Inge v The Queen

[1999] HCATrans 241

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A38 of 1998

B e t w e e n -

CHRISTOPHER ALEXANDER INGE

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GAUDRON J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 10 AUGUST 1999, AT 10.15 AM

(Continued from 9/8/99)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Ms Abraham.

MS ABRAHAM   Your Honours, if I could take you to take case of Winters, which I believe copies are with the Court, and the purpose for doing this is to illustrate what the approach has been in this State to the fixing of non‑parole periods.  There is reference in Winters to an earlier judgment of his Honour then Chief Justice King in Stewart.  The page in Winters that I refer to is 353 where the current Chief Justice sets out, in effect, two questions:

“The first question which I think a judge has to ask himself on the application of this kind is:  what is the minimum time which the prisoner must spend in prison in order to satisfy the punitive and deterrent and preventative purposes of punishment?”

A little later he said (at 479):

“Having considered what is the minimum term of imprisonment which is required to meet the punitive and protective purposes of punishment I must then consider whether parole is appropriate on other grounds.  That involves a consideration of the likelihood of the applicant responding to parole.  I must consider what prospects there are of his rehabilitation by means of parole and what prospects there are of his observing the terms of parole, responding to it and leading a good and useful life in consequence.”

In my submission, those features and ‑ ‑ ‑

GAUDRON J:   His Honour then said that was not exhaustive.

MS ABRAHAM   Yes, I agree.  He said also that it is not necessarily done in a set way.  But, in general terms, in my submission, that is the approach that our courts have taken to the fixing of a non‑parole period since 1984 of the judgment of the then Chief Justice King.  That is illustrated in the case of Van Beelan, which is in my written submissions, then through to Von Einem – makes reference to it - and the more recent cases of Brices and the light continue to endorse that as the approach.

KIRBY J:   What does Winters add to our enlightenment?

MS ABRAHAM   In my submission, it adds this:  it shows that the approach to the fixing of a non‑parole period is not how old is the person, therefore what is the mathematical formula to be applied; it is rather these considerations which will lead in a given case to the appropriate non‑parole period.  That is why, in my submission, the non‑parole periods in this State, since truth in sentencing, which is August 1994, range from nine years to 32 years.  It is because of an application of these sorts of considerations and not a mathematical formula.

GLEESON CJ:   If age counts against you, in other words, if being younger counts against you, to use the language of one of the cases, does being in good health count against you?

MS ABRAHAM   In my submission, I know that the court in this case referred to counts against, but if that is used in the sense of it is a life sentence that one is looking at, and therefore for a younger person one is looking at potentially a longer sentence.  In my submission, one does not look to the health or otherwise except this:  if a person is in bad health, then clearly, that is always regarded as a mitigating factor if that affects the way they are going to serve their term of imprisonment.  That principle applies regardless of the offence that is to be had.

KIRBY J:   What about good ancestors?  Your mother and father are still alive at 97; do you count that against the prisoner?

MS ABRAHAM   Your Honour, in my submission, it is not counted against the prisoner.  If we could go back a step:  whether one like it or not there is mandatory life sentences for murder in this State.  I accept, of course, there is criticisms of that, one being that prima facie the younger person has a longer head sentence, potentially.  Of course, it being mandatory, there is no different grades to…..every offence of murder. 

In my submission, it is important to recognise that because Parliament has chosen in this State for that to be the situation.  That that is the inescapable consequence is obviously referred to in Von Einem, but even referred in the Victorian courts of more recent times when there has been arguments about whether there should be a life sentence or not.  Now, there is the discretion in Victoria and many of the arguments have been, should there, in fact, be a life sentence.

GLEESON CJ:   That is an incomplete statement of what Parliament has chosen.  Another part of what Parliament has chosen is the parole system under which if parole is granted there is a maximum of 10 years for the remaining sentence.  How is that taken into account in the process of reasoning that we have been looking at in the last day or so?

MS ABRAHAM   In my submission, it ought not to be taken into account, and, indeed, what a parole board may or may not do ought not to be taken into account.  Our court, in a matter of Pight, which is in my citation of the written submissions, and in the case of Smith &Turner refers to that particular proposition.

KIRBY J:   Is that on the basis that judges look after that which is proper to them, and the Parole Board can be assumed to look after that which is proper to it?

MS ABRAHAM   Yes, and indeed, in Pight, the judgment of Justice Cox, goes through why it is that one would not look at what the Parole Board might or might do.

GLEESON CJ:   Now I am looking at what the legislature has done.  The legislature has said that if a person is granted parole that has a very important effect on the head sentence.  It means that what was previously a life sentence is, as a consequence of a grant of parole, a different sentence.

MS ABRAHAM   In my submission, not so.  One has to start from the position, you are convicted of murder; you have a mandatory life sentence, regardless.  You then look to whether a non‑parole period is going to be fixed, and there is a power to decline to do so in this State.  So if there is no non‑parole period to be fixed, you remain in custody, subject, of course, to release in the exercise of mercy and the like.  If a parole period is fixed, then a person may apply for parole at the expiration of it.  They might not necessarily get parole.  Even if they do get parole, they might breach parole, in which case their life sentence is reactivated.

