Jones v The Queen

[1994] HCATrans 323

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S7 of 1994

B e t w e e n -

WAYNE PETER JONES

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Jones.W 1 12/5/94

AT SYDNEY ON THURSDAY, 12 MAY 1994, AT 2.15 PM

Copyright in the High Court of Australia

MR T.A. GAME: If the Court pleases, I appear for the

applicant, together with my learned friend,

MR S.J. ODGERS. (instructed by T. Murphy, Managing

Director, Legal Aid Commission of New South Wales))

MR K. MASON, OC, Solicitor-General for New South Wales: I

appear with my learned friend, MR P.J.P. POWER, for

the respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions (New South

Wales))

MASON CJ:  Mr Game.

MR GAME: If the Court pleases. Section 25A of the

Sentencing Act, upon which considerable reliance was placed by the Court of Criminal Appeal,

provides the Offenders Review Board with a power in

exceptional cases when a prisoner is dying, not to

suffer the indignity of dying in custody, but to be

released. It is a power which is not reviewable.

It is a power in which no application even

necessarily need be heard.	No reasons are required
to be given.

It is concerned with an entirely different

issue than that which a court is concerned with

when it sentences on a basis of material which

establishes, as the material established in this

case, that the applicant's life expectancy was

substantially reduced by HIV, that his conditions

of custody would be harsher by reason of the

disease which he suffered, and that the disease was

likely to accelerate his condition.

On the other hand, when a minimum term is set

by a court, the Offenders Review Board, at the

expiry of that minimum term, is obliged to consider
the application, is obliged to consider all of the

features relevant to the case, including the

community interest and the safety of the community.

reviewable by appeal and by prerogative relief. It is obliged to give reasons and its decisions are When the court fixes a minimum term, it

determines, in effect, in a case such as this, what

proportion of the remainder of the prisoner's life
must be spent in custody prior to eligibility for
parole. That is an entirely different question
than that with which the Department of Corrective

Services, or the Offenders Review Board, is

concerned in in circumstances involving a dying

prisoner having the dignity to die not in custody.

In the Court of Criminal Appeal, particularly

at page 28, the court appears to have given great

weight to matters which fall within the power of

Jones.W 2 12/5/94

the executive. In fact, it is the substance of the

court's reasons, we would submit, really relying

upon matters relating to executive relief. At

page 27 a reference is made to a case of Starke, an

English case, and the erroneousness of the reasoning of that court can be seen, simply by

looking at line 21 and following:

The matter can be tested in this way. Suppose

a very long sentence of imprisonment were

imposed, and during the course of that

sentence the prisoner contracted some disease

such as AIDS.

That is not this case. In this case the evidence

was led as fresh evidence because the applicant had

HIV prior to sentence. Moreover, Starke is a very

different case because in that case the decision

had been made not to prosecute because the

applicant had HIV, and then he committed further

offences. So he stood in a very different

situation, and the only submission he was putting

was that he did not wish to die in prison.

But in this case the Court is concerned now

with a situation where a person was sentenced with
a normal life expectancy but now has a life

expectancy of about 10 years and who will go

through the various stages of HIV, the various

worsening stages, whilst in custody. Naturally

enough, that custody will be very different for

that person and much harsher, both by reason of the

condition and the knowledge that that will cover,

in effect, the totality of his life.

Then at pages 25 to 26 there is reference to a

case vachalec. Now, Vachalec is a case where a

person suffered from an oesophageal condition which

was taken into account on sentence. It was

discovered during the course that the treatment was

not as satisfactory as it might well have been, or

as was imagined at the time of sentence. That is a

distinguishable case from that, although we would

submit that the reasoning of the court in Vachalec

is itself somewhat dubious, because if

circumstances turned out to be otherwise than

expected at the time of sentence, one might imagine

that that would be receivable as fresh evidence.

So that, we would submit, the court in this

case is relying very heavily on unsound principles

in disposing of this appeal. That is to say, we

would say ultimately the court is saying, "Leave it

up to the executive". Our response to that is:

this is a case where the evidence has been clearly

established, in fact, factual findings have been

made by the Court of Criminal Appeal, which appear

Jones.W 12/5/94

at page 23, which favourably set out what the

likely progress of the disease is. The statistical

material which was tendered and the diagrams showed

that there was a likely life expectancy of

something like 10.9 years. In fact,

Justice Carruthers in the Court of Criminal Appeal at the bottom of page 24 said:

The fact that there is a substantial

possibility, and perhaps even a probability,

that the appellant will not survive the

minimum term ..... is relevant -

But then, from page 25 and on the appeal is

effectively disposed of because of these

considerations which really amount, in our

submission, to abrogating the judicial duty of

sentencing to its possible executive exercise of

power which relates to different questions.

