McGarry v The Queen

[2000] HCATrans 333

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P66 of 1999

B e t w e e n -

MICHAEL ALEXANDER McGARRY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 AUGUST 2000, AT 2.45 PM

Copyright in the High Court of Australia

MR R.E. LINDSAY:   May it please the Court, I appear with my learned friend, MR R.D. YOUNG, for the applicant.  (instructed by Gunning)

MR R.E. COCK:   If your Honours please, with my learned friend, MR J.A. THOMSON, I represent the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

GUMMOW J:   Thank you.  Yes, Mr Lindsay.

MR LINDSAY:   Your Honours, it is submitted that the learned sentencing judge and the majority of the Appeal Court erred in determining that section 98 of the Sentencing Act applied in the circumstances of this case to justify the imposition of a sentence of indefinite imprisonment.

GUMMOW J:   Well, am I right in thinking you adopt the reasoning of Justice Kennedy?

MR LINDSAY:   Yes, indeed, your Honour.

GUMMOW J:   Now, can you just explain to me, shortly if you can, what the connection is between the indefinite detention provision and the parole provisions.

MR LINDSAY:   That issue, your Honour, was canvassed in the case of Lowndes and the effect of it was that, of course, section 89, I think, concerns itself with the basis upon which parole can be granted in respect of a finite sentence and, of course, so far as section 98, the provision we are here concerned with, the Court needs to satisfy itself that parole is not appropriate under section 89, but, of course, whilst there is obviously a commonality of consideration there, there are two distinct steps.  One is to say that parole is not appropriate under that earlier provision of the Sentencing Act and the second is then, of course, to look at whether section 98 should be applied.

KIRBY J:   What happens in practice with section 98 orders?  I mean, presumably it does not mean, or does it, that the person remains in prison for the rest of his or her natural life?

MR LINDSAY:   No, your Honour.

KIRBY J:   How do they actually come to a conclusion?

MR LINDSAY:   Your Honour, the position is set out in the Sentence Administration Act 1995 and essentially is to the effect that the Minister may, in fact, ask for a report at any time but, in the absence of the Minister asking for a report as to the eligibility of the person to be released upon parole, the applicant is considered a year after his finite term expires and then if it is refused at that stage, at three year intervals thereafter.

GUMMOW J:   Thank you.

MR LINDSAY:   There is some reference to that, although it is rather shortened, in the judgment of Justice Murray.

GUMMOW J:   Thank you.  Now, in a way the case turns on the phrase “exceptional seriousness” in section 98(3)(a), does it?

MR LINDSAY:   Yes, your Honour.  The basis upon which the sentencing judge found that section 98 applied - and I say that the section is set out at page 4 of the applicant’s book of materials, but his Honour took the view that he would constitute a danger at the time that he would be eligible for release from custody otherwise by reason of 98(2)(b), that is, the risk that he would commit other indictable offences.  That was the basis upon which the sentencing judge so held, although I should perhaps say in this regard, your Honour, that at the time when the sentencing judge was considering this matter this Court had not handed down judgment in either Lowndes or Thompson’s Case.

Indeed, at two pages ‑ page 5 of the application book his Honour says that he finds it “difficult” because he did not:

have any guideline judgments in this connection from the Court of Criminal Appeal –

Then, again, he reiterates at page 7 that there is a “difficulty” he feels because:

of the lack of clear parameters for a declaration under section 98 –

So, at the time when he decided the matter this Court had not made its comments, as it subsequently did in Lowndes and by Justice Kirby in Thompson, about the stark and extraordinary power involved and the exceptional seriousness.

GUMMOW J:   Thank you.

KIRBY J:   Does the question arise here – I think it does, does it not ‑ of the sentencing judge not having the psychiatric material or a full psychiatric report?

MR LINDSAY:   Yes, indeed, and your Honours will observe in ‑ ‑ ‑

KIRBY J:   Just explain what actually happened.

MR LINDSAY:   Perhaps I can take your Honour to what Justice Kennedy says in that regard at page 26.

KIRBY J:   Yes, Justice Kennedy deals with that.

