MMK v The Queen

[2006] HCATrans 426

[2006] HCATrans 426

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S93 of 2006

B e t w e e n -

MMK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 AUGUST 2006 AT 2.46 PM

Copyright in the High Court of Australia

MR A.C. HAESLER, SC:   I appear with MR C.J. SMITH for the applicant, your Honour.  (instructed by A L Wunderlich & Co)

MR G.E. SMITH, SC:   If your Honour pleases, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (New South Wales))

GUMMOW J:   Yes, Mr Haesler.

MR HAESLER:   Your Honours, the applicant at the time of the commission of the offences was 16 years old, just.  He had just had his 16th birthday.  His older brother, MSK, was 23½ years old, a married man with a child.  MSK and MAK were the adults in the household where MMK had lived since he was 13 upon arriving in Australia from Pakistan.  At application book 23, Justice Sully, agreeing with the Crown, found that the offenders could fairly be ranked “first, MSK; secondly, MMK”.  At application book 28 Justice Sully said, speaking of the objective seriousness of the offence:

In such a context it makes no sense to me to treat MMK as though he was, in July 2002, a child in the sense in which a reasonably informed and fair minded member of the public would normally use that description.

At application book 51 he went on to say:

Notwithstanding MMK’s youth, I see no just cause to pass head sentences any less severe than those passed upon MSK.

Justice Sully made his position clear.  It is not an overstatement to say that so far as the sentences imposed are concerned, as opposed to that part of the sentence which deals with the fixing of the non‑parole period, his Honour, although aware of relevant principles in relation to sentencing children, including section 6 of the Children (Criminal Proceedings) Act, chose not to apply them.  Those principles were succinctly set out in the case called P which is at tab 2 in the bundle that was provided to the Court.  At page 116, Justice Mathews, with whom Chief Justice Gleeson and Justice Samuels agreed, set out the principles and approach to be applied in sentencing children in a very succinct form.  Specific reliance was placed upon the decision of C, S and T where the Chief Justice accepted the submission that:

“in sentencing young people … the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed”.

Accordingly, Justice Mathews noted:

Had it been an adult who had committed these offences, then the principles of retribution and, more importantly, general deterrence, would have demanded a custodial sentence of considerable length.  But rehabilitation must be the primary aim in relation to an offender as young as this applicant. 

GDP was about 15.  The contrast, we say, is stark.  The Chief Justice:  in sentencing young people considerations of rehabilitation should always be regarded as very important; Justice Matthews:  had it been an adult; Justice Sully:  notwithstanding, the words “in spite of his youth” or “it makes no sense to me to treat him as though he were a child”.

HEYDON J:   The problem is though there is a bit of difference between going on a rampage on someone else’s property and damaging it and causing some minor and some not so minor damage ‑ that is one thing.  It is another thing to commit nine crimes for which the maximum penalty is life.

MR HAESLER:   And this is what the test of the principles is, we say, your Honour, that the more serious the offence, then the more risk there is that conventional wisdoms, idiosyncrasies of judges, the views personal to judges and their experience as a judge, may cause the fundamental principles which say that the youth and the fact that a person is a child, as defined in the Act and in principle, will be put to the side by the natural abhorrence in relation to the nature and seriousness of the offence. 

It is not to say that those factors will be put aside; far from it.  This young man deserved condign punishment, but he also was entitled to have the fact that he was a child taken into account as a fact.  Those rules, both in section 6 and the general principles, are there to cause, we say, judges to pause when they are faced with particularly serious offences and say, “Yes, those principles are there for a reason.  They are there, not just as a guide to us, but in fact sometimes as a break to our expressing the horror of what has occurred in the sentence which is imposed”.  That is what we say is the important point of principle here, that ‑ ‑ ‑

HEYDON J:   Where precisely did Mr Justice Sully go wrong though?  He was plainly aware of these principles.  You do not put ‑ ‑ ‑

MR HAESLER:   No, and what we say is stark about this case is – I mean, there is no doubt he was aware of them, your Honours.  He did not necessarily refer to them, but I appeared before him and we had the discussion and he is cognisant of them.  What we say this case starkly illustrates, and why it provides a suitable vehicle for testing this principle as regard to sentencing of children, is that his Honour did not say, “Well, I have put them into the balance and they are not as weighty as would be the case if it was just a break and enter offence or a matter not nearly as serious”.  He has said, quite clearly, that “Notwithstanding the fact that he is a child, I will sentence him.  It makes no sense to me to treat him as an adult”.