In my submission, to look to the fact that Parliament has obviously taken what might be regarded as a quite practical step in these circumstances, namely, if you have been of good behaviour for a maximum of 10 years then your sentence no longer exists, does not alter the fact it is a mandatory life sentence.  That is what you started off with.

GLEESON CJ:   One of the ideas of the truth in sentencing legislation in a number of States was to produce the result that what you see is what you get.  There must be quite a few people in South Australia whom the public think have been sentenced to spend the rest of their lives in prison, who are not in prison.

MS ABRAHAM   The people of South Australia realise that there is a non‑parole period before which that person cannot be released, unlike the previous systems where there were remissions and the like that were taken into account.  So, when one got a non‑parole period of 30 years one only ended up with 20.  In my submission, the purpose of truth in sentencing here is that this is what they have got.  This is the minimum they will serve, subject, of course, to the Parole Board making the decision to grant parole and referring that on to the Governor, and that being accepted.

In my submission, it is inappropriate to look to what might, hypothetically, be a consequence in due course, when what you start off with is the mandatory sentence which you might have to serve.

KIRBY J:   Is that because the position may be that the Parole Board, even though the judge has fixed a non‑parole period, may decline to grant parole?

MS ABRAHAM   Yes, they may decline to grant parole.  There is any number of ‑ ‑ ‑

KIRBY J:   And, in fact, a life prisoner may serve out the rest of his or her life in prison.

MS ABRAHAM   Yes, or if parole is granted and it is breached his life sentence is automatically reactivated.

KIRBY J:   Is there any case where a judge of this State has declined to fix a non‑parole period?

MS ABRAHAM   One that I am aware of.  A matter of Ellis some years ago.  So, it has occurred, obviously, and it would depend on the circumstances of a given case.

GLEESON CJ:   It is not impossible.  I have seen the numbers now.  I cannot remember them, but there is a significant number of prisoners in New South Wales who are there for life.  Life means life for them.

MS ABRAHAM   Clearly, it is an option in this State, and depending on the seriousness of the crimes, and obviously the crimes are getting to be rather serious, it may well be an option that will be exercised.  But it is a starting point.  It is mandatory life, regardless.  So, in my submission, that is why you cannot then in some way water that down, and say it is not really - because if you get the parole when we give it to you, and if you get the 10 years, and if you are of good behaviour, then you might have extinguished your sentence.  In my submission, that would be the wrong approach to take.

KIRBY J:   In your submission, do we read what Justice Perry said at face value, that is to say, that it counts against him, or was that a slip of the tongue, and it should be read as meaning, because of his age he does not get the benefit of the sorts of advantages that he would get if he were an older person, and should not die in prison?

MS ABRAHAM   I think, to be realistic, it means that this man at the age, I believe it was 24, has, on the face of it, a lengthy head sentence, a long head sentence.  I think, with respect, that that is all that it means.           In my submission, it is recognised, as I indicated earlier, or acknowledge, that young people with life sentences have got longer sentences.

GAUDRON J:   But did his Honour not go on to say it would be a rare case in which they cancelled each other out?

MS ABRAHAM   In my submission, that comment, no doubt, relates to the fact that we are dealing with murder, and in many cases of murder one is dealing with factual scenarios and circumstances which, when one is balancing the relevant considerations, the deterrents and the punishment aspect becomes the priority.  In my submission, that is borne out by what has occurred in this State because, as I have said, there is a wide variety of non‑parole periods, and indeed, in Von Einem it is recognised there would be a wide variety of non‑parole periods.  His Honour the Chief Justice recognises that, depending on the nature of the crime and the offender and rehabilitation.

KIRBY J:   Do you agree that this is a case where youth was a factor to be taken into account?

MS ABRAHAM   No, in my submission, 24 years at the time of sentence is not what one would regard traditionally as a young person.

KIRBY J:   I see in some other cases that I have been reading that up to 20 - I think Justice Lee in New South Wales, described 20 as still the - that youth was a factor to be taken into account.  When does youth fall off one’s shoulders?

MS ABRAHAM   In my submission, there is no, in South Australia, hard and fast cut‑off point.  It does depend on the particular circumstances, but with respect, when one is dealing with a 24‑year‑old man who commits what is a very serious crime, then ‑ ‑ ‑

KIRBY J:   He was 23 when he committed the crime.

MS ABRAHAM   It must be a situation where the weight, if any, that can be given to the youth aspect, if it being relative youth, must be very - - -

KIRBY J:   You would not, in this case, take into account the fact, in looking at youth, that this was a person with an IQ of 78 or something of that order?

MS ABRAHAM   In my submission, that is a different factor, because that factor, one assumes, would be in existence whether this man was 23, 33, 43.  That is a different issue again, and obviously a matter to take into account in the sentencing process.  But, purely on the question of age, in the circumstance of this offence, no, in my submission, it is not.

