Inge v The Queen

[1999] HCATrans 240

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 MONDAY, 9 AUGUST 1999, AT 2.15 PM

Copyright in the High Court of Australia

MRS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR C.J. KOURAKIS, QC, for the appellant.  (instructed by Wallmans)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MS J.M. WOITHE, for the respondent.  (instructed by Director of Public Prosecutions (SA))

GLEESON CJ:   Yes, Mrs Shaw.

MRS SHAW:   May it please the Court.  The error of law complained of in this appeal and the error in the approach of the Full Court in this case is that in a fixation of the minimum term for a life sentence for a murder, youth is a factor which will tend to increase the length of the minimum term.  That approach is to be seen in the judgment of the Full Court at page 257 of the appeal book.

GAUDRON J:   Is its technical term over here “minimum term” or “non‑parole period”?

MRS SHAW:   The term used is “non‑parole period” but under the previous system where release was automatic at the end of the non‑parole period, that clearly was the appropriate term but the system now in operation since truth in sentencing in 1994 is that, in fact, the court fixes the minimum term after which the prisoner can apply for release on parole and thereafter release is discretionary.

GLEESON CJ:   It is not material for you to do it necessarily right now but at some stage we would like to understand the statutory scheme governing parole and release relevant at the time of this judgment.

MRS SHAW:   I can take your Honours to that immediately.  The relevant legislation is in the table of legislation volume 1 provided by the Crown.  The relevant provision that relates to the fixation of a non‑parole period is section 32 of the Criminal Law (Sentencing) Act which is behind the green divider, the second legislation and it is section 32.  The section provides:

Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must –

(a)  if the person is not subject to an existing non‑parole period‑fix a non‑parole period –

The other provisions and subsections do not bear upon the fixation of a non‑parole period for the first time by a court.  The provisions that relate to release on parole are contained in the Correctional Services Act which is behind the red divider. The relevant provision in relation to prisoners serving life imprisonment is section 67(1) which provides that:

Where a prisoner is serving a sentence of life imprisonment or is liable to serve a total period of imprisonment of five years or more and a non‑parole period has been fixed in respect of the sentence or sentences‑

(a)  the prisoner…..

may apply in the prescribed manner to the Board for the prisoner’s release on parole.

KIRBY J:   Mrs Shaw, I am suffering a discrimination here.  I do not have a red divider.

MRS SHAW:   I am sorry, your Honour. 

KIRBY J:   The Chief Justice has a red divider but I do not have a red divider.

MRS SHAW:   I apologise, your Honour.  It is the last document in the book of legislation behind the last divider.

KIRBY J:   What is the name of the statute?

MRS SHAW:   Correctional Services Act 1982. It relates to the parole provisions. Did your Honour find section 32 in the Criminal Law (Sentencing) Act?

KIRBY J:   The last statute in my collection is the Criminal Law (Sentencing) Act.

MRS SHAW:   Your Honour, I will hand up to your Honour Mr Kourakis’ copy.

KIRBY J:   I still only have a green and a blue divider.

MRS SHAW:   Your Honour, the Criminal Law (Sentencing) Act is, in any event, one of the relevant statutes for the purposes of considering the parole scheme.  Section 32 of the Criminal Law (Sentencing) Act is the relevant provision to release on parole and in relation to the ability to achieve release. It is contained in section 67 of the Correctional Services Act.  Does your Honour have that statute?

KIRBY J:   I am sure it is here somewhere.  The bottom line is that you are not released on the expiry of the non‑parole period.  You still have to make application.

MRS SHAW:   That is so.

KIRBY J:   That goes before the Parole Board which makes its decision on the basis, presumably, of the information supplied relating to the nature of the prisoner’s behaviour in prison and so on.

MRS SHAW:   That is so, section 67(1) and then the Parole Board, under section 67(6) recommends to the Governor, may recommend, not obliged to:

may…..recommend to the Governor that the prisoner be released from prison…if the Board so recommends -

and in that recommendation under subsection (a) the Board must recommend a period which is specified under (a)(ii) as being:

not less than three years or more than ten years, for which the prisoner should continue on parole – - -

GLEESON CJ:   Does that mean that the maximum period of time you can be on parole is 10 years?

MRS SHAW:   Yes.

GLEESON CJ:   Does that mean that if you are sentenced to imprisonment for life at the age of 20 with a non‑parole period of 20 years and you are released at the age of 40, your sentence will, by virtue of that release, expire at the age of 50?

MRS SHAW:   Yes. In other words, the unknown period is the date after the non‑parole period that is fixed to when the Parole Board recommends to the Governor that you may be released. It might be immediately. It might be indefinitely but once you are released it is fixed as between three and 10 years and, indeed, section 70 of the Correctional Services Act provides, in relation to the duration of parole for life prisoners:

A prisoner serving a sentence of life imprisonment who is released on parole will, unless the release is cancelled or suspended, or the sentence is extinguished, remain on parole…..

(b)  in any other case‑for the period recommended by the Board and approved by the Governor.

(2)  On the expiry of the parole of a person pursuant to subsection (1), the sentence of imprisonment will, subject to this Part, be taken to have been wholly satisfied.

GLEESON CJ:   So that period referred to in (b), that is “the period recommended by the Board and approved by the Governor” cannot be for more than 10 years?

MRS SHAW:   That is so.

HAYNE J:   There are two variables, are there not?  One, although a judge may have set a non‑parole period, the Board must, nevertheless, make its decision that the offender be released on parole and secondly, the Board must set a period within the limits prescribed during which the offender is on parole where, if the offender does not reoffend, it will lead to the offender being discharged from the sentence.  Is that the position?

MRS SHAW:   Yes.

HAYNE J:   Now the Parole Board, relevantly, is an arm of the executive, is it not?

MRS SHAW:   Yes.

HAYNE J:   And is it subject to judicial review or supervision in any respect?

MRS SHAW:   In terms of judicial review, the usual principles of natural justice can be called in aid depending on what the issue is.

HAYNE J:   And it is subject to judicial review?  The Victorian Parole Board, with which I have some familiarity, is explicitly excluded from any form of judicial review of any kind but this parole decision would be a reviewable decision, would it, by the courts?

GAUDRON J:   It would be reviewable by means of the prerogative writs, I take it.

MRS SHAW:   Yes, the only method of review is by prerogative writ.

GAUDRON J:   And so, by and large, that means for jurisdictional error?

MRS SHAW:   Yes.

GLEESON CJ:   Now, the provisions that you have just been referring us to seem to suggest that to say that in South Australia there is a mandatory sentence of life imprisonment for murder is a very considerable oversimplification.

MRS SHAW:   Certainly.

GLEESON CJ:   And really rather misleading.

MRS SHAW:   It certainly does not represent the intention of Parliament, if one compares it to what is evident from its parole legislation, namely, that although the sentence is an indefinite term, it is clearly not contemplated by the overall effect of the parole legislation that every prisoner sentenced to life should stay in prison for the term of his natural life.

GLEESON CJ:   Now, where do we find the legislation specifying the mandatory life imprisonment?

MRS SHAW:   In section 11 which is in the Criminal Law Consolidation Act.  I cannot guarantee where that is in your Honours’ books but it is section 11 which simply reads that:

Any person who commits murder shall be guilty of an offence and shall be imprisoned for life.

That, of course, came about as a result of the abolition of the death penalty.  It was a substitution for the abolition of the death penalty and since that time, as we have outlined in our written submission, the parole provisions were said to apply indiscriminately to sentences for murder as to any other penalty.  There was no differentiation made in relation to sentencing under section 10 of the Criminal Law (Sentencing) Act, for example, that special provisions apply to sentences of life imprisonment.

KIRBY J:   I may have missed something because I was distracted, but can the primary judge, the sentencing judge, decline to fix a non‑parole period at all?

MRS SHAW:   Yes, there is a provision that enables that to occur.

KIRBY J:   And in that case can the prisoner apply to the Parole Board, notwithstanding the failure of the primary judge to fix a non‑parole period?

MRS SHAW:   He can apply back to the court for the fixation of a non‑parole period.

KIRBY J:   But at least, theoretically, the primary judge could regard the circumstances as so horrific that he or she would not fix a non‑parole period and/or the Parole Board would decline to fix a period for release on parole on an application by the prisoner.

MRS SHAW:   Certainly section 67 makes it plain that there is no obligation, on no matter how many applications, to order release.

KIRBY J:   I imagine that would be rather rare, if it ever arises.

MRS SHAW:   I am sure it would be.  Your Honours, that being the position of our general parole legislation, this Court, in a case of Winters (1997) 192 LSJ 350, and I have no need to take your Honours to it, accepted that the principles of this Court in Bugmy apply to the interpretation of this parole legislation.

Your Honours, coming back then to the error that we say has developed in our Full Court in the approach to sentencing, in the appellant’s case he was just 23 years of age at the time.  In fixing the non‑parole period that the complaint on appeal included the complaint that the learned judge had failed to give sufficient weight to the youth of the offender, but at page 257 in the Full Court judgment delivered by his Honour Justice Perry his Honour said at line 17:

Mr Barrett conceded that in setting a non‑parole period for murder, age was a factor which must be taken into account.

Your Honours, the submission made by Mr Barrett is set out at page 240 of the appeal book, perhaps commencing at the bottom of page 239.  Mr Barrett actually said, at line 35, having referred to the history of this topic:

what I am seeking.  Let me make my position clear less I be misquoted later, if there be a later.  It is my submission, contrary to the authorities to which your Honour Williams J has made reference and which I concede –

and that, of course, was Bricis –

that one ought not to engage in the exercise of making the calculation about balance of life and the age of a particular accused, and that one ought to regard youth as a matter of mitigation for the reasons that used to always be regarded as a matter of mitigation;  immaturity, inexperience and all those sorts of things.

GLEESON CJ:   Is that relevant to the present case?  What was the age of the offender at the time of the murder?

KIRBY J:   23.

MRS SHAW:   It is relevant in relation to the question of his eligibility for parole.

GLEESON CJ:   Yes, but in relation to the matters to which you were just referring.

MRS SHAW:   In the fixation of the non‑parole period?

GLEESON CJ:   Yes.  Now, youth as a mitigating circumstance does not have much to do with this case, does it?

