Inge v The Queen [1999] HCA 55 7 October 1999 A38/1998
ORDER
Appeal allowed.
Set aside the order of the Court of Criminal Appeal of South Australia entered on 4 April 1997.
Remit the matter to the Court of Criminal Appeal of South Australia to deal with the appeal to that Court conformably with the reasons ofthis Court.
On appeal from the Supreme Court of South Australia
Representation:
M E Shaw QC with C J Kourakis QC for the appellant (instructed by Wallmans)
W J Abraham QC with J M Woithe for the respondent (instructed by Director of Public Prosecutions (South Australia))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Inge v The Queen
Criminal law – Sentencing – Murder – Mandatory life sentence – Parole – Minimum term during which prisoner not eligible for parole – Whether appellant's youth counts against him in determining non-parole period.
GLEESON CJ, GAUDRON, HAYNE AND CALLINAN JJ. This appeal concerns an aspect of the relevance of the age of an offender, who has been convicted of murder, under a sentencing regime which fixes imprisonment for life as the mandatory sentence, but gives the sentencing judge power to determine a non-parole period. Age may have a bearing upon a number of considerations involved in a decision whether to fix a non-parole period, and in a determination of the length of any non-parole period[1]. The particular question which arises in the present case is whether, in a determination of the length of a non-parole period in the case of a relatively young offender, his youth counts against him.
The facts, and the relevant legislative provisions, appear in the reasons for judgment of Kirby J.
Section 11 of the Criminal Law Consolidation Act 1935 (SA) provides that a person who commits murder shall be imprisoned for life. The length of time for which such a sentence will run depends upon the time for which the offender will live. That, in turn, may depend upon a number of factors including, but not limited to, the offender's age at the time of sentencing. So seriously is the taking of human life regarded that, in a number of Australian jurisdictions, including South Australia, a sentencing judge has no discretion in relation to fixing a sentence for murder; imprisonment for life is mandatory, regardless of any of the considerations that arise when a sentencing discretion is exercised.
However, a sentencing judge has a discretion in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Inge v The Queen [1999] HCA 55
Case
[1999] HCA 55
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by Christopher Inge against a sentencing decision made by the Court of Criminal Appeal of South Australia. Mr Inge had pleaded guilty to murder and was subject to a mandatory life sentence. His appeal concerned the determination of the non-parole period, specifically whether his youth was a relevant consideration that should have been taken into account in his favour.
The central legal issue before the High Court was the relevance of an offender's age, particularly youth, when fixing a non-parole period for a life sentence under South Australian law. The appellant argued that the Court of Criminal Appeal had erred in its approach to sentencing, and alternatively, that the non-parole period fixed was manifestly excessive.
The High Court allowed the appeal, finding that the sentencing judge and the Court of Criminal Appeal had erred in their approach. The Court clarified that while a life sentence is mandatory for murder in South Australia, the subsequent fixing of a non-parole period is a separate judicial exercise. It held that a prisoner's age, including youth, can be a relevant consideration in determining the non-parole period, not necessarily as a factor counting against the prisoner, but in relation to prospects of reform and rehabilitation. The Court rejected the notion that a non-parole period should be calculated with mathematical precision based on life expectancy, a practice sometimes referred to as the "von Einem factor." The matter was remitted to the Court of Criminal Appeal of South Australia to be dealt with in accordance with the High Court's reasons.
Orders
Orders of the court
1.
Appeal allowed.
2.
Set aside the order of the Court of Criminal Appeal of South Australia entered on 4 April 1997.
3.
Remit the matter to the Court of Criminal Appeal of South Australia to deal with the appeal to that Court conformably with the reasons of this Court.
