Muldrock v The Queen
[2011] HCATrans 150
[2011] HCATrans 150
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S121 of 2011
B e t w e e n -
DEREK MULDROCK
Appellant
and
THE QUEEN
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 9 JUNE 2011, AT 10.01 AM
(Continued from 8/6/11)
Copyright in the High Court of Australia
FRENCH CJ: Yes, Mr Thangaraj.
MR THANGARAJ: Your Honours, to answer Justice Gummow’s question, there are no strict liability offences in the table. Can I then go back to the issue of objective seriousness and ask your Honours to go to Way. There is an extract from Way that talks about this issue, starting at paragraph 84. If I could ask your Honours to read paragraphs 84, 85 and 86.
HAYNE J: That seems to be a passage that construes the separate elements of what might, at first sight, seem to be a composite phrase.
MR THANGARAJ: I am sorry, your Honour?
HAYNE J: It seems to say, “Well, some things are objective; some things affect seriousness”, rather than try to struggle with what the composite phrase “objective seriousness” means.
MR THANGARAJ: Yes, and if I could take up an example. Firstly, the matter of motivation is a matter that your Honour Justice Kiefel referred to yesterday as being a matter that would go to objective seriousness, and that is what Way has ‑ ‑ ‑
KIEFEL J: If it was part of an offence.
MR THANGARAJ: Yes.
KIEFEL J: What I was trying to distinguish yesterday were matters which could be factors relating to an offence which could be used in comparison with other offences, and matters which were purely personal to the offender, which are considered separately. But the approach in paragraphs 84 to 86 of Way appears to assume that the assessment is objectively to affect the seriousness of the offence, which is sort of an internal examination of the offence committed by the person. It seems to deny the possibility that objective seriousness may mean the seriousness of the offence objectively ascertained by comparison with other committed offences.
MR THANGARAJ: Yes, that is right.
KIEFEL J: That is where I have some difficulty, I have to say.
MR THANGARAJ: Could I add a further complication to take up an example that your Honour Justice Hayne raised yesterday of when there are aggravating factors. An example of a standard non‑parole period offence is section 112(2), which is aggravated break and enter, which also has a series of different potential forms of aggravation. They are being armed, or being in company, or corporal violence, or inflicting actual bodily harm, or denying someone their liberty, or knowing that somebody is at home.
Two people commit a robbery by going to a house when they know that it is unoccupied and steal something, or break and enter. That is a form of aggravation, subject to that standard non-parole period. But if a single person goes into the house and commits what would objectively seem to be a more serious offence of denying somebody their liberty, or assaulting and inflicting actual bodily harm on the person, it is the same standard non‑parole period, and then what is the mid‑range case in those circumstances?
Do we then confine it to the actual offence committed by the offender which means that in one court the mid‑range offence for the person who commits actual bodily harm is that and in another court it is someone who walks in in the middle of the day with somebody else. It is a different mid‑range case and that is the material inconsistency that I was debating with your Honour Justice Kiefel yesterday. I think that is a circumstance which would result in a material inconsistency between mid‑range cases and by looking at all the conduct and including some subjective objectives there is a real risk then of the mid‑range case being used a benchmark because it becomes problematic in assessing a consistent mid‑range case.
CRENNAN J: The point would also arise, would it not, in relation to mitigating circumstances as well because in paragraph 68, intellectual disability, which is a factor in this case, has been included as one of the circumstances of objective seriousness and the same problems would arise, would they not?
MR THANGARAJ: Yes, and even though the court in Way said that prior sexual abuse would be a purely subjective matter, in some cases that will also be a subjective objective because if the court finds, or if, say in this case, Ms Daniels’ report, the paragraph 11d in our written submissions, where there is a connection between that as well as the intellectual disability, if there is that connection then that then also becomes a subjective objective to the objective seriousness of the offence, so it will depend on the facts. Some will and some will not but, with respect, what your Honour is saying is correct. Could I just ask your Honours to read some other passages of Way that may be helpful to the overall approach and the benchmark question – it may be easier if your Honours do it, if we could go to paragraph 117 and if I could ask the Court to read 117 through to 131.
FRENCH CJ: This feeds into your complaint about the Court of Appeal in this case in paragraph 18 of your outline, I think, the oral outline?
MR THANGARAJ: Yes. So the important things that we take from Way are that instinctive synthesis is retained. It is not a two‑tiered approach. The standard non‑parole period ought not be allowed to dominate the sentencing process. The general sentencing provisions practice that has emanated from this Court must be faithfully adhered to and so everything that is relevant is taken into account. You look at the standard non‑parole period when you have a provisional sentence, so it is used as a final check in that way so it is a single stage process and it may be immediately obvious from an assessment on an instinctive basis that the standard non‑parole period could not apply or would not apply. With respect, that was no doubt what the District Court judge felt in this case. That is 119 out of Way that that may be immediately apparent.