MRS SHAW:   It is relevant in this case because, in particular, this particular person was, according to the psychological assessment, not only only 23 but also borderline mentally retarded.

GLEESON CJ:   I understand the second factor.

MRS SHAW:   Yes.

GLEESON CJ:   And I understand that youth and age are relative concepts, but a 23-year-old murderer is not normally regarded as a young person.

MRS SHAW:   A number of cases in this State certainly have recognised that someone who is in their young 20s is properly to be regarded as someone in respect of whom youth is a mitigating factor.

GLEESON CJ:   Immaturity was not the problem here, was it?

MRS SHAW:   The psychological profile included not only that he was intellectually retarded.  He had brain damage and was borderline retarded but also that he was easily led by the more intellectually able and older Schultz so, to that extent, it reflected on his culpability for this offence and, not only that, it was relevant to his prospect of rehabilitation so certainly, as a mitigating factor, it was relevant but the issue that is raised by this appeal is the circumstance that it is, in fact, being used as a circumstance of aggravation for the purposes of lengthening the non‑parole period.

GLEESON CJ:   I understand that.

MRS SHAW:   What his Honour Justice Perry said, setting out the principle from Bricis which has come to be known as the Von Einem factor in the passage that he quotes, in particular at line 23:

The non‑parole period must be an appropriate proportion of the balance of the prisoner’s life.  It necessarily follows from that that in the case of relatively young offenders the non‑parole period will generally be of very considerable length.  This is an inescapable consequence of the duty of the court to maintain an appropriate proportionality between the length of the non‑parole period and the duration of the head sentence.”

Inge was 23 and his relative youth counts against him in determining the appropriate non‑parole period.  But I accept that, nonetheless, one can separately make some sort of allowance for youth in favour of the defendant.  But, for the reasons identified in Bricis, it would be an unusual case in which that could cancel out the allowance to be made the other way.

GLEESON CJ:   At the time of that decision in Von Einem, was this provision that fixed the maximum parole period at 10 years in effect?

MRS SHAW:   In effect, except that the provision governing release on parole was the maximum period that you spent in prison.  In other words, when the court fixed a non‑parole period you were entitled to automatic release and the only role of the Parole Board was to set the conditions of parole.

GLEESON CJ:   But was the maximum time that you would spend on parole 10 years?

MRS SHAW:   Yes.

GLEESON CJ:   It just seems to me, at the moment, that that is a very important qualification on the statutory scheme that may, possibly, make it a little misleading to assume that the rest of your life, as it were, is the period of your sentence after you are released on parole.

MRS SHAW:   Certainly, under the previous scheme at the time that the case of Von Einem, that is referred to, was decided the court would know definitely, effectively, what the period was that the prisoner would spend in prison before he was released on parole and that was also subject to remissions so he would fix a period that resulted in automatic release and, as is set out in the judgment of this Court in Hoare and Easton would have regard to remissions.  At 20.3 of our submissions at page 15 we refer to the relevant provision of the Prisons Act that set out that the period of three to 10 years applied to life sentences.

KIRBY J:   Is the sole complaint here the mistake of Justice Perry?  Justice Perry was concurred with by the third judge of the court, was he not?

MRS SHAW:   The three judges concurred with his Honour Justice Perry in relation to the appellant Inge.  His Honour Justice Williams dissented in dismissing the appeal.

KIRBY J:   Is there any complaint about the way the issue of age was treated by the sentencing judge?

MRS SHAW:   There is not an identifiable error in the way he expresses himself but the sentencing judge was part of the quorum of Bricis itself and the penalty imposed of 20 years, when compared with other penalties imposed up until Bricis’ Case, both in relation to older offenders and younger offenders, makes it plain that the only justification for a non‑parole period of 20 years without remissions could be because you have increased the sentence to make it a proportion of an assumed life expectancy.

GLEESON CJ:   But Mrs Shaw, if your client is, in fact, released at the end of 20 years then the effect of the statutory provisions will be that the time he spends in prison will be two thirds of the total sentence.

MRS SHAW:   Is your Honour assuming ‑ ‑ ‑

GLEESON CJ:   Assuming a maximum parole period of 10 years.

MRS SHAW:   Yes.

KIRBY J:   That is on an assumption that “life” means “natural life” as distinct from the studies by Mr Byles and others that suggests that it, on average, has a different content.

MRS SHAW:   Yes.

HAYNE J:   And it would bear a different proportion according to the length of the parole that is granted?

MRS SHAW:   Yes, that is so.

HAYNE J:   An act of the executive rather than the judiciary?

MRS SHAW:   Yes.  To anticipate that he would be released at the end of 20 years is to make assumptions and one can never say whether he will be.  To assume that his life expectancy fits with the average is, again, an assumption.

GLEESON CJ:   But I understand the theory you are criticising to be that you make the assumption.  You go to some actuarial tables, for example, and you say a 23-year-old male might expect to live for another 50 years or more and, as I understand your argument, you say the courts here take that 53 years into account in fixing the non‑parole period, approaching it with a concept of seeking for a reasonable proportion between the non‑parole period and 53 years.

MRS SHAW:   Yes.

GLEESON CJ:   I cannot quite understand why you take 53 years.  I cannot understand why you would not look to the statutory scheme and note that the maximum period on parole can be only 10 years.

MRS SHAW:   We would say the error in doing that would be to assume that you were to be released at the end of the parole period fixed by the court and that cannot be known.  But, in any event, we say that it is not a proper principle of sentencing to approach the non‑parole period from the point of view that it must represent a particular proportion of the head sentence and we say that the fundamental principle is that the head sentence and the non‑parole period are fixed so that in accordance with Bugmy principles the non‑parole period is the period which is proportionate to the circumstances of the offence and the offender and the minimum time before which he becomes eligible for parole.

The error that has arisen, we say, is that because the court has attempted to translate to the fixation of a non‑parole period for an indefinite sentence, it has applied principles that just cannot apply and the reason is that, for an indefinite sentence, the mandatory indefinite sentence applies irrespective of the seriousness of the offence.  It does not distinguish between very serious murders and less serious murders whereas, if one was, for example, to deal with the head sentence that was fixed by reference to a maximum of life imprisonment.  When one came to fix the maximum sentence one would consider the gravity of the offence in the light of the culpability of the offender and the circumstances of the offence.

GLEESON CJ:   Mrs Shaw, what are the sentences of “indeterminate duration” that we find referred to in section 67(2)?

HAYNE J:   Are they Division 3 of the Criminal Law (Sentencing) Act offences?

MRS SHAW:   Your Honours, I think that it relates to a person who is unable to control their sexual instincts, but I will just ‑ ‑ ‑

HAYNE J:   Section 23 of the Criminal Law (Sentencing) Act found in Division 3?

MRS SHAW:   I will come back to that, if I might, your Honours.

GLEESON CJ:   Thank you.  Anyway, it has nothing to do with this case, has it?

MRS SHAW:   It relates to habitual criminals, offenders incapable of controlling sexual instincts.

GLEESON CJ:   Thank you.

MRS SHAW:   Your Honours, the reasoning of the Full Court in Bricis and in Murphy and in this case is that because the head sentence is set by Parliament as mandatory and it is life, then the non‑parole period, in order to reflect the gravity of the offences marked by that head sentence, must be some appropriate proportion of that head sentence and we say why that reasoning breaks down is that the head sentence incorporates different degrees of culpability.

KIRBY J:   The other basis for attacking it would be that you can never be sure in the particular case what the indeterminate sentence would have been because people die prematurely, people live a very long time.  Therefore, it is an imponderable.

MRS SHAW:   It rests on an assumption as to life expectancy but because the head sentence does assume and apply to every degree of criminality but it is the same, when one comes to the non‑parole period, the court’s duty is to assess different degrees of culpability and reflect those different degrees in the sentence.

KIRBY J:   Would you have had any objection if Justice Perry had said the courts in fixing a non‑parole period in cases of elderly prisoners have properly taken into account the fact that it would be a greater burden that the prisoner should die in gaol and therefore, have tended to provide for non‑parole period which is shorter for that reason and that, in that sense, this prisoner standing for sentence is not entitled to the benefit of that approach to sentencing which he would have had had he been an older prisoner.  Now, is there anything wrong with that?

MRS SHAW:   No.  If the prisoner is older, then it is relevant to the way that the sentence is going to impact on him.

KIRBY J:   And your client cannot get the benefit of that impact because – that is what I asked myself when I first read what Justice Perry had said.  Is he merely trying to say this man cannot get the benefit, as an older person would, of the mitigating fact that he would be dying in prison and that, therefore, sentence or a non‑parole period would fall more heavily upon him than it would in the case of a younger person and I can therefore put that consideration to one side.

MRS SHAW:   It is more than that, your Honour, for two reasons.  One is that when the Full Court has applied the Von Einem factor to young people it has used it to increase the length, whereas when one looks at the age of a person who is elderly, one is looking at it from the point of view of his rehabilitation or the effect on him as a mitigating factor.  Can I take your Honours to the case of what his Honour Justice Doyle said in Murphy’s Case to illustrate the way in which it is, in fact, being applied.  Murphy is number 3 in the book of cases.

KIRBY J:   We are now plunging into all the South Australian cases which, I suppose, in a way you start with Von Einem and then you go through all these other ones.

MRS SHAW:   It is unique to South Australia, with respect.

KIRBY J:   But what do you say, before we do that, is the correct principle?  I mean, the common law viewed youth as a mitigating factor.  Now, what is the correct principle?

MRS SHAW:   That is right.  The correct principle is that the approach to non‑parole period should be that the sentence is fixed in accordance with the culpability of the offender and the circumstances of the offence and, in that regard, the youth has no relevance and, in addition, in relation to the prospects of rehabilitation in accordance with Bugmy and Shrestha and, in that regard, youth is only a mitigating factor.  That is why it is that youth cannot enhance the culpability of the offence.

KIRBY J:   Can there not be that third step that age can be a mitigating factor that youth cannot demand because youth is not age?

MRS SHAW:   Yes, and the reason that age can be a mitigating factor is because one looks at the practical effect of the sentence on the prisoner.

KIRBY J:   It is a bit like illness.  Life‑threatening illness has been a factor that sentences have taken into account because it would mean that it would fall more heavily upon the sick or old prisoner.

