Inge v The Queen

[1998] HCATrans 295

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A40 of 1997

B e t w e e n -

CHRISTOPHER ALEXANDER INGE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 14 AUGUST 1998, AT 9.50 AM

Copyright in the High Court of Australia

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

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

MRS SHAW:   May it please the Court, this application raises an important question in this State in relation to the fixation of non-parole periods for murder but which occur pursuant to the same section to which all non‑parole periods are fixed, whether for determinate sentences or for mandatory life sentences of murder and the question of principle that arises is whether or not the same approach should pertain to both.

Our Court of Criminal Appeal in the case of Reg v Bricis (1996) 186 LSJS 217, which was applied by the Court of Criminal Appeal in this case, has adopted the position that a different approach applies to the fixation of non-parole periods for murder life sentences upon the basis that Parliament intended that a person serving a life sentence should serve a specific proportion of that sentence in custody and the balance on parole and that should be fixed - is it Yook and Sung, your Honour?

GLEESON CJ:   I cannot remember now.

MRS SHAW:   It is Yook and Sung.  I was going to come to Yook and Sung and rely on it.  It is a judgment of your Honour the Chief Justice’s in Yook and Sung when the specific question was discussed.

GLEESON CJ:   I thought it went to the High Court.

MRS SHAW:   If it did I am not aware of it, your Honour.

GLEESON CJ:   Not in that case.  It is a common issue in the New South Wales Court of Criminal Appeal.

MRS SHAW:   Yes.  Well, certainly in the reported cases, on my researches, Yook and Sung is the only one that I located that was reported but the anomaly that your Honour identified in that case is the precise anomaly that arises because of the approach of our court to sentencing for non‑parole periods for murder and we say not only is it anomalous, namely, that - - -

GLEESON CJ:   I thought there was a Northern Territory appeal.

GUMMOW J:   Yes, decided last year.  It is on the Commonwealth Crimes Act section.

MRS SHAW:   I apologise, your Honours, I am not aware of that.  But, your Honours, can I say that we say that what has occurred is that this approach has arisen on an incorrect assumption by his Honour the Chief Justice that our parole provisions do require that a person who is serving a sentence for life continue on parole for the balance of his life and, in fact, the parole provisions in this State, section 70, which is in the applicant’s book of authorities, makes it plain that far from it being the intention of Parliament that a person remain on parole for the balance of his life, that section provides that upon release on parole, the Parole Board can set a non‑parole period, at the end of which his parole is extinguished.  In other words, the very foundation - - -

GLEESON CJ:   Even if the person is the subject of a sentence for life?

MRS SHAW:   Yes.  Section 69 distinguishes determinate sentences and says the person must complete the sentence but section 70 provides that on release the Parole Board fixes the period the person will spend on parole, approved by the Governor, and at the end of that period the sentence is extinguished.

GLEESON CJ:   You go back a step.  Has the sentencing judge in a murder case here have discretion between imposing an indeterminate life sentence and a fixed sentence?

MRS SHAW:   No.  It is mandatory life sentence.

GLEESON CJ:   Well then, this issue would not arise currently in New South Wales because we do not have mandatory life sentences but I think what we have - - -

MRS SHAW:   Is an indeterminate life sentence.

GLEESON CJ:   I withdraw that.  I think what they have is a choice, a discretion.

MRS SHAW:   However, your Honour, the reasoning that your Honour applied in Yook and Sung is exactly the same because in Yook and Sung the court was concerned with a judge who had reasoned from a decision to impose a life sentence and then to say what proportion of that life sentence should the person spend in custody.

GUMMOW J:   Yes, that is section 16G of the Commonwealth Crimes Act.

MRS SHAW:   Yes, section 16.

GUMMOW J:   Yes, that is the one we considered last year.

MRS SHAW:   I apologise, your Honour, I am not - although section 16G relates - - -

GUMMOW J:   Yes, it was a Northern Territory appeal.

MRS SHAW:   It relates to remissions, as I understand it, on the indeterminate life sentence.  Can I perhaps take your Honours to the reasoning of his Honour the Chief Justice in Bricis which appears - - -

HAYNE J:   Before you do, can I identify a problem that may be anterior to it.  The appeal to the Court of Criminal Appeal was on the ground of manifest excess, was it not?