KIRBY J:   Does this demonstrate once again, the folly of trying to get down to hard and fast mathematical precision in sentencing, because if you look at that passage that Justice Gaudron has drawn attention to, the judge really is sort of trying to give weight to two conflicting factors.  On the one hand, the fact that because he is young he says that will count against him, and on the other hand that he should make some allowance for youth in favour of the defendant.  Leave aside this case, how do you reconcile those two things?  On the one hand, say it is a person of 19; on your South Australian principle, that would mean that you have to fix something proportionate to the life sentence and, in his case, on normal life expectancies, that is going to be a very long period and therefore that would count heavily against him, yet he is 19 and entitled to allowance for youth.  How do you reconcile those two considerations?

MS ABRAHAM   In my submission, if we could go back to what your Honour first said, that you then fix a sentence that is proportionate to life expectancy.  It is not, in my submission, as simple as that.  One has to look at what are the circumstances of the offence, and if we are talking about a person who is 19 and has committed what is regarded in this State to fall within what is referred to as the worst category of murder, then obviously the deterrent or the punishment aspect looms very large.  But, of course, one has to look at, he is 19; how does that fit in, in terms of rehabilitation, prospects of parole and the like?  So it is not, in my submission, that you add up and you subtract ‑ ‑ ‑

KIRBY J:   But they are pulling in opposite directions.  The one is pulling in terms of an extended period.  The other is pulling to reduce the extended period, and yet it is the same factor – youth.  How do you reconcile them?

MS ABRAHAM   In my submission, it is no different to the purposes of punishment pulling in different directions, and any number of factors pulling in different directions.  If, for example, it had a fixed head sentence, or a determinative head sentence, and one is looking at age and the gravity of the offence, you have obviously got a very high sentence, and you then look at the question of is there rehabilitative prospects.

GLEESON CJ:   The most obvious factor that time and time again is regarded as pulling in two different directions is mental impairment.  It might at the one stage be a mitigating, subjective factor, and at the same time it might make the individual dangerous.

MS ABRAHAM   Exactly right.  In my submission, it is not really, in some respects, pulling in different ways.  You have really got an inescapable consequence; a predicament that the trial judge is put in as a result of the legislation in this State.

GLEESON CJ:   Ms Abraham, is this a fair statement of the Von Einem principle, and please acquit me of any intention to introduce mathematical certainty into this.  I do not suggest any such thing.  It is as though, when confronted with a fit, relatively young murderer aged 23, the sentencing judge is supposed to say, “I have no discretion.  There is a mandatory head sentence of life”, which in the case of a person such as this offender means 50 or more years.  “If I were fixing a head sentence of 50 or more years myself, it would be disproportionately low to fix a non-parole period of, say, 15 years.  It would be regarded as a very strange sentence, a head sentence of 50 and a non‑parole period of 15.  Therefore, the proportionality which is required between the non‑parole period and the head sentence is going to bear against a young offender”.  Is that what the Von Einem principle amounts to?

MS ABRAHAM   Partly.  In my submission, it omits a fact and that is it is not simply that he is convicted of murder and he is young.  It omits a very important fact of what are the circumstances of this crime.  That, in my submission, is important.

GLEESON CJ:   I was not intending to say that that was an exhaustive statement of all the factors relevant to sentencing.  I was intending to identify one relevant consideration which can be summed up in the proposition the fact that he is young goes against him.

MS ABRAHAM   In my submission, one cannot look at one particular consideration in isolation because of the fact that in some instances a 15‑year sentence on a 53 year head sentence – using figures that your Honour used – is appropriate.

GLEESON CJ:   The fact that you cannot look at a consideration in isolation does not mean it is not a relevant consideration.  I was only inquiring whether the consideration that I endeavoured to summarise is, in your submission, a relevant consideration.

MS ABRAHAM   It is a relevant consideration in assessing the appropriateness of any non‑parole period.

GLEESON CJ:   And is it a fair statement of the consideration that is sometimes referred to as the Von Einem consideration?

MS ABRAHAM   It is to this extent:  in my submission, the judge does not sit down and work out what is the portion that I need here.  The judge sits down at the other end, looks at the facts, looks at what is required for the two questions that I have already raised, to determine that period.

KIRBY J:   Some judges have sat down, or stood up, and referred to the fact that the prisoner standing for sentence is 23 or so, and they have assumed he will live to 70.  One judge - it might have been Justice Cox - specifically said, “I assume he will live to 70”.  Where do you get that from?  Some people will live much beyond 70; some may live shorter than 70.  This is the problem with using an average as one of the factors in the mathematical variable.

MS ABRAHAM   I think part of the problem is it is not used as a mathematic.  It is used in the general sense, and without using it in some sort of general sense, in my submission, you are ignoring the fact that there is a mandatory life sentence.  If there is no reference at all to the fact, in a general sense, this man is 20, he is likely in the normal course of events, if a non‑parole period was not going to be fixed, to be in gaol for a long time – potentially 50‑plus years.  Then, in my submission, you are just ignoring the fact that Parliament has fixed a mandatory life sentence.

As I said earlier, it is an inescapable consequence of mandatory life sentences that that happens, that you do have prima facie a younger person with a longer head sentence.  The Victorian courts in Lowe and Denyer have pointed that out.  That is a consequence that is accepted.