MRS SHAW:   So these are matters that go to issues of humanity rather than the culpability of the offender for that particular offence and, for a young person, age is being regarded as mitigating, because it is said that imprisonment is a more severe punishment, for example, to someone who is young and not worldly, and therefore it can bear more severely upon him, quite apart from what is said to be his better prospects of rehabilitation, because of youth.

CALLINAN J:   Mrs Shaw, can you tell me please how “youth” is defined in the Young Offenders Act, because the definition in the Criminal Law (Sentencing) Act “youth” has the same meaning as in the Young Offenders Act?  What age defines ‑ ‑ ‑

MRS SHAW:   Yes, the Young Offenders Act applies to persons under 18 years of age.

CALLINAN J:   Eighteen, thank you.

HAYNE J:   Well do you seek to depart from or add to anything that was said in Bugmy about fixing minimum terms?

MRS SHAW:   We say Bugmy applies to the system in South Australia on all fours.

GLEESON CJ:   Is there any other jurisdiction in Australia, apart from South Australia, now where there is no discretionary capacity in a sentencing judge to fix a head sentence for murder?

MRS SHAW:   Your Honours, we prepared a schedule of what we thought were the relevant provisions in the other States; mandatory life sentences, death sentences, apply in Queensland, Western Australia and the Northern Territory, but there is no parole provision in the Northern Territory, whereas in New South Wales, Victoria and Tasmania there is an ability to fix head sentences of a fixed term.  I apologise, your Honour, and I hand up copies of that schedule.

Your Honours, can I say that there is no need to trace the history since Von Einem because we say - until Bricis, because we say the relevant history begins at Bricis, because Von Einem was dealing with a man who was – the court took the view that the parole period to be imposed was one that did not countenance rehabilitation and therefore the question arose, at what point in time did questions of humanity require his release.  What happened in ‑ ‑ ‑

GLEESON CJ:   And he was a man of 39, so that ‑ ‑ ‑

MRS SHAW:   Yes, 39 or 40, at the time of sentencing, and it was regarded as the worst murder in this State at that time, and there was no remorse.  He pleaded not guilty, and the court took the view that there were no questions of rehabilitation that should be brought into the consideration of the non-parole period.  What occurred in the case of Bricis – and I do not need to take your Honours to it – but specifically - perhaps I better, if your Honours please.

GLEESON CJ:   Well, you were just about to take us to Murphy, I thought.

MRS SHAW:   I was.  Murphy was an application of the Bricis principle, and at page 418 of Murphy’s Case, Mr Murphy was 19 years of age with no prior convictions, but it was the murder of his mother and his stepfather which he denied.  The learned sentencing judge had imposed 18 years, and this is under the current system, and it was a Crown appeal.  At page 418 his Honour stated the principle in the second last paragraph as follows:

The point was then made –

this is the Crown submission –

that in the case of a mandatory life sentence, the non-parole period must be an appropriate proportion of the balance of the person’s life.  As has been said before, to ignore the fact that the head sentence is the balance of the person’s life, and to fail to fix a non-parole period an appropriate proportion of that term, would be to act as though the non-parole period was related to a determinate sentence.

And his Honour referred to what was said by his Honour the former Chief Justice King in R v Creed’s Case, which was a case of armed robberies and rapes with fixed head sentences, and in the case of Von Einem “and by me in Bricas”.  His Honour then said:

Having regard to the age of Mr Murphy, and so the likely duration of the head sentence, and the nature of these crimes, it seems to me that the non-parole period called for in this case was substantially longer than that which was imposed, even when one makes allowance for the fact that Mr Murphy was relatively young and had a good record.

Now the way his Honour then went on to apply that appears in the fifth paragraph on the page, page 419, when he says:

In the present case, in my opinion, leave to appeal should be granted.

In the fourth line, which is the critical passage:

So, in my opinion, does the need to maintain the principle that a non-parole period fixed in relation to a life sentence be an appropriate proportion of that life sentence.  In the present case the non-parole period is about one third or less of the likely head sentence, a proportion which cannot be justified in a case like this.  The difference in years, between the non‑parole period fixed and that which should be fixed is substantial, and to my mind that must be taken into account.

So the new non-parole period was 25 years.

KIRBY J:   And was that lower than it otherwise would have been, on the ordinary principles in Crown appeals or does that mean that Chief Justice Doyle would have, had he been at first instance, imposed a non-parole period significantly higher than 25 years?

MRS SHAW:   His Honour does not address the question of double jeopardy, although he does cite Everett in general terms.

KIRBY J:   But all of this assumes that you can be precise in relation to the life expectancy of the prisoner.

MRS SHAW:   And assumes that this prisoner will live the average life expectancy and it assumes that the life expectancy of prisoners is comparable to the average national life expectancy and it certainly assumes that life is life and not non-parole plus discretion plus 10, as maximum.  But importantly, the way his Honour approached the age factor was to calculate what proportion of the life expectancy of the prisoner had been imposed, and he considered it was about a third or less, and then he increased it to a proportion which was in the order of 50 per cent.

GUMMOW J:   Well, the difficulty is, you can never say it is going to be a proportion of anything, can you, with a life sentence?  One simply does not know how events will work out.  And the other difficulty would seem to be at page 418, in a context where there is provision for parole and for the actual termination of the sentence, either three or 10 years later, to say, the sentence is for the balance of the person’s life.

MRS SHAW:   Yes, we say it is erroneous, not only in terms of assumptions, but in terms of the factual basis upon which people are indeed paroled.

HAYNE J:   But whether the sentence is for the balance of the person’s natural life is not determined judicially; it is determined by the executive. Take into account what the Parole Board thinks is relevant: see section 67(4)(h) of the Correctional Services Act, such, for example, presumably as the state of overcrowding of prisons in this State.  Is that a relevant consideration that a parole board might properly take to account in determining whether an offender is to be released or no?

MRS SHAW:   Well, it is not mentioned, your Honour, but the Parole Board has a wide discretion.

HAYNE J:   Well, any other matters that the Board thinks are relevant.

MRS SHAW:   Yes.

KIRBY J:   In answer to the Chief Justice’s question, you said that in other States they have a regime similar to the South Australian one.  Western Australia, Northern Territory and Queensland, do they have a Von Einem or Murphy- type approach do you know?

MRS SHAW:   In our researches, we have not discovered any case which uses age to lengthen the non-parole period as a proportion of assumed life expectancy.

KIRBY J:   At some stage, at the end of your argument, you might have to come back to whether – consistent with what this Court has said about sentencing being the province of State courts, unless there is some fate or illogicality that attracts the attention of this Court – this is not some nuance of sentencing practice that is peculiar to South Australia but within the province of the sentencing discretion of South Australian judges.  It seems to be a very consistent thread through South Australian cases.

MRS SHAW:   Well, your Honour, it was not in existence until Bricis.  Up until Bricis, which was in 1996, age was always regarded as a mitigating factor and the schedule of sentences that we have prepared, and just by way of summary, demonstrates that the range of sentences, particularly for young people, could include effective sentence of less than 10 years.

KIRBY J:   This gets back to the Chief Justice’s question at the outset though, what is “young” for this purpose.  I mean, normally 23, in criminal terms, is in the middle of the decade of criminality.  It is not really young, 23.

MRS SHAW:   Yes.  In terms of what has been described in the cases is relatively young, the cases refer to ages 18, 19 and 24, for example, that range, and for those sorts of cases in the short schedule that we have provided, pre truth in sentencing, for example, the effective penalties pre truth in sentencing ranged from nine years to perhaps 11 years, for single murders, if you like, whereas ‑ ‑ ‑

KIRBY J:   The Crown has given us a schedule too, and it seems to indicate that there are very significant sentences on young people.  I hesitate to use this “young”, because there is a lot of criminological evidence that people at about the age of 27 and 28 turn a corner and get out of the system, and therefore we are talking about the period from say, 18, when they come out of a youth system, to 28, when they are in the middle of the peak criminality period and they are not young.  They are the centre of the whole of the bell curve.

MRS SHAW:   Well, your Honour, we say that for persons who are not young, say 29 and 31, this sentence is excessive, and that is why we have referred to penalties on, for example, a man aged 30 – and this is post truth in sentencing up to Bricis, which is when the youth factor was said to lengthen the non-parole period - where, for the murder of a son during an access visit, the non‑parole period was 15 years; for the murder of a son‑in‑law, the non‑parole period was 12 years for a man of 53; for a 23-year-old person, post truth in sentencing, 12 years 4 months; for a 30-year-old person, with a disturbed mental state, 12 years; so that ‑ ‑ ‑

KIRBY J:   I am sure you understand as well as we do that these very short sketches, with one sentence description of a case, does less than justice to the Courts of Criminal Appeal would have to deal with the whole variety of the facts.

MRS SHAW:   Yes, I appreciate that, your Honours.  We, in fact, with the assistance of the Registrar, prepared a complete schedule of every non‑parole period that has been passed, and I can provide that to the Court.  It does set out the ages, but, as your Honour quite rightly points out, it does not necessarily identify all of the relevant matters.  What it does show is that the range of penalties that has been imposed since truth in sentencing, for example, for a 28‑year‑old man, the lowest was seven years for an older man – when I say older, I mean 30 years – and for younger persons, before Bricis, Mr Conroy, who was 19 at the time of sentence, received a non-parole period of 10 years and he pleaded not guilty and in this State the courts have accepted that a deduction in the order of 25 per cent for full credit is available. 

This man, Mr Smith, of course, pleaded guilty.  The judge indicated that he gave him full credit for his plea, so that if one accepted a reduction in the order of 25 per cent for the plea, then one is starting at a sentence close to 30 years, and so, that consideration must also be taken into account.

GAUDRON J:   How do you say this fits with Bugmy, Mrs Shaw?

MRS SHAW:   Your Honour, we say that the principles in Bugmy exclude a consideration of the balance of a person’s natural life.

GAUDRON J:   Why is that?  What is the core principle that does that?

MRS SHAW:   The core principle is that when one comes to fix a minimum sentence - the non-parole period, one assesses the gravity of the crime and the culpability of the offender.  Neither of those factors include the life expectancy of the prisoner, which is what one is talking about when one is referring to the balance of life, and secondly, the capacity for rehabilitation, and again, life expectancy does not serve in any way to increase the sentence, applying that principle.  That is the core principle in Bugmy.  Proportionality to culpability an offender, which does not countenance life expectancy, and rehabilitation, which does, in the sense if someone is older it is a circumstance of mitigation; can lead to reduction.