Background
Background to the litigation
On the basis of this comment the appellant complains that the determination of his appeal[10] against sentence miscarried. Alternatively, he submits that the non-parole period fixed in his case was manifestly excessive and such as ought to have been reduced by the Court of Criminal Appeal. By special leave, he appeals to this Court. The point of importance in the appeal concerns the relevance of the consideration of age to the judicial determination of a non-parole period under South Australian law in a case in which the sentencing judge was obliged to impose a sentence of life imprisonment.[10]By leave earlier granted by Williams J on 24 February 1997.The facts When the appellant, Mr Christopher Inge, pleaded guilty to the charge of murder, it became the responsibility of the sentencing judge (Millhouse J) to find the facts relevant to the sentence to be imposed on him. A great deal of evidentiary material was placed before the judge. There was no oral evidence. The material included statements taken by police from members of the family and friends of the appellant and of his co-accused, Mr John Schultz, postmortem and scientific reports concerning the deceased and his home, psychiatric reports about the appellant, victim impact statements written by two sisters of the deceased and two letters written by the appellant. One of these letters was a note by the appellant to his girlfriend, expressing remorse, said to have been written in connection with a suicide attempt by him late on the day of the offence. The other was a letter written to the sentencing judge at the time that the appellant's sentence was under consideration. On 4 December 1995 the appellant, his sister T and Mr Schultz, spent the day drinking beer and rum. By late in the evening they were all heavily intoxicated. At about midnight, T left the party, went for a walk and returned to her room crying. Mr Schultz extracted from her details of certain sexual misconduct which she alleged against the deceased. She said that it had been committed at a time when she was 8 or 9 years old. T stated that she and her sister had been left in the care of the deceased by their parents. The deceased was their neighbour. T said that various sexual acts of the deceased performed upon them and in their presence were eventually drawn to the notice of the parents, who allegedly confronted the deceased. He denied any misconduct. This led to an estrangement which was subsequently repaired. T did not describe all of her allegations to Mr Schultz, as she later did to police. But she told him enough to cause him to go to the deceased's home to "sort the matter out with him"[11]. [11]R v John Andrew Schultz and Christopher Alexander Inge unreported, Supreme Court of South Australia, 23 December 1996 at 2 per Millhouse J ("Sentence"); cf Appeal judgment at 5 per Williams J. Mr Schultz drove the appellant to the deceased's premises in his car. They arrived at about 1 o'clock on the morning of 5 December 1995. The deceased was living alone. He was described as a man of 68 years, small in stature. The appellant called out to the deceased to let him in. The latter refused, telling the appellant to go away. Instead, the appellant removed a flyscreen from a window and climbed inside followed by Mr Schultz. The deceased armed himself with a piece of wood, obviously inferring violent intentions on the part of the intruders. The appellant took the wood from the deceased. He began hitting him with it and later with a claw hammer until the deceased was "well and truly dead"[12]. [12]Sentence at 2.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ, GAUDRON, HAYNE AND CALLINAN JJ
CJ, GAUDRON, HAYNE AND CALLINAN JJ
KIRBY J
Fifthly, the rehabilitative purposes of parole[74] may, depending on the circumstances of the case, make it appropriate in fixing a non-parole period to take into account, in a way favourable to the prisoner, his or her age. Thus, in the case of a prisoner of advanced years, it may be appropriate to fix a non-parole period shorter than would otherwise be the case in order to hold out the hope of release, to encourage good conduct in prison and to overcome the contemplation that the prisoner will die in custody. In the case of a relatively young prisoner, regard may be had to the immaturity of the offender, the prospect of reform and the common experience of courts that, with greater age, there is often a decline in at least some types of criminal offending. Because non-parole periods may, by law, be fixed in the case of prisoners sentenced to a mandatory life imprisonment, it can be taken that Parliament meant considerations such as the foregoing to be taken into account by a court which decides that it is appropriate to fix a non-parole period in a particular case. No formula, derived from actuarial tables or judicial estimation of life expectancy could defeat the operation of these considerations. Once a non-parole period is fixed, its duration must be open to the influence of all considerations. Age is one such consideration in South Australia both by statute[75] and by the common law. Age is not necessarily a consideration which "counts against" a prisoner, including a life prisoner.[74]R v Shrestha (1991) 173 CLR 48 at 69.[75]Criminal Law (Sentencing) Act 1988 (SA), s 10(l).Conclusion: the error of the "von Einem factor" In my opinion the appellant is entitled to succeed. The error of South Australian sentencing practice, demonstrated in the cases analysed, includes the presupposition that the non-parole period, in the case of a person subject to the mandatory sentence of life imprisonment, may be calculated with precision by reference to the presumed or proved life expectancy of that prisoner. I agree with the comment of Olsson J in Bednikov[76] that more was probably read into the decision of the Court of Criminal Appeal in von Einem than was intended by King CJ by his reasons in that case. There was nothing in those reasons to support the search for a mathematical formula to which the so-called "von Einem factor" has sometimes given rise. [76](1997) 193 LSJS 254 at 284. More fundamentally, there are a number of fallacies in the logic which has led judges in South Australia to the approach to which the appellant objects. Whilst it is true that Parliament in South Australia has required that, in all cases involving a conviction of murder, a sentence of life imprisonment must be passed on the prisoner, that requirement cannot be read in isolation. It exists within a matrix of legislation. In more recent times such legislation has imposed upon judges the further duty, where appropriate, to fix a non-parole period in such cases[77]. Such an order contemplates that the non-parole period will usually be followed by release of the life prisoner on parole. That step, in turn, if the conditions of parole are observed, contemplates the prospect that after no more than ten years nor less than three years on parole, the prisoner's sentence, although originally one of life imprisonment, will be wholly satisfied[78]. [77]Criminal Law (Sentencing) Act 1988 (SA), s 32.[78]Correctional Services Act 1982 (SA), s 67(6).
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ, GAUDRON, HAYNE AND CALLINAN JJ,
CJ, GAUDRON, HAYNE AND CALLINAN JJ,
KIRBY J