MASON CJ: But when you look at page 25, does it not there

appear in the paragraph that commences half-way

down that page that His Honour was relying on the

record in relation to the applicant's conduct, the seriousness of the offences with which he had been

charged, as a reason for discounting the evidence

that was brought forward. It was only after that

that he then began on a course of reasoning that

placed emphasis on the powers of the executive.

MR GAME: Yes, well, Your Honour, one of the things that

went very much against this applicant was his past

record. In fact it was incorrect to say that he

showed no apparent remorse. He gave evidence on

sentence in which he said he was extremely sorry

for what he had done and there was an early plea of

guilty. So the substance of it is that he is

saying there are no prospects of rehabilitation.

In our submission, that in fact shows another

error of principle which the court fell into and it
was this.	I accept that, obviously, matters

relating to the executive followed on from an

earlier aspect of the judgment but, in our	submission, that which came earlier in the judgment
was also erroneous because what was put to the court was that the HIV amounted to a special circumstance under section 5(2) of the Sentencing Act. That submission appears at page 24.

It was submitted that a variation of the

proportion between the minimum term and the
additional term could give due regard, in the
circumstances, to questions of retribution and

general deterrence.

Jones.w 4 12/5/94

That submission was never dealt with. Our

submission was that if you have HIV, your

circumstances of custody will be much harsher than

if you do not have HIV, therefore it is a special

circumstance.

All the court did in this case was refer to

the prospects of rehabilitation as being the

feature of the case which weighed against the

submissions that were put. Rehabilitation, in our

submission, is only one factor that may ground

special circumstances. There is a line of New

South Wales cases to which I will refer the Court

in a moment which, in effect, says that

section 5(2) is only concerned with the need for an

additional term, that is to say for the purposes of

a longer period of rehabilitation, that it is not

concerned with features of the case which would
favour a shorter than normal minimum term.

In this case the question of rehabilitation is really pretty much beside the point because this

prisoner will be dead in a matter of years. The question is whether or not, having regard to the nature of suffering the HIV, and the nature of his

life expectancy, the minimum term should be reduced

having regard to those features of the case.	The
court simply has not addressed that submission.

As I said, there is a line of cases, and I

have a schedule of cases. This is another area

of - it is referred to in my written submissions on

page 6 at paragraph (b), that there is a view taken

in New South Wales that "the starting point is the

need or the desirability of a longer than usual
additional term, not the need or the desirability

of a shorter than usual minimum term".

As I said, the Court of Criminal Appeal simply

did not address this question. The submission was

put to them in terms, but if it is to be justified

on any basis, it must be following this line of

cases which commences with this decision in Phelan.

Dollwet is a case, in fact, where a person had HIV

where the court found that the HIV, in the
circumstances, did not amount to special

circumstances.

DEANE J: Except when you are in an area of - and I am

looking at page 28 - a "series of appalling sex

crimes" with "no prospect of rehabilitation", the
considerations which are operative at the virus

stage go a little bit in each direction, do they

not? I mean, we are dealing within the period

which is the appropriate period for the offence and

you are saying special considerations militate in

favour of compassion, moderation, and so on. If

Jones.W 5 12/5/94

you have someone convicted of appalling sex crimes

with no prospect of rehabilitation, the AIDS virus

adds a dimension to the consequences of future

offences, does it not?

MR GAME:  Yes, Your Honour, but firstly the Parole Board is

obliged not to release the person unless they are

not satisfied that he will be of any danger to the

community, and that is specifically provided for in

the Sentencing Act in sections 18 and 19.

Section 17 sets out the criteria:

public interest is of primary

importance ...•. antecedents of the

prisoner ..... sufficient reason to believe that

the prisoner, if released from custody, would

be able to adapt to normal lawful community

life -

So that if the Offenders Review Board thought that

there was a prospect that he would reoffend and in

circumstances where he was a danger to the

community, then the Offenders Review Board would be

obliged to refuse parole. Moreover, Your Honour,

the question that Your Honour puts, in effect,

becomes this. The case is now being presented as a

Veen (No 2)-type case because the applicant has got

HIV in circumstances in which nobody would have

suggested that a life sentence was appropriate

prior to the evidence of HIV.

