Lakeland v The Queen

[1994] HCATrans 259

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MlSS of 1993

B e t w e e n -

DAVID PAUL LAKELAND

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON THURSDAY, 24 MARCH 1994, AT 2.25 PM

Lakeland 1 24/3/94

Copyright in the High Court of Australia

MR D. GRACE:  If the Court pleases, I appear with my learned

friend, MR G.F. MEREDITH, on behalf of the

applicant. (instructed by Andrew Irvine Crockett,

Director of Legal Aid (Victoria))

MR B.D. BONGIORNO, OC: If the Court pleases, I appear with

MS K.E. JUDD for the Crown. (instructed by

J.M. Buckley, Solicitor to Director of Public

Prosecutions (Victoria))

MASON CJ:	Mr Grace?
MR GRACE:	It is submitted in this case, Your Honours, that

there has been a gross violation of sentencing

principles and a failure to adhere to the

sentencing principles and guidelines contained in

the Sentencing Act 1991 of Victoria.

The principle of parity between sentences

imposed on different offenders for similar crimes

is just as important as the principle of parity

between sentences imposed on co-offenders for the

same crime. The fundamental aspect - - -

.MASON .CJ:  Does .that mean that a rcourt of criminal appeal

cannot decide at a particular stage that it is

going to increase the level of sentencing for a

particular offence or a particular range of

offences?

MR GRACE:  It is submitted only after due warning has been

given.

MASON CJ: What, in other words, somebody ought to publish a

notice in the Gazette addressed to those

contemplating the crime of rape?

MR GRACE:  No, with respect, Your Honour, the court ought

to, in a published judgment, express the indication

that in perhaps dismissing an appeal by the

Director that courts and the community and

potential accused persons ought to be made aware of

the fact that courts are going to be treating these

types of crimes much more seriously in the future.

DAWSON J:  I think you suggested that the process would be a

gradual one.

MR GRACE:	Or a gradual one.
MASON CJ:	Why does the process being a gradual one overcome

the difficulty?

MR GRACE:  Because in this case you have the opposite

occurring. You have a wholesale fifty per cent, in

Lakeland 2 24/3/94

effect, increase in sentence without warning to an

applicant based on - - -

MASON CJ: Yes, I can understand the point absence of

warning, but I do not see how consistently with

that you can say that a steady or gradual increase

in the penalty overcomes what you say is the

difficulty.

MR GRACE:  Because consistency in sentencing is a badge of

fairness, and inconsistency in sentencing is a

badge of unfairness. That is the primary

submission. Uniformity in sentencing has been held

in this Court in Bugmy as being an appropriate

model to strive for.	What has occurred in this
case has been the absolute reverse.	The court felt

justified in taking the course it did by reason of
what it perceived to be a public clamour for higher
sentences. There were emotive responses, it is

submitted, rather than a reasoned, considered

approach to the sentencing task.

DAWSON J: It was a particularly bad case, was it not?

MR GRACE:  It was not a particularly bad case but it is by

no means the worst case that has come before the

criminal courts in Victoria, and one only has - - -

DAWSON J:	Nor was the sentence near the maximum, was it?
MR GRACE:	It was the maximum applied for any person

convicted of rape in Victoria where there were

multiplicity of offences, certainly over the past

two or three years of the published statistics.

There is no question about that and when compared

to some of the cases that were put before the Court

of Criminal Appeal as being comparable cases, there

is somewhere in the vicinity of a 30 to 50 per cent

increase over the top of those cases including -

one has the situation of the Armadale rapist in

1993 receiving a similar sentence for 11 such

intruder horrendous type rapes - receiving the same

sentence as this applicant, for one. You have the

revenge rapist, Tahche, and the case has been

supplied to the Court, where he receives a sentence

somewhere in the vicinity of 30 per cent less.

This was the man who went to gaol for raping a

young girl and then when he got out of gaol went

back and raped her again and did some terrible

injuries to her vagina, as revenge for lagging him

on the first occasion, and yet he received a much

lower sentence than this applicant.