HEYDON J:   So a child can never be sentenced as severely as an adult in the same position?

MR HAESLER:   In exactly the same position, no.  That is what we say is illustrated by this case, that here we had two offenders who committed the same offences ‑ differing aspects of them but they were convicted of the same offences.  They were ranked by the sentencing judge, in agreement with the Crown, as the older brother first and then MMK.  One brother was a 24‑year‑old married man.  The present applicant was just 16 and had been living in a house controlled by his older brothers for the previous years.

HEYDON J:   But people who are just 16 would understand the wrongness of the crimes for which he was convicted.

MR HAESLER:   Yes, of course.  The rules in relation to children are not to stop children being punished, or punished severely, but they are to say that ‑ ‑ ‑

GUMMOW J:   Well, they are minors, really.

MR HAESLER:   This Court has a duty to care for minors and young offenders.  They are subject and in need of protection just as young victims of offences.  Not to the same degree obviously, but still are.  There are principles in section 6 of the Children (Criminal Proceedings) Act which set out that they are to be treated differently.  There is the Convention on the Rights of the Child that recognises that children are subject to different rules than adults.

GUMMOW J:   He seems to have initiated the violence too.

MR HAESLER:   We are not here to excuse his behaviour, nor are we to say that he should not get a very, very severe sentence, but what we say is this case starkly illustrates the fact that his Honour was aware of the relevant principles and chose not to apply them.  That is obvious, we say, from him imposing the same head sentence, which is, we say, the same sentence, as he imposed on the older brother.  One could never say that that sentence of 22 years was not as severe a sentence as one would expect for behaviour such as this. 

So we are not here arguing for leniency.  This is not a court of criminal appeal, nor do we ask this Court to specify what the sentence should be, but what we are concerned about is if Justice Sully is correct then for a serious offence it is possible for a sentencing judge to say, “Notwithstanding that there are clear statements of principle, both in legislation, both in international instruments, and in the long line of authorities that say the fact of youth must be taken into account because – the rationale for it is that children are, because they are children, less morally responsible.  They are in need of protection and it is recognised that the qualities of youth are transient and that there is still some scope for their rehabilitation.  They are just some of the justifications for it.

HEYDON J:   The Court of Criminal Appeal did consider rehabilitation.  At the bottom of 30 and the top of 31 he said that his past social history was troubling when assessing his future prospects.  He found some favourable factors in relation to employment and so forth, and so he said:

It could not be held fairly, even so, that he has no prospects of rehabilitation.

Then he said:

his continuing denial of any guilt makes it extraordinarily, albeit understandably, difficult to get from the specialised reports any real assistance on the crucial factor of potential re-offending. 

He is taking into account relevant lines of thought.

MR HAESLER:   He is.  It is conceded that so far as the non‑parole period was concerned his Honour took the fact that he was a child into account.  He made a finding of what is called special circumstances.  He imposed a lesser non‑parole period than he did his older brother, but the point was made in a case which is in the bundle, your Honour, R v Mills from Victoria, that it is simply just not enough, the phrase used by Justice of Appeal Batt, which the Chief Justice Phillips agreed, at page 242 in tab 3, but the point was made that adjusting the non‑parole period to take account of youth and the need for rehabilitation cannot save the sentence.  In other words ‑ ‑ ‑

GUMMOW J:   Now, we are really here to see whether there was error in the Court of Criminal Appeal.  Justice Grove deals with this at page 113 in paragraph 120.  Where did he go wrong?

MR HAESLER:   We are here with the orders of the Court of Criminal Appeal, your Honour, and the order of the sentencing judge.  That statement of principle, at least the second portion of the paragraph, even in those

circumstances, gives special weight to the goal of rehabilitation and the like.  But the orders which were confirmed by the Court of Criminal Appeal in dismissing the criminal appeals were those of Justice Sully and that was that this young man serve the same head sentence as his older brother and the statements of Justice Sully that notwithstanding the fact that he was a youth and notwithstanding the general principles, he should receive the same sentence as his older brother.  We say that starkly sets out the error that was made by Justice Sully and the error that was not corrected by the Court of Criminal Appeal. 