In my respectful submission, the court in Way has come to the benchmark issue from the second reading speech rather than an assessment of the legislation. I will not go through the arguments from yesterday, but there is nothing in Division 1A that says it needs to be looked at as a benchmark and if it is looked at as a benchmark, given the ratios of being at 80 per cent for some offences, it really does mean that the sentences for low‑range matters are pushed up without any statutory basis, with respect, for that to happen.
BELL J: When you speak of a low‑range matter, is it your submission that this offence is a low‑range offence?
MR THANGARAJ: I am not talking about this offence, your Honour. I just mean generally.
BELL J: I understand. I am interested in how it works in practice. Now, here it seems to be accepted that this offence fell within the low range by reference to the terminology adopted by Division 1A. As I would understand it, the only reason for that conclusion is if one takes into account the intellectual disability since otherwise it would be difficult to see why one would consider the offence was within the low range of objective seriousness, is it not?
MR THANGARAJ: I think because it is an aggravated charge where the victim is already under 10, that would not be a factor.
BELL J: No.
MR THANGARAJ: So it then may be that the act itself means that that is relevant to the question of where in the spectrum it fits.
BELL J: Why would it be necessarily low range?
MR THANGARAJ: It may not be low range, but it may be below the mid range.
BELL J: Yes, all right. I just want to understand if we can come back to this question of the task that the Court is involved in in this concept of objective seriousness of offences for the purposes of Division 1A and the notion of middle range of objective seriousness. The court in Way has adopted an approach that one factors into that considerations that bear on the culpability of the offender going to issues of mens rea. Do I understand you submit that that is not the correct approach, that one would look at objective seriousness by reference to what it is that the person did in an objective ‑ ‑ ‑
MR THANGARAJ: No, your Honour. We adopt what is in Way because it is important in determining the objective seriousness – it is important to consider the subjective objectives in determining that question. So in looking at the intellectual disability, for example, when that is factored in, you are not in the middle of the range of objective seriousness for this offender and so therefore I think it would be artificial to – there are elements of artificiality in this anyway, but I think it would be even more artificial to focus only on the actus and not include the factors that the court in Way has included and therefore we ‑ ‑ ‑
BELL J: I think it is clear that the court in Way was concerned with an exercise that it saw as otherwise artificial and that is the relevance of its reference to Walden v Hensler, but one does need to give content to the expression “objective seriousness”.
MR THANGARAJ: Yes, and I think, with respect, that what the court in Way said about taking into account these factors is correct. That is our approach. Otherwise, if we are wrong about our first couple of arguments and it is a benchmark, it is even more difficult when you do not include subjective objective factors than it is – it is already difficult because you are not including the pure subjectives. You are being asked to compare the mid‑range case, which has nothing to do with pure subjectives, with the actual offender. That is a difficult enough exercise in itself and it is comparing apples with oranges. But then if you take out an important aspect of the criminality as well, that is another category that is separate and so therefore we adopt what is in Way with respect to what makes up objective seriousness of the offence.
BELL J: Your complaint then is there is nothing in the scheme of Division 1A which says in terms that a court sentencing a person for an offence that does not fall within the mid range is to have any regard to the circumstance that this is a table offence.
MR THANGARAJ: Yes.
BELL J: I cannot think of a criminal offence in which the legislature directs a court to have regard to the maximum penalty as a benchmark, but I think there would be little doubt that the court is to approach the sentencing exercise by reference to considerations which include the maximum penalty. So why would one not have regard to the circumstance that this is a Division 1A offence and that the legislature has specified for offences within the mid range of objective seriousness a certain non‑parole period is to apply?
MR THANGARAJ: We know that maximum penalties apply to all offences. There cannot be any doubt about that. So there is no need in any provision to say this maximum penalty obviously will be taken into account for all offences. It is well understood. But this provision specifically describes the standard non‑parole as being the middle of the range of objective seriousness. The legislation has specified that that standard non‑parole period represents a particular level of culpability.
BELL J: Why is that not a relevant matter to take into account in sentencing a person for an offence that is lower than the mid range of objective seriousness?
MR THANGARAJ: Firstly, because it is very difficult, if not impossible, to use as a benchmark something that has been described as objective seriousness which does not take into account very important factors, so the pure subjectives. You are being asked then to look at the overall circumstances of a particular offender but use as a benchmark only specified criteria and by doing that, with respect, I think that means a judge would be breaching what Justice McHugh said in Markarian, for example, where there is an undue emphasis being then placed on the objectives because you are being asked to compare your case – say, Mr Muldrock’s case – with the standard non‑parole period but not including some important aspects of criminality and for other offenders the pure subjectives may be even more compelling.