DAWSON J:  Mr Grace, you strike the difficulty immediately

that this Court has said on numerous occasions that

the mere suggestion that a sentence is excessive,

Lakeland 3 24/3/94

which is this case, will not warrant the grant of

special leave.

MR GRACE:  But the two issues of gross violation of

sentencing principles it is submitted occurred in
this case were a failure to adhere to the principle

of parity and a failure - - -

DAWSON J: Parity occurs between co-accused. It is not

generally a principle which is invoked in relation

to a single accused.

MR GRACE:  It is submitted that it is a principle that

should be invoked in respect of unrelated offenders

for the same class of crime.

DAWSON J: It is impossible, because all crimes are

different.

MR GRACE:  It is merely consistent though, Your Honour, with

the approach of consistency in sentencing which has

been promulgated by this Court in previous cases.

MASON CJ: But where have we applied the principle of parity

in judgments of this Court beyond co-accused?

:z.m:GRACE: Your Honours have not to this stage done so and

it is submitted that Your Honours ought to, and

this case provides an opportunity for this issue to

be considered. That type of approach is consistent

with the approach taken by the Court of Criminal

Appeal and Supreme Court of the Northern Territory

and is consistent with Your Honours' comments in

Lowe v Reg, (1984) 154 CLR 606, where Your Honour

says this at page 610, last three lines:

Just as consistency in punishment - a

reflection of the notion of equal justice - is a fundamental element in any rational and fair

system of criminal justice, so inconsistency

in punishment, because it is regarded as a

badge of unfairness and unequal treatment

under the law, is calculated to lead to an

erosion of public confidence in the integrity
of the administration of justice. It is for

this reason that the avoidance and elimination

of unjustifiable discrepancy in sentencing is
a matter of abiding importance to the
administration of justice and to the

community.

MASON CJ:  It is an often quoted judgment, but of course it

happens to be a dissenting judgment.

MR GRACE: Nevertheless, it it submitted - - -

Lakeland	24/3/94
DAWSON J:	In any event, it was in the context of

co-accused, was it not?

MR GRACE:  Yes, it was, but it is submitted that this case

is the appropriate vehicle for consideration of

extension of that particular issue. It is related, of course, to the establishment of higher benchmark sentences. A court, when establishing or seeking

to establish higher benchmark sentences, must be

very slow to do so and must very carefully consider doing so with the weight of evidence behind it. In

this case what we had was an emotive response from

the court and that appears clearly in the reasons

for decision of the Court of Criminal Appeal at

page 18 of the application book at line 23, where

the court said this:

In recent years, victims of rape have

received a great deal more community support
than they did in the past. This support is
manifest in significant changes to the
criminal code which remove the requirement of
corroboration and disallow unfair denigration

of persons who allege they have been raped.

It is recognised that rape is a crime to which

there are witnesses only in rare cases. This

support is also manifest in the modern
development of crisis centres, counselling

services and training of officers of

enforcement authorities to ensure ready

receipt of complaints and their prompt

investigation. A result is the provision of

greater confidence in victims that a report by

them of their experiences will be received

with understanding and carefully investigated.
A further by-product has been increased

awareness in the community of the prevalence

of the crime of rape and of the depth of

suffering and permanent damage to the

happiness, welfare and self esteem of the

victims. This awareness has extended to the

courts with the consequence that an even more

serious view of the offence must be taken now
than perhaps it has been in the past. While

rape and its attendant crimes have always been
regarded by the courts as ones of great

gravity, it is now necessary to consider

whether more severe penalties, applied in
cases of multiplicity of offences, should not

be affirmed. The requirement of community

support and protection for its female members,

in our opinion, has not proved to have been

sufficiently met. Sentences which take

account of general deterrence are not only

required in rape cases but are required to be

of sufficient severity to be effective as a

deterrence.

Lakeland 24/3/94

There was absolutely no evidence before the court

to justify the court making the findings they did

in the last two sentences of that paragraph, and

yet that was the basis for reaching the same
conclusion as the trial judge as to the total
effective sentence. Over the page on page 20,

fourth line, the court says:

With the increased awareness, which we have

mentioned, of the prevalence of rape and of

its devastation of victims, the courts must be

allowed greater flexibility to do what they

consider appropriate.

