Jaymes Todd and the Queen

[2020] HCATrans 170

[2020] HCATrans 170

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M33 of 2020

B e t w e e n -

JAYMES TODD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2020, AT 1.59 PM

Copyright in the High Court of Australia

MR D.D. GURVICH QC:   May it please the Court, I appear with my learned friends, MR P.J. SMALLWOOD and MR J. BARREIRO, on behalf of the applicant.  (instructed by James Dowsley & Associates)

MR B.F. KISSANE QC:   May it please the Court, I appear with my learned friend, MS A.S. ELLIS, on behalf of the respondent.  (instructed by Office of Public Prosecutions (Vic))

BELL J:   Mr Gurvich.

MR GURVICH:   Your Honours, the question of importance here relates to the imposition of a life term of imprisonment and its interplay with the important sentencing principles of equality, proportionality and parsimony in the context of a young offender – in this instance, a 19‑year‑old.  To put the question in a slightly different way, it raises the issue of the imposition of an indefinite sentence as opposed to a lengthy, or very lengthy, determinate sentence where it is appropriate to impose the most severe sanction at the disposal of the State and where that involves a young offender invites scrutiny and invites scrutiny as to the practical operation of those sentencing principles.

Your Honours, the questions of the imposition of life terms has been addressed on other occasions, of course, and we have referred to the decision of Veen where this issue was given some reference by his Honour Justice Jacobs who, in citing the New South Wales decision of R v Nell, referred to the sentence of penal servitude for life being a very great sentence when imposed on a young person – in that instance, 16‑years‑old.  Its effect can be much more deleterious than in a person of appreciably adult years.  But, in our submission, the particular issue in this case did not receive any greater attention in that case.

Similarly, in the Court of Appeal in Victoria in the decision of Denyer, the issue was referred to by his Honour Justice Crockett who referred to the length to the sentence served, in the case of a life sentence, and, thus, the measurement of the punishment inflicted is dependent upon the pure chance of the offender’s age and that there is a very substantial difference in penalties, or can be, dependent on that pure chance.  In our submission, those are the issues that are raised squarely in this case. 

Turning in a little more detail to the first aspect of equality before the law, in our submission the case and cases of this kind are liable to give rise to the inconsistency that offends equality before the law, where a sentence of life imprisonment is imposed on a 19‑year‑old, or young offender, as opposed to a determinate sentence, which is ordinarily in the range of about 18 years to, at the highest end, 35 or 36 years. 

That disparity is liable to give rise to a sense of grievance, and that burden does indeed vary with the age of the offender and where that life sentence is imposed on a young offender can be and was, in this case, a manifestation of that injustice.  The second aspect is proportionate – sorry, your Honour.

BELL J:   Mr Gurvich, to describe the imposition of a life sentence in the circumstances as manifesting injustice might be to put the argument somewhat high.  Mr Gurvich, the Court of Appeal reviewed the sentencing judge’s reasons for sentence and found no error vitiating the exercise of discretion.  His Honour took into account the youth of the applicant, but determined in the circumstances, having regard to the seriousness of the offending, that life was an appropriate sentence and fixed a non‑parole period, not at the top end of the range of the sentencing options that you submit was open.

MR GURVICH:   Yes.

BELL J:   I do not know that the submission based on equality is your strongest point, Mr Gurvich.

MR GURVICH:   Yes, I understand that, your Honour.  The way it was put to the learned sentencing judge was that the younger the offender, the more severe a sentence of life imprisonment will generally be.  Whilst his Honour the learned sentencing judge addressed in conventional terms the youth of the offender and its operation as a mitigating circumstance in the context of rehabilitation, and there was nothing controversial about that, his Honour did not, in our submission, address the question of the severity of the sentence of life imprisonment on an offender who was so young, and the difference between that sentence imposed on a young offender compared to a mature offender.

Likewise, the Court of Appeal in the context of an argument that put the youth of the offender as the primary mitigating circumstance did not address in terms, expressly or implicitly, in our submission, the question of the impact of a life sentence on one so young, who had indeed pleaded guilty.

So it is, perhaps, an overstatement to use the term “manifestation of injustice” but the potential for injustice is clearly present when that circumstance of mitigation is not taken into account and the reasoning with respect to it is not disclosed in either the sentencing court or the Court of Appeal.