KIRBY J:   You mention Victorian courts.  Is the Von Einem jurisprudence, which, to say the least, seems to be highly developed in this State, paralleled in your researches in any other jurisdictions of Australia?

MS ABRAHAM   No.  The only reference that I can find to age is, in fact, in Victoria, where the question of age arises as to whether or not, for example, a life sentence in the first place should be fixed, because there it is discretionary, and obviously it is considered that a younger person, if a life sentence is fixed, will have a much longer sentence and it will be much more severe on him.  It is also relevant in Victoria on the question of whether, on that life sentence, it having been fixed, a non‑parole period would be - - -

KIRBY J:   I looked at Fox and Freiberg, the new edition, which is in every other respect extremely thorough and extremely detailed, and it does deal with this issue in a paragraph, but there is absolutely no reference to anything like the extended case discussion of the matter that has occurred in this State, and yet the legal regimes appear to be very similar, relevantly.

MS ABRAHAM   They are.  But clearly, this State has chosen to approach it in a particular manner, which manner I think unfortunately is being interpreted as a mathematical manner.  Perhaps one way to best illustrate that is if one looks at what have been the longest non‑parole periods in this State, and they are not non‑parole periods imposed on young offenders, or youngish persons.  They are people that have committed crimes which have been regarded in the worst category of murder.

KIRBY J:   Is this a case of a crime in the worst category?

MS ABRAHAM   No, it was not categorised as that by the sentencing judge. 

CALLINAN J:   Ms Abraham, I suppose you would say that the legislation is a statutory rejection of the principle of parity in sentencing because the very expression “life sentence” inevitably involves different terms of imprisonment for people of different ages.

MS ABRAHAM   Yes.

CALLINAN J:   The legislature has deliberately turned its mind to this and has rejected parity for this most serious crime.

MS ABRAHAM   In that respect, yes.  Indeed, that is one of the criticisms of mandatory life sentences.  But, in this State, that is what the situation is and, in my submission, as Chief Justice King said in Von Einem, one cannot ignore that.

KIRBY J:   Yes, you cannot ignore it, but as the Chief Justice has repeatedly said, it cannot be taken in isolation.  It is in the context of a regime which also includes provisions for non‑parole fixed judges, the judicial branch of government.  As Justice Hayne said yesterday, the last chance the judicial branch has to fix some element of proportionality is the non‑parole period, and that is part of the regime.  Therefore, it is at that stage that the judge turns attention to the facts of the particular case, and the circumstances of the particular accused, and it is at that stage that the elements of proportionality come into play.  You cannot just say it is life sentence, because it is life sentence plus.

MS ABRAHAM   In my submission it is not.  Again, to go back a step.  When one is determining what the non‑parole period is, one generally – not in the case of a life sentence or mandatory life sentence – would have regard, obviously, to the head sentence in terms, and the maximum penalty, indeed, to determine what Parliament has said is the seriousness of the offence.

In my submission, if, when doing that in a case of mandatory life sentences, one ignores the fact that if the non‑parole period was not set, this person would have a long period in custody, would be to fix it as if there was no sentence.  What does one fix it against?  With respect, there must be something to fix it against.  There was much discussion yesterday about Murphy, and Murphy is important because that was in fact a Crown appeal.  It is important to bear that in mind.  So these different considerations are obviously highlighted in Crown appeals.  But, if one is taking an argument, “Well, this particular non‑parole period in the circumstances of the offence and the offender, is manifestly inadequate, what does one do it against?”  It must be, with respect, against the fact there is a mandatory life sentence imposed on this person.

HAYNE J:   What is the best authority you would rely on for the proposition that head sentence and non‑parole period must bear a relationship of the kind that you describe?

MS ABRAHAM   In this State I would refer to Von Einem and Tio and Lee; and in this Court, to the case of Lowe which was a determinative sentence.  It was a six year sentence with a one‑year non‑parole period that was imposed.  It came before this Court principally on an argument that there was disparity between the co‑offenders, and what had occurred in the Court of Appeal in Lowe is that to meet that argument the non‑parole period of Mr Lowe was reduced to one year.

KIRBY J:   There is a passage in Justice Dawson’s judgment in Lowe where he cites an earlier decision of this Court which seems to be along the lines that Justice Hayne was just asking.  I am referring to Deakin on 625.  This is for fixing the minimum term, which is presumably much the same, if not identical to the non‑parole.

GLEESON CJ:   I thought we were referred yesterday to a statement in the judgment of Justice Gibbs which made a point about proportionality.  Do you recollect that?

MS ABRAHAM   Yes, the matter of Bromley where it said that one had to judge the appropriateness of a non‑parole period fixed in this State against the fact, in effect, that it is against a mandatory life sentence.  Bromley, in fact, is important because on the Court of Appeal in this State the then Chief Justice King sat, and obviously made comments in relation to the non‑parole period that was imposed on Bromley – when that would expire, and how that would affect whether or not it was, in the circumstances, manifestly excessive.

KIRBY J:   And all members of the Court agreed with what Chief Justice Gibbs said on that point.  Justice Brennan wrote a separate opinion, but at the end of it he said he agreed with what the Chief Justice said, and all the other Justices simply agreed with the Chief Justice.