One would have thought that the court would have

before it some material which would have suggested

greater prevalence of the crime of rape. In fact,

the contrary was -

DAWSON J: That is not what it suggests. It suggests a

greater awareness.

MR GRACE:  A greater awareness of the prevalence of the

crime of rape. All the court had was what every

member of the public had at the time it made its
decision: media attention on the issues of women,
media attentions on the victims of the crime of
rape. There was no suggestion in any of the

material put to the court. In fact the contrary

was true. In fact, Your Honours have that in front

of you - the sentencing statistics - which

indicated a clear decrease in the numbers of rapes

that had come before the higher criminal courts in

Victoria in 1990 and 1991. In fact, in the case of Jabaltjari which is a decision of the Full Court of the Court of Criminal Appeal of the Northern

Territory, His Honour the Chief Justice, as he then

was, Sir Austin Asche, at page 16 said this at

line 26 in answer to the question: should there be

a higher benchmark for the offence of rape in the

Northern Territory. This is a 1989 decision.

His Honour said:

We have also been invited by the learned

Solicitor-General to establish "a higher benchmark for this serious and prevalent

offence". No one doubts the seriousness of

the offence. But no evidence has been placed
before us as to how prevalent it now is,
compared to, say, 5, 10 or 20 years ago; or

whether, if an increase in reported rapes or

sexual offences is shown, that demonstrates a

real increase in the incidence of such

offences rather than an increase in reporting of such offences brought about by the greater encouragement of victims to come forward; or

whether an "across the board" imposition of

Lakeland 6 24/3/94

higher penalties for all these types of

offences will decrease their incidence. This

court should not take such a drastic step as

that suggested, which might improperly bind

the sentencing discretion of judges or

magistrates, without much more convincing

proof of its desirability; and certainly not

on an unsupported generalized statement that a

particular offence is prevalent. Indeed there

is much to be said for the argument that an

overall increase in penalty for a particular

type of offence is a matter for the

legislature rather than the courts.

There are of course other similar authorities which

deal with the issue of courts placing decisions on
sentence on the basis of emotion rather than
reason. In Barber, a decision of the Full Court of

the Supreme Court of South Australia, (1976)

14 SASR 388, His Honour Chief Justice Bray said

this on page 389, the last three lines:

In this case we have interfered because

the sentence appears to depart from the

prevailing standard of sentences for this

offence. As I have said before, if that

standard is too low, it can be raised after

due warning, but by steps and not by leaps.

That was after consideration of previous sentencing

statistics. Similar remarks were made, again in

the Northern Territory, in the case of

Breed v Pryce. Just to go back to Your Honour the

Chief Justice's questions of me earlier in respect
of the issue of the extension of the principle of

parity, in Breed v Pryce, which is a decision of

Mr Justice Nader in the Supreme Court of the

Northern Territory, His Honour said this at

line 13, page 32, after considering at length the

judgment in Lowe's case:

There is, however, an important point of

distinction between that case and this that,

in my view, puts the appellant in a stronger

position than Lowe. It is one thing to

consider the disparity between the sentence

imposed on two persons involved in the same or

similar conduct; quite another to consider the

disparity between the sentence imposed on one

person and those imposed upon most, if not

all, others for commission of the same kind of

conduct. The sense of grievance engendered by

the knowledge that one other person has been
treated with excessive leniency is of a

different and lesser order than the grievance

produced by the knowledge that, in general,

all other offenders are treated much more

Lakeland 24/3/94

leniently. An offender might be expected to

understand that the anomaly of another like

offender being given excessive leniency does

not warrant any feeling of injustice; but, how

can a person whose sentence is greatly in

excess of the sentences meted out to everyone

else guilty of the same offence be expected to

accept the proposition that all the others

were given inadequate sentences and to

conclude that he has not been treated

unjustly? To say that the sense of grievance

felt by such a person is not justified if his

sentence looked at in isolation is not

excessive would, in my opinion, be

unreasonable:

It is that statement of principle by His Honour

Mr Justice Nader that is relied upon in support of

this application.

