Keceski v The Queen

[1995] HCATrans 228

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S168 of 1994

B e t w e e n -

CHRISTOPHER RISTO KECESKI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 AUGUST 1995, AT 10.34 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:   May it please the Court, in that matter I appear for the applicant with my learned friend, MR S.J. ODGERS.  (instructed by Orchiston Ranzetta Finney)

MR N.R. COWDERY, QC:   May it please the Court, I appear for the respondent with my learned friend, MS M.F. LATHAM.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

TOOHEY J:   Thank you.  Mr James.

MR JAMES:   Your Honours, this is a matter in which I need to seek an extension of time and an affidavit setting out the circumstances ‑ ‑ ‑

DAWSON J:   What length of time is involved, Mr James?

MR JAMES:   About 16 months, your Honours.  It appears that what happened was that the matter was in the hands of various senior counsel until in due course it came to me.

TOOHEY J:   When you refer to an affidavit, you are not referring to anything in the application book, are you, Mr James.

MR JAMES:   No, your Honours, it was an affidavit that was filed in the office but the office declined to accept the multiple copies.  I have that affidavit present, that is the affidavit of Anthony Edward Kemp, solicitor, sworn 16 August 1995.

DAWSON J:   Well, there seems to be an unhappy history of relationships between the applicant and counsel, does there not?

MR JAMES:   There does, your Honour - only recently terminated.

DAWSON J:   We will proceed with the merits for the moment, Mr James.

MR JAMES:   If your Honour pleases.  Your Honours have the benefit of the applicant’s summary of argument.

McHUGH J:   We do have, but speaking for myself, I must say I strongly object to the formulation of the questions of law in this case.  They are not formulations at all, and they are of no assistance whatever to ask questions, “Is there a tariff for sentences for manslaughter?” or “What are the principles governing the determination of sentence for manslaughter?”  They do the applicant’s case no good at all, because they do not give the Court any idea as to what the real question is.  I mean, these questions of law should be much more concrete, Mr James.  I know you are not responsible for it, but ‑ ‑ ‑

MR JAMES:   Might I take your Honours to the special leave question set out in the applicant’s summary of argument filed on 7 August 1995, which had to pick up what was already in existence.

McHUGH J:   We have to read these books well before we get summaries of arguments in most cases.

MR JAMES:   Your Honours, essentially might I take your Honours to 1.2 and 1.3 on page 1 of the applicant’s summary of argument.  The applicant was acquitted of murder after a judge‑only trial at which he pleaded not guilty to murder but guilty of manslaughter by reason of diminished responsibility.  He was thereafter sentenced and that sentence had a custodial component of ten years.

When it came to the question of sentencing there were obviously three matters that were important, they being the proportionality of the sentence to the crime, the process whereby one could decide the eventual sentence, ie, defining objective circumstances, subjective circumstances, starting with, as it were, a sentence figure appropriate to the objective circumstances and then deciding on leniency for subjective circumstances, and the question of the proportion between custodial and non‑custodial elements of the sentence. 

When it came to defining what were the objective circumstances of the crime for the purpose of applying the proportionality test that this Court has accepted as well established in the sentencing law of Australia, the trial judge and the Court of Criminal Appeal held that these were the objective circumstances.  At page 69 of the application book:

The prisoner killed Gabriella Jakrot by battering her head with a heavy decanter, inflicting multiple injuries which resulted in her death.  Not only that, the prisoner stabbed the deceased with a knife in the region of her throat, a wound which, while not fatal, I indicated was indicative of the vehemence of the attack he made upon his victim.

At all points throughout the appeal and in the remarks on sentence of the learned trial judge, what is looked at as the objective circumstances are things entirely external and do not include one of the essential elements of the crime, that at the time of performing those acts the accused was suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts.

It is that which distinguishes the crime in this case from murder.  It is that which, in our submission, not only goes to mitigate the charge but to define the crime to which proportionality of sentences is appropriate.

TOOHEY J:   Do you isolate that from what you describe as subjective considerations?

MR JAMES:   No, your Honour, one does not isolate it from it but what you do not do ‑ ‑ ‑

TOOHEY J:   No, but I thought you were inviting us to look first at objective considerations which take into account the applicant’s state of mind.

MR JAMES:   No, with respect, your Honour, our submission is the objective considerations did not take into account the applicant’s state of mind, that the applicant’s state of mind, although that was the central element of the crime in question, was relegated to some mitigatory matter of subjective importance to him which might have entitled him to some leniency.

TOOHEY J:   Well, I thought I had caught the thrust of your argument which was that the objective considerations included those factors which produced diminished responsibility.

MR JAMES:   Yes.  And at all stages the trial judge and the Court of Criminal Appeal omitted those matters from the objective considerations which they said mandated such a severe sentence as the ten‑year period.

TOOHEY J:   But once you take that into account on your argument in what you describe as the objective considerations, what do you have left by way of subjective considerations?