GAUDRON J:   So I suppose the next question then is whether the principles in Bugmy translate appropriately to the South Australian sentencing regime?

MRS SHAW:   Well, according to his Honour Chief Justice Doyle and the Full Court in Winters’ Case, they do.  He applied Bugmy and he applied Shrestha.

GLEESON CJ:   In a murder case?

MRS SHAW:   In a murder case in an appeal by the appellant, where, in fact, it was argued that the age factor that was being utilised was being misapplied, but the offender was 39 years of age, so it did not arise as a question of life expectancy to increase the sentence, but on that coram, one of the arguments put to the court during that was that Von Einem was being misinterpreted, that it was applying principles that relate to old age, wrongly to younger people, to take into account life expectancy, and his Honour Justice Olsson, who handed down ‑ ‑ ‑

KIRBY J:   That is why I would have thought you would start with Von Einem because that was a decision of Chief Justice King, was it not?

MRS SHAW:   Yes, it was.

KIRBY J:   There was very considerable authority in this area, so, you know, for myself, I would like to hear what he said and then maybe we can see whether or not what has happened since is a misinterpretation of what Chief Justice King had to say.

MRS SHAW:   Yes.  If I can take your Honours to Reg v Von Einem.  It is number 4 in the book of cases and, in particular, his Honour the former Chief Justice King remarks on this topic.  At the bottom of page 218, his Honour approached the question of sentencing, in the last paragraph, upon the basis that there were two questions to ask:

what, having regard to the age of the prisoner, is the minimum time which he must spend in prison in order to satisfy the punitive, deterrent and preventive purposes of punishment?  Justice requires that the punishment be reasonably proportionate to the gravity of the crime.  The learned Judge has rightly placed this crime in the highest category of seriousness.

And he goes on to say:

It is difficult to conceive of a sole murder which could be attended by much more serious circumstances.  A crime of such gravity clearly calls for a long non-parole period.

And so his Honour, at the end of that paragraph, in the last three lines, poses the question that he is considering in that case, as:

How soon is it safe to allow a man, who is capable of a crime of such depravity as the crime under consideration, loose in the community?

And, from that point of view, he was considering life expectancy to arrive at a figure which would allow this man to be released at a time when he effectively was no longer a danger to the community.  His Honour then went on to consider:

what are the prospects that the prisoner will respond to parole by avoiding further crime?

And he concludes that the crime is of such depravity of character that the absence of the personal factors become almost irrelevant.

KIRBY J:   That does not seem to be setting down any general principle in relation to the South Australian regime at all.  It is one very particular to a rather peculiar case.

MRS SHAW:   We say he is not, your Honour.  Yes.

KIRBY J:   I suppose if there is a principle, it is that in the case of a person who has been guilty of an offence of such depravity and unique character that it is relevant to consider, in a context of a life sentence, how long that person ought to be in prison so that when released he is very unlikely to be a danger to society.

MRS SHAW:   Yes.  We say that is quite a different principle than what has now become the Von Einem factor as a result of Bricis and we say that that is a proper approach.  If one has decided that there is no room for rehabilitation, one is simply fixing a non-parole period which reflects the gravity of the crime and the culpability of the offender.  Then, if the period fixed has the result that it is taking the prisoner into his old age, then questions of life expectancy arise from the point of view of humanity and merciful considerations as to when an appropriate time is for his release. 

His Honour makes the statement of general principle in the last paragraph at page 220, when he refers to the meaning of life imprisonment, about halfway through that paragraph:

A non-parole period should always bear a relation, which is appropriate in the circumstances, to the head sentence.  Where the head sentence is the term of the prisoner’s natural life, regard should be had, in my opinion, in fixing the non‑parole period, not only to the number of years which will be spent in prison by reason of the non-parole period, but to the relationship of the non-parole period to the normal span of life.

GLEESON CJ:   May I take you back to the second sentence in that paragraph.  To say that “the term of the prisoner’s natural life” is the only sentence which the law permits for the crime of murder, may not take account of the fact that the law empowers the sentencing judge to fix a non-parole period, it empowers the executive to make an order for parole and it produces the statutory consequence that if both of those courses are taken, there is then a maximum period of 10 years for which the offender may be on parole.  That is an aspect of the statutory regime, which would need to be added to the proposition in the second sentence in order to make it completely correct.

MRS SHAW:   Yes, but for that statutory regime, the general approach of looking at life expectancy solely for the purpose of ascertaining the approximate period of release in someone in respect of whom no issue of rehabilitation arises, is not, we say, an error in principle.  But his Honour says:

To ignore the last-mentioned factor –

that is the age of the prisoner –

would be to fix the non-parole period as though it were related to a determinate sentence and would to that extent negate the mandate of Parliament that the sentence for murder is imprisonment for life.

KIRBY J:   You can see how the South Australian judges would have developed what his Honour said into a general principle of application in all cases where life sentences had been imposed.

MRS SHAW:   Yes.  The area that it arises is not that there should be some relationship or regard to life, but that one has to fix the non‑parole period as a specific proportion of the - - -

KIRBY J:   Yes.  What began as a general principle, that you look at the broad parameters of how long it is likely the person would otherwise, if he served the full life sentence, it has become a mathematical formula, done by reference to life expectancy tables, which may or may not be right in a particular case.

MRS SHAW:   Yes.  It is the difference between considering the practical effect of a sentence as compared to using the arrival at that practical effect as a principle of mathematical calculation in the first place, and thereby increase the non-parole period.

GLEESON CJ:   Could you just remind us please, when was it that it first became possible to obtain parole in the case of a sentence for murder?

MRS SHAW:   At least by 1984, your Honour.  Before that it was discretionary in the Parole Board.  We have set out the relevant provisions in our written submissions, but it originally began with an application to the Parole Board and then it was entrusted to the court.

HAYNE J:   Release on license or release on parole?

MRS SHAW:   Release on parole.  Your Honour, we have actually set out in our written submissions the various developments which identify the relevant provisions and the transfer of the decision‑making from the Parole Board to the judiciary.

KIRBY J:   The respondent’s Appendix A contains the history of all the legislation?

MRS SHAW:   The history of the provisions.  Your Honours, perhaps in considering the judgments of his Honour former Chief Justice King, the Crown have referred to the case of Reg v Creed (1985) 37 SASR 566, which is in the Crown table of cases. Your Honours, Creed is referred to and relied on as support for this development of a principle that a non-parole period for the life sentence must be a calculated proportion of the assumed life expectancy and the passage that is quoted appears at page 568 in the judgment of his Honour the Chief Justice, in the middle of the page, where his Honour said:

In fixing a non-parole period, as in fixing a head sentence, a judge has to bear in mind the purposes for which sentences are imposed.  The non-parole period, no less than the head sentence, must reflect the basic consideration of justice –

and his Honour goes on to conclude –

For that reason alone the non-parole period, no less than the head sentence, should be properly proportionate to the gravity of the crime.

His Honour is there, of course, referring to a head sentence fixed by the sentencing judge, not one that is mandated by Parliament, so that the head sentence itself is calculated having regard to the considerations relevant to the gravity of the crime.  But, importantly, in the same case, which as said dealt with, armed robberies and rapes, where head sentences were fixed, his Honour said at page 569, in response to a defence contention, as to a particular proportion being appropriate as between non-parole period and head sentence, in the second paragraph on the sixth line:

I would wish to say that the Court does not regard a non‑parole period of two-thirds, nor indeed any other proportion of the head sentence as being the norm.  Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case.  In some cases, the punitive, deterrent and preventive aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part.  Nothing in the nature of a norm can be acceptable.

Now, true it is, as I have said, that was in a case where the judge fixed the head sentence and so, in the result that the gravity of the offence is reflected in the head sentence fixed by the judge and, to some extent the non-parole period, one would expect some kind of relationship, but to say that there should be a particular proportion and, more importantly, to say that it is necessary, and it is the court’s duty, and it is a point of principle, that one should seek to achieve a proportion in an indefinite life sentence, and the only way to achieve that is by extending the length of the non-parole period for a young person, we say, is not only inconsistent with the overall effect of what his Honour the Chief Justice King said in Von Einem, but necessarily leads to an unjust result.

GLEESON CJ:   Is this case of Creed the first time in South Australian sentencing law that this idea of apportion between the non-parole period and the total sentence emerged?

MRS SHAW:   No, it is not, your Honour.  There is also ‑ ‑ ‑

GLEESON CJ:   The reason I asked the question is that in about 1989 New South Wales by statute introduced a similar concept and judges had to give an explanation of why the relationship between the head sentence and the non-parole period was as it was if the period spent on parole, I think, bore more than a certain proportion to the non-parole period or minimum term.

MRS SHAW:   Your Honours, that did not happen in South Australia except that during the period where the court was fixing the head sentence which it knew was subject to remissions and it was fixing the non-parole period, and was able to know what the period of release was.  In a case where the court was dealing with an offender who it considered was not a candidate for parole, then the court - and the example that his Honour former Chief Justice King, perhaps - it is raised as the case of Tio and Lee which is referred to in the Crown’s submission, and we have provided copies to the Court of Tio and Lee (1984) 35 SASR 146.

It comes to be relied on in the cases which apply the Bricis principle and, indeed, by my learned friend in her written submission.  It was a case dealing with the importation of heroin and, of course, a determinate sentence in this State.  At the bottom of page 147 in the last four lines his Honour has addressed the specific provisions of the South Australian legislation which meant that a prisoner was automatically released on parole at the expiration of the non-parole period, and he approached his discussion of the sentence in the light of the court fixing a non-parole period with the knowledge of that legislative scheme.  What his Honour said was that:

Thus both the judge imposing sentence and the prisoner on receiving it will know with a considerable degree of certainty the duration of confinement in prison which the sentence will entail.  The change from a system of discretionary parole under which the non-parole period merely determined the period which must be spent in prison before parole could be considered, to an automatic parole system under which the prisoner must be released on parole at the expiration of the non-parole period, clearly calls for a re-assessment of the duration of non-parole periods.  It is now necessary for the judge at the time of imposing sentence to consider and determine what proportion of the sentence is to be spent in prison and what proportion is to be spent in the community on parole.