MRS SHAW:   Yes.

HAYNE J:   The Court of Criminal Appeal referred to this proportionate idea from Bricis but the sentencing judge did not, did he?

MRS SHAW:   Not specifically in his reasons but there is no doubt that ‑ ‑ ‑

HAYNE J:   No, and the non-parole period of 20 years that was fixed in this case, at least according to such sentencing statistics as I was able to discover, appeared to fall at almost precisely the average non‑parole period fixed for murder in this State in 1995 and 1996, being the last stats I could find.

MRS SHAW:   Your Honour, with respect, that has occurred since Bricis in relation to young offenders because one is looking at a proportionality to life sentence approach.

HAYNE J:   Leave aside proportionality to life sentences.  If the question the Full Court confronted was manifest excess, would we get to this question of principle of proportionality or asserted principle of proportionality at all?  That is, would we get to that if, but only if, you were first able to persuade us that 20 years was manifestly excessive, and if 20 years is about average in this State for this sort of murder, how do you get past that hurdle?  That is the difficulty I have.

MRS SHAW:   Your Honour, in my submission, it is not the average sentence for murder in the State.  I mean, the case of Winters which is in my list was a person who was 39.  The Court of Criminal Appeal was referred to fundamental sentencing principles.  Mr Winters had committed a rape murder.  His sentence was reduced.  He was an older man, in his thirties.

HAYNE J:   I refer to averages simply based on “Crime and Justice in South Australia 1995 and 1996”  The numbers for 1996 were average non-parole period for murder, 240 months; and in 1995, 224.7 months.

MRS SHAW:   Your Honour, as this Court commented in Bugmy v The Queen, the use of statistics in the fixation of a non-parole period is not of much assistance but what is significant is that the 1995 and 1996 figures depend upon calculations made in accordance with the Bricis principle, and that is what is being challenged in this Court.  Those statistics would not be borne out by statistics in years before 1995.

GLEESON CJ:   Where do we find the Bricis principle?

MRS SHAW:   Bricis, your Honour, is No 1 in the Crown book of authorities and it appears at (1996) 186 LSJS at page 220.  If your Honours go to page 220 and, in particular, to the passage that begins, in the third paragraph:

There is another matter to be borne in mind when fixing a head sentence in relation to a sentence of imprisonment for life.  In fixing a non-parole period the function of the judge is to decide what proportion of the sentence must be spent in prison, and what proportion may appropriately be spent in the community on parole.

And what I emphasise is that in the case of murder one is considering what proportion of a sentence of imprisonment for the balance of the offender’s life must be spent in prison.  His Honour then quotes from a case of Tio and Lee which was an importation of heroin case dealing with sentence of general deterrence.  He then says:

It follows from this that when fixing a non-parole period in relation to a life sentence, the age of the prisoner is material.  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.

And so it is specifically contemplated, and as it was applied in the judgment in Bricis in the consideration of manifestly excessive, as his Honour Justice Perry said, “relative youth counts against a person in determining the appropriate non-parole period.”

GLEESON CJ:   Is this concept of proportionality a statutory concept?

MRS SHAW:   No, it is not.  That is my point.

GLEESON CJ:   In statutes with which I am more familiar, the non‑parole period is the period before the expiration of which the prisoner may not be released.

MRS SHAW:   Yes.

GLEESON CJ:   Sometimes called “a minimum term”.

MRS SHAW:   Yes.

GLEESON CJ:   It produces a consequence which, looking back at it, after a sentence has been fixed, exhibits proportionality.  But I had not understood that the original objective was to seek proportionality.

MRS SHAW:   Quite the opposite.  Quite the opposite, your Honour, and in that - - -

HAYNE J:   Bugmy would establish that the objective is different, would it not?

MRS SHAW:   Precisely.  In fact, the High Court interfered in Bugmy on a life sentence for a young offender who had a very serious history of convictions, on the basis that the sentencing judge had not given proper weight to matters relevant to rehabilitation in the non‑parole period.  In other words, just as in Bugmy, in this State there is a system of parole for the purposes of allowing for a rehabilitative process and there is nothing in the statutory scheme which augurs against or is inconsistent with the general approach to sentencing that the High Court espouses in Bugmy and in Shrestha.

