Lowndes v The Queen

[1998] HCATrans 376

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P43 of 1997

B e t w e e n -

PETER ANTHONY LOWNDES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 22 OCTOBER 1998, AT 11.52 AM

Copyright in the High Court of Australia

MR M.R. GUNNING:   May it please the Court, I appear for the applicant.  (instructed by Gunning, Barristers & Solicitors)

MR J.R. McKECHNIE, QC:   If your Honours please, I appear with my learned friend, MRS J.A. GIRDHAM, I represent the Crown.  (instructed by Director of Public Prosecutions (Western Australia))

GAUDRON J:   Yes, Mr Gunning.

MR GUNNING:   In relation to this matter it deals with the interpretation of section 98 of the Sentencing Act, and more particular, indefinite sentence.  I would take the Court directly to that.

KIRBY J:   Did I read that this is unique in Western Australia, or is there a provision in South Australia that is similar?

MR GUNNING:   I am unaware, your Honour.

KIRBY J:   You will have to be aware if you come to the Court because that is a very important matter, and it is not insignificant to special leave.  I have never seen anything like it in Australian legislation, but there may be analogies elsewhere.

MR GUNNING:   Certainly, your Honour, I am not aware that there is anything similar.

GAUDRON J:   What is the error you say was made by the Full Court?

MR GUNNING:   The error that was made by the Full Court is that the Full Court, whilst it accepted that there were special circumstances in section 98(2), all the elements going through (a), (b), (c) and (d), in my submission, all require exceptional circumstances.  What the Full Court did was, on page 16 of the Chief Justice’s judgment, he concluded ‑ ‑ ‑

GAUDRON J:   That is page 40, is it, of the application book?

MR GUNNING:   Sorry, page 40 of the application book, concluded:

In my opinion, having regard to the very short space of time between the previous release on parole and the commission of the present offences as well as the pre‑sentence reports, the evidence compelled a finding on the balance of probability that at the time of his release the respondent would pose a constant and continuing danger to the community.

Then he goes through much of the factual details, and on page 46 he states:

The assessment was made that the respondent presents as a “high risk” of re‑offending by reason of the fact that he is “dangerous to prepubescent males”.

The point of special leave in relation to this matter is that my submission is that it should be a special circumstance in respect of that; that is, that under section 98(2)(b):

the risk that the offender will commit other indictable offences;

GAUDRON J:   What do you say of that?

MR GUNNING:   What I say of that is that it is not a question of simply, will the person commit other indictable offences on the face of it, what it has to do is show more than that, and the reason it has to show more than that is because if you are imposing an indefinite sentence, it is something that goes against the proportionality of whether  ‑ ‑ ‑

KIRBY J:   It certainly does.

MR GUNNING:   In that circumstance, if you are looking at that section, you have to say, “Okay, I cannot read it and just say ‑ ‑ ‑

GAUDRON J:   How do you say it has to be read?  If you wish to get a grant of special leave you have to identify some argument that you wish to put in due course.

MR GUNNING:   What I identify is the argument is that it has to be placed at higher than the Court of Criminal Appeal placed ‑ ‑ ‑

McHUGH J:   That tells us nothing.

MR GUNNING:   Sorry; what I say is that it has to be of sufficient exceptional circumstance to warrant an indefinite sentence being ‑ ‑ ‑

GAUDRON J:   That does not tell us very much either.

MR GUNNING:   If I can continue, and in reliance of that, it should show that there is a substantial risk to the community, and you rely on the facts – that is, that the offence, itself, is sufficiently serious.  In this particular case, whilst there was offending and the applicant came before the courts, I think five times in 23 years, there was substantial periods of time where he did not offend, and the offending was not of a nature, in my submission, sufficiently serious enough to warrant the attraction of an indefinite sentence being imposed.

KIRBY J:   You have to say that given the exceptional nature of this statutory provision, and given the facts which were accepted in relation to your client that in so far as the Full Court of Criminal Appeal held that this was a case of exceptional seriousness of the offence, that they obviously have applied an incorrect understanding of that prerequisite and that it is important that the prerequisite should be made clear as a truly exceptionally serious case, which manifestly this was not, and that therefore this Court should endeavour to express in some clearer sense what exceptional seriousness of the offence means.

MR GUNNING:   That is correct, your Honour.

McHUGH J:   But why could not the Court rely on (2)(b)?  That he was a danger to society because of one or more of these factors, “(b)  the risk that the offender will commit other indictable offences”.  That is what the court found.  They only had to do it on the balance of probabilities; that is what the statutory language says.  Why should we put a gloss on it?  If Parliament wants to enact a statute like this, should we not give it its effect?

MR GUNNING:   Yes, I am asking the Court to give its effect.  What I am saying is the Court of Criminal Appeal gave it the wrong effect, and in answer to your question, I say that if you look at 98(2)(d) it says:

any other exceptional circumstances.