GLEESON CJ:   Would that sentence mean anything different if for the word “proportion” you substituted the word “part”?

MRS SHAW:   Except that the way that proportion was applied in Murphy it implies percentage.

GLEESON CJ:   Exactly.

MRS SHAW:   Yes.  So, “part” does not necessarily include the arrival at a particular percentage.

KIRBY J:   Is your objection to the precision or the pretended precision and specificity of the way it is being approached in South Australia and do you have any objection to a general contention that if you are to sentence a person who is 23, say, that you are entitled to take into account the general fact of the age of that person and the fact that that person is likely to live a longer period than a person, say, of the age of Mr Von Einem, 38, or somebody at 57?  In other words, do you attack the first statement by Chief Justice King that you read for us where it was put in very general terms in Von Einem, and then it sort of firmed up at the end of the last statement at 230 where he did start to talk about proportions?

MRS SHAW:   Yes, I attack it in this way, your Honour.  Perhaps by way of history, his Honour Chief Justice King, in line with this approach to arriving at specific terms, taking into account remissions and setting percentages, the history was that he then specifically took the view with the amendments that a court was to have regard to remissions, to having regard to them in a mathematical way in every case.  That was the subject of the decision of this Court in Reg v Hoare and Easton which reversed the approach of his Honour Chief Justice King on the basis that, well, even though the Act says that the court is to have regard to remissions, that does not give the result that, in this particular case, of necessity this man will get them.  So that there is an ‑ ‑ ‑

KIRBY J:   What was that case where this Court reversed his Honour?

MRS SHAW:   Reg v Hoare and Easton.

GLEESON CJ:   What did the South Australian legislature do in response to Hoare and Easton?

MRS SHAW:   In response to Hoare and Easton, the South Australian legislature passed an amendment saying the principles ‑ ‑ ‑

GLEESON CJ:   It reversed Hoare and Easton.

MRS SHAW:   His Honour Chief Justice King, in Dube and Knowles, set forward the principles to be applied.  But what his Honour Chief Justice King said was that by reason of the remission system one was to increase the period, having regard to remissions that would otherwise be applied.

KIRBY J:   Perhaps that makes one doubly cautious about disturbing nuances that are peculiar to South Australia.

MRS SHAW:   Not at all, your Honours, we say quite the opposite.

GLEESON CJ:   It looks as though Chief Justice King understood the intention of the legislature, as well he might.

MRS SHAW:   We say quite the opposite, that the nuances and the particular nuance in this case is leading to the injustice that a younger person has been penalised more severely than an older person and so that you have this ‑ ‑ ‑

GAUDRON J:   In fact, it is possible that there is a real discrimination.

MRS SHAW:   Yes.  So, the result is ‑ ‑ ‑

GAUDRON J:   The question is whether that is justified.

MRS SHAW:   Well, we say that if – it is not only apparent from Murphy’s Case that the sentence is actually being increased by a specific proportion in line with life expectancy but, in fact, young people since Bricis are getting higher penalties than persons who are older for less serious offences.  The immediate injustice of that system of sentencing is that which his Honour Justice Olsson identifies in Bednikov’s Case, that if two persons are charged on the same day with the same offence precisely the same circumstances, but one is older than the other, then the younger person, by taking into account life expectancy, will necessarily get a higher sentence.

KIRBY J:   But you would not oppose that if one was 23 and one was 87.

MRS SHAW:   That is so, but for different reasons, because the one who is 87, one is looking at the practical impact of the sentence in order to reduce it.  The younger one, what is occurring is that one is looking at average life expectancy for the purposes of increasing it and that, we say, is completely erroneous and is ‑ ‑ ‑

KIRBY J:   But did Justice Perry actually say “for the purpose of increasing it”?

MRS SHAW:   Yes.

KIRBY J:   Would you remind me of the page?

MRS SHAW:   He says it counts against him.

KIRBY J:   “Counts against”.  That does sound like “increase”.

MRS SHAW:   The judgment at page 257 of the appeal book.

KIRBY J:   Now, Justice Perry was, of course, reviewing the decision of the sentencing judge.  You have to attack, do you not, not just Justice Perry’s reasons, but you have to say that the Court of Criminal Appeal should have detected error in the sentencing judge, otherwise we are correcting the reasons of Justice Perry and not the order that was the subject of the appeal.

MRS SHAW:   Well, what we say is that there are a number of grounds of appeal that the sentence was manifestly excessive.  When his Honour and the Full Court came to determine whether or not the sentence was manifestly excessive, his Honour considered the length of the sentence by taking into account the principle that the relative youth of Mr Inge of 23, counted against him in determining the appropriate non-parole period and, therefore, if one accepted that as a principle that the sentence in accordance with Murphy was thereby lengthened, then the sentence of 20 years on Murphy principles, even though excessive in terms of Murphy and Bricis, was not manifestly excessive.

If he had not taken the approach that youth counted against him by increasing the length of the sentence to a proportion of life expectancy, we say that the Full Court would have necessarily interfered because 20 years on pre‑Bricis principles was clearly much too long.  The range, as I said, is down from seven to pre‑Bricis, and the case of Lane which discusses all of the penalties in the Full Court, a 19½‑year‑old man with an effective sentence of 10 years and 8 months.  So, we say that ‑ ‑ ‑

KIRBY J:   This was a particularly horrendous murder in terrible circumstances.

MRS SHAW:   Your Honours, in this particular case, we say that it is a case where the psychiatric reports and the psychological reports made it plain that this young man had suffered sexual abuse at the hands of the deceased, not just himself but his sisters ‑ ‑ ‑

KIRBY J:   Was that accepted by the primary judge?

MRS SHAW:   Yes, and the trigger for this event was the prisoner’s sister relating the sexual abuse to her boyfriend, Mr Schultz.

KIRBY J:   But this is eight years after the event of the last sexual interference and we do not have, of course, the deceased’s version here; the deceased is killed.

MRS SHAW:   Well, except, your Honours, of course, the mother ‑ ‑ ‑

KIRBY J:   Where did Justice Millhouse accept ‑ ‑ ‑

MRS SHAW:   His Honour Justice Millhouse accepted it and certainly from the deceased’s point of view, the conduct had ended eight years before, but from the prisoner’s point of view, the psychiatric evidence was that he was suffering from a post‑traumatic stress disorder and continued to suffer nightmares and depression and sleeplessness because of it, which was unresolved, and even though he had had contact with this man, and even though he knew where he lived, there was never any suggestion that he made any attempt to confront him.

But what occurred was that the man Schultz, the boyfriend of his sister, became enraged by it and then effectively triggered off this accused to go around and confront him.  When they went around there, they did not take a weapon but when the accused, the prisoner, got inside the house, he says, and this was accepted, that the deceased had a piece of wood and he effectively got it from him and then says he lost control and the horrendous death occurred after that.

GLEESON CJ:   Mrs Shaw, if we are in the detail of the facts relating to sentencing, there is one matter I would like to ask you about.  On page 251, Justice Perry says that the sentencing judge sentenced your client “on the footing that he did not intend to kill but merely to cause him grievous bodily harm”.

MRS SHAW:   Yes.

GLEESON CJ:   When I look at what Justice Millhouse said, the only thing I can see about that is what appears on page 212 where he informs Inge that Inge said he did not intend to kill Slee.  Presumably, Mr Inge knew he said he did not intend to kill Slee, but where do we find the finding of fact about that?

MRS SHAW:   Your Honour, we accept that there is not a finding of fact, but we say that what is critical is the acceptance that at the time that Mr Schultz and Mr Inge went to the premises, there was no intent to cause any harm, it was to confront.  Once they were inside and the altercation occurred, we accept that what followed was a very serious ‑ ‑ ‑

GLEESON CJ:   I just wondered whether we are to deal with this matter upon the basis that the relevant intent was an intent to kill or an intent to cause grievous bodily harm.  It did not appear to me all that clear from the remarks of the sentencing judge.

MRS SHAW:   Yes, that was the subject of submissions by counsel and counsel began by putting to the Full Court that that was accepted by the sentencing judge.  The Full Court pointed out, “Well, there does not appear to be a specific finding on that”.  That appears at page 231 to 232, and his Honour Justice Perry at line 8 on 232 says:

Did you make the submission to him and it was not challenged by the Crown?

Mr Barrett responded that that was correct.  So, his Honour Justice Perry has proceeded upon the basis that because it was not challenged then one could infer from the reasons that that had been accepted and, therefore ‑ ‑ ‑

GLEESON CJ:   But the intent when he was hitting him on the head with the hammer was not an intent to kill him?

MRS SHAW:   That was what was not opposed, as his Honour Justice Perry put it and, therefore, inferentially accepted.

KIRBY J:   Is that consistent with conviction for murder?

MRS SHAW:   It is in this State.  An intent to cause grievous bodily harm or to kill justifies the conviction of murder.

KIRBY J:   Was evidence called from the members of the family, the sisters, at the sentencing process?

MRS SHAW:   Does your Honour mean in relation to the sexual abuse?

KIRBY J:   Yes.

MRS SHAW:   There were declarations filed by Tanya Lee Inge, which appears in the appeal book setting out the history of sexual abuse and a declaration filed by the mother, Christine Inge, confirming the complaints at earlier hearings.

KIRBY J:   These witnesses were not called, they were accepted by the Crown, is that so?

MRS SHAW:   That is so, they were Crown declarations.

KIRBY J:   I am only considering what appears at pages 140 and following of the letter from the sister of the deceased who said that he was a quiet man who looked after her four daughters and nephew, or something, and this was completely unaccepted by her.

MRS SHAW:   Yes, your Honour, the procedure in South Australia is that declarations are filed at the committal by the Crown that that is their case.  There is no oral committal.  Those declarations then become the Crown case against this man, so those declarations are filed on behalf of the Crown as being full declarations as being their case and they provided the basis on which the matter proceeded.  In addition to that, the psychiatric reports which include an assessment of the accused ‑ ‑ ‑

KIRBY J:   Yes, but they were based on the assertion by the prisoner ‑ ‑ ‑

MRS SHAW:   Not only assertion ‑ ‑ ‑

KIRBY J:   You see, Justice Perry said that this was another case, and there are many of them, and we have seen one recently, where the factual foundation for sentencing is very imperfect.  It does appear, though, from what Justice Millhouse says at 212 that his Honour did accept that there had been sexual abuse in this case, though it was on the basis of this evidence which was not really significantly tested.