Can I tell your Honours that the idea of proportionality in this State, as a consideration, first arose after there was a provision for automatic release at the expiration of a non‑parole period.  That is, at one stage we had a provision which said that if you completed your non‑parole period you are automatically released.  So, the court knew when it imposed sentence that the man must be released at the expiration of his non‑parole period.  That is not the situation we now have for any sentence in excess of five years, it is the ordinary sentencing approach, fixation of non‑parole period and then release.

GLEESON CJ:   Any imposition of an indeterminate life sentence will bear more harshly upon young people than upon old people.

MRS SHAW:   Precisely.

GLEESON CJ:   And it will bear more harshly upon well people than upon people who are suffering from a terminal disease.

MRS SHAW:   Yes.  Your Honour, that is one of the reasons why youth is regarded as a mitigating factor, not a reason to impose a longer sentence on a young person.  In other words, the very reasons that, in general sentencing principles, youth is regarded as a factor of mitigation.

GLEESON CJ:   But I am just not convinced at the moment that what the Chief Justice was intending to say was that the fact that the prisoner is a young person means that he is to be more severely punished.  I understand his Honour simply to be saying the fact that he is a young person means that he will be more heavily affected by an indeterminate life sentence.

MRS SHAW:   Your Honour, that is not the case because, indeed, his Honour the Chief Justice in subsequent cases, including the case of Reg v Murphy, which is in the Crown book of cases, extended a non‑parole period for a 19-year-old from 18 to 25 years, based upon the application of Bricis and proportionality.  In a case of Shaw v The Queen which is in our book of cases, in fact the learned judge had recourse to actuarial tables to consider the question of life expectancy and the Court of Criminal Appeal said that in accordance with Bricis that was quite proper.  Now, we take the greatest issue with recourse to actuarial tables, for example, particularly bearing in mind what we know about the repercussions on prison of different races in this country.

HAYNE J:   But that did not happen in this case.  Assume for the purposes of argument that the attacks on the supposed principle that you make are valid.  Are they attacks that can be made and will have to be considered or ought to be considered in this vehicle, in this case?

MRS SHAW:   Yes, your Honours, because, in my submission, the learned judge sentenced upon the basis of Bricis principles and the Court of Criminal Appeal determined the question of whether or not that sentence was excessive by applying the principle “relative youth counts against him in determining an appropriate non‑parole period”.

GLEESON CJ:   Is it the case that the non‑parole period fixed here is not markedly different from the average period fixed in South Australia in cases of murder?

MRS SHAW:   Your Honours, in my submission, it is because the non‑parole periods fixed in this State can range, for example, in a case of Atkins, non‑parole period for murder, nine years.  More recently, in a case of Jones, 14 years, and in other more serious cases - in Shaw it was 28.   So, there is not, in accordance with Bugmy v The Queen, in my submission, an appropriate standard or tariff that one can look at for non-parole sentences for murder.  What is important is that this was a young man, the most important factor which should have been relevant to mitigation was, in fact, used as a matter of aggravation and hence the entire approach to sentencing was flawed. 

GLEESON CJ:   Where do we see it being used as a matter of aggravation?

MRS SHAW:   At page 25 of the application book, your Honour, at line 28.  Having set out the relevant passage from Bricis their Honours say:

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 resons identified in Bricis, it would be an unusual case in which that could cancel out the allowance to be made the other way.

Now, your Honours, that is the way in which Bricis has been consistently applied in this State, “youth counts against you”.  So, that two murderers charged with exactly the same crime, the one who is younger is going to get the longer sentence.

GLEESON CJ:   Well, if they are both given indeterminate life sentences, the one who is younger will spend longer in prison, just as if one of them is well and one of them is ill, the one who is well will spend longer in prison.  They can only do the best they can.

MRS SHAW:   Yes, but we do not have - your Honour, here, it is not an indeterminate life sentence, it is a mandatory life sentence.  There is the requirement for the fixation of non-parole and then there is the requirement for the Parole Board to decide what, indeed, period he shall spend in prison and how much non-parole he, in fact, serves.