MS ABRAHAM   That is correct.

GLEESON CJ:   There is a difference, is there not, between saying when you are fixing a sentence for murder and the judge has no discretion as to the head sentence, in fixing the non‑parole period it is material to bear in mind the seriousness with which the legislature regards the offence as evidenced by the penalty imposed.  That is one proposition that may be regarded as unexceptionable.  It is a different proposition, is it not – or it certainly adds a considerable sting to that proposition to say there needs to be a proportionality between non‑parole period, and total sentence, which produces the consequence that in the case of a young, healthy offender with a long life expectancy, the non‑parole period on that account will be longer than would otherwise have been the case?  There is a difference between those two propositions, is there not?

MS ABRAHAM   There is but, in my submission, the second, in some respects, is an inescapable consequence of the fact that there is mandatory life sentences.

GLEESON CJ:   That is what this case is about.

MS ABRAHAM   But, in my submission, the problem with the second proposition is that the courts, with respect, do not set about what is the period that we say is proportionate.  What the courts do, and is clear from the authorities like Winters, is look at those two issues, and one assumes, applying the correct principles about purposes of parole and the like, if they are applied correctly, will end up with a period which is an appropriate proportion, which is what the phrase used by Chief Justice King in Von Einem was, that it was an appropriate proportion in the circumstances of the given case.  Not that there was a particular proportion.  Quite to the contrary.

In my submission, one does have to look to the general principles like those in Lowe and deal with them in relation to mandatory life sentences.  If they are not applied then it is, to some degree, to disregard what the legislature has done.

CALLINAN J:   Nearly everything that you say, though, can be catered for when the Parole Board comes to exercise its discretion, as it does when the application for parole is made after the expiration of the non‑parole period.  The fixing of a non‑parole does not detract from or in any way affect the integrity of the sentence or the strength of the sentence of life imprisonment.

MS ABRAHAM   It does not, but clearly, when one is determining what is the appropriate non‑parole period, and what justice requires in a given case, one must bear in mind what that head sentence is.

CALLINAN J:   But the whole matter is looked at afresh when the non‑parole period expires, and if, in fact, the justice, as it were, of the situation demands continued incarceration then the application will be rejected.

MS ABRAHAM   There are limited grounds on which they can be rejected.  They are set out in section 67.

CALLINAN J:   I do not know, you see.  If you look at section 67(4)(h):

any other matters that the Board thinks are relevant.

That is about as comprehensive as anything can be.

MS ABRAHAM   The court in Pight discussed these considerations and how they compared to previous regimes, because they are different.  It was on the basis of what is in those considerations that the court, amongst other things, decided that it was inappropriate to look to what the - - -

KIRBY J:   But that factor does not address the problem that until the non‑parole period expires, the Board does not get in on the act, and therefore our attention is addressed to the judicial branch and its fixing of what is the non‑parole period and what principle should govern that particular order because until that order has expired, and even then not necessarily, but not until then, does the Parole Board have any function at all to perform.

MS ABRAHAM   Yes, I agree.

KIRBY J:   Essentially, your bottom line is that Justice Perry is merely stating the obvious, that in the case of a young person age counts against them.  Because they are young, they have a long period in life, they would ordinarily be expected to have a long period.  We are not going to get into the age expectancy tables.  We are not going to assume it is three score years and ten.  We are not going to get down to the detail, but we know enough that a 23 year old is going to have a longer life than people who are 60, the age that was repeatedly mentioned yesterday.

MS ABRAHAM:   Yes, that is what I say, although as I said yesterday, the phrase counts against him.  It is not a good phrase, in my submission.  What we have is, in effect, a predicament that arises as a result of that fact.

KIRBY J:   It does seem like age discrimination, but I suppose you say that is inherent in life imprisonment and falling upon people at different ages, and if they happen to be young, life is going to mean something more than if they are older.

MS ABRAHAM:   Yes.  Can I just refer briefly to a couple of matters, and I would like to take the Court to them.  The first is as we have such a discussion on Von Einem, in my written submissions there are references to two cases which, in my submission, are important.  They are Fowler and Hart and the case of Bromley that I have already discussed in our Court of Appeal because they are judgments of the Chief Justice in those courts to illustrate what approach there is involved.  In my submission, it is also important to look at what has occurred since Von Einem and before Bricis, as my friend submits there is a change in Bricis, and the cases in my written submissions of Jarrett, Walton and the like illustrate what approach has been taken and, indeed, that there has been no change with some formula being now applied. 

My friend, in submissions, has said, amongst other things, that there is in 1996, in effect, an increase in non-parole periods, and I take it that the schedule that she has provided to the Court is supposed to illustrate that proposition.  I understand there is two schedules from the defence before the Court but, be that as it may, I made some general submissions yesterday about the appropriateness of using any such material.  Can I just highlight a couple of matters about the schedule which, in fact, illustrates the point that I make in this case.

KIRBY J:   Are you making the simple proposition that it is very difficult to judge the whole detail of a case in a schedule which has very few facts?

MS ABRAHAM:   It is, in my submission, worse than that in this case.

KIRBY J:   I do not think you need to elaborate that point.