BELL J: I do not understand anything in Way to suggest that one might not look at a case such as this where there is an intellectual disability that is highly relevant and say, “Well, the standard non‑parole period may be a benchmark for such offences, but it has no role to play in this sentencing exercise”. But that is not to say that it is wrong for a court to have regard to the circumstance that this is a Division 1A offence, and as a general approach to sentencing for such offences.
MR THANGARAJ: Your Honour, I think that the problem is that we are not told and in no standard non‑parole offence are we told what relevant factors make up the objective seriousness, so unlike a guideline judgment where the typical case is extremely helpful in using it as a comparison to the individual before the court the benefit of that is not provided in Division 1A for any offence and there may be very good reasons for why that is. That is part of the reason that it makes it very difficult and following general sentencing principles which Way says remain and, with respect, that is how we would approach it, when you look at all of the factors and come to an instinctive synthesis, all that the division requires is that the judge gives reasons.
So, in my submission, what the judge would have to say is, “This is the sentence I have decided to impose. It is not the standard non‑parole period, and these are the following reasons.” So let us say in this case the judge could have said, “There has been a plea of guilty, and the objective seriousness of this matter is below the mid range because” and query whether or not “because” is needed but I think it would be preferable for a sentencing judge to say why it is that it is below.
In another case, in a mid‑range case after conviction, those two factors do not arise, and so the judge would say, “The sentence I propose is below the standard non‑parole period for the following reasons” and it may be that there are compelling subjectives or there may be some other reasons and because anything can be taken into account it might be the mere fact that it is a young person; a 19‑year‑old. It might be the mere fact that the person is in custody for the first time. Section 54C permits, the legislation accepts, that notwithstanding there being a standard non‑parole period, custody may not the ultimate sentence.
HAYNE J: Mr Thangaraj, does this not suggest that the classifications which you seek to deduce from Division 1A, low‑range sentence, low‑range events and the like, may be distracting us from what Division 1A is seeking to achieve?
MR THANGARAJ: Yes.
HAYNE J: May not Division 1A be seeking to achieve the judicial statement of reasons thus leaving to the Court of Appeal its ordinary supervisory role of identifying error and identifying applicable principle, thus rather than saying, “Well, look, Division 1A is or is not engaged according to whether there is a guilty plea, according to whether it is a mid‑range offence or not” can one approach Division 1A in this fashion? It identifies in the table something that for convenience might be described as a standard case. What the content of that standard case is is a matter, I think, of great difficulty which will emerge perhaps over a series of instances, but the judicial task of the sentencer remains the same. What is this case, what did the accused do, what are the circumstances of the accused, what does this offence warrant?
In forming that view, the sentencer, as always, must take account of a very large range of competing considerations, and what Division 1A is then requiring is that if the result obtained departs from the standard non‑parole period, the sentencer must record why it is different from that and must do so by reference to matters of the kind identified in section 21A. Now, is there more to it than that?
MR THANGARAJ: Your Honour, with respect, that is the way that we would approach it and ‑ ‑ ‑
HAYNE J: The classifications of offences, look, this is a low‑range offence, Division 1A does not speak to it, seem to me to clutter the area to no good value.
MR THANGARAJ: As your Honour, with respect, quite rightly points out, what is mandatory is to give reasons.
HAYNE J: And thus expose whether you have done what the Court of Appeal later identifies as error.
MR THANGARAJ: Yes, and there may be a political imperative of better information out in the community as to the sentence and that giving of reasons facilitates that and so, with respect, what your Honour says is correct and – I am sorry.
HAYNE J: No, go on.
MR THANGARAJ: As part of that instinctive synthesis that your Honour is describing, there is no focus on the standard non‑parole period figure. It is simply the usual approach to sentencing and ‑ ‑ ‑
HAYNE J: In which you take account of maximum, you take account of the standard sentence. They are not determinative, but you have regard to them and if you do not, you fall into error.
MR THANGARAJ: Well, it depends on the reasons given.
HAYNE J: Just so. Now, the standard case, why should one identify the standard case as other than the objective circumstances of offending for this reason. Take homicide, murder, is murder to be sub‑classified into murder that occurs for profit, the so-called contract killing? Murder that occurs in a domestic situation between domestic partners, is that to be somehow seen as another form of mid‑range offending? Why does one intrude the fact that this offender in this case was mentally retarded, as he was, otherwise than through the mechanism of 21A? Why do you stick it into the objective seriousness of the offence?