GLEESON CJ:   We might just suspend time for a moment, Mrs Shaw.  That Northern Territory case raised a similar problem but in relation to a different issue, that is, the issue of remissions and the Commonwealth Crimes Act.

MRS SHAW:   Your Honours, can I raise one other important discussion on this issue, and it appears in a judgment, Reg v Bednikov (1997) 193 LSJS, in particular at pages 283 to 284.  His Honour Justice Olsson was a member of the coram in Von Einem v The Queen which his Honour the present Chief Justice relied on for his reasoning, and his Honour Justice Olsson, who was a member of that coram gave some of what your Honour Justice Gummow referred to yesterday as “after sale service” as to what in fact the court meant and he, effectively, explained that in Von Einem’s Case they were concerned with a man who was much older and they had to look at a sentence which provided, to some extent, or had to consider whether or not he should die in gaol or whether, out of sheer humanity, he should be released shortly before.  He says:

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.

In other words, he is making it plain that the court never intended to apply the proportionality test but merely to take into account age for an older offender out of sheer humanity that he did not die in gaol, and that has then been extrapolated to apply to young offenders to lead to the view that proportionality requires them to spend longer in prison.

So, your Honours, we have his Honour Justice Olsson attempting to assert what, in truth, was the real meaning of his Honour - - -

GLEESON CJ:   Yes, in the middle of page 284.

MRS SHAW:   Yes.  He condemns the suggestion of providing the broad mathematical formula and, as I said to your Honours, in Winters I argued to the court that, indeed, this application of a broad mathematical formula was wrong.  His Honour the Chief Justice did not decide the issue; merely stated the principles in Shrestha and Bugmy, and his Honour Justice Olsson has then, in this case, said that, indeed, the true position ought to be as your Honour the Chief Justice set out in Yook and Sung, that an approach to sentencing should not provide anomalous results and should not be inconsistent with the fundamental principle that the crime or the sentence be proportionate to the offender and the circumstances of the crime.

So, we say that the current practice in this Court is to apply this mathematical formula and resort to actuarial calculations, and we say that is inconsistent with fundamental sentencing principles.  It is not consistent with a sentence being imposed on the basis that it is proportionate to the offender and the circumstances of the offence.  If the Court pleases.

GLEESON CJ:   Does anybody apart from you and Ms Abraham appear in these cases in South Australia, Mrs Shaw?  I notice you argued Winter.  Yes, Ms Abraham.

MS ABRAHAM:   In my submission, your Honours, it is wrong to approach this application on the basis that what occurs in this State is the application of a pure mathematical formula to fixing a non‑parole period for these sentences of life imprisonment.

HAYNE J:   What is this proportionality idea that seems at least to be spoken of in relation to these cases?  What does it mean?

MS ABRAHAM:   In my submission, what it means is a reflection of a fairly fundamental principle that the non‑parole period should bear some proportionality to the seriousness of the offence.  I mean, I accept, of course ‑ ‑ ‑

HAYNE J:   That, I can understand, that the non‑parole period should be the minimum time that a prisoner should serve in gaol, given the characteristics of the offence and the offender.

MS ABRAHAM:   Yes, but, in my submission, that is not contrary to taking into account a proportionality with the seriousness of the offence.  What the court has done - - -

GLEESON CJ:   But it is proportionality with the life, as I understand it.  What is the statutory provision in South Australia that dictates what is to be taken into account in fixing a non‑parole period?

MS ABRAHAM:   Section 32.  There are no - - -

MRS SHAW:   It applies to all sections, your Honour.

MS ABRAHAM:   There are no specific matters set out, in my submission.  What there is is section 10 of the Sentencing Act which sets out matters to be taken into account.

GLEESON CJ:   Have we got that text?

MS ABRAHAM:   It is in my friend’s booklet of authorities, I understand.  No, it is not, I am sorry.  It is not in the book.  Perhaps I can indicate to the Court what they are:

(a)  the circumstances of the offence;

(b)  other offences (if any) that are to be taken into account;

(c)  if the offence forms part of a course of conduct - - -

GLEESON CJ:   This is in fixing the non‑parole period?