MRS SHAW:   Yes, it was on the basis of the uncontested evidence of his sister and, indeed, in so far as it was supported by the mother.  Indeed, the ‑ ‑ ‑

KIRBY J:   Because, you see, people can make these allegations and ‑ ‑ ‑

MRS SHAW:   I appreciate that, your Honour.

KIRBY J:   - - - then people can claim an excuse for murdering people years later and it really is not a very safe proposition from society’s point of view.

MRS SHAW:   I accept that completely, your Honour, but in this case it is fair to say that it went forward on the basis that it was uncontested, that this was the history, and more than that, that it was the topic of conversation before the event witnessed by more than one person and the topic of conversation immediately after the event.

KIRBY J:   Or most legally significant that the sentencing judge accepted it for the purpose of sentence.

MRS SHAW:   Yes, that is right, and more than that, accepted that it was the source of the post-traumatic distress disorder which provided the link to the abuse eight years before and the ongoing effects of that abuse on him, that continued as at the time.  In other words, it was not a matter of history, it was a matter of continuing impact on this man.  He explained why it was that on this particular night, with the encouragement of Mr Schultz, this borderline retarded man in the house effectively lost control, but immediately was remorseful, expressed his remorse, and that same afternoon ‑ ‑ ‑

KIRBY J:   That is not quite right.  Mr Schultz immediately felt remorse;  Mr Schultz went to his father;  Mr Schultz told your client that he could not live with this and your client said, “Oh, just let’s see what happens”.  But, subsequently, I think, about 12 days later or so, he went to the police with his solicitor.  So, it is not quite the painful story of contrition that you are painting.

MRS SHAW:   I accept there are some differences in the declarations as to the precise sequence of events afterwards.  Mr Schultz senior’s partner, Ms Withy, describes the accused as appearing to be sick and showing signs of remorse.  Others do not say that, but it is clearly uncontested that that same day in the afternoon an ambulance was called because Inge attempted suicide.  So, I accept that it is not consistent precisely in relation to his presentation immediately after but we say that because this event - what is significant about the issue of the history of Mr Schultz is that there was no history of violence and that this event resulted from that peculiar history relating to the earlier sexual abuse.

In that context, it was not the case where the learned sentencing judge approached it from the point of view that this man represented a danger to society in any other respect, that because this post-traumatic stress disorder and the other issues of his psychiatric examination were treatable and resolvable but then he, therefore, presented as someone who was a good candidate for parole, not, for example, like someone like Mr Von Einem, where no questions of parole arose.

KIRBY J:   In any case, your point is that he went to the Court of Criminal Appeal from a judge who would be applying the Von Einem line of territory, that they continued to apply that principle which is discriminatory against young people, unsustained in terms of principle, and that, therefore, he did not have, in accordance with law, a review of the sentence as he ought to have had, and we would not resentence him, we would simply send it back to be resentenced minus the discrimination against him because he was young.

MRS SHAW:   That is precisely our position, your Honours.  Your Honours, I did intend to refer your Honours to Reg v Bednikov, (1997) 193 LSJS 256, which is number 6 in the book, where his Honour Justice Olsson was dealing with a non-parole period of 17 years in relation to a young man with no prior record who was aged 25 years. Both the Crown and the accused were appealing against the sentence but his Honour Justice Olsson took the opportunity in that case to comment upon what had occurred with Reg v Von Einem, bearing in mind that he was a member of that coram.  At page 283 where the court was concerned with a double homicide precipitated by the unlawful carrying of a loaded firearm, his Honour said:

As to the length of the non-parole period he argued that, bearing in mind that the head sentence was life imprisonment, the non-parole period only represented about one-third of the appellant’s life expectancy.

Another example of the way that the approach is being made to the calculation of non-parole periods, and he said that this was:

not enough, bearing in mind the concept of what fell from King CJ in The Queen v Von Einem…..recently adopted in The Queen v Murphy –

and he referred to the comments of Murphy.  His Honour then, at page 284, said, after the quote:

It must be stressed that the real issue in that case –

that is Von Einem –

was whether or not, given the truly heinous nature of the relevant criminal conduct and the poor rehabilitation prognosis, the Court was justified in permitting the release of the prisoner on parole in his old age, or whether he ought to be left, almost inevitably, to die in prison.

As a concurring member of the Court in Von Einem it seems to me that what was said by King CJ in the context of that case has since, from time to time, been interpreted in a manner which is not fully consistent with what was there intended.

It cannot be stressed too strongly that, in adverting to a need to consider the age of the person sentenced, King CJ was not implying that a non-parole period was to be arrived at simply by some broad mathematical formula.  Indeed, to do so would not only be to ignore the fundamental principles recently summarised by Doyle CJ in R v Winters…..and a balanced application of them, but also would produce quite capricious and anomalous comparative tariffs for crimes of a similar nature committed by persons of widely differing ages.

He referred to Yook and Sung.  He then went on to say in the second-last paragraph that:

Particular considerations are, in my view, applicable to persons of relatively young age.  The very factor of young age and the immaturity associated with it has always been a factor to be taken into account for sentencing purposes and it is no less relevant in a situation where the offence is one of homicide.

Moreover, carried to its logical conclusion, the argument advanced by the Director would result in a situation in which, for a similar offence, an offender aged 19 would be required to serve a non-parole period which, theoretically, might well be double that of an offender aged 50.  To state the proposition is to identify how untenable it is.

Your Honours, Bednikov occurred the day after the argument in Winters when the question of this argument as to life expectancy was raised before the court and the court was provided with the reference to Yook and Sung in 1997.  So, your Honours, we say that what his Honour Justice Olsson said in Bednikov is the proper interpretation of Von Einem and what is being called the Von Einem factor, and that expression appears in the judgment of his Honour Justice Cox in Reg v Moyle which is number 5 in the book, (1996) 186 LSJS 462.

A twenty-four-year-old man in that case received a non-parole period of 19 years, who had set alight a man in a car who he was robbing, and had a poor record with little hope of rehabilitation, but his Honour Justice Cox, who was in dissent in that case, he would have reduced it to 17.  He identified the approach of the court and the paradox that resulted.  He said at page 462 in the third paragraph, the fourth line:

The view that has been taken in this Court is that the relatively youthful age of a person convicted of murder and sentenced to life imprisonment will tend to lengthen the non-parole period.  That has been established in a line of cases from Von Einem to Murphy.  However, I do not understand that principle to negate altogether an offender’s comparative youth which the courts will often take into account in fixing a sentence or non-parole period for a serious crime.  So the Von Einem factor, it I may so describe it, can, I think, be set off, at least to some extent, by the appellant’s relatively young age.

GLEESON CJ:   The clearest statement of the Von Einem factor is in Bricis, is it not, in the judgment of Chief Justice Doyle at page 220 of the Law Society ‑ ‑ ‑

MRS SHAW:   Yes, where his Honour says it is the duty of the court ‑ ‑ ‑

GLEESON CJ:   He says:

It necessarily follows from that that in the case of relatively young offenders the non-parole period will generally be of very considerable length.  That is an inescapable consequence of the duty of the Court to maintain an appropriate proportionality between the length of the non-parole period and the duration of the head sentence.

Which he says is the rest of his life.

MRS SHAW:   Yes, and, your Honour, we say that the significance of the way his Honour has expressed himself at page 220 is that in the first paragraph after the quote, his Honour actually refers to the questions of proportionality in fixing a non-parole period.  But then, in the third paragraph says, “There is another matter to be borne in mind”.  So, once one has considered proportionality and the usual factors for non-parole period, then one goes further and says, “Well, let’s look at what proportion of the balance of this prisoner’s life will be taken into account and the need to fix the non-parole period which is a proportion of that balance”.

We say the anomalous result is that if the correct approach was that the non-parole period was to be fixed as a proportion of life expectancy, which is really what we are talking about, and that is a reflection of the gravity of the crime, then for a 65-year-old person whose life expectancy, on the assumptions made by the Full Court, is perhaps five or so years, then a proportion of their life expectancy is going to be something – or the gravity of the crime as reflected in the life expectancy is completely

artificial and the proportion of their life is, of course, not reflective of the gravity of the crime.

GLEESON CJ:   Yes, I think we understand the point.

MRS SHAW:   Your Honours, the only other matter that I should point out is that in the transitional legislation from the pre-remission system on 1 August 1994, the transitional provision, section 21(1), specifically provided that the court was to take into account that previous sentences had remissions applied to them.

KIRBY J:   This is 21(1) of what?

MRS SHAW:   Of the Truth in Sentencing Act which appears in the volume of statutes provided by the Crown.

KIRBY J:   What is the point you are making?  I do not want to get lost in transitional legislation unless I have to.

MRS SHAW:   The relevance of that, your Honour, is that in the case of Reg v Garve which is No 1 on our list, his Honour Justice Mulligan fairly countenances that post truth in sentencing, the sentences are going to be lower because, taking into account – that is compared to previous sentences.

GLEESON CJ:   What has that to do with this case?

MRS SHAW:   Not directly, your Honour, it is just to put the sentences in perspective that have been provided.

GLEESON CJ:   You mean it is something to bear in mind when going through the tables of comparative sentences ‑ ‑ ‑

MRS SHAW:   Through the schedules ‑ ‑ ‑

GLEESON CJ:   In support of the proposition that 20 years is a long time to spend in prison for a 23-year-old man who has beaten somebody to death with a hammer.

MRS SHAW:   Pre truth in sentencing, it was the equivalent of 40 years.

GLEESON CJ:   Yes, thank you.  Yes, Ms Abraham?

MS ABRAHAM:   Your Honours, in my submission, when considering my friend’s argument, there are two observations that first need to be borne in mind.  The first is that, of course, we are considering appellate court judgments and the appeal courts were considering either when the particular non-parole period imposed was manifestly excessive or in some cases manifestly inadequate on a Crown application.

