Jarrett v The Queen

[1995] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A7 of 1995

B e t w e e n -

DAVID PETER JARRETT

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1995, AT 3.47 PM

Copyright in the High Court of Australia

MR G.F. BARRETT:   May it please the Court, I appear with my learned friend, MR R.N.H. MAYNE, for the applicant.   (instructed by David Stokes & Associates)

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

BRENNAN CJ:   Yes, Mr Barrett.

MR BARRETT:   May it please the Court, the special leave point which we raise is this:  we submit that the question of law of public and general importance is to determine whether the principle enunciated in the case of Von Einem and applied in this case is inconsistent with broader sentencing principles of proportionality and uniformity.  We contend that the Von Einem principle that, in certain sorts of cases of murder, the non‑parole period or the minimum term must be set so as to bear a relationship to the normal span of life and that it should do so irrespective of the offender’s youth flies in the face of broader sentencing principles.

We say that it cannot prevail against principles long established by this Court for the fixing of non‑parole periods or minimum terms.

BRENNAN CJ:   What are those principles?

MR BARRETT:   The principles are that the non‑parole period and the head sentence must be fixed proportionate to the gravity of the crime, in particular the non‑parole period must be fixed in proportion to the gravity of the crime laid down by Power and confirmed in recent cases, most recently in Bugmy.

BRENNAN CJ:   Well then, what you are saying is that that being the general principle, it was not applied here.

MR BARRETT:   Yes.

BRENNAN CJ:   That is simply saying that the Court of Criminal Appeal went wrong in its evaluation of the case.

MR BARRETT:   No.  With respect, it is our submission, both that it went wrong in the case, but the more important point and the more applicable point on a leave application is that the principle was wrong in Von Einem.  The principle that, in certain cases at least, of murder ‑ the worst category of murder, so it is said ‑ the non‑parole period should be fixed, not simply by the crime itself but by the normal span of life and that is irrespective ‑ and this is inherent in the principle in Von Einem ‑ irrespective of the age or, more pertinently for our point of view, the youth of the offender.

In our submission, that principle offends more general principles enunciated in this Court and the court, in my submission, clearly did rely upon that principle in Von Einem, at least when they increased the sentence.  I can take the Court very quickly to the passages in the appeal book where the court did so, though it fell short of, if you like, applying the full rigour of the Von Einem principle.

BRENNAN CJ:   You have to demonstrate some error of principle because, as you know, this Court does not grant special leave simply to review the sentencing.

MR BARRETT:   Quite.  Yes, it is the Von Einem principle which we are challenging; in my submission that the principle is wrong and to apply it, of course, was wrong.  His Honour the President of the Court, Justice Mohr at page 13 of the application book, having cited Von Einem and having only cited Von Einem, and having made some, if you like, arithmetic calculations about what the normal span of life might be and the non‑parole period that would fit that principle said this, at the top of the page:

I find this evaluation of age and the length of the non‑parole period difficult but I am of the firm opinion that the period fixed was too short but equally to fix a period of say fortyeight years which, with the statutory remissions would mean that the respondent would be eligible for parole in thirtysix years at the age of fiftyfive years would be excessive.  In all the circumstances I would grant leave to appeal and allow the appeal by setting aside the non‑parole period and in lieu thereof fix a non‑parole period of thirtynine years.  The effect will be that the respondent will be eligible for parole at the age of fortynine years or thereabouts.

Her Honour Justice Nyland concurred citing, herself, Von Einem and his Honour Justice Debelle at page 17 of the application book did likewise, again, having cited Von Einem and re-cited the particular principles enunciated there, went on at line 13 or thereabouts:

If regard is had to all of these considerations, there is much to be said for fixing a non‑parole period longer than the 39 years proposed by Mohr J, which, with remissions, means that the prisoner will be eligible for parole at the age of 49 years.  Even a non‑parole period of 45 years will result in the prisoner being eligible for parole when aged about 53 years.  However, one cannot overlook that with a non‑parole period of 39 years, the prisoner will have been incarcerated for some 26 years.  Even in the case of a crime as shocking as this, there is room for a degree of humanity.  In addition, one cannot entirely overlook the possibility of the prisoner realising the gravity of the crime and genuinely repenting.  Further, I think it is proper, when sentencing this prisoner to have regard to the proposed amendment to the sentencing laws and the new regime which will be in force after 1 August 1994.  Concerns that the non‑parole period of 26 years is manifestly inadequate are, I think, offset by the knowledge the prisoner is not automatically entitled to parole on serving the 26 years but will be released only on the recommendation of the Parole Board, which must have regard among other things to the remarks of the Court when sentencing.

BRENNAN CJ:   What is the principle which the court has applied?