TOOHEY J:  You put it that way, but you might equally say no

one would have suggested that the sentence actually

imposed was inappropriate had it not - absent the

question of HIV. By describing it as a life

sentence you are building in the HIV consideration,

are you not?

MR GAME:  Yes, Your Honour. But the HIV is now central to

the case. The fact is that it is 14 years against

a life expectancy of 10, as opposed to 14 years

against a life expectancy of an ordinary life.

TOOHEY J:  I thought your submission seemed to come close to

saying that the sentence was unjustifiable because

it amounted to a life sentence. In other words,

that he was being kept in prison because of his

condition.

MR GAME:  No, Your Honour, what I was saying was that to

turn this case into a Veen (No 2) case which is

what I thought Justice Deane was alluding to, that

is to say that protection of the community in

circumstances where a person had HIV - - -

DEANE J:  No, I very carefully said, "When the sentence was

appropriate to the offence" and when what was being

Jones.W 6 12/5/94

urged was a reduction in what would otherwise be

the appropriate sentence by reason of the special

circumstances which evoke compassion and what have

you.

MR GAME:  I do submit that in circumstances in which a life

sentence would not be appropriate for a person
without HIV, a sentence which has the effect of

being a life sentence and more is not appropriate

and is not justifiable. My submissions go

principally to the fixing of the non-parole period,

or minimum term - - -

DEANE J: But you cannot really put that as a general

proposition can you, because otherwise it would

become a proposition that the older one is, the
lesser prison sentence one could get because the

percentage progressively gets worse.

MR GAME:  Your Honour, in practice an older person would

expect to receive a short - if a person of 75 was

sentenced then it has been an accepted sentencing

principle that their age is taken into account.

DEANE J: But as a general proposition you would start a lot

earlier than that.

MR GAME:  Yes, that is true but the proposition can be

focused more directly on the harshness of the

imprisonment that this person suffers, both knowing

that they will die in custody and given the actual

circumstances of the custody or the harshness of

the custody they will suffer by reason of the

progress of the disease through its various phases

whilst they are in custody, coupled with the

possibility of acceleration of the condition.	So
that is the way we would put our case.

As I said, the submission relating to special

circumstances simply was not addressed by the

court and we would submit that special

circumstances exist by the very existence of the

harshness of the custody. In relation to

resentencing, the court took an approach which, we

would submit, was in error. The court said that

you first have a look - and this is at page 25 -

whether or not the original sentence was

appropriate.	We would submit the court's task is
to resentence.	The court does not say the sentence

of 12 years minimum with an additional term of two

was that, prima facie, an appropriate sentence.

The court acts on the material which it has before it and then is obliged to resentence.

So that in this case, for example, there was

six plus six, plus an additional term of two, that

very sentencing process would be a suspect way of

Jones.w 7 12/5/94

going about sentencing if you were sentencing a

person with HIV. So that we would say there is no

prima facie sentence, the court must resentence,

and that demonstrates error.

I should also mention that at page 25,

line 15, when the court said:

It is not without significance that the applicant contracted the virus whilst incarcerated -

we would submit that it is quite without

significance, at least as a negative feature of the

case, and it is clear that it was relied upon as

such.

DEANE J:  I read that sentence the opposite to the way you

read it. You suggest that the implication of that

is that it is something that counts against him.

MR GAME:  Yes, Your Honour. It is in a whole paragraph of

negative things about the applicant. He suffered

it whilst in custody; deplorable record;

seriousness of the of the crime; no remorse; no

prospects of rehabilitation. It is in a paragraph

which lists all the negatives about the applicant.

So we would submit there are two errors in that

paragraph: the first sentence, and the sentence in

which he says "no apparent remorse".

In any event, we would submit that applying

the principles in Smith and Bailey, the court was

obliged to resentence and that that would

inevitably produce a minimum term or non-parole

period in the circumstances of this case that was
less than the life expectancy of the applicant.

Those are our submissions, if the Court pleases.

MASON CJ: Thank you, Mr Game. Yes, Mr Solicitor?

MR MASON:  In our submission, the Court of Criminal Appeal

did address the impact of the disease and the

harshness that it imposed upon the particular

regime of imprisonment. At the bottom of page 24

they recognized explicitly that at line 23 to 25.

The court also recognized explicitly the
possibility, perhaps even the probability, that the

appellant would not survive the minimum term

imposed.

