admitting, in the circumstances of the case, by their pleas of guilty. 

That was because there was some controversy as to the basis of the criminal liability of the offenders in that case and that played a significant fact upon sentence.  Likewise, the next case cited is R v KU, a decision of the Court of Appeal which is included in the applicant’s bundle of authorities, and it is important that I take your Honours to the terms of the judgment of the Court of Appeal in R v KU. It is number 11 in the applicant’s bundle (2011) 1 QR 439.

The Court of Appeal in this matter, in particular, cited the judgment of the Court at page 464 and if I could ask your Honours to go to page 464.  One notes firstly that at paragraph [96] in KU the passage from GAS v The Queen is picked up.  Then at paragraph [97] the court concludes that the sentencing judge in KU proceeded “on a footing which did not reflect the gravity of the offence of rape”, and it is discussed in some detail in the judgment, but essentially the conclusion is reached by the court that the sentencing judge there failed to properly appreciate that the offenders were being sentenced for rape as opposed to, say, lawful carnal knowledge.  That is why there is reference in paragraph [97] in KU to:

Each respondent’s offence was not merely “having sex with young girls” –

and that was being picked up from the sentencing judge’s remarks there –

or unlawful carnal knowledge of a girl –

So that was a case, and if I could ask your Honours to go to page 467 of that judgment at paragraph [108] where the Court of Appeal determined that in the extraordinary circumstances of that case – that is where a whole range of offenders both adult and juvenile were given non‑custodial sentences for offences of rape against a 10 year old girl, that the sentencing process therein had miscarried in such a way that, notwithstanding the judge’s sentence accorded with the prosecution’s submissions at first instance, it was still appropriate that the court intervene. 

Now, that is the content and context of those statements in GAS v The Queen and R v KU where there has been a gross misapprehension on the part of the judge as to the nature of the offending conduct for which the offender is to be sentenced.  It cannot be said that that has occurred in this case. 

FRENCH CJ:   This is a sentence of seven and a half years with a parole eligibility after two and a half where an offence in which three young people lost their lives and a fourth was grievously injured.

MR ALLEN:   That is so, your Honour. The sentencing judge ‑ ‑ ‑

FRENCH CJ:   In circumstances of something which approximates what one might call a sort of, not road rage is not precisely right, but deliberate and reckless conduct on the part of the applicant.

MR ALLEN:   It was very serious conduct for which the applicant was being sentenced and her Honour, the sentencing judge, at first instance clearly appreciated that.  The sentencing judge noted all the serious aspects of the offending.  She noted the serious aspects with respect to the antecedence of the offender and it cannot be said as contrasted with GAS and KU that her Honour failed to appreciate that she was sentencing this applicant for an offence of dangerous operation causing three deaths and the grievous bodily harm of a fourth person. 

Her Honour was not demonstrating the sort of error that occurred in GAS and KU which allowed the court to conclude that the sentencing judge failed to appreciate the seriousness of the offending.  The way the court has approached it, it is submitted, in paragraph [52] in this case is really saying that the sentence imposed was more lenient than the Court of Appeal considered appropriate and that has been used as the touchstone to disregard the submissions made by the prosecution at first instance,

It is the submission of the applicant that the approach stated by the Court of Appeal for being free to substitute a sentence beyond that contended by the prosecution at first instance, is really no more than an expression by the Court of Appeal as to a different conclusion as to the appropriate sentence that should have been pronounced, and there is established authority that a mere disagreement as to the level of sentence provides no proper basis for allowing an appeal against sentence, let alone allowing an appeal and substituting a sentence beyond that contended for the prosecution at first instance.  It is also ‑ ‑ ‑

FRENCH CJ:   Paragraph [52] is introductory to paragraphs [53] to [57].

MR ALLEN:   Yes, and I should return to them, your Honour.  The conclusion really, that the sentencing judge failed to appreciate the seriousness of the offending is then developed in those paragraphs, and the conclusion does not bear scrutiny, it is submitted.  Paragraph [54], there is reference to the fact that the sentencing judge rightly treated the use of the vehicle as a weapon as going to the seriousness of the offending, but there is a contention by the Court of Appeal that her Honour did not address the importance of deterrence in that respect. 

The question though remains whether the sentence that was imposed was one which met the needs of general and personal deterrence and minds would well differ with respect to that within the bounds of the proper exercise of sentencing discretion.  It is not the case that one could say that her Honour disregarded the needs for deterrence in fixing what was a substantial sentence.

FRENCH CJ:   What do you say about the statement in the Court of Appeal that her Honour’s statement about loss of life portrayed a failure to appreciate fully the relevance of the consequences of the respondent’s offending in the sentencing process?