MR BARRETT:   The principle that the court has applied is the principle that one has to have regard to the normal span of life of the offender, that the sentence will be increased on that account.  However, when faced with the, if you like, enormous consequences of the logic of the application of that principle, they have ameliorated it in different ways, Justice Mohr saying that he purports to apply the principle, then says, “Well, it’ll be excessive to do so” and resorts to no other principle of sentencing to ameliorate it.

His Honour Justice Debelle, in effect and literally, says, “I would prima facie be inclined to impose a longer non‑parole period than the President is recommending;  however, I’m comforted by the fact that, under the new regime to come into force in three days’ time, he will not automatically be released”.  So, he ameliorated ‑ ‑ ‑

BRENNAN CJ:   What do you suggest they should do?  What should they do?

MR BARRETT:   In my submission, they should have had regard to the offence so as to determine the proportionate and proper sentence to impose with regard to the offence consisting of the various needs that there are in fixing a non‑parole period such as this.

BRENNAN CJ:   So they said the proper sentence for this is life imprisonment.

MR BARRETT:   Yes, and the court has to fix a non‑parole ‑ at least, it may fix a non‑parole period and generally does.

BRENNAN CJ:   But, say they said, life imprisonment, full stop, no non‑parole period.

MR BARRETT:   That would have to then be justified under the separate sections dealing with the considerations that apply to the declining to fix a non‑parole period and it is almost never done in this State.  It is difficult to interpret, as it has been in other jurisdictions, exactly the difference between the criteria for fixing and declining to fix a non‑parole period.

BRENNAN CJ:   But, if you are saying that they should not take into account the life expectancy of an accused, here it was taken into account by way of reducing the sentence from life imprisonment to some lesser figure.

MR BARRETT:   With respect, what the court did, in my submission , was to apply the principle, to apply the logic offered at first, but then resort to no sentencing principle in ameliorating it, saying, in effect ‑ and all three judges, in my submission, are quite plain in the principle they are applying, but draw back for their various reasons to carry through the logic of the principle they are applying.

TOOHEY J:   The head sentence here was mandatory.

MR BARRETT:   Yes, so it was.

TOOHEY J:   So, the only question for consideration is the length of the non‑parole period?

MR BARRETT:   Absolutely, as was the case ‑ ‑ ‑

TOOHEY J:   And on that period, remissions operated, did they?

MR BARRETT:   Yes, they do, that is right.

TOOHEY J:   What is the formula that is applicable, Mr Barrett?

MR BARRETT:   The formula, of course, did not apply three days thereafter.  Remissions were abolished as of 1 August 1994.  The formula was that remissions of up to a third might be taken off and the transition provisions of the new enactment required that the maximum remissions be credited on the spot.  As soon as the new enactment came into force, people such as the applicant here had their maximum remissions credited on the spot, if you like, without having to deserve them.  The transition provisions provided for that.

TOOHEY J:   What was the practical effect of that upon the non‑parole period in this case?

MR BARRETT:   The practical effect of that was to reduce the 39 years fixed by the Court of Criminal Appeal to 26.  Had the new enactment not come in, he would have had to have earned those remissions.  They would have been credited as time went by, but the transition provision gave him those remissions.  However, he was caught by the other aspect, of course, of the new enactment, namely that his release was not automatic as it would have been under the old regime.  His release ‑ ‑ ‑

TOOHEY J:   You mean his release would have been automatic at the expiration of the non‑parole period as reduced by such remissions as were earned?

MR BARRETT:   That is right.  But, under the new regime his release depends upon the discretion of the Parole Board.  The question facing the Court of Criminal Appeal is precisely, really, the question that was facing both the sentencing judge, Justice Brooking in Bugmy’s Case and this Court when considering Bugmy on appeal and it was to fix a minimum term for a mandatory life sentence.  In the case of Bugmy, when the applicant there was first sentenced, there was a mandatory life sentence and no provision for the fixing of a non‑parole period.  However, the legislation changed after some three years and he was entitled to, and did, make an application to have a non‑parole period fixed and his Honour Justice Brooking then moved to carry out precisely the same exercise that this Court was faced with, fixing a minimum term and the principles ‑ ‑ ‑

TOOHEY J:   It is still very difficult to see that we are being asked to do more, in granting special leave, than to review the factors that the court below had regard to in determining what was an appropriate non‑parole period.

MR BARRETT:   No, with respect, what we are putting is that the principle enunciated in Von Einem that one does not simply look to the proportionality principle, that is, look to the sentence which is appropriate for the crime with all the considerations that go into that, one does more.  One makes some sort of assessment of what is appropriate over and above that, given the life‑span to be expected of the offender.  In our submission, that is a matter of principle of general application which is fit for the consideration of this Court, that it flies in the face of, and cannot prevail against, the considerations which have been laid down and followed as recently as Bugmy by this Court.