MR JAMES:   His mental condition prior to the offence, subsequent to the offence, his character and circumstances within the community, those that had spoken well of him.  There was a great deal of evidence in this case by way of subjective considerations.  The question of his mental state was looked at in the context of whether general deterrence or specific deterrence should play much role and, although it was held there was not much room here for general deterrence and although it was clear that his rehabilitation was well advanced and he was not a Veen “danger to the community” person, nonetheless this sentence of ten years was imposed and imposed on the basis that, as the trial judge put it at the conclusion of his remarks on sentence at page 70:

Let me say at once that while I understand the force of Mr Glissan’s submission, it is my view that the objective facts are , as they are in all cases, of great importance.

The public perception of the administration of justice would be considerably impaired if one, when sentencing in a case involving the loss of a life, in circumstances of abject brutality, were to put aside those facts when considering sentence.

His Honour then goes on to look at subjective features at line 20 and onwards.  He does deal with the mental illness which was, of course, a most debilitating serious condition verging on the psychotic in the context of his condition beforehand and afterwards, but at no stage either here or in the Court of Criminal Appeal is there any focus on what was the culpability of this man’s mind at the time of the commission of the offence, although that legally defined the parameters of the manslaughter of which he was convicted.

It appears that he was substantially impaired, but at no stage is there any finding made as to whether that means merely more than minimally or slightly less than totally, though by implication we can get his Honour’s view that it was certainly merely less than totally.  Now, the end product of that is that this man has had a sentence passed upon him which the Court of Criminal Appeal has said is within the range, albeit heavy, but if the range is that extensive, the distinction between a murder and manslaughter sentence in New South Wales has been most progressively eroded.

Ever since section 19A which required there to be significant factors mitigating culpability before one could avoid the mandatory life sentence was repealed, the New South Wales Act has simply provided a sentence of life imprisonment, life means life, as the maximum for murder, so that murder fits within the complete gravamen.

DAWSON J:   That history necessarily results in the division between manslaughter and murder being blurred.

MR JAMES:   Well, it may, your Honour.  There are many different varieties of manslaughter.  It is a protean offence.

DAWSON J:   There are many different varieties of murder, too, Mr James.

MR JAMES:   Certainly, but in particular manslaughter includes such provocation as deprives an individual of his powers of self‑control and could or would deprive a reasonable normal person in those circumstances of self‑control.

DAWSON J:   “Could” is the word.

MR JAMES:   Could, or in the instant case one would - I will stick with Masciantonio “could”, but there is also the situation in which the person who is not M’Naghten who is aware to some extent of the nature and qualify of their act and that what they are doing is wrong, but who nonetheless has substantial impairment of mental responsibility.

In our submission, those two factors are not merely triggering the factors, so that sentence then becomes at large within the parameters of manslaughter without regard to them on the objective elements.  They are not merely matters whereby the court might extend leniency out of compassion.  They are matters which define the crime, and in Veen v The Queen - and we have referred to that in our summary of argument - there are remarks from various members of the Court referred to at page 9 in our summary of argument - this is Veen v The Queen (No2) - which suggest exactly that proposition.

Now, your Honours, the reasons why this is a special leave matter is that often enough in criminal justice it is said that if somebody is suffering from a severe mental illness, then the elements of general deterrence or personal deterrence should receive less or, indeed, little significance.  But increasingly, there has been a technique or staged process adopted whereby rather than synthesising all the elements to look at the ambit of sentence as appropriate to the particular crime of which the accused has been convicted, there seems to be a dissection in which some elements are categorised as objective and others purely subjective to the offender and thereby merely going to compassionate extending by the court of some sort of leniency.

If that is a valid process - and, in our submission, this case raises the question quite starkly because it is only by categorising the objectives and subjectives in that way - then the appropriate course must be in cases where the crime is defined in its elements by the question of mental responsibility to include that in the objective elements.

If it is not a valid process, then utilising the question of substantial impairment in an intuitive synthesis approach would have led to a range of sentence available to the trial judge entirely different to that here, and we

would, of course, rely on the principles in House v The King to support the submission that this sentence miscarried because of a misunderstanding of principle, the principle being that if there is to be proportionality, as Veen has held is the case, then it is necessary that that be proportionality to the actual crime and not to some artificial dissection of factual circumstances surrounding the crime.  They are the submission we make on the application, if your Honours please.

DAWSON J:   Thank you, Mr James.  We do not need to trouble you, Mr Cowdery.

This is an application for special leave to appeal against sentence.  An extension of time is required to make the application, but we have heard argument on the merits of the application.  There was, in the view of the Court, no violation of sentencing principle which would attract the grant of special leave, nor does any other question arise which would warrant such a grant.

Having regard to the length of time involved in the application for an extension of time, the proper order is that an extension be refused.  The application must therefore fail.

MR JAMES:   May it please the Court.

AT 10.52 AM THE MATTER WAS CONCLUDED