But to move on from the point of equality we address proportionality and this raises the question of rehabilitation over the course of a life term, an indefinite term, which this Court in Bugmy and other cases has recognised cannot be made with any confidence years or, in this case, decades ahead.  That was a matter that was squarely raised in this particular case and in any case where a life term is imposed.

The third aspect of parsimony raises the issues of whether a sentence so severe as life term was necessary to achieve the purposes of sentencing where a definite or determinant term could have achieved those purposes, which is a matter that, in our submission, has not been addressed by either the High Court or the Court of Appeal in this instance and is a matter not addressed squarely in the provisions of the Sentencing Act in section 5(3) or 5(4).

So, your Honours, whilst the Court of Appeal addressed youth at page 395 of the application book, it was in the context of the seriousness of the offending, reducing the mitigating effect of youth, citing Azzopardi, which in our submission is a reflection of the High Court’s decision in Mills. 

BELL J:   Mr Gurvich, I am sorry but the pagination is most unclear.  Can you give me the paragraph number?

MR GURVICH:   Certainly.  It is paragraph 49 of the Court of Appeal judgment.

BELL J:   Thank you.  The error of principle that you identify in paragraph 49?

MR GURVICH:   We do not say there is any error with respect to paragraph49, so we say that that is the extent of the account taken of the offender’s youth in the Court of Appeal’s judgment and that is uncontroversial.  However, the court was required to consider, as a matter of proportionality and parsimony, the question of the offender’s youth in the determination of a life term, in particular, where that was the chief point raised by the applicant.

Your Honours, we acknowledge there was the imposition of a non‑parole period of 35 years, which it is to be accepted ameliorates to some degree that life term and might provide the kind of hope that the courts sometimes refer to, but that is not our point in this application.  Our point is that each and every day of the life term may be served and is presumed to be liable to be served, and that is the point that raises the important sentencing issues that we have sought to address today. 

The only other authority we wish to cite at this stage, your Honours, is the case of Inge, in this Court, where the von Einem error was addressed, principally by Justice Kirby, and we do not suggest for a moment that there is some formula or actuarial table to be utilised in the case at this time.  But we do submit that, the likelihood of life expectancy, in the way described by Justice Crockett in Denyer - this is at page 193 of the judgment - that the court is entitled and indeed required to take into account the potential life expectancy when it comes to a youthful or young offender and compare that to the potential for a more mature adult offender, which is yet - sorry, your Honour. 

GAGELER J:   Mr Gurvich, in paragraph 21 of your application for special leave to appeal you identify a number of questions of principle.  Do you actually proffer an answer to those?

MR GURVICH:   In terms of proportionality, the answer, in our submission, will depend upon the kinds of considerations raised in Inge, which were raised with respect to the non-parole period, but here relate to the life term and considerations of the potential length of that life term, as, in the context of the youth of the offender.  So those are the kinds of considerations that ought to operate on the question of proportionality and were not expressed in this case. 

In terms of parsimony, your Honours, that is a question that, in our submission, has not been addressed in the authorities, but it ought to be the position that where a determinate sentence is available, which was the case here and was indeed conceded by the Crown to be the case before the learned sentencing judge, there ought not be the imposition of a life term, and that is the orthodox application of parsimony which did not occur here, in our submission. 

BELL J:   Mr Gurvich, do you need to consider here the findings that the sentencing judge made at paragraph 112 of his Honour’s judgment - I will not detail them - but they were findings consistent with this being within the worst category of case.  It is difficult in circumstances in which a life sentence is the maximum for the offence, and the sentencing judge assesses that the offence is within the worst category, to make good an argument on proportionality or for that matter parsimony, surely.

MR GURVICH:   That might be the case in some cases, we would accept that proposition, but it is difficult to maintain that position where an offender is so young and has pleaded guilty.  It is to take, in isolation, the heinousness of the offence, which is undeniable, to the exclusion of those sentencing principles and the interplay between them, and that is an artificial exercise which ought not to operate, in our submission.

BELL J:   I think we have the point, yes.  Anything further, Mr Gurvich?

MR GURVICH:   Those are the matters, your Honours, thank you.

BELL J:   Thank you, Mr Kissane, we do not need to hear from you.

In our opinion, there is no need to doubt the correctness of the decision of the Court of Appeal.  The application is dismissed.

Adjourn the Full Court to 10.00 am on Tuesday, 3 November in Canberra.

AT 2.17 PM THE MATTER WAS CONCLUDED