When you read that ‑ ‑ ‑

KIRBY J:   Does that mean that an indefinite imprisonment can be imposed in Western Australia if, alone, there are exceptional circumstances?  That cannot be so.  That would be a monstrous interpretation of law.

McHUGH J:   That is what it says, does it not, “any other exceptional circumstances”?.  That is paragraph (d).

KIRBY J:   It cannot be that Parliament intended that.

GAUDRON J:   It has to be because he or she would be a danger to society by reason of, not because of.

MR GUNNING:   What I am submitting is that if you follow the cases that have been outlined of Chester and Gooch, and read those cases, which was accepted by the Court of Criminal Appeal, and also was applied and accepted by the trial judge or the sentencing judge ‑ ‑ ‑

GAUDRON J:   That does raise another point which you do not seem to have adverted to in your application, but which does cause me some concern.  The normal requirement would be that the – was it a Court of Criminal Appeal?

MR GUNNING:   Yes.

GAUDRON J:   The Court of Criminal Appeal would not have interfered in this sentence unless it could point to some definite error in the approach of the sentencing judge.

MR GUNNING:   That is correct, your Honour.

GAUDRON J:   I do not find it having done that.

MR GUNNING:   No.

GAUDRON J:   But you do not seem to rely on that.

MR GUNNING:   I do rely on that, that is a point ‑ ‑ ‑

GAUDRON J:   Where is it?  Where do you rely on that?

MR GUNNING:   In the grounds of appeal.

GAUDRON J:   It seems to me, before the Full Court could get into this it would have to find (a) that there was an error by the sentencing judge; that it should then resentence.  Then, that it should not make a parole eligibility order under Part 13; and then having decided all those matters, it should then turn its mind to the question whether or not it should make an indefinite order, an order for indefinite imprisonment.  Those processes do not seem to have been complied with.  I wanted to know where you say ‑ ‑ ‑

MR GUNNING:   On page 66 of the application book, the grounds:

The Learned Appellate Judges erred in that:

(a)  There was sufficient material pointing to the appropriateness of an order for parole eligibility;

KIRBY J:   That does not make sense.  You mean erred in finding.

MR GUNNING:   Sorry?

KIRBY J:   That does not seem to make sense.  What you mean is the learned appellate judges erred in concluding that there was sufficient material to permit them conforming to their appellate function to conclude that there was ‑ ‑ ‑

McHUGH J:   “Insufficient” it should be.

MR GUNNING:   Yes.  There was insufficient, that is correct, and I would seek to amend that.

GAUDRON J:   I do not see that ground as raising the issues I raised, I must say; namely that the House v The King general – the principle that the Court of Criminal Appeal should not have intervened unless it could point to some definite error in sentencing principle in the sentence imposed by the sentencing judge.

MR GUNNING:   I agree with your Honour.  I thought that was encompassed in that, but if it is not, I would certainly rely on that.  Furthermore, I point to page 9.

GAUDRON J:   Mr Gunning, we think we do not need to hear from you further.

KIRBY J:   That is on an assumption that you would amend the notice of appeal to raise the point raised by the learned presiding Judge.

MR GUNNING:   Certainly.

GAUDRON J:   Yes.  Mr McKechnie.

MR McKECHNIE:   If your Honours please.  I think I understand the foreshadowed amendment and can address it.

GAUDRON J:   I am sure you do.  From your point of view, the question is by what right – what error did the Court of Appeal find in the sentencing judge’s approach which justified in resentencing.

MR McKECHNIE:   Yes.  Can I respond to that in just about one minute, but first of all, just for the point of view of assistance to the question that your Honour raised about similar provisions, they can be found in the respondent’s book of materials in the case of Moffatt, which is included there.  The Victorian provision is actually set out at page 559 of the report, and reference is made to other States’ legislation at 567 of the report.

KIRBY J:   I sat in a Court of Criminal Appeal for 12 years, and I have sat on this Court for three years and I have never seen anything like this provision.  So, it is not a common visitor; and it is a visitor which once it visits ought to be scrutinised with the greatest of care, it seems to me.  Otherwise we have transposed proportionate sentencing to indefinite sentences on very, very general criteria, which is really, at least prima facie a Parliament can do it, but it is an offensive notion.

MR McKECHNIE:   Your Honour, the question, with respect, is whether Parliament has done it, and whether the Court of Criminal Appeal is correct in their interpretation.

KIRBY J:   That is why I will take my magnifying glass out to make sure that Parliament has done it in a clear way, and that the Court of Appeal has conformed.

MR McKECHNIE:   I appreciate the predisposition that your Honour might bring to examining such clauses, but could I point out at page 559 of the judgment of the President of the court in Moffatt, he sets out the provision, and in terms which vary, but are not overly different from the present.