MS ABRAHAM:   No, in fixing sentence generally.

GLEESON CJ:   No, I think you may have misunderstood the question.  There are places in which what is sometimes called the non‑parole period or what is sometimes called the minimum term is said by a statute to be the period before the expiration of which the judge considers the offender may not be released, in other words, a non‑parole period means what it says.  Parole is granted by authorities outside the judicial system but the judge, in fixing a non‑parole period, fixes the date before which the authorities who administer the parole system may not grant parole.

MS ABRAHAM:   I accept that and in this State section 32 of the Criminal Law (Sentencing) Act sets out the duty to fix a non‑parole period.

HAYNE J:   But does it tell the judge how to or what matters to - - -

MS ABRAHAM:   No, it does not.

HAYNE J:   Therefore, it is common law, is it?

MS ABRAHAM:   Yes.

HAYNE J:   Therefore, Bugmy.

MS ABRAHAM:   Yes.  But, in my submission, Bugmy does not say that you do not take into account matters like deterrence and seriousness of the offence in determining the non‑parole period.  Rather, of course, you do not give them the same weight as one would if one was considering the head sentence.

HAYNE J:   But what does Bugmy tell us about age?  In particular, does it tell us that age is a factor that counts against a young offender in fixing a non‑parole period?

MS ABRAHAM:   In my submission, before answering your Honour Justice Hayne’s questions, what happens in this State is that age is not necessarily alone considered as counting against.  Age is used, with respect, in two ways:  age is used in the first step - if that is the right word - of determining what, bearing in mind the age, is the minimum time to be spent in custody to have regard to the preventative and deterrent aspects of punishment and, secondly, in relation to what are the prospects of parole.  Now, age has to be relevant to both of those factors.  In my submission, Bugmy does not state that age is required to be aggravating but, by the same token, in my submission, age is not aggravating.  What occurs in this State is the application of the proportionality with the seriousness of the offence.  Now, the seriousness of the offence in this State for murder is life imprisonment.

GLEESON CJ:   There seems to be an ambiguity in this concept of proportionality.  Everybody agrees, as I would understand it, that both the non‑parole period and the head sentence should be proportionate to the seriousness of the offence which is a modern way of saying the punishment should fit the crime.  But I had understood that what Mrs Shaw is arguing is that the idea that is reflected in this judgment is that there should be some kind of proportionality between the non‑parole period and the total sentence.

MS ABRAHAM:   In my submission, what it is, is the court recognising that Parliament has said that the seriousness of the crime is life imprisonment.

GLEESON CJ:   Undoubtedly, whatever non‑parole period you establish, it will exhibit, with the benefit of hindsight, a proportionality to the head sentence but the question, as I understand it, is whether, in fixing the non‑parole period the sentencing judge should set out to achieve a certain proportionality between the non‑parole period and the head sentence in such a way that if you fix an indeterminate life sentence, the length of the non‑parole period will be affected by the age of the offender.  Have I understood the question correctly?

MS ABRAHAM:   That is as I understand my friend’s application.  In my submission, it is not a question of the court just setting out to be proportionate because there are a number of factors to be taken into account.  If one looks at the cases - and there is a series of cases and it begins before Murphy - Jarrett, Bricis, Murphy and Von Einem, which stated the principles at the outset, in none of those cases is it in fact stated there are some mathematical calculation, “This man, because he is 20, for example, will live 50 years, therefore we must give him X amount.”  To the contrary, in Jarrett, when there was talk, “Well, he’ll spend 50 years in gaol because of his age”, “We can’t have a non‑parole period that high.  That’s just ridiculous.”  So, the non‑parole period was reduced to what was regarded as a much more appropriate level.

So, in my submission, when one looks at the authorities, it does not bear out that there is some mathematical formula with this specific achievement to be proportionate.  In my submission, what the court does is look very generally at the two questions that I raised earlier, namely, the minimum time, given the age that a person needs to spend in gaol, depending on the deterrence, preventative aspect, and secondly, the prospects of parole.  Bricis itself talks about the rehabilitation.  In Inge it talks about age and the rehabilitation.  There is clearly a tension in many cases between those concepts:  the fact that, obviously, the man is going to spend a long time in gaol because he has a life sentence.