The concern is, your Honour, that in those circumstances future judges will be entitled to say, “Well, this is too serious.  I am not going to take into account these factors”, or to say, “I am only going to take them into account in the fixing of the non‑parole period”, when they are, if not of equal relevance, still of some relevance when it comes to fixing the sentence.  Because of the contrast here between sentences imposed on the adult brother and the child brother, this case, we say, starkly illustrates the need for intervention and the point that we are making.

GUMMOW J:   Thank you.  Yes, Mr Smith.

MR SMITH:   Your Honours, in our submission, his Honour and the Court of Criminal Appeal did take into account his youth correctly and that led to the three years, or three and a half years I think it is, lower non‑parole period.  It does raise the question of whether these decisions that have been quoted, as his Honour Justice Heydon said, where they deal with offences of vandalism and malicious injury where it has been said that perhaps these principles that are set out in the international covenants and in the Children (Criminal Procedure) Act perhaps surface more readily than when you are looking at the most serious offences that one can commit apart from murder. 

There is another case that is not referred to in the books, in the submissions of SLD which this Court refused special leave in where a 13‑year‑old boy abducted a 3‑year‑old girl and murdered her.  He was sentenced to 20 years imprisonment.  He could not get life because the Sentencing Act does not allow anyone under 18 to be given a life sentence and Justice Wood fixed a non‑parole period of 10 years.  The Court of Criminal Appeal – and it was largely on the basis of future dangerousness that had to be taken into account – dismissed the appeal and this Court refused special leave.  That is a much younger boy than this boy who is acting with others and leading, in a sense, others. 

Should those principles that are well and truly developed for the lesser offences, should they continue – and, in our submission, they tend to drop away as the boy gets closer to 18 and particularly where he is, in

effect, the leader in the first place, where he did the first act of aggression towards one of the victims and dragged her by her hair towards a room where his older brother took over and led to a series of rapes or sexual assaults and then he went with the other girl, produced one knife, a small knife, then a larger knife.  Why should the principles in the Declaration on the Rights of the Child and section 6 of the Child (Criminal Proceedings) legislation ‑ why should that really have as much impact as it normally would in a much lesser offence?

These nine life sentences, the 13 years is a substantially lesser penalty than his brother got whose crime might have been said to be more serious, but when one looks at the facts it is very difficult to see any difference and this young man told his victim that they had murdered the other victim just to obviously get her to co‑operate more, to lose her fight.  I submit that there are some crimes, and this being one of them, where those principles my friend says need to lead to a lesser head sentence, a lesser total sentence, where they dissipate and that they have been taken into account by his Honour in fixing a lesser sentence but there is no error shown by either him or the Court of Criminal Appeal in relation to this matter.  Those are our submissions, your Honour.

GUMMOW J:   Thank you.  Yes, Mr Haesler.

MR HAESLER:   We say, your Honour, that the test of principle is the hard case, even in death penalty cases in the United States.  The US Supreme Court in Roper v Simmons which is summarised briefly at page 128 ‑ ‑ ‑

GUMMOW J:   They were executing juveniles at one stage in the United States.

MR HAESLER:   No, your Honour, but we are almost at the stage of putting them in gaol forever and that has happened, although not under the new legislation but special legislation, and we are sentencing juveniles for serious sexual assault cases to higher sentences than we are for murder.  But that is a matter for the State courts.  What we are saying is that this is a case of – these principles are there because in the serious cases they cannot be ignored.  It is clear…..said by the Court of Criminal Appeal Justice Sully deliberately and with precision, or was associated with his Honour, chose not to apply them, notwithstanding the fact of his youth.  We say that is the error that was not corrected on appeal.

GUMMOW J:   We are not satisfied that there is any point of general principle that arises on a full consideration of what happened in this case.  We also are not satisfied that there was any error in the application of existing principle and special leave is refused.

The Court will adjourn to 2.15 pm on Monday next, 7 August at Adelaide.

AT 3.05 PM THE MATTER WAS CONCLUDED