My friend's submissions, however they are

looked at, really amount to an argument that the

court must scale down a sentence because of the

life expectancy of a particular offender. That
cannot be a correct principle, in our submission.

There may be factors, whether they be Veen (No 2)

Jones.W 12/5/94

factors, or factors that relate to the time at

which the person committed the crime. War crimes

are, perhaps, an example of a situation where there

would be a delay in the sentencing or the

invocation of the law. There just cannot be a

principle that says, "You must scale it down".

There obviously is a principle that says you may have regard to it, and here the court did.

My learned friend has, in my submission,

misunderstood provisions of the Sentencing Act and
the powers under section 25A. Perhaps nothing
turns upon this but 25A, which is the powers of the
Parole Board to direct release if a prisoner is

dying, or there are exceptional extenuating

circumstances, is not subject to the concerns contains section 17, and the opening words of
expressly or otherwise, the concerns about the
safety of the community. Section 25A(5) exclude

25A(l) speak about making a parole order in

relation to:

a prisoner on parole who (but for this

section) is not otherwise eligible for release

on parole -

That having been said, a prisoner who, perhaps, was

of the extreme situation as to attract the release

under 25A(l), in most cases at least, would not be

regarded as a significant risk to the community.

But that factor is not in play in that regard.

In our submission, there is no error of

principle in the approach. The Court of Criminal

Appeal was perfectly correct in the way they went

about it. It is suggested there was some

procedural error, evidenced by what appears at the

top of page 25, in that the court asked firstly

whether independently of the condition the sentence
was a proper one. In my submission, that is not

correct. Even if one was sentencing afresh, but

particularly if one is resentencing as a Court of

Criminal Appeal in the light of fresh evidence, it

is appropriate and correct to look at what the

appropriate sentence would be, as it were,

objectively, having regard to the objective

circumstances of the offence, and the general

subjective features. Then you turn, or at the same

time, but certainly it is appropriate subsequently
to look at the subjective features which include
the medical condition. And that is all that the

court is saying at the top of page 25.

The reference to the two methods whereby if,

or more likely when, the condition of the applicant

deteriorated to such an extent in prison was seen

Jones.W 9 12/5/94

to be not appropriate. The reference to the

prerogative or section 25A was appropriate, and it

bespoke no error on the part of the Court of

Criminal Appeal.

MASON CJ:  Mr Solicitor, I just do not follow the approach

that has been taken by Mr Justice Carruthers. If

you look at the bottom of page 24, His Honour says:

The fact that there is a substantial

possibility, and perhaps even a probability,

that the appellant will not survive the

minimum term imposed by the sentencing judge

is a relevant matter for consideration by this

Court.

And he quotes authority. Then he deals with what he says is the appropriate approach. But

thereafter, that is following the two paragraphs

that are complete on page 24, he then proceeds into

an excursis which is designed to establish, or

appears to be designed to establish the proposition

that all this is a matter beyond the province of
the Court of Criminal Appeal. For example, he

places very considerable reliance on the judgment

of Chief Justice Street, which is quoted at

page 26. So that one has the impression that

although he says it is a relevant matter for

consideration, in some way or other he is excluding

it from consideration.

MR MASON: In my submission he is not going that far. At

page 28, line 15, he spoke about:

the infection is only one subjective factor to

be taken into account in the sentencing

equation.

And then proceeded to distinguish Smith's case, on

what, in my submission, was an appropriate ground

of distinction.

His Honour's judgment is not to be read as saying it is no role of the court, but it is

obviously saying, and correctly saying, that the
court can take some comfort in the fact that there
are further mechanisms within the executive to deal

with the onset of a disease if and when it reaches

a critical stage. But, in my submission, one

cannot read what follows as negating what goes

before, at the bottom of page 24, and what goes

after, in the middle of page 28, in terms of the

principles being stated.

Your Honours, we have given you references in

our summary of argument, paragraph 3.3, to a body

of case law where it is clearly recognized that HIV

Jones.W 10 12/5/94

may provide special circumstances within

section 5(2) and, obviously, the disease as a

subjective feature that would be relevant in any

sentencing exercise, as would age, but it is not

determinative, in our submission.

Also, to remind Your Honours of the reference

to the Second Reading Speech concerning 25A,

indicating that terminal illness such as cancer and

AIDS was one of the things that was specifically in

the contemplation, paragraph 3.10, but in the

contemplation of 25A(l).