It does not matter what the sentencing regime really was.  This Court has had to consider sentencing regimes where there are remissions taken into account and where they are not.  The principles applicable to the setting of non‑parole periods are unchanged by those sorts of considerations.  The point of difference between the judges in Bugmy was this:  the majority concluded that, while the risk of re‑offending was a relevant consideration for the fixing of a minimum term and while, as was the case there, behaviour in prison is also a relevant consideration for the fixing of a minimum term, and, of course, the desire to protect the community is a significant consideration, those considerations are less significant as the non‑parole period becomes longer.  As was anticipated in Bugmy, the sentencing judge had fixed a non‑parole period of eighteen‑and‑a‑half years and the majority concluded that that was so far in the future as to make those considerations less significant, almost fading into insignificance because it was becoming really speculative about what he might do in the meantime.

The majority took an entirely different view, concluding that the considerations for the fixation of the non‑parole period are the same as those which are concerned with the fixing of the head sentence and that was precisely the point of difference between the two, the minority coming to that view on page 531 down at the bottom, and the majority coming to its view on page 537.  Finally, the majority concluded that it was inescapable that what the sentencing judge had done was to take into account matters more apt to the fixing of the head sentence.  Perhaps I could just take the Court very quickly to that.  The passage setting out the majority’s view is on page 537;  the Court said:

But a minimum term of eighteen years and six months is of such length as to take the prospects of re-offending in this case beyond even speculation.

Then their Honours dealt with the ages:

Equally, the applicant’s behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead.  Again, while the desire on the part of his Honour to protect the community is material to the fixing of a minimum term as well as a head sentence, its significance must be the less the longer the minimum term, simply because relevant forecasts cannot be made at such a distance.

And then, their Honours conclude on page 539:

Making allowance for the fact that in the present case the maximum term is fixed by the legislature ‑

I interpolate, as here ‑

we do not think that this is how the sentencing judge or the majority in the Court of Criminal Appeal approached the matter.  Rather, the sentencing judge arrived at the term of eighteen years and six months in a manner more appropriate to the fixing of a head sentence and the Court of Criminal Appeal impliedly, if not expressly, upheld that approach.  The error is of sufficient importance to the sentencing process to warrant a grant of special leave to appeal.

So, that, together with the principles enunciated in Veen [No 1] and also Veen [No 2] that a sentencing court cannot imprison beyond what is proportionate to the crime to extend the protection of society from the risk of recidivism.  It is our submission that the Von Einem principle, the fixing of a non‑parole period by reference to the life‑span of the prisoner permits consideration of matters more appropriate to the head sentence, as was enunciated in Bugmy and second, impliedly permits a departure from the principles enunciated in Veen.  And it is our submission that that, therefore, is a matter fit for this Court.

Our second and third questions of special leave relate to Bugmy itself, the first to Bugmy.  If it is, in fact, settled law that the majority were correct in holding, as they did, that matters appropriate normally to fixing a non‑parole period are less important as the non‑parole period gets longer and it gets more and more difficult to predict a prisoner’s behaviour, then our second ground cannot stand.  We question, in the alternative if you like, whether that is so.  If it is so then, of course, it falls to the ground but we say it is inconsistent with the principle as applied in Von Einem and by this Court.

Our third question is the question of whether the Court here considered separately from the criteria applicable to a Crown appeal the separate and distinct question of whether it was appropriate to grant leave.  The decision in Everett had not been handed down at the time that the Court of Criminal Appeal here sat.  It delivered its judgment at the end of July last year and Everett was handed down, I think, in October.  That made clearer

what was already apparent in Malvaso that it is a separate and distinct and important question to determine the question of whether leave should be granted.  It is our submission that the principle was not complied with.  If the Court pleases.

BRENNAN CJ:   Thank you, Mr Barrett.  We need not trouble you, Ms Abraham.

The applicant seeks special leave to appeal against the non‑parole period of a life sentence for murder imposed on him by the Court of Criminal Appeal of South Australia, following an appeal by the Crown pursuant to leave.  The Court of Criminal Appeal held that the non‑parole period imposed by the trial judge was manifestly inadequate.  The case was one in which the intervention of the Court of Criminal Appeal was warranted, consistently with the care this Court has urged in regard to Crown appeals against sentence. 

Notwithstanding the careful argument of Mr Barrett, no error of sentencing principle has been shown and, therefore, this is not a case that warrants a grant of special leave.  In any event, an appeal from the decision of the Court of Criminal Appeal would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal.  The application is therefore refused.

AT 4.07 PM THE MATTER WAS CONCLUDED