GLEESON CJ:   In Jarrett he got a non‑parole period of 39 years.

MS ABRAHAM:   Reduced automatically, in effect, to 26 years because of the change in legislation.

HAYNE J:   And is this 20 that we are dealing with in this case - - -

MS ABRAHAM:   Would be the same as the 26; the same system at the moment.

HAYNE J:   Twenty real time, not 20 artificial?

MS ABRAHAM:   That is correct, yes.  Jarrett was decided just before the change in legislation and the court took that into account when - - -

GLEESON CJ:   No, Jarrett got 39 years non‑parole period.  Now, I understand remissions will reduce that to 26.

MS ABRAHAM:   It is almost automatically on the decision in Jarrett and it is actually in the decision.

GLEESON CJ:   But the comparison here is between 20 for this offender and 26 for Jarrett, is it not?

MS ABRAHAM:   Yes, that is correct.  In my submission, it is important my friend has not been able to point out, with respect, specific cases which have demonstrated that young people, simply because of their age, are getting longer non‑parole periods.  In my submission, my friend has not pointed out any cases that demonstrate that age, per se, has meant that here is a series of young people that have - - -

GLEESON CJ:   What do you say about how this figure of 20 years, in the present case, would relate to the sentencing pattern in South Australia?

MS ABRAHAM:   In my submission, the Court of Appeal was correct in saying it was not manifestly excessive.  My friend has referred to, I think, three cases, one of Atkins where a man received nine years.  That was a decision at first instance, never taken on appeal and, with respect, that is out of kilter with the non‑parole periods imposed.  Jones was referred to by my friend.  That was a man who committed an offence when he was a juvenile and, although sentenced as an adult, there are different considerations to be taken into account.  And my friend mentioned Shaw at the other extreme, 28 years.

GLEESON CJ:   Was this a co-offender with Schultz whom we dealt with yesterday?

MS ABRAHAM:   No, it is different.  Your Honours, in my submission, the non‑parole periods generally range from 14 at the very lowest to the 28/29-year mark and, in my submission, 20 is not an uncommon figure for a non‑parole period for murder.

GLEESON CJ:   But what Mrs Shaw suggests to us is that if this person, instead of being - was he aged 20?

MS ABRAHAM:   This person was 23, I believe.

GLEESON CJ:   All right.  She says something to the effect that if, instead of being 23, he had been 43, the non‑parole period that would have been fixed in the present case, consistently with this reasoning, might have been 15 or 16 years.  Is that right?

MS ABRAHAM:   In my submission, not necessarily so because if one was 43, then one is looking at other considerations as well.  Obviously, age was taken into account in this man’s favour as well as in the proportionate sense.  When the man is 43, one would not have the age being taken into account in the mitigating sense.

GLEESON CJ:   I notice the use of the word “separately” in one of these judgments.  Was his age taken into account in his favour in some respects?

MS ABRAHAM:   In my submission, the sentencing remarks do not actually go through any particular steps.  It is clear from the sentencing remarks that taken into account in his favour were all the matters put which included, with respect, age.

GLEESON CJ:   Was his age taken into account against him in any respect?

MS ABRAHAM:   It is not specifically stated in the sentencing remarks that it is, no.  There is no mention of Bricis or any of those authorities.

GLEESON CJ:   At first instance.

MS ABRAHAM:   At first instance.  So, in my submission, what the Court of Appeal was doing here was approaching the question of whether the non‑parole period imposed was manifestly excessive by, obviously, the standards applied in this State and the principles applied in this State.  It was in that context that then discussion about proportionality took place but, by the same token, immediately thereafter there was also reference to taking the matters into account in his favour.

HAYNE J:   I must say to you though, Ms Abraham, I have considerable difficulty with what appears at page 25, line 29 and following:

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 a start, I do not understand what it means.  More importantly, I do not know how a sentencing judge works out what to do.

