Kelleher v The Queen

[1998] HCATrans 33

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S4 of 1997

B e t w e e n -

DAVID JOHN KELLEHER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 1998, AT 9.56 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:   May it please the Court, I appear for the applicant with my learned friend, MR S.J. ODGERS.  (instructed by Murphys Lawyers Inc)

MR B.R. MARTIN, QC:   May it please the Court, I appear for the respondent with my learned friend, MR R.F. SUTHERLAND.  (instructed by the Commonwealth Director of Public Prosecutions)

BRENNAN CJ:   Yes, Mr James.

MR JAMES:   Your Honours, this is, in one sense, I would have thought, a unique application. 

BRENNAN CJ:   It is, indeed.

MR JAMES:   What has happened in this particular application or history is rather bizarre.  This man stands outside the general ambit of legislation to the point where he has become a unique case.  The approach, however, taken to the redetermination of his life sentence ‑ the life sentence is, in effect, given a non-parole period by Part 1B of the Commonwealth Crimes Act, as affected by the amendments ‑ by the trial judge and by the Court of Criminal Appeal in New South Wales was an approach that this Court has rejected in a decision subsequent to the lodging of the special leave application in Vanit & Others v The Queen.

BRENNAN CJ:   The point is the non-parole period that was fixed was fixed as though section 16G applied and your client got the benefit of that erroneous view.  How do you then get special leave after that?

MR JAMES:   We agree with everything your Honour says except for the word "benefit" because the "erroneous view", in so far as one can work out what particular one of the New South Wales heresies at the time was the one applied, seems to have been the nil adjustment oxymoronic view, as Justice McHugh put it or, alternatively, the view in Che Yook that one more or less equates it to when people were let out on licence under the previous practice, which was the view that was disclaimed by the Chief Justice in Che Yook. 

In any event, what one ended up with, both with the trial judge and in the Court of Criminal Appeal, was the view that you do not start and do some mathematical deduction or even a range deduction for the loss of remissions, you, as it were, produce a figure.  That view has been rejected by this Court in Vanit and, consequently, what we have is a figure of 16 years fixed by the trial judge on a wrong approach which seems to give nothing like the one-third range that reductions or remissions would otherwise have produced and affirmed by the Court of Criminal Appeal on that same basis, that is, by applying approaches that this Court has said are plainly wrong.

BRENNAN CJ:   Let us assume the Court says, "Very well, if grant of special leave were made, the courts below assume that sections 16G and 19AG of the Crimes Act applied and, in those circumstances, we will have to resentence."

MR JAMES:   This Court would not have to resentence.

BRENNAN CJ:   Well, send it back.

MR JAMES:   Send it back.

BRENNAN CJ:   All right, send it back.  For what purpose?  To reduce 16 years non-parole for a mastermind of a major drug importation?

MR JAMES:   Your Honour, on the proper application of the legislation by analogy as Radenkovic  suggests should be done, the Court should consider whether the appropriate non-parole period is, when calculated in accordance with the way in which everyone else's would be calculated, 14 years is an appropriate - - -

BRENNAN CJ:   There is no "everyone else".

MR JAMES:   Everyone else now.  There are life sentences with non‑parole periods now.  He will be the only one that is left in this bizarre hiatus, thanks to Vandyke - - -

HAYNE J:   Sixteen lies outside the range that might apply to these hypothetical "others", does it?

MR JAMES:   On a proper calculation, bearing in mind the circumstances at the time at which the non-parole period was ordered.  It did not, when one looks at the time at which the life sentence was passed.  It does, in our submission, at the time at which the non-parole period was ordered.  Your Honour, with respect, that is not the question.  The question is not whether we can prove here and in the Court of Criminal Appeal that the non-parole period is beyond the ambit of an acceptable range.  What matters in that context is that the court and the trial judge have to come to look at the final figure in the context of applying the proper mode of calculating it.

BRENNAN CJ:   What do you say the proper mode of calculating is, in the light of Vanit's Case?

MR JAMES:   In effect, to give him a range approximating a third in the light of his - - -

BRENNAN CJ:   A third of what?

MR JAMES:   A third of an appropriate sentence so that when one comes to the non-parole period - - -

BRENNAN CJ:   A third of a life?

MR JAMES:   No.  Mr Justice Kirby kept asking during the application, "What is the meaning of life?", and we understand that completely but - - -

HAYNE J:   I am glad you do.

MR JAMES:   Because, your Honours, the Commonwealth of Australia has told us what is life.  They inserted a provision into Part 1D of the Crimes Act which says, "If you get a non-parole period or a licence, and you serve it, then life is shortened, at least as far as imprisonment is concerned, to you having successfully completed it."

BRENNAN CJ:   Yes.  I still ask you, what is one third of what?

MR JAMES:   Your Honour, it is not a matter of saying we cannot work out what one third of it is, therefore we do not give him anything.  He should be entitled - - -

BRENNAN CJ:   Let us assume that we give him something.  My question is, what is the question of principle for which you would contend if special leave were granted?