In my submission, when one is considering whether a non-parole period is appropriate, one always looks to the head sentence as a matter of general principle.  That, in my submission, applies to this case and so, when assessing the question of whether it is an appropriate non-parole period in this particular case, or any murder case, one has to bear in mind the fact that there is a mandatory head sentence of life imprisonment.

HAYNE J:   Why?  What is the principle that dictates you have regard to the head sentence in fixing the non-parole period?

MS ABRAHAM:   In my submission, the proposition I put is in fact the other way around.  In other words, one has to get some guidance from the head sentence, or the maximum penalty fixed by Parliament, if that is not a mandatory life sentence, to determine whether or not the non-parole period that has been imposed is in fact an appropriate one.

KIRBY J:   But, as has been pointed out, this particular head sentence, though fixed by Parliament, covers, literally, a multitude of sins.  There can be very serious murders and there can be murders with all sorts of exculpating circumstances.

MS ABRAHAM:   I accept that proposition.

KIRBY J:   Therefore, this head sentence has an element of in-built artificiality because it is fixed by Parliament and is not proportionate to the particular circumstances of the homicide.

MS ABRAHAM:   I accept that to this extent, it is the one constant throughout these cases that have been talked about by my friend that the head sentence is a mandatory life sentence.  What is not constant has been the parole provisions throughout.  In fact, the cases my friend are talking about, cover, I think, about five different systems and can change as quickly, as we know.

GLEESON CJ:   But suppose the murder in a particular case took the form of what is sometimes called euthanasia and the perpetrator was a young person, what would be the consequence of that in terms of time amount of time that person would spend in prison?

MS ABRAHAM:   It would depend on the circumstances, in my submission, because what my friend has done - it is a slightly different point – there has been a lot of emphasis on it has to be a specific portion, it has to be a particular proportion, but nowhere in the cases does it say what the proportion is, except, “appropriate to the circumstances of a given case” and, in my submission, that is what the principle - if that is what it is called – in Von Einem is dealing with, not ‑ ‑ ‑

GLEESON CJ:   I took that example because that strikes me as a case where the operation of this Von Einem principle could outweigh, just by reason of the age of the offender, almost any other factor relevant to sentencing.

MS ABRAHAM:   In my submission, not so.  What has been referred to as the Von Einem principle is not a mathematical principle applied to the ‑ ‑ ‑

KIRBY J:   It sounds awfully like it in the way it is being applied.  You get the life table, you see how long this one will last and you have to calculate the non-parole by reference to that mathematical formula.

MS ABRAHAM:   Well, with respect, that is not what happens in this State.  There is one instance that has been referred to in my friend’s written submissions where an actuarial table was used and I will come to that in a moment, but that is the only instance.  In my submission, what one is recognising is that clearly if there is a mandatory life sentence, if no non‑parole period is set and the court has that power in this State – if no non‑parole period is set, a younger person is indeed, in the normal course of events, looking at a very, very, long head sentence.

HAYNE J:   Which invites attention to what a sentencing judge is doing in setting a non‑parole period, what matters ought to inform that sentencing judge’s decision.  Now, do you say that those matters are sufficiently set out in Bugmy or is there some gloss or variant that needs to be taken into account?

MS ABRAHAM:   In my submission, it is not a gloss or variant but in cases where there is fixed sentences, 20 ‑ ‑ ‑

HAYNE J:   Bugmy was murder and life, was it not?

MS ABRAHAM:   Yes, I accept that.

HAYNE J:   Yes.

MS ABRAHAM:   In my submission, here it is mandatory.  I know in Bugmy it was also, although in Victoria it no longer is.  In my submission, when one is looking at the gravity of the crime one does look to what Parliament has set down as being the appropriate sentence.

HAYNE J:   But in every murder case the outer limit of the sentence is set as life, therefore, what is a judge fixing non‑parole period in a murder case doing?  Is the judge giving effect to those principles that are reflected in Deakin v The Queen, Iddon & Crocker and the other cases that were cited with apparent approval by the majority in Bugmy?

MS ABRAHAM:   In my submission, I do not know if your Honour was meaning the distinction “other offences have a maximum of life”.  This one has mandatory life.

HAYNE J:   I understand that, yes.

MS ABRAHAM:   That, in my submission, is an important consideration.

HAYNE J:   But so it was in Bugmy.

MS ABRAHAM:   I accept that, but in Bugmy, of example, one looked at a variety of non‑parole periods or minimum terms, I think they were in Victoria at the time, and one of the considerations there was the fact that – amongst other things – it was the highest penalty that had been imposed  and clearly that caused at least a question mark about the particular penalty and it was ‑ ‑ ‑

HAYNE J:   Yes, 18½ on a 27 year old was seen as falling outside the norm.

MS ABRAHAM:   In Victoria at that time under that legislation.

HAYNE J:   Yes.

MS ABRAHAM:   Different States have different sentencing regimes, obviously, and different standards of punishment.  In my submission, one does take into account the mandatory life sentence in the sense of that is what Parliament has said is required for every crime of murder and the community obviously regards it as serious and therefore it is a relevant factor, generally speaking – not in mathematical terms – generally speaking, that a young person has, potentially, a long sentence ahead of them.  When one is considering a minimum term or non‑parole period, like Power and Bugmy and the like, the considerations of deterrence and all the rest of it, and gravity of the offence, are still relevant.  Clearly, it is not a situation if you just apply the mitigating factors and get the lowest possible amount, and so when one is judging, “Well, what is the appropriate punishment?” if I can use that phrase, one has to look, in my submission, to the fact that in this State it is mandatory life.

HAYNE J:   Are you, in setting a non‑parole period, setting the least sentence that must in fact be served to require justice to be done or is that an insufficient statement of what is informing the fixing of a non‑parole period?

MS ABRAHAM:   When one is doing that, when one is determining what the sentence is for justice to be done, in my submission, one does look to the fact of what is the seriousness of the offence reflected by the fact that it is a mandatory head sentence.

HAYNE J:   Is my statement complete or incomplete?

MS ABRAHAM:   It is incomplete if your Honour is saying as a result of that you do not look at what is the head sentence.  It is complete if arriving at justice it does include that and, in my submission, a proper interpretation of what includes justice does, because if you take another case - not a mandatory life sentence case - if you take a case of a fixed sentence then, of course, when you are determining the non‑parole period you have regard to the gravity of the offence, as is reflected by the head sentence.  Now, the court did not impose this sentence, in other words, out of choice, but is required to by law does not alter that, in my submission.

HAYNE J:   The fixing of a non‑parole period is the last judicial statement of what is the minimum that must be served to accord justice to this offender and the community, is it not?

MS ABRAHAM:   Yes.

HAYNE J:   What thereafter follows is in the hands of the prisoner and of the executive and entirely out of the hands of the courts.

MS ABRAHAM:   Yes.

HAYNE J:   That being so, at the moment what I am not grasping in your argument is why, in fixing a non‑parole period, the courts are not saying, and only saying, “This is the least amount of time in gaol that this offender must actually serve is justice is to be done according to law”.

MS ABRAHAM:   I accept there is no statement to that effect, in fact, in any of the recent cases of our court, although there is explicit reference to Bugmy and Shrestha and the like.

HAYNE J:   Because, I have tried to summarise what I take from the majority in Bugmy, and I may be wrong and will need to challenge that.

MS ABRAHAM:   But, in my submission, one needs to, in effect, take a step back.  If one is fixing what is the minimum time required there is a competing number of interests involved in that.  It is detention, prevention, rehabilitation and the like, those competing interests that were discussed by this Court in Veen [No 2] and they do conflict.

HAYNE J:   Sentencing is hard.

MS ABRAHAM:   Yes, and it is for a given case for a sentencing judge to decide which the balance is and in some cases, being with determinate sentences, and indeed cases, of course, with mandatory sentences, the deterrence prevention aspect plays a much higher role than the rehabilitative function and the like.

KIRBY J:   Now, Justice Millhouse, on sentencing, did not refer specifically to the question of age, or not in any detail, and did not refer particularly to the Von Einem factor or any of these cases but we are invited to infer that his Honour would have approached his sentencing function within the constraints of the Von Einem factor and that the large sentence that he imposed was itself the product of that factor and therefore erroneous and therefore calling out for correction.  Do you accept that that is an inference that we should draw, in the circumstances, or not?

MS ABRAHAM:   No.  In my submission, what my friend has described as the Von Einem factor, namely, there is some mathematical formula and a specific portion needs to be set as a minimum term before one can get parole is actually not borne out by the authorities.  There is no specific time.  There is nothing to indicate in this case, as my friend tends to suggest, that, “Well, we have added on a few years because you are young”, nothing at all to suggest that.

KIRBY J:   Well, Justice Perry’s observation is not – he is not entitled to the sort of consideration he would be entitled to if he were an older prisoner liable to die in gaol.

MS ABRAHAM:   Yes.

KIRBY J:   It is, as I read it, at least it is open to the suggestion, that he suffers a penalty because he is young.

MS ABRAHAM:   In my submission, it is not a question of suffering a penalty.  What the Court of Appeal had to do was sit back and assess whether the sentence that was imposed in this particular case was in fact manifestly excessive.

KIRBY J:   Well, his Honour did say, “It counts against him”.  What else can that be than that it is a burden?  It is a penalty; it counts against him.  I must admit when I read it I stopped because it does not seem correct that it should count against him.  It is one thing not to have the benefit of a mitigating consideration because he is not old but it is another thing to count against him because he is young.

MS ABRAHAM:   In my submission, that is no more than a recognition of the obvious, namely, here is a young man who has a head sentence of life imprisonment.  If a non‑parole period, obviously, had not been imposed we are talking about a lengthy sentence.  Now, in my submission, as I was saying earlier, when one is considering the appropriateness of this sentence the Court ought to consider the fact it is against a mandatory life sentence and indeed that is what this Court said in the case of Bromley v The Queen (1986) 161 CLR 315. I have copies for the Court.

GLEESON CJ:   Thank you.