MR LINDSAY:   He has previously, your Honours will see on page 25, referred to your Honour’s remarks in Thompson about materials being thorough and complete.  Then at page 26 he says at line 30 down to the bottom, your Honours, that he comes to the conclusion that the report:

was not sufficiently cogent to allow for the conclusion that the applicant would be a constant and continuing danger –

Then about five lines from the bottom your Honours will see:

There has apparently been no psychological or psychiatric examination of the applicant, no report on any such examination having been referred to in the report which was before his Honour.  The qualifications and experience of the signatories to the report have not been provided.

Then he goes on to deal with the circumstances in which the Crown has made the application.

KIRBY J:   There is a reference in section 98(2)(c) to:

any psychological, psychiatric or medical condition affecting the offender –

But, I assume these paragraphs are alternatives, are they, or they are cumulative considerations?

MR LINDSAY:   Your Honour, under section 98(2) in considering – and the essence, as I read it, is considering making a prognosis “on the balance of probabilities” as to the danger that the applicant may pose to the community or a part of the community, one has regard to those ‑ ‑ ‑

KIRBY J:   Justice Gummow has called my attention to the fact that in the words of the subsection it says:

because of one or more of these factors –

So, presumably, the majority took the view that it was enough that the offence was in their Honours’ view exceptionally serious.  Just help we with this, does the word “exceptional seriousness of the offence” read in the context refer to the offence as expressed in the Code or does it refer to the offence in fact as it was committed?  Is there learning on that or not?

MR LINDSAY:   Yes, your Honour.  I observe that there may be a distinction between saying something is a serious offence by reason of it being a penal provision in the Code and saying that it may not, as such, constitute a serious offence in that sense but because of the “exceptional seriousness” of what has in fact been committed, albeit the offence itself is not a particularly serious one, and I would think probably it would be open to the latter interpretation that an offence, albeit it needs to be an indictable offence – that is made clear – one looks to see if it is exceptionally serious.

In regard to that factor the sentencing judge himself did not rely upon this particular offence being of an exceptionally serious nature to ground the basis for imposing section 98.  Indeed, his Honour expressly says that it does not fall at the top end of the scale.

KIRBY J:   Does that mean that by reason of one factor, namely, the risk, which I suppose, in one sense, must always be present in many offenders, but particularly, one might say, with this offender with his background, the risk that he will commit other indictable offences, that that is sufficient to enliven the section?

MR LINDSAY:   That is really the point here because that is the basis upon which it appears that the – well, certainly, the basis upon which the sentencing judge founded his conclusion and it is our submission that it is not simply enough to look to a generality of recidivism or previous offending to justify the imposition of this section.  Of course, perhaps that is reinforced in general terms in Lowndes’ Case, which, of course, was not available to the sentencing judge.

Your Honour, I will just say, too, there is perhaps another issue.  It is perfectly right, as your Honours indicated earlier, that section 98(2) envisages that one could conclude that the person constitutes a danger to the society on one or more of the factors but, in my submission, that does not justify the court not having regard to all the factors in ‑ ‑ ‑

GUMMOW J:   There is a question of statutory construction.  The section confers a power on the court.  The question is, how is the power to be exercised?  Are these (a), (b) and (c) matters all to be taken into account, it

being sufficient that any one of them are so strong to prevail over the others, but do they all have to be taken into account, at least?

MR LINDSAY:   Well, yes, it would be my submission that they should all be taken into account albeit that in the end it may be granted on the conclusion in relation to one of them.

GUMMOW J:   Yes.

MR LINDSAY:   But they should all be taken into account because one, of course, factor may point to it as, indeed, such as (b).  But then if there had been, perhaps, a psychological or psychiatric report, which there was not in this case, which pointed in the opposite direction, then it would not be appropriate to make the declaration.

GUMMOW J:   Well, that is a question ‑ ‑ ‑

MR LINDSAY:   So, in my submission, that, indeed, is something which Justice Kennedy refers to, that the sentencing judge never expressly referred – he did not base his conclusion on (a).  He did not base it on (c) or (d) and he hardly alluded to some of the points which the applicant’s counsel considered was important.  He based it entirely upon (b) and, effectively, a record of past offending.

GUMMOW J:   Yes.  Thank you, Mr Lindsay.

MR LINDSAY:   Thank you, your Honour.

GUMMOW J:   Yes, Mr Cock.