MR ALLEN:   Her Honour could not have been blind to the serious nature of the consequences of the offending, and that was quite clear, it is submitted.  In fact, the Court of Appeal notes that:

Her Honour may have simply meant that human life is priceless, and that there can never be any true equivalence between a sentence and loss of human life.

That is a truism, and it is submitted that her Honour meant no more than that.  Her Honour was, indeed, acknowledging the grievance consequences and loss to those who suffered as a result of the offender’s criminal behaviour and noting that no number of years of a prison sentence could address that.

FRENCH CJ:   Is it right to say that the Court of Appeal inferred from the outcome, perhaps coupled with that remark, that her Honour did not appreciate fully the relevance of the consequences of the offending in the sentencing process, because it has gone on to discuss the role of consequences?

MR ALLEN:   Well, it has, but the proposition, or the conclusion, that her Honour failed to appreciate the consequences of the offending and the importance of that is not borne out by a fair reading of those sentencing remarks.

GAGELER J:   Do you accept that if the conclusion is justified then appellate intervention is justified?

MR ALLEN:   If that conclusion is justified it adds to the force of an argument that there was error, but one would have to elevate it to the type of specific error of principle, being the first type of House v The King error, and it is submitted that one cannot really do that here.  It is more consistent with a question of the different weight to be given to different factors in the sentencing process and there is quite consistent authority, including in this Court, that mere disagreement as to such matters is not the proper basis for allowing an appeal against sentence.

Obviously, this Court has determined in Lacey that there must be error of law before the appeal is to be allowed, and it is submitted that a proper consideration of those matters in paragraphs [54] through [57] do not indicate error of that type.  There was then the question of error of the second type in House v The King, which is really the question of manifest inadequacy, and the applicant’s outline addresses why those particular comparative decisions referred to by the Court of Appeal did not support a contention that the sentence imposed was outside any established range of sentence.

The Court of Appeal referred to the need for protection of the community, but there was nothing with respect to the antecedents of this offender who had never previously been imprisoned, which suggested that there was some type of need as per Veen v The Queen to sentence towards the top of an available range of sentence so as to incapacitate the offender and protect the public.

Indeed, the sentence imposed, one which involved seven and a half years restriction of liberty either by way of incarceration or supervision on parole, was one which clearly met that purpose, it is respectfully submitted.  It is submitted that with respect to the first stage of the exercise of the court’s jurisdiction there has been a failure by the Court of Appeal to properly consider the exercise of the residual discretion to dismiss a Crown appeal against sentence because of the way the proceedings were conducted below by the prosecution, at first instance.

It is submitted that with respect to the second stage the Court of Appeal has further erred in giving absolutely no consideration whatsoever after having determined to allow the appeal as to what effect the prosecution’s submissions at first instance should have upon the court’s determination of a sentence to be substituted.  The Court of Appeal’s judgment does not show any consideration whatsoever of that issue.  It is submitted that there is authority to suggest that such a consideration was required.

In the applicant’s bundle there is a decision of the New South Wales Court of Appeal in R v JW at number 2 of the applicant’s bundle.  Could I simply in concluding ask your Honours to consider the very convenient collection by Chief Justice Spigelman at page 25 of that judgment of those principles which should apply to the second stage and the considerations of double jeopardy, if one was to be resentenced upon a Crown appeal, the significance here being that the sentence imposed was one which went beyond the top of the range submitted at first instance.

It went beyond the specific submission by the prosecutor at first instance that there be eligibility for parole after one‑third of the sentence and instead ended up with a sentence which involved eligibility for parole after 80 per cent.  At the very least, it is submitted, those considerations of double jeopardy and finality of litigation and a party being bound by the conduct of the proceedings at first instance should have informed the substitution of a sentence by the Court of Appeal and that that sentence should not have been one in excess of the sentence contended for by the prosecution at first instance.  Those are my submissions, your Honour.

FRENCH CJ:   Yes.  Thank you, Mr Allen.  We will not need to trouble you, Mr Byrne.

In our opinion, the decision of the Court of Appeal, which was ultimately focused on the Attorney‑General’s submission that the sentence was manifestly inadequate and which involved a consideration of factors underpinning that proposition, does not disclose error which would warrant the grant of special leave.

The Court’s conclusion that the sentence of seven and a half years for dangerous driving causing death with parole eligibility after two and a half years manifestly failed to reflect the overall criminality of the appellant’s conduct was justified.  Having regard to the seriousness of the conduct and the devastating consequences for the three young people who died as a result of that conduct and the fourth who was seriously injured because of it, special leave should be refused.

AT 12.20 PM THE MATTER WAS ADJOURNED