MS ABRAHAM:   The passage I take you to is at page 321 and to put this in context, Bromley and Karpany were two men convicted of murder in this State.  Non-parole periods were fixed.  They appealed to the Court of Criminal Appeal and then, obviously, on to this Court.  At page 321 in the judgment of his Honour Chief Justice Gibbs, at about point 6, the paragraph beginning:

Counsel for Karpany submitted that the non‑parole period fixed in respect of the sentence imposed on his client – twenty-eight years – was excessive, particularly by comparison with the non‑parole period of thirty-two years fixed for Bromley who, it was said, bore a greater responsibility for the crime and had a worse criminal record.  A sentence of life imprisonment was mandatory and the appropriateness of the non‑parole period had to be considered in relation to that circumstance.  The sentence was undoubtedly a severe one but Karpany already had a criminal record which involved several convictions for offences of violence.  In any case it is well established that this Court will –

only interfere in certain circumstances.  Then, right to the bottom of the page, the last line:

It has not been shown that the learned trial judge erred in principle or that there has been any violation of settled sentencing principles or that any miscarriage of justice has resulted.

KIRBY J:   But why would we not say, if we came to the conclusion that it is wrong to say that if youth counts against him that he did not have a hearing of his appeal, according to law, and it just has to go back to be reconsidered by the Court of Criminal Appeal, minus that factor.

MS ABRAHAM:   In my submission, that depends on what is meant by “youth counts against him”.  If it means that it is a recognition that this man, on the face of it, has a very long head sentence – not talking in specific figures – and, in my submission, that is what these decisions mean, then that is not an error .  In all, it is rather poor terminology that is used by the Court of Appeal.

GAUDRON J:   But if there were two co-accused, one aged 60 and one aged 25, and there was no suggestion that there was any difference in their culpability, how would a notion of proportional justice or equal justice relate to what, for convenience, may be called the Von Einem principle?

MS ABRAHAM:   In my submission, it would not follow, as has been suggested by my friend, that one would get a much longer sentence and one a shorter simply on the fact that one is young and one is old, however, in fixing the sentence, obviously, there will be, in relation to the older person, other considerations involved and so whilst there may well be the same sentence imposed, because of the question of the difference in ages that may well be a factor that the older one receives a lesser sentence.

GAUDRON J:   Well, then, how does that relate to the notion of equal justice?  We are talking about complete equality of culpability, the only co‑accused, only difference is age.

MS ABRAHAM:   In my submission, in a case where you have, for example, a 20 year old and a 60 year old, the court could well say, “I will give you both 20 years” but the court may say in relation to the older person, “We do not consider you ought to die in gaol, therefore, we take a merciful approach in relation to that”.  You could not, in my submission, have both offenders receiving the lesser penalty – the lesser period.  In my submission, that would be inappropriate, but there ‑ ‑ ‑

GAUDRON J:   Why?  Why would that be inappropriate?

MS ABRAHAM:   Because if the circumstances of the crime and the gravity of the crime call for a lengthy non‑parole period, that one person is not going to see it out, so to speak, because of his age, or unlikely to, that, in my submission, is not a basis to reduce the other.

KIRBY J:   You say because….in the theory of the argument that otherwise there is an extra burden on the older person that they have not only the period in prison but the lack of a prospect and hope of a life after prison of liberty, of ordinary existence, and an extra burden of dying in prison.

MS ABRAHAM:   Yes.

GLEESON CJ:   If I can move away from this rather insensitive assumption that a person aged 60 is the paradigm of an older person, take a person aged 40 and a person aged 20.

HAYNE J:   Two youths.

GLEESON CJ:  So, forget about people dying in gaol or the extra burden of that.  Is it the consequence of the application of the Von Einem principle that other things being equal the person who is aged 20 will have a longer non‑parole period that the person aged 40?

MS ABRAHAM:   In my submission, that actually would not occur and if one looks at the schedule of offences that has been attached to my written submissions, where there is a difference between co‑offenders it is on a basis other than age and, in fact, in one case it is clear they got identical sentences, although one person was in their late 30s and one was well into their 40s or 50s.

KIRBY J:   But that seems inconsistent with the passages that we were read from Chief Justice King and Chief Justice Doyle that you look to the period of life expectancy, that you look not to actuarial tables.  Their Honours did not say that but that you do look to that consideration.

MS ABRAHAM:   In my submission, that has been taken out of proportion.  True it is one has to recognise that one has a mandatory head sentence of life imprisonment but that is not the fundamental – the only consideration that one has that someone is young and therefore you get longer.  Quite to the contrary.  In my submission, it is clear from all the authorities, from Von Einem, the whole way through, that there is a wide sentencing discretion for non‑parole periods for murder.  That is why comparing non‑parole periods for offences of murder is a futile task and the Court of Appeal in Inge recognised that wide discretion.  There may be some cases where, because of the circumstances of the offender or the offence, the rehabilitation aspect is higher, has more prominence than it might otherwise have.  So, in my submission, to approach it purely on the basis of “it needs to be a particular proportion” is to take out of context what in fact occurs.

CALLINAN J:   But, Ms Abraham, is not that exactly what has happened, that judges have taken it out of proportion?  In Gary Grant Shaw did not the judge consult the actual tables and decide that the offender had a life expectancy of 42 years and then imposed a non‑parole period of 28 years on the basis that that was two-thirds of his remaining life, in actuarial terms?

MS ABRAHAM:   In my submission, that is the one case where an actuarial table was used but one needs to look at what that case was about.  Mr Shaw was a man who had to have a non‑parole period fixed, if one was to be fixed.

CALLINAN J:   No, but do not worry about what the case is about, you have a trial judge who was referring to actuarial tables and that is the sort of thing that is possible or is being done, albeit perhaps only once, because of this so-called Von Einem principle.

MS ABRAHAM:   With respect, your Honour, you cannot ignore the facts of Shaw because the question there was whether he was going to get a non‑parole period and, ultimately, the learned trial judge was convinced that one ought to be set and the question then was fixing a period whereby he would be released from prison at a time when he still had some life left and, so, in my submission all the learned trial judge was doing in that case – I am not suggesting it is what one necessarily ought to do – is go to figures to work out ‑ ‑ ‑

CALLINAN J:   Well, say he had had the right genes in that case and he was going to live for another 72 years, would he have been obliged to sentence him, then, to a non‑parole period of 60 years because he can only have parole for 10 years?

MS ABRAHAM:   What the judge did in that case was simply inform himself in a general way and in a funny sort of way no more than the Court obviously did in Von Einem where it decided that a period was going to be set which would enable him to be released, assuming the normal course of events, at a time where he would expect still to be alive.

KIRBY J:   Well, Justice Olsson seems to have thought that that this is getting a bit out of hand.  He says, “Steady on, this is not what we meant in Von Einem.  I was party to them and when I agreed this is what we did not mean that it should have this mathematical precision.”

MS ABRAHAM:   In my submission, the comments of Justice Olsson need to be considered very carefully because although he makes that comment in Bednikov he is a concurring member of the Court in Murphy and, indeed, is a member of the Court in a number of cases where there is discussion about the question of whether a particular non‑parole period is appropriate and a discussion ‑ ‑ ‑

KIRBY J:   We are not bound by what these distinguished judges did and therefore we have to look at this matter of principle.  What do you submit is the correct principle?

MS ABRAHAM:   In my submission, the correct principle is that when imposing a non‑parole period for the offence of murder where there is a mandatory life sentence a consideration is that mandatory life sentence, so, it follows from that, in a general sense, one is aware of the fact that, for example, a younger person has a potentially longer sentence than a ‑ ‑ ‑

HAYNE J:   It is not just the consideration is that it is a life sentence, the consideration is how that life sentence will bear upon this accused.  You have got to go that far, have you not?

MS ABRAHAM:   Yes.

GAUDRON J:   And, so, it follows, in your submission, does it, as was said in this case, that relative youth counts against an accused or a prisoner?

MS ABRAHAM:   I must confess I am not particularly keen on the terminology used by the learned trial judge.

GAUDRON J:   Well, we have to work with the terminology that was used.

MS ABRAHAM:   In my submission, one has to look a what is meant by it.  If I can go back a step.  If it means, as in my submission it does, that what one must bear in mind is that one is dealing with a mandatory life sentence, therefore, as a matter of fact, if a non‑parole period was not imposed one is looking at a longer sentence for a young person than an older one, then, in my submission, there is ‑ ‑ ‑

GAUDRON J:   You do not sound as though you are terribly enthusiastic in your support of what was said in this case.

MS ABRAHAM:   In my submission, what the judge said in this case was perhaps phrased in a manner that makes it sound like, “We will give you a few more years because you are young”.

GLEESON CJ:   It is easy to see how it could be misunderstood by trial judges in future who come to apply it.

MS ABRAHAM:   There are a number of other cases which no doubt would be referred to the learned sentencing judges to explain properly what it ‑ ‑ ‑

KIRBY J:   But all we have – we have a prisoner’s appeal.  He sits in a cell.  Having read what this judge said, he is entitled to have his appeal determined, according to law.  All we have speaking to us from the Court of Criminal Appeal is Justice Perry’s reasons and therefore we have to ask, “Has his Honour taken into account an erroneous consideration in affirming a sentence which was under appeal and has he applied the correct principles in reviewing the appeal on the prisoner’s application”.  So, it stands as a bit of an offence, really.

MS ABRAHAM:   I accept what your Honour says, except that when one is interpreting what is meant by that phrase one needs to look at what the principle is and when one looks at what the principle is it is not that we give somebody a few more years simply because they are young, it is a question of, in each of the cases, looking at the particular facts and circumstances of the offence and the offender to work out where the appropriate non‑parole period is.

HAYNE J:   Is the principle one that sees a relationship - leave aside the nature of the relationship, but a relationship between head sentence and non‑parole period?

MS ABRAHAM:   In my submission, one does not set about “it needs to be two-thirds, it needs to be ‑ ‑ ‑

GLEESON CJ:   No, but “proportionality” is the word that is used over and over again in justification of this principle, is it not?

MS ABRAHAM:   In my submission, the phrase used is “an appropriate proportion”.

GLEESON CJ:   “Proportion”.

MS ABRAHAM:   But, what is what appropriate depends on the circumstances of each case.

GLEESON CJ:   Yes.

MS ABRAHAM:   Of course, it has to be a proportion of the sentence but what proportion in any given case, in my submission.

GLEESON CJ:   Ms Abraham, how long do you expect to require to complete your submissions?

MS ABRAHAM:   I will be a little while longer; probably about half an hour.

GLEESON CJ:   We will adjourn until 10.15 tomorrow morning.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 10 AUGUST 1999