KIRBY J:   Is it only in Victoria and Western Australia that this provision exists?

McHUGH J:   It is in Tasmania, is it not, Northern Territory and Queensland?

MR McKECHNIE:   Yes, all over, your Honour.

McHUGH J:   We used to have an Habitual Criminals Act in New South Wales.  I do not know whether it is still in operation.

KIRBY J:   Much criticised, too; punishing people for who they were instead of what they had done.

MR McKECHNIE:   As far as we could gather, the legislative scheme which was fairly common for habitual criminals, which existed in almost all jurisdictions, have largely been replaced by a new scheme which is similar to the scheme set out in the Sentencing Act.

KIRBY J:   This is a common scheme throughout the nation upon which the Court could usefully pass.

MR McKECHNIE:   I appreciate that drawing attention to this is not advancing my submissions;  however, I thought I should, nevertheless, draw it to your Honours’ attention.

KIRBY J:   You are always helpful, Mr McKechnie.

MR McKECHNIE:   The answer to your Honour’s questions about whether the court first positively found error, I can only approach this way from the judgment, namely, their Honours were conscious of the principles of Crown appeal against sentence.  They set that out.  They analysed ‑ ‑ ‑

GAUDRON J:   Can you show me?

MR McKECHNIE:   At page 31, your Honour.

GAUDRON J:   What does it say?

MR McKECHNIE:

This being a Crown appeal against sentence the principles applicable were those stated in R v Tait…..which have been consistently applied.

GAUDRON J:   That does not say what they are.  It does not disclose any great understanding just to refer to the cases.

MR McKECHNIE:   That might be true, your Honour, but then ‑ ‑ ‑

GAUDRON J:   Can you show me where they applied them?

MR McKECHNIE:   My very strong submission is they applied them in the result.

GAUDRON J:   I would like to see it in the reasoning process.

McHUGH J:   In fact, the reasons rather indicate the contrary, do they not, Mr McKechnie, because the court seemed to treat it as if it was exercising original rather than appellate jurisdiction.  If you look at 33 it starts:

It was submitted…..by counsel for the Crown that this was an appropriate case in which to impose indefinite imprisonment.

GAUDRON J:   You only get to that after you have concluded that there was an error in the approach of the sentencing judge of such a serious nature that a Crown appeal should be allowed.

MR McKECHNIE:   I would not disagree with the formulation that your Honour has put to it, but to answer your Honour’s earlier question, this is an experienced Court of Criminal Appeal who have stated the principles.  There is no particular need for them to then set out ‑ ‑ ‑

GAUDRON J:   I would like to see where the sentencing judge was in error.

KIRBY J:   There was a reference somewhere there to the usual restraint in Crown appeals, I think.

GAUDRON J:   On page 31.

KIRBY J:   That is, ordinarily, a very, very big inhibition in a Court of Criminal Appeal, at least where I sat.  A very big inhibition to intervene, and yet it seems to have just been noted and swept aside, and in they go with an indefinite sentence.  On what, on the face of things, was serious, but as these cases go, you would know as well as we, I think there were three boys involved.  They were 14, or thereabouts, and he was putting a condom on them.  As these cases go, to then follow that with an indefinite sentence seems grossly disproportionate, and to call out for some examination of what has happened.

MR McKECHNIE:   If the only criterion for the imposition of an indeterminate sentence were the seriousness of the offence, I could not disagree with your Honour.  But, there are others, and our reading of the judgment does not focus – the judges did not focus on that, to return to make the comment that the court in Western Australia is seized of the nature of Crown appeals and the exceptional nature of them.

McHUGH J:   That does not seem to be the way the court approached the matter.  In what appears at page 40, it rather indicates the Court of Criminal Appeal felt that these facts as a matter of law required a finding that the conditions of the section had been made out.  At page 40 line 3 they say:

the evidence compelled a finding on the balance of probability –

That seems to be the only legal basis upon which the court has attempted to justify its interference with the trial judge’s discretion.  It says the facts compelled the finding, which rather indicates they saw it as a matter of law, that this finding was required.

GAUDRON J:   Which could not be the case, could it?  I mean, a trial judge is never compelled to a finding.

MR McKECHNIE:   A trial judge might be compelled to a finding if that is the way that the facts were, and it may be ‑ ‑ ‑

GAUDRON J:   But this is a speculative finding.  On any view, there is a measure of speculation in it.

KIRBY J:   Speculation or evaluation ‑ ‑ ‑ 

GAUDRON J:   Yes.

McHUGH J:   Evaluation, perhaps. I would be more content ‑ ‑ ‑

GAUDRON J:   It is a finding as to future conduct on the balance of probabilities.  Unless we are talking about things like the sun always rises in the east, I would be loath to think that there was any compulsion about findings as to future conduct.

KIRBY J:   Perhaps we should not refer to where the sun rises.