MS ABRAHAM:   But, in my submission, it is worse in this case because we cover about five different parole and remission regimes in the schedule that is put before the Court.

KIRBY J:   Including the remission regime where, necessarily, the non‑parole periods were higher.

MS ABRAHAM:   Some of the cases on the list start from a situation where a non-parole period was set but at a time when it was expected they were not going to be released – that is way back in the early 80s – so non-parole periods were inordinately low.  They then increased, in Tio & Lee, the case referred to by my friend yesterday, was a change in legislation that

increased non-parole periods.  Remissions then came into effect, but one could not take them into account.

GLEESON CJ:   I think you can take it for granted that we are familiar with the danger of comparing sentences imposed under different sentencing regimes, and we are also familiar with the danger of some of the mythology that has grown up under released licence systems about the length of time people given life imprisonment actually spend in gaol.  Some of those people were released on a licence to mental hospitals, where they died.  But we do not need to persuaded of the dangers of making some of these comparisons.

MS ABRAHAM:   Thank you, your Honour.  In that case, in my submission the Court in fact ought not to use the tables provided by my friend to form the conclusion that my friend seeks the Court to do; in other words, to demonstrate that this non-parole period is so, in effect, out of kilter with everybody else that it must have been done as a result of this principle.  That cannot be gleaned from those statistics.  If any statistics or reference is to be used, in my submission, the appropriate period of time is that which is in the document that was filed as a result of what was filed by the defence as an annexure to our materials that begins at the truth in sentencing legislation.  We have and will provide to the Court, if the Court so desires, the Court of Appeal judgments and the sentencing remarks that go with that because it is clear, in my submission, that there has not been an increase in non-parole periods, quite to the contrary. 

Unfortunately, what there has been in the last few years in this State is some exceptionally serious crimes of murder committed by relatively young people.

KIRBY J:   There was no separate consideration in the Court of Criminal Appeal that when they reduced the sentence of Mr Schultz that, therefore, the proportionality between the sentence on Mr Schultz and on Mr Inge was changed.  That has not been raised in argument, so I suppose we can just ignore that?

MS ABRAHAM:   Yes.  Those are my submissions.

GLEESON CJ:   Thank you, Ms Abraham.  Yes, Mrs Shaw.

MRS SHAW:   Your Honours, first of all, in relation to the contention that the remarks of his Honour Justice Perry were a slip of the tongue, your Honours, the remark or the statement at page 257 that “youth counts against him” was not made in the context of the life sentence but was made specifically directed towards in determining the appropriate non-parole period, having quoted from Bricis where the court has said that for young offenders the non-parole period will generally be of very considerable length.

KIRBY J:   Yes, but would you deal with the proposition that really, if it is not a slip of the tongue, it is merely a statement of the obvious.  Chief Justice Gibbs in Bromley said:

A sentence of life imprisonment was mandatory and the appropriateness of the non-parole period had to be considered in relation to that circumstance.

MRS SHAW:   Yes.

KIRBY J:   Now, that was something that was adopted by all Justices of the court who sat in Bromley and, in a sense, it is merely stating the obvious, and when applied to a young prisoner who is sentenced to life imprisonment, it is inevitable that that young prisoner is going to have a longer period, on average, in prison than an older prisoner and, therefore, to that extent his youth counts against him.

MRS SHAW:   Yes.  Your Honour, the error that occurs is not that it counts against him by reason of the experience in prison but, specifically, it counts against him because when one assumes a life expectancy according to the Bricis approach then one must, for reasons not related to the gravity of the crime but purely related to the assumed life expectancy, increase his non‑parole period, and that ‑ ‑ ‑

KIRBY J:   The suggestion is you do not increase it, but you merely face the fact that it is not going to be reduced as it would be.

MRS SHAW:   No, and I can take your Honours to the appeal book at page 232 where his Honour Justice Williams, relying on Bricis, specifically puts to counsel, this is the position according to Bricis at line 18:

the Court of Criminal Appeal has said…..that was Bricis for example, you have got to look at age and making the non-parole period a proper proportion of the head sentence  ‑ ‑ ‑

KIRBY J:   What page is this?

MRS SHAW:   Page 238, I am sorry, your Honours, 238 of the appeal book, line 17:

you have to look at age and making the non-parole period a proper proportion of the head sentence, which means that younger people are likely to get longer sentences than older people.

And Mr Barrett, counsel, says:

Regrettably, from my point of view, yes…..remarks falling from individual sentencing judges and from the Court of Criminal Appeal.

His Honour Justice Williams says:

Bricis has said you have got to make it a proportion, which means that a comparatively young man – 23 I think your clients was…..Must expect to get, in the ordinary course, a comparatively longer sentence.  That is a starting point.

In other words ‑ ‑ ‑

KIRBY J:   Is that not consistent with what Chief Justice Gibbs said in Bromley that the non-parole period must “be considered in relation to that circumstance”, namely life imprisonment and in the case of a young person life imprisonment will be a longer period of time, on average.