MR COCK:   Thank you, your Honours.  Firstly, my learned friend’s submission to your Honours that there is a respectable argument that it may be necessary for this Court to decide whether or not a sentencing judge must look at any or all of the factors in section 98(2).  Our contention is that it is not reasonably arguable that he must look at all of them.  We say that for two reasons.  Firstly, subsection (2), before the full paragraph, commences with the words “because of one or more of these factors” and, in our respectful submission, that is self‑evidently authorising the court to have regard to only one or more than one ‑ ‑ ‑

KIRBY J:   But, as Justice Gummow pointed out, they are all directed to the question of danger to society, as it were, criteria for coming to the overall conclusion.  Therefore, on one view, the structure of the section requires that you have regard to all of them.

MR COCK:   The problem, with respect, with that, and the second difficulty is paragraph (d) which talks of “any other exceptional circumstances”.  It is clearly, in our respectful submission, not expressing a list of matters to which the court must go, but rather ‑ ‑ ‑

KIRBY J:   But even that must be - “any other exceptional circumstances” - relevant to indicating that the prisoner standing for sentence is a danger to society, or would be a danger to society.

MR COCK:   Yes, and subsection (3), of course, puts colour on that by authorising the court ‑ ‑ ‑

GUMMOW J:   There are many sections in many areas of law drafted like this which confer powers or discretions on courts or tribunals and they finish up with “any other exceptional or material circumstance”, but they are construed in the way Justice Kirby and I were putting to you.

MR COCK:   In our submission, because of the opening words of subsection (2):

Indefinite imprisonment must not be ordered unless the court is satisfied on the balance of probabilities that when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society, or a part of it, because of one or more of these factors –

The court is not required, in our submission, to look at each factor if it does not wish to.  If there is sufficient on one factor alone, as the judge in this case found, factor (b):

the risk that the offender will commit other indictable offences –

then, in our submission, there is no error disclosed by the sentencing process.

KIRBY J:   But there must always be a risk in every case and it cannot be the intention of the Parliament of Western Australia in every case that this section would apply.

MR COCK:   We accept that readily, your Honour.

KIRBY J:   There is always a risk.  I mean, you just have to look at statistical analysis of re-offending.

MR COCK:   Yes, and the provision, of course, has the additional difficulty of requiring the judge ‑ ‑ ‑

KIRBY J:   So it must mean more than that.  It must mean a risk of danger to society in a context of a section which is talking of exceptional seriousness and is talking in terms of the protection of society, not just that there is some risk.  Of course, it is a risk of committing another indictable offence or offences.

MR COCK:   Yes.  That is why the learned sentencing judge looked at the risk to a group of members of the society, that was young girls, and had regard to the evidence before him which we accept was not in the form of psychological or psychiatric reports, but which were reports on the offender for many years, the last of which being authored by a social worker who had interviewed twice the offender and members of his immediate family.  Your Honours will notice Justice Pidgeon himself refers to some features of that:

his self-admitted ability to suspend empathy for his victims, the applicant is considered to present a high risk –

I am reading from page 29, lines 6 and 7.  Justice Murray canvassed it probably more completely when his Honour accepted that there had to be:

no more than that there was a risk of recidivism generally –

and his Honour accepted, with respect, what your Honours are putting to me.  I am reading now from page 32, lines 45 and 46.

GUMMOW J:   The trouble is, Mr Cock, with respect to the Court of Criminal Appeal, it is really only Mr Justice Kennedy who construes the Act in a way that immediately strikes me as intellectually congenial.  Section 98 starts off by conferring a power - the court may order indefinite imprisonment.  Then 98(3) is a restriction on the exercise of the power, certain things have to be shown, namely, danger to society, and that danger has to be because of one or more of these factors.  It seems to me there is quite a sequential process that has to be gone through in applying this section.

MR COCK:   Yes, well, his Honour Justice Kennedy did not say there was an error in the sequence; his Honour found effectively that there was not sufficient evidence to trigger the exercise of discretion.

KIRBY J:   Is this the point about the lack of psychiatric material?

MR COCK:   That seems to us to be the ‑ ‑ ‑

KIRBY J:   What do you say about that, because that seems to be the same sort of problem that came before the Court once before?

MR COCK:   Thompson was the case to which your Honour refers where the Crown conceded on a special leave application.