MASON CJ:  What he is directing his attention to is the

situation of a person who stands as an exception to

a general rule that applies to everyone else.

MR GRACE: Nevertheless, Your Honour, it is submitted that

it is apposite to .this case, that statement of

principle. Indeed, in the case of Poyner this

Court considered an application for special leave when the issue of forewarning or a higher benchmark for a sentence was the basis of the special leave

application. It is a very short decision of this

Court. None of Your Honours was sitting on that

particular case and, by a majority of three to two,

special leave was refused. If I could refer to

page 264 of the one-page report of this case, the

Court said:

Mr James referred us to the remarks of

Bray CJ in R v Barber ..... where it was said

that if the prevailing standard of sentences

be raised after due warning, but by steps and

for a particular offence is too low, "it can

not by leaps".

Then His Honour Mr Justice Nader's comments in

Breed v Pryce were then relied upon. The next paragraph goes on to say this:

Mr James laid stress on the importance of consistency in sentencing and of avoiding, so

far as possible, disparity in sentences for a

particular offence. That question has been

fully discussed by this Court in

Lowe v R .... The above remarks reflect the

views of the whole court. The majority of the

court, with Murphy and Deane JJ dissenting,

considers that the case raises no new point of

Lakeland 24/3/94

principle and that it has not been shown that

any miscarriage of justice has been

occasioned. Special leave to appeal is

refused.

It is now said and it is now put, with respect,

that because courts of criminal appeal are still

carrying on, as evidenced by the Victorian Court of

Criminal Appeal, with the same process that was attacked in Poyner's case, it is perhaps an
occasion, and this case provides a vehicle for this
Court to examine that particular issue of the

imposition of higher benchmark sentences, and this

whole principle of parity can be extended in the

manner that I have suggested.

DAWSON J: But in Lowe's case and Neal's case and Veen's

case it was pointed out that levels of sentencing
are more appropriately entrusted to courts of

criminal appeal than this Court, and that this

Court is not equipped, generally speaking, to deal

with those matters. For that reason,
excessive ..... sentence will rarely, if ever,

found a grant of special leave.

MR GRACE:  Except where it is based upon a gross violation

of sentencing principle which it is submitted is

the case or there has been error -

DAWSON J:	The gross violation you point to is not parity of sentencing but comparability of sentences, which is not a principle to be found in the cases.
MR GRACE:	If I could then pose the alternative, an error of

law - and what is relied on in respect of the error

of law is a failure to follow the guidelines and
principles enunciated in the Sentencing Act, and if

I could refer the Court to section 1 where the

purpose of - one of the purposes of the Act,

section l(a) of the Sentencing Act of Victoria, is:

to promote consistency of approach in the

sentencing of offenders;

and section 5(2)(b) says:

In sentencing an offender a court must have regard to -

(b) current sentencing practices;

What has occurred in this case is that the court

has not abided by the legislative directions -

DAWSON J: It did. It had regard to them and said they were

too low.

Lakeland 9 24/3/94

MR GRACE:  Then one comes back circularly to the argument

that the court, in effect, applying the same
sentence that the trial judge had applied was in
effect creating a much higher benchmark for these

particular kinds of offences and the basis for

applying that benchmark was on very flimsy ground,

in my respectful submission, and it was based upon

emotion, or emotive responses, not based upon

proper, considered, reasoned decision making.	That
is the gross error this court fell into, even	if it
was justified in applying a higher benchmark,	which
is not conceded. If the Court pleases, that
completes my submissions.

MASON CJ: Thank you, Mr Grace. The Court need not trouble

you, Mr Bongiorno.

This Court has repeatedly stated that

generally it will not intervene in cases where the

complaint is that a sentence imposed is excessive.

Here it is said that the Court of Criminal Appeal

erred in principle but, in the ultimate analysis,

we consider that the level of sentencing, including
the comparability of sentences, is essentially a

matter falling within the province of courts of

criminal appeal. The application for special leave

to appeal is therefore refused.

AT 2.48 PM THE MATTER WAS ADJOURNED SINE DIE

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