MRS SHAW:   Yes, but in my submission, what his Honour Chief Justice Gibbs was referring to was when one talks about appropriate relationship one is reflecting the seriousness of the offence in the context of considering, as in that case, a very serious murder and as signifying that the seriousness of the offence is reflected in your non-parole period.

What is in issue here is whether or not you increase the non-parole period beyond what is proportionate to the offence, purely because you are attempting to achieve a proportion between life expectancy of a young person and his non-parole period, that is, you are punishing him not for the gravity of his crime because by chance he has a higher life expectancy at the time that he comes to be sentenced.  When we say a higher life expectancy, of course, that is an assumption because for an Aboriginal person in custody his life expectancy might be quite difference.  For a female person whose life expectancy is said to be seven years longer than a man, presumably her non-parole period will be increased beyond the non‑parole period of a man.  So that the error is to use the notion of appropriate relationship to specifically increase beyond the proportionality to the crime the starting point for the fixation of your non-parole period because of an assumed life expectancy.

Your Honours, the history in this State of that method of application of Bricis, your Honours, far from being a slip of the tongue, has consistently been applied, and I hand up to your Honours a chronology which sets out the specific reliance on the Bricis principle.

KIRBY J:   But you seem to be saying that Chief Justice Gibbs was meaning and that the correct principle is that you only take into account the circumstances of the offence and you do not take into account the way the sentence of life imprisonment fixed by Parliament falls on the offender.  But the traditional principle of sentencing is that you have to take into account both, and in so far as you take into account how it falls on the offender, then you cannot ignore the youth of the offender and that for a young offender a sentence to life imprisonment, that means a longer period in prison.

MRS SHAW:   Your Honour, we say that the reason that one cannot approach it in that way is because one cannot assume that a younger person’s crime is graver, and ‑ ‑ ‑

KIRBY J:   But that is because you are looking at the crime.  You are looking at the facts of the crime, but I am saying that in sentencing - in fixing a non-parole period you have to take into account not only the circumstances of the crime, but also the circumstances personal to the criminal, the offender, the prisoner ‑ ‑ ‑

MRS SHAW:   Yes.

KIRBY J:    ‑ ‑ ‑ and if that includes age, then it is inescapable that the prisoner is going to spend a longer period in prison on a life sentence.

MRS SHAW:   Your Honour, we say it is not inescapable that he will spend a longer time in prison on the life sentence because the period he spends in prison is not determined by the mandatory life sentence which is indefinite.  The period he spends in prison is determined by the parole regime which is the subject of legislation, and the parole regime which is the subject of legislation does not suggest that in the judiciary applying that parole legislation it should take account of the mandatory sentence of life and thereby uses a starting point, a higher non-parole period for a young offender.  The non-parole system that has been put in place which allows the judicial system to treat every person before the court on a just basis and an equal basis makes it plain that there is to be parity and for the purposes of sentencing young persons in particular, that parity should apply.

HAYNE J:   The difficulty may emerge as starkly as in any other case by considering the case of the offender who stands for sentence 15 years after the offence.  Such cases are not unknown.  Is that offender to receive a smaller non-parole period because he or she has escaped detection and trial for 15 years?

MRS SHAW:   Yes, your Honour, we say that bears out the error of treating the starting point as the life expectancy.

GLEESON CJ:   Looking for a proportionality between a non-parole period and a head sentence of life, in a situation where the same head sentence applies to a person who without intent to kill committed a crime of homicide once, and a contract killer who wiped out a large number of victims for reward, all with the same head sentence, demonstrates the tension between having a parole system and having mandatory life sentences, which has to be accommodated in some way.

MRS SHAW:   Your Honours, our submission is that in the end courts are given the discretion to achieve parity and justice and not to increase a sentence for reasons unrelated to the person or the crime.

KIRBY J:   No, but it is related to the person.  It is related very much to the person and the person’s age which is fixed in time and cannot be escaped.

MRS SHAW:   But, your Honours, the question is whether or not that age means that his offending is more culpable or whether it is more deserving of a ‑ ‑ ‑

KIRBY J:   But that is the facts.  You see, you want to get it all back into only looking at the circumstances of the offence, but in fixing the sentence, in most cases, though not where Parliament has fixed it, and in fixing non‑parole periods, in all cases, you have to take into account not just the facts of the heinous nature of the offence or the exculpating circumstances, but the matters personal to the offender.

MRS SHAW:   Yes.

KIRBY J:   In the case that we are debating, it involves consideration of the age, and in the case of young people, that a life sentence will ordinarily mean that they will serve a longer period of time, unless relieved by a non‑parole period.  That is all I take it that the Von Einem line of territory has been saying, that it is inescapable in logic that a life sentence will fall more heavily unless relieved by parole upon a young person.

MRS SHAW:   But, your Honour, in my submission there is more to it in the sense that what has occurred is that since Bricis the Von Einem principle has been applied not for the purposes of considering the practical effect on the prisoner if he is older, but for the purposes of using as a starting point for the fixation of the non-parole period on a younger person an assumed life expectancy.  So, inevitably, the starting point for the younger person is higher than for someone who is 40 or 30.