MR JAMES:   The question of principle is that starting at a notional figure of 33 for a non-parole period and then giving the various discounts to which he would have been entitled on the grant of a non-parole period is to start at a figure that was far too high in the context of what he was like at that point.  The Court of Criminal Appeal, in the passage at the end of its judgment referred to the figure of 16 years being, when one puts aside questions of remissions or reductions, not excessive, did so on the basis of looking at the non-parole period considerations under 16A at the time the life sentence was granted and then tidying them up with some of the considerations at the time the non-parole period was granted which is, in our respectful submission, an entirely erroneous approach.

BRENNAN CJ:   I am sorry, you have lost me, Mr James.

MR JAMES:   If I take your Honours to the application book - - -

BRENNAN CJ:   Just so that I can understand what you are saying.  Let us assume that the head sentence is life.  What is the next step that you say a sentencing judge should follow?

MR JAMES:   If fixing a non-parole period?

BRENNAN CJ:   Fixing a non-parole period.

MR JAMES:   Right.  Then he has regard to all the matters contained in 16A to which he is required to have regard by statute.

BRENNAN CJ:   Just a moment until we have a look at 16A of the Crimes Act.

MR JAMES:   It is all the criteria as to sentence and a non-parole period that would be the case in the passing of an ordinary sentence.  One does that at the time of the making of the order for the non-parole period.

BRENNAN CJ:   Yes.

MR JAMES:   Now, in that regard you do not have the assistance that you can talk about proportionality between head sentence and non-parole period.  You do have the assistance of the judgments of this Court concerning the non-parole period - - -

BRENNAN CJ:   Before you get on to what assistance you have, tell me what the principle is so that I can follow it?

MR JAMES:   Right.  The principle is that when granting a non-parole period on a life sentence you have regard to all the matters contained in here and treat it as if you are granting that non-parole period as the minimum time that he should serve having regard to all these matters at the time at which they are giving the non-parole period, not backdated to the time of sentence.  If there has been, as there has in this man's case been, a dramatic change, you do not say, "Well, we would have given him an enormous non‑parole period back then but he's been good since so we'll give him a bit of a discount off the enormous period we would have given him then."  You sentence him as he is in front of you, not as he was 10 years or 20 years, or whatever it was, ago.

BRENNAN CJ:   So, you take into account his good behaviour?

MR JAMES:   Not just that.  You take into account all these matters including the nature and circumstances of the offence which backdates, his personal circumstances as they are now, the co-operation that he has granted now, the deterrent effect of the order in the light of the fact that he had been, in effect, illegally detained for some years in circumstances for the legality and the need to ensure that he is adequately punished.  These all have impact on the non-parole period but that have a differing impact on a non‑parole period to that which they would have had on the head sentence.

Now, that is not what was done here at either point of time because of the way in which the approaches were concerned. 

BRENNAN CJ:   Can you make that good?

MR JAMES:   Yes.  Might I take your Honours to the best point against me which is at application book 31, line 10:

As to the third ground of appeal, that in all the circumstances, the non-parole period fixed was excessive, his Honour had regard to the objective criminality involved and indicated he would have fixed a non-parole period of a very high order if it had been fixed at the time of the original sentencing. 

Then his Honour Mr Justice Dunford, who was delivering the judgment of the court, refers to 16A and the need for severity and so forth, and:

none of the matters listed in subsection (2) -

of 16A -

would have then assisted the applicant.  The further reduction from 22 years to 16 years took account of the applicant's progress towards rehabilitation whilst in gaol -

and they dealt with those matters, and then continued:

These matters justified a substantial reduction but I regard the reduction that his Honour allowed as substantial, and the non-parole period ultimately fixed as not excessive.

That is, start with what he would have got and give him a bit of a reduction, or a reduction, for what changes have occurred in the meantime.

BRENNAN CJ:   Having regard to the factors in 16A?

MR JAMES:   Having regard to the factors in 16A as they were then and then what variation has occurred to them in the meantime.  But not having regard to the factors as they now are.

BRENNAN CJ:   Why not?  Where does that appear from here, when he says, "the applicant's progress towards rehabilitation whilst in gaol"?

MR JAMES:   Yes, but it starts, your Honour, with "non-parole period of a very high order if it had been fixed at the time of the original sentencing", and then give a reduction for what has happened in the meantime, a substantial reduction, or, alternatively, as it puts it at the bottom of the page, the words in parenthesis, at line 36: 

(most of which would not assist the applicant in this case at the time of his sentencing) -

So, take the view that at the time of his sentencing he would have done X and then alter it for what happens in the meantime.

BRENNAN CJ:   It seems to me to say exactly what you have been contending.

MR JAMES:   Not at all, because at the time of sentencing he did not co‑operate at all.  He did not give any evidence; he did not come forward.