MASON CJ: Thank you. Yes, Mr Game?

MR GAME: If the Court pleases. The reference to the

earlier sections and the duty of the Offenders

Review Board in relation to applicants for parole

was not mistaken. I was talking about in the

ordinary course when a parole order was made, as

opposed to a parole order made under the provisions

of section 25A.

The problem with the judgment of the Court of

Criminal Appeal is that one goes straight from an

acceptance that the minimum term is likely not to

be survived, into various comments about the
absence of prospects of rehabilitation and then to
the aspects dealing with the executive powers of
release, but no where is the submission which forms
the substance of the case addressed. That is to

say, that the features of the case: the limitation

on life expectancy; the harshness of imprisonment;

the likelihood of acceleration, required the court

to produce a lower minimum term. That is just

simply not addressed in the judgment. To refer

back to prospects of rehabilitation does not take

the judgment any further, at page 28.

When one sweeps away the whole of the judgment from page 25 dealing with Verchalec, which is all

about executive powers of release, there are really

no reasons provided by the court except for the

material about absence of prospects of

rehabilitation. It has to be remembered that the

non-parole period in this case was excessively

short and, absent the provisions of section 5(2),

would be a very strange exercise of sentencing

discretion in any event. It was only produced by

virtue of the accumulation of sentences - six plus

six, then a third of the second sentence, plus two.

That would be, to say the least, an unsound

exercise of sentencing discretion with a prisoner

with HIV.

In relation to this question of HIV having been treated as a special circumstance, I know of

Jones.W 11 12/5/94

at least one case called Dollwet where the

submission was rejected, and I have a small

schedule of cases which show a number of cases
where matters relating not to the minimum term, but

to the need for a longer than additional term have

been treated as the matters that justify the

exercise of section 5(2).

So there is, again, a divergence of opinion in

the Court of Criminal Appeal about this issue, but
there are a number of decisions and they are

referred to there, in which a case of Phelan has

been followed, where the approach has been taken

that special circumstances is not concerned with
the need for a shorter than usual minimum term, but

the desirability for a longer than normal

additional term for purposes of rehabilitation and

that is not what we are putting in this case.

So although the court did not address the

section 5(2) submission, the only justification for it could be in this line of cases which, we submit,

are all wrongly decided. Those are our submissions

in reply, if the Court pleases.

DEANE J:  Mr Game, in-terms of the way the Parole Board

provisions work now, if one were by reason of

special circumstances to change the balance that

was otherwise seen as appropriate and to increase

the additional term and, naturally reduce the

minimum, what does that mean in practical terms?

First, that the Parole Board cannot accept under

something like 25A order release during the minimum

term? What about it - - -

MR GAME:  It does not make any difference. They would still

have their powers under section 25A - - -

DEANE J:  I said putting aside special - the Parole Board

could not order release during the minimum term.

At the expiry of the minimum term, what happens

then? Is release automatic, or -

MR GAME:  No. For a sentence of less than three years there

is automatic parole release - they are called
probation orders, I think - but if any sentence

longer then a person is eligible for parole

and -

DEANE J: And, "sentence", you mean cumulative sentence?

MR GAME:  They are eligible to apply for parole. Then the

provisions of section 17 and following come into

play and the Offenders Review Board is then

required within 60 days of that date to consider an

application. They are obliged not to release the

person unless they are satisfied that they can

Jones.W 12 12/5/94

adapt to normal community life, and all of the

other matters that were referred to in section 17,

and any special circumstances in the case. So that

the Offenders Review Board is obliged not to
release on parole if they are not satisfied of

those matters.

Just for example: say the court said,

"minimum term of eight years, and an additional
term of six", then just prior to eight years the
applicant might make an application for parole;
the Parole Board would be obliged to consider it,

it would be a matter for them whether or not they

would release the applicant and then they would be

required to give reasons for their decision, and so

forth. So that the ordinary prerogative relief and

so forth would exist, but the sentencing process is

different and the parole process is different.

DEANE J:	You have answered my query.
MASON CJ:	The Court will take a short adjournment to

consider the course it will take in this matter.

AT 2.52 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.02 PM:

MASON CJ:  In the very special circumstances of this case we

are not persuaded that the proposed appeal would
enjoy sufficient prospects of ultimate success to

warrant the grant of special leave.	The
application is therefore refused.

AT 3.03 PM THE MATTER WAS ADJOURNED SINE DIE

Jones.W 13 12/5/94