KIRBY J:   How do you submit – because I have some sympathy, speaking for myself, to the notion that young people should not have a discrimination against them just because they are young – one can accommodate the realities of the fact that a person who is young will serve a long period, and that reality with the avoidance of such discrimination?

MRS SHAW:   In two ways.  One is that one only arrives at the point that the younger person is going to serve a longer period by reason of assumptions about life expectancy and it is improper judicially, we say, to endeavour to adjust in accordance with Vanit v The Queen what is a life sentence.  But, more importantly, the indefinite sentence has been superseded by an entire parole structure which the Hansard debates – and they are set out in our written submission – make plain are for the purposes of encouraging rehabilitation and, in particular, recognising the importance of rehabilitation to youth.  So the very intention of the parole provisions was to recognise the importance of prisons being reformative and rehabilitative and in that sense the intention of the parole provisions was to provide a method of accommodating the capability for reformation of a younger person than of an older person.  It would be inconsistent with the entire parole legislation, we say, to interpret in the way that is suggested that somehow Parliament, in any event, intended that the starting point for younger people would always be higher.

Your Honours, as is - perhaps just two points in relation to the schedule.  The first is that although the Crown has said that there has not been a mathematical formula adopted in this increase of the non-parole period beyond what is proportionate, the fact of the matter is that the mathematical tables approach in Shaw was approved by the Full Court as being entirely proper in the context of Bricis and has been applied since; and, of course, in Murphy’s Case itself, the Court decided that a one-third proportion of assumed life expectancy was not enough, it had to be increased to approximately a half.  Importantly, in this context, we say that if one was to approach the question of fixation of a non-parole period by using as your starting point a proportion between assumed life expectancy and youth, then that proportionality would always predominate over any other considerations which supported a lesser term. 

So we say in those circumstances that the parole system in this State is completely inconsistent with the argument for the Crown.  In addition to that, we say if one looks at Lowe’s Case, the Victorian decisions my learned friend referred to, in fact what the Victorian Full Court was saying in Denyer’s Case in the judgment of his Honour Chief Justice Phillips was that because the person is younger, the non-parole period should be shorter because the experience of prison is harsher on a younger person.  That is the context in which the Victorian decisions were dealing with the question of youth and its severity, severity in terms of impact, not in terms of suggesting that therefore the penalty should be longer.

Your Honours, in terms of the Crown position, the suggestion that Winters is the appropriate approach that is being adopted in this State, we say that, as the schedule bears out, Winters does not address what is being called the Von Einem factor in relation to young persons and the consistent approach that has been adopted in this State is the approach that my learned friend in her written submissions clearly confirmed that age is a relevant factor in imposing the non-parole period of a prisoner.  It follows as a practical consequence that a young offender, because of life expectancy, may serve a longer period in prison and that has been the Crown’s position which has resulted in the various judgments that have considered the question of proportionality in relation to life sentence.

Your Honours, finally, just to confirm that the Bricis principle is being applied in this way up until the present day, there are in fact three appeals, I think, pending where the Bricis principle has been applied in particular to increase the non-parole period of a young person.  Those appeals are pending in the Full Court in the State, awaiting the outcome of this decision.

CALLINAN J:   Ms Shaw, some cases or some judges have said, I think, that a sentence should not be imposed that is so crushing that it is overwhelming.  You know the statements to that effect?

MRS SHAW:   Yes.

CALLINAN J:   Do those statements have any relevance to the fixing of a non-parole period for life imprisonment?

MRS SHAW:   They have relevance in two ways:  in relation to a young person, the need to see light at the end of the tunnel would support a shorter non-parole period and in relation to old people, the provision of mercy at the end of someone’s life.

CALLINAN J:   So you say though they apply directly to the pitching of a non-parole period in the same way as they would to a discretionary sentence?

MRS SHAW:   Yes, because their non-parole period, as the section makes plain, is completely discretionary.  Section 32 leaves it open that the court effectively is invited to use all the common law principles that govern sentencing and, of course, in addition to that, section 10 of our Criminal Law (Sentencing) Act.

KIRBY J:   When would your client cease to be young for the purpose of your arguments?

MRS SHAW:   Well, your Honours, one can only refer to the statements of various judges who appear to be, as in Bricis and Moyle, young men in their 20s, that youth is a mitigating factor in terms of their immaturity and responsibility for the crime.  In addition to that, of course, their capacity for rehabilitation.  Certainly it is relative, but we say that someone in their 20s the courts can regard as having a better capacity for rehabilitation ‑ ‑ ‑

KIRBY J:   But the statistics demonstrate beyond doubt that that is the peak period of criminality, young males ‑ ‑ ‑

GLEESON CJ:   Violent criminality.

MRS SHAW:   Yes.

KIRBY J:   Therefore, you are saying that every prisoner who comes for sentence is entitled to this leniency, although this is the ‑ ‑ ‑

MRS SHAW:   Your Honours, maybe it is the peak period of crime, dare I say, because that is the turning point and having given leniency, they do not offend again.  That is what we would hope.

KIRBY J:   Older people sometimes just get tired.

MRS SHAW:   Yes.

GLEESON CJ:   Then we will reserve our decision in this matter.

AT 11.12 AM THE MATTER WAS ADJOURNED