KIRBY J:   Yes.  If you are going to use these powers, they have to be used with scrupulous attention to the purpose of them and to the language by which they are conferred because these are truly exceptional powers.  Effectively they hand over a person from the judicial branch to the executive, and that is really something that even the United States literature raises constitutional questions, but in our literature at least raises questions of very careful attention to the language of the Code.

MR COCK:   We accept the analysis of the decisions of this Court set out in the judgment of Justice Kennedy.  What we say, however, is there is nothing in the majority that is inconsistent with that analysis, save their Honours are of the view that the trial judge had sufficient evidence to form the judgment that Parliament vested in him and it is our contention that the law in Western Australia does not require any further development or guidance.  That it is understood now, with the benefit of the judgment of this Court in Lowndes and the more recent judgment of Thompson, which your Honours will recall was a case where the Court of Criminal Appeal in Thompson were dissatisfied with the level of information before the learned trial judge ‑ ‑ ‑

KIRBY J:   Yes, I remember.

MR COCK:   ‑ ‑ ‑ themselves set off and got their own reports and then dismissed the appeal.

KIRBY J:   But the suggestion here is that the primary judge went about it with respect to him in a rather peremptory way and that that is inconsistent with what the Court of Criminal Appeal of Victoria said in the decision of Justice Hayne which in this Court in Thompson I quoted as a measure of very great care in the use of these provisions.  After all, it is taking away a person’s liberty, of which we in our legal system say every second is precious, indefinitely.

MR COCK:   Yes.  It remains our contention, however, that the level of information based upon the admitted absence of psychological or psychiatric reports still left one in absolute comfort that this man posed a risk in three years, upon his release, of real danger to children because of his recidivism, which had been demonstrated by his past convictions; by his response to questioning by a social worker to the effect that he was able to suspend his concern for a victim; the fact that he had, in fact, interfered with some of his five children himself; the fact that the facts of this particular case demonstrated a real planned exercise, and the details of that, of course, are known to your Honours ‑ ‑ ‑

KIRBY J:   Against that there was the evidence that his present partner and her daughter, who was, I think, 15 years of age, supported him and the daughter felt no unsafety, was it; that the question for a psychiatric report would have been whether this was a spontaneous and aberrative act and whether he has, in fact, changed or whether this is simply the recurrence that gives rise to the risk that the section talks of.

MR COCK:   We accept that as a matter that would be available upon a psychiatric report but it is our submission that when he gives the answers which were set out in the social worker’s report after her two interviews in the circumstances in which those answers were given, they were against him, and if those answers, of course, were in his favour, one could then probably have anxiety as to the genuineness of his answers.  But because the answers were against his interests, it seems to us, having regard to his background, there was no need to corroborate that with further expert evidence.  To assist the applicant, it could only be to the effect “Well, he has lied.  In fact, he has lied about his own bad motivation.  He would, in fact, not misbehave now.”

In our respectful submission, that is somewhat fanciful in the circumstances and a trial judge faced with the clear evidence of the past history of offending, going back, I think, since he was 11 ‑ although there were not convictions in respect of those early matters, but they were admitted by him in interview ‑ all the way through his adult life, with this most recent offence demonstrating a concerted effort of planning, with answers given to a social worker consistent with the capacity to further re‑offend, that his Honour had sufficient evidence.  That is our case and that is the basis upon which Justice Murray and Justice Pidgeon found in our favour.

As we say, we accept that Justice Kennedy in analysing the decisions of this Court in a way which, with respect, are appropriate and correct thought that there was not quite sufficient evidence, although, indeed, his Honour expresses he had some difficulty, in fact, before he came to his final view.  It is, in our respectful submission, what some describe as a borderline case but the principles themselves and their application do not need further development by an application of this Court.  They are our submissions.

GUMMOW J:   Thank you, Mr Cock.

There will be a grant of special leave in this matter.

Mr Lindsay and Mr Cock, as to an estimate of time, does half a day seem reasonable?

MR COCK:   In my respectful submission, your Honours, half a day would be ample.

GUMMOW J:   Yes.  Mr Lindsay?

MR LINDSAY:   Yes, indeed, your Honour.

GUMMOW J:   Yes, very well.  Well, as indicated, there will be a grant of special leave in this matter.  We will adjourn to reconstitute.

AT 3.09 PM THE MATTER WAS CONCLUDED