MS ABRAHAM:   In my submission, what that is reflecting is the two questions I raised earlier.  It is reflecting it in the minimum time necessary for the deterrent aspect and reflected in the question of whether the person would be suitable for parole or not, and that is all that is saying in relatively clumsy terms, in my submission.

GLEESON CJ:   There is an application for extension of time here, Ms Abraham.  Is that opposed?

MS ABRAHAM:   No.

GLEESON CJ:   Well then, we will make an order granting that extension of time now before we continue with the argument.

MS ABRAHAM:   Might I just make some comments on my friend’s submissions about his Honour Justice Olsson’s comments in Bednikov.  His Honour Justice Olsson made some comments in Bednikov, in effect, warning against the use of any mathematical formula and, in my submission, no mathematical formula has been used.  But it is also important, when one looks at his decision, is it is, in fact, a decision of only one judge of that court as it was unnecessary for the court to consider the sentence appeal.  But, more importantly, his Honour did not consider Bricis.  His Honour, although mentioning Murphy only did it in the context of saying that Von Einem has been approved in Murphy and his Honour does not discuss the other relevant cases on this topic. 

That is particularly important because 12 months earlier his Honour was in fact a judge on the court in Murphy, and in Murphy it is clear that there are comments about the proportionality aspect and, indeed, comments about Bricis, Von Einem and cases of the like in the judgment of the Chief Justice.  His Honour Justice Olsson concurred with that.  There is no reference to that discussion at all in his Honour’s comments in the later case of Bednikov.

GLEESON CJ:   Where is the judgment of Justice Williams in the present case?

MS ABRAHAM:   It only deals, your Honour, with the co-accused.

GLEESON CJ:   What page in the application book?

MS ABRAHAM:   Page 28.  He makes no comment about the substance of the appeal in relation to Mr Inge but dissents in relation to the decision in relation to Mr Schultz.

Your Honours, if I can refer to one other case that my friend has referred to and that is to demonstrate my friend’s submission that mathematical formula is used, and that is Shaw, where it was said that an actuarial table was used.  In my submission, Shaw, again, is a different case.  Mr Shaw had been already sentenced for manslaughter and what his Honour did was try and determine in his own mind, obviously, from actuarial tables, how much, on a now sentence of murder, he had of his life to lead when he was determining the non‑parole period.  That, in my submission, is the only instance amongst all the judgments of any reference at all to actuarial tables and not used in the sense, in my submission, that - - -

HAYNE J:   On its face, an unusual procedure, at least, Ms Abraham.

MS ABRAHAM:   I would have to concede, yes, but the bottom line, with respect, that one knows, if one is sentencing a man that is 20, you are likely to - the age expectancy is somewhere between 70 and 80, you are looking at a head sentence of in the order of 50 or 60 years.

GLEESON CJ:   Which side was Mr Barrett on in the argument in the Court of Criminal Appeal?

MS ABRAHAM:   He was for Mr Inge.

GLEESON CJ:   I am looking at what appears on page 25, line 17.

MS ABRAHAM:   Your Honours, Mr Barrett, in fact filed the original outlines in this matter and in his reply to my outline - his reply at page 55, he makes comment on that aspect.  Mr Barrett did argue in the Court of Appeal that age should have been taken into account in a mitigating sense and that is how age should have been used.

GLEESON CJ:   The word used is conceded.

MS ABRAHAM:   It is, your Honour, but I can tell your Honours - and the concession is made in the outline at page 55 of the application book - that the argument by Mr Barrett at first instance explicitly invited the court to say that age was mitigating.

GLEESON CJ:   That is different from what appears on page 55, in the middle of the page:

The respondent argues in paragraph 9 that the Court of Criminal Appeal accepted that in addition to being relevant to the question of proportionality, youthfulness could also be regarded as a mitigating factor.

Now, on page 25, that matter is attributed to Mr Barrett as involving a concession.  In other words, the argument seems to have been recorded on the basis that age was a factor that cut both ways.

MS ABRAHAM:   Your Honour, the paragraph on page 55 was done in relation to having read the transcript of the appeal argument.

GLEESON CJ:   Well then, do you say that the Court of Criminal Appeal or that Justice Perry was in error in recording this as a concession by Mr Barrett?