MR McKECHNIE:   In answer to, I think, all of those concerns, what we do say is that whichever way – if your Honour is looking for “therefore this was an error here”, this judgment is not structured in that way to say that.  Where it appears, in our respectful submission, is there, and then from the bottom of page 51 at line F over to page 52, it is implicit, but necessarily implicit in their Honours - and following on from their Honours’ finding that the trial judge had made an error of fact.

GAUDRON J:   Where does that - where is that that the trial judge made an error of fact?  That is implicit.

MR McKECHNIE:   That is implicit from “In my opinion”, leading over to ‑ ‑ ‑

GAUDRON J:   As to make an error in not concluding that such and such a thing would occur.

MR McKECHNIE:   Not being compelled by the facts.

GAUDRON J:   And where do they go on to deal with the question of a parole eligibility order, which I would have thought was a precondition to (2).

MR McKECHNIE:   I am sorry, I am not quite sure whether I understand.

GAUDRON J:   If you look at 98(1), certain conditions have to be satisfied before ‑ ‑ ‑

MR McKECHNIE:   I am sorry; I see what your Honour ‑ ‑ ‑

GAUDRON J:   And where in its decision does it deal with the parole eligibility order?

MR McKECHNIE:   I will just find the passage, your Honour, because I am sure they did.

KIRBY J:   Yes, they say, having come to the conclusion they did.  But, this is working backwards, is it not?

MR McKECHNIE:   I accept that one must, having come to the conclusion, or one should first come to the conclusion that a parole eligibility order would be inappropriate before then moving on.

GAUDRON J:   They do not seem to have done that, do they?

MR McKECHNIE:   It is a bit hard at the moment for me to find it, your Honour, this is true.

KIRBY J:   These are reasons directed to ensuring that in such an exceptional sentencing provision, and on a Crown appeal where normally, as you would know, the sentence that is imposed by a Court of Criminal Appeal, having found error, and having decided to proceed in, is generally not as severe as might have been imposed at first instance because of what has been called the element of double jeopardy.  All of that seems to be missing from this.

MR McKECHNIE:   Yes, although that element of moderation, consistent with Crown appeals, I do not, with respect, know how one would apply that if one reached a positive view that an indeterminate sentence should be applied.

KIRBY J:   It is a matter for stumbling or pausing before you impose an indeterminate sentence, it would seem to me, given that that is, must be, and should be, a truly exceptional sentence.

McHUGH J:   Mr McKechnie, I think the court did consider this question of the eligibility for parole at the bottom of 46 and over to 47.

MR McKECHNIE:   Thank you, your Honour.

McHUGH J:

It was acknowledged that the critical question which had to be dealt with before an indefinite sentence…..was whether a parole eligibility order should be made under s89 –

Then their Honours go on to discuss that.

MR McKECHNIE:   That really is the error that was identified by them, as well, in those passages, your Honour.  That appears at page 49 at about line D.  But, having detained your Honours with this, and in reliance of our written submissions, unless there is any other matters about which we can assist, those would be our submissions.

McHUGH J:   What about the term “danger to society”?  It is a very inexact legal criterion.  The judges translated it in effect, perhaps unwittingly, to danger to the community.  Maybe it is the same thing, but one clearly, you would think, it would be danger to individuals in society.  I suppose that is what it means when it speaks about – or part of society.

MR McKECHNIE:   I would have, with respect, whichever way it is formulated, your Honour, thought, absent the facts of this case, if you had a known paedophile preying on young boys, that would come within the definition of “danger to society” as a concept.  I do not know that it is necessary for the resolution of this case to go further.

McHUGH J:   No, I do not disagree with that, but it does seem a little curious, the expression.

MR McKECHNIE:   As indicated from the Victorian legislation we find similar expression, and I think, also, Queensland which I have looked at, and maybe the others.  It is a common expression in the statutes.  But, having said that, this case, whatever else it may raise, would not seem to raise a resolution of that definition, which really would depend on a fact by fact basis.

McHUGH J:   It may to some extent, because in particular when you are relying on (b), the interrelationship between could be “a danger to society” because of “the risk that the offender will commit other indictable offences”, one may have to define what sort of danger to society we are talking about.  It would appear to be something more than the commission of indictable offences.

MR McKECHNIE:   Yes, and the court, correctly, recognised that it is more than that, especially in its references to Chester, and took the view that

the present legislation is not inconsistent with, and in conformity with, the decisions of this Court in relation to both Veen and Chester in their approach.  So, it would be more than simply, for instance, committing a lot of burglaries.

McHUGH J:   Yes.

MR McKECHNIE:   Those are our submissions.

GAUDRON J:   Thank you, Mr McKechnie.  Yes, there will be a grant of special leave in this case.

AT 12.20 PM THE MATTER WAS CONCLUDED