BRENNAN CJ:   No, but the point is we look at 16A:  the appellate judge is saying, "Looking at 16A as at the time that he was originally sentenced, we wouldn't have taken account of all these improvements that have taken place, but now we take account of the improvements and we see that brings up a figure of 16 years, and I don't think that is excessive."  Now, where is the error?

MR JAMES:   Your Honour, at the time of sentencing there was no determinate head sentence to which 16A would have applied; no non-parole period to which 16A would have applied.  Section 16A was not particularised in its application, as it were, to anything at the time of sentencing.  All we had was a life sentence.  It only applies to the sentence if one adopts the Che Yook approach of converting the life sentence into a determinate sentence to which the 16A criteria run.

The non-parole period is to be balanced differently to represent a different balance when those factors are in operation.  The relevant time for it is at the time at which it is imposed.  Those factors are completely different at the time it is imposed.  It is not taking the car as it was 20 years ago and tinkering with it; it is a matter of applying the non-parole period with the 16A factors as they are at the time of the non-parole period.  They are completely different things.

His Honour, when he says, "the non-parole period is by no means excessive, the substantial reduction produces an ultimate fixation that is not excessive" is doing so by giving a non-parole period back then, notionally, and altering it, and that is a completely different thing.  The difference may mean some number of years if there has been, in gaol, more rehabilitation, et cetera, than one would have expected at the outset.  It is to convert the sentencing process into a retrospective process, coupled with a minor or, maybe, more major alteration.

Now, that is not what the Act intends when it says "a non-parole period will be ordered" because otherwise you are embarking on a way of producing the calculations which can produce - and we say in this case has produced - a very great error which may mean some years.  Now, it may be that he is required to serve a very, very substantial non-parole period further than the day on which the non-parole period is imposed.  But if it is to be imposed by way of a retrospective look and a change, that period for the future will always be a very much more extensive period than it would be if, simply, the judge sat down and did the sentencing on the non-parole period basis by applying the criteria as they then stood.

BRENNAN CJ:   I do not understand why you say that.

MR JAMES:   In this case he would not co-operate at all.  He would not give any evidence.  He would not provide any antecedents.  He would not provide anything that might have assisted him on 16A.

BRENNAN CJ:   That is, originally?

MR JAMES:   Originally.

BRENNAN CJ:   Yes.

MR JAMES:   His attitude - 16A could not help him at all back then because he do anything, but his attitude changed completely.

HAYNE J:   The appeal judge shows that the primary judge had regard to all of those changes in getting to the result that he did.

MR JAMES:   But, your Honour, it is changing, as it were, from nothing.  It is not, "I assess him as he is now to see how much longer he should serve beyond the date on which I impose this non-parole period".

BRENNAN CJ:   He says, "I think he should serve the 16 years, less 3.”

MR JAMES:   Yes, and it is done in relation to the criteria being assessed back then when the man put nothing forward, so that he is undervalued at the time at which he comes forward for non-parole period.

BRENNAN CJ:   What you are saying is original, minus variation, equals or does not equal present condition?

MR JAMES:   Original, less variation, undervalues present condition, therefore non-parole period from now to end of sentence too long.

BRENNAN CJ:   How one arrives at that as a matter of principle eludes me, Mr James.

MR JAMES:   One arrives at that - straightforward, your Honour, because non-parole periods are applied when - they start to be applied at the time at which they are given.

BRENNAN CJ:   That is right.

MR JAMES:   This is given long after the event of the sentencing and they are given prospectively in that they look to the future to see how much further the man should serve.

HAYNE J:   But having regard also to the criminality.

MR JAMES:   Of course, there is no question of that.  El Karhani and the Act itself is clear on that.  One does not put the criminality away.  Neither does one put away the fact that the man has served 10 or 20 years prior to getting to the non-parole period which is part of the non-parole period and which is evidenced, unlike people who are being sentenced prospectively, by a changing conduct and a conformity.  Now, if that is so, that has a dramatic effect for the future.

Most judges are sentencing almost blind when they give a non-parole period.  They are sentencing, gazing into a crystal ball hoping that the prospect of the non-parole period will do good.  This case is one of the rare occasions in which - - -

HAYNE J:   And imposing the least sentence that should be imposed to reflect the criminality, that is, the least period of time which society requires that offender to serve on account of the criminality.

MR JAMES:   Yes, your Honour, and it may be that it is longer than that if the prospects are not good.  But if the prospects are good, then, in our submission, he should be entitled to have the benefit of them as they are at the time at which he comes forward for the non-parole period.  Unless I can assist your Honours, that is the submission.

BRENNAN CJ:   Thank you, Mr James.  We need not trouble you, Mr Martin.

The prospects of success on appeal in this matter are not sufficient to warrant a grant of special leave.  For that reason, special leave is refused.

AT 10.17 AM THE MATTER WAS CONCLUDED