MS ABRAHAM:   If that means that the concession was only to be regarded one way, then - - -

GLEESON CJ:   No.  What I suggested to you a moment ago was that Justice Perry seems to have understood that it was being put to him that age was a factor that cuts both ways, that in one respect it is a mitigating circumstance and, in another respect, it counts against the offender.  That appears from line 17 and lines 31 or 32.  Now, was Justice Perry mistaken in thinking that Mr Barrett conceded that at least in one respect age was something that counted against his client?

MS ABRAHAM:   All I can say over and above what was on page 55 in the paragraph that deals with that:  there was a clear argument that the law in this State was that age was used in a certain way or could be used in a certain way.

GLEESON CJ:   What was the concession that Mr Barrett made, if any?

MS ABRAHAM:   With respect, age on his scenario was a relevant factor.  Now, whether he said, “Not only should it be mitigating but we accept also that the law has recognised that it can be used on the proportionality question”, whether it means that, I am unsure but, with respect, I do agree or do accept that he did argue to the court that at the very least it ought to be mitigating.

GLEESON CJ:   And the court accepted that argument at line 32.

MS ABRAHAM:   Yes, I agree.  I agree that it has been regarded as a mitigating factor.

GLEESON CJ:   Were you present at the argument of the Court of Criminal Appeal?

MS ABRAHAM:   Yes, I was.

GLEESON CJ:   Did you recollect any concession of any kind on this issue being made by Mr Barrett?

MS ABRAHAM:   Your Honours, it is a very long time ago now.  I do recall him arguing that it should be regarded as mitigating and there was a good deal of argument that the law was, in this State, that it could also be used as the proportionality question.  Whether it was a concession that that was the law or whether it was a concession that that ought to be the situation, I really have no specific memory.

GLEESON CJ:   All right.  Thank you, Ms Abraham.  Mrs Shaw, was there a concession made by Mr Barrett of the kind referred to?

MRS SHAW:   No, your Honour.  The very reason for Mr Barrett going to the trouble of looking at the transcript and obtaining my learned friend’s agreement that he never conceded that and including it at page 55 of the application book is for that precise purpose.  He never conceded it.  In fact, Mr Barrett was the one who instituted this appeal on this very principle and, therefore, his Honour Justice Perry is mistaken as that paragraph in the reply makes plain.

GLEESON CJ:   The judge may just have misunderstood the submission.

MRS SHAW:   He may have misunderstood the submissions.  Your Honours, two other things in response to what my learned friend has said:  if there be any doubt about what the Crown position has always been in this State since Bricis, it is made clear at page 50 of the application book in Ms Abraham’s submission, paragraph 5:

The question of proportionality between the head sentence and the non‑parole period is equally applicable to a head sentence of life imprisonment.  Therefore a relevant factor in imposing the non‑parole period is the age of the prisoner.  It follows as a practical consequence that a young offender, because of life expectancy, may serve a longer period in prison.

Now, that has been the Crown’s consistent attitude.  That is the attitude that has been accepted by a Court of Appeal, and in the case of Reg v Murphy (1966) SASR 406, which my learned friend referred to, this is what his Honour the Chief Justice said:

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 as 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.

In other words, it reflects precisely the argument of Ms Abraham in this outline and it makes it plain that age has been taken into account adverse to a young offender in a way that does not reflect the fundamental principles of proportionality of offender and circumstances of the offence.  If the Court pleases.

GLEESON CJ:   We will adjourn for a few minutes to consider the course we will take in this matter.

AT 10.35 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.40 AM: 

GLEESON CJ:   In this matter the Court is of the view that there should be a grant of special leave to appeal.

Mrs Shaw, how long do you expect argument in the appeal to take?

MRS SHAW:   I would not have thought more than half a day, your Honours.

GLEESON CJ:   Not more than half a day?

MRS SHAW:   No.

GLEESON CJ:   Yes.  We will take a note of that.  Do you agree with that, Ms Abraham?

MS ABRAHAM:   Yes.

GLEESON CJ:   We will adjourn to reconstitute.

AT 10.41 AM THE MATTER WAS CONCLUDED