MR THANGARAJ: The risk of excluding it is that if regard is had to the standard non‑parole period in the instinctive synthesis process, there is a risk that undue emphasis may be placed upon that figure. That is the risk, your Honour, and that is why if consideration is included of the intellectual disability, then it is less likely that an offender such as this would be regarded as being in the middle of the range of objective seriousness and the 15‑year figure becomes less of a problem than it might have otherwise been. It is a very difficult question as to what makes up the objective seriousness for the reasons that your Honour has identified, notwithstanding the ‑ ‑ ‑
CRENNAN J: But does that not depend on reading the middle of the range as a reference to a sort of notional band in the spectrum rather than just the middle point of the spectrum?
MR THANGARAJ: I think it has to be a band. To get to the final, absolute middle it is impossible. It has to be a band.
FRENCH CJ: I am just wondering about the interaction between section 54B and section 21A. If you look at section 54B(3) it is framed in a way that suggests there is a limit or a constraint upon the range of matters which the Court may take into account in departing from the standard non‑parole periods because it says “only those referred to in section 21A”. Yet that almost becomes illusory when you go to 21A which picks up, inter alia, in (1)(c):
any other objective or subjective factor –
and then, perhaps also –
any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
MR THANGARAJ: Yes. It does not seem to limit anything.
FRENCH CJ: It almost seems to be at large, does it not, within the established framework of ‑ ‑ ‑
MR THANGARAJ: Which facilitates instinctive synthesis.
FRENCH CJ: I mean that feeds into what perhaps Justice Hayne was putting to you. It is not a special sort of power framework we are dealing with here. The focus really is on the giving of the reasons.
CRENNAN J: That would be a contextual reason for reading objective seriousness narrowly rather than broadly, as has been done in Way’s Case.
MR THANGARAJ: Well, 21A(c) seems to talk about objective seriousness and these are other matters that ‑ ‑ ‑
CRENNAN J: It talks about the relative seriousness.
KIEFEL J: And when it says “relative seriousness” that poses the question, relative to what?
MR THANGARAJ: Yes.
KIEFEL J: If 21A and 54B work together, starting from the band - given the range of objective seriousness for the standard non‑parole period which invites a comparison, as I have suggested, with other offences for the elements of the offence, then when you consider 21A(1)(c) factors you take into account objective or subjective factors relating to the person which then shifts the relative seriousness of the offence following the same comparison for the purpose of departing from the standard non-parole period.
MR THANGARAJ: Yes, and then in the usual way of following general sentencing principles, the sentencing judge comes to the final result ‑ ‑ ‑
KIEFEL J: Which suggests that you do not need to consider the subjective factors in considering the objective seriousness in relation to the standard non‑parole period.
MR THANGARAJ: Then the mandatory requirement is for the court to give its reasons.
KIEFEL J: Yes.
MR THANGARAJ: The court must – it is very important that the sentencing judge takes into account all relevant factors. Nothing in Division 1A limits in any way what factors were taken into account. Nothing in 21A constrains in any way the factors that would be taken into account. Nothing in Division 1A increases the importance of that figure, that the standard non-parole period has in the table, so a sentencing judge should have the discretion to impose the sentence that he or she would have imposed without this division, but then must give reasons.
FRENCH CJ: Just before we leave Way, I note an editorial note in the report that:
An application for special leave to the High Court has been filed.
Do you know what the fate of that was?
MR THANGARAJ: I assume it did not get anywhere, your Honour. More than that, I am sorry I cannot assist.
FRENCH CJ: You do not know whether it was abandoned?
MR THANGARAJ: I am sorry, I do not know, your Honour.
FRENCH CJ: Okay.
MR THANGARAJ: It was refused. I am told it was refused. All I know is, your Honour, apparently it was refused. Could I just take your Honours to Knight and Biuvanua?
CRENNAN J: The reference to the special leave application is [2005] HCATrans 147.
BELL J: Mr Thangaraj, before you move to the next aspect, can I just raise these matters with you. In the Court of Criminal Appeal you appealed against the severity of the head sentence.
MR THANGARAJ: Yes.
BELL J: The dismissal of that appeal is not a matter before us.
MR THANGARAJ: I understood that it was, your Honour, in that the appeal is against the entire judgment of the Court of Criminal Appeal’s decision.
BELL J: So you maintain ‑ ‑ ‑
MR THANGARAJ: That the original was – the original sentence and therefore it was excessive.
BELL J: Secondly, you referred to the circumstance that the primary judge had given brief reasons for his disposition, but as I read the Court of Criminal Appeal’s judgment, the court considered the circumstance that his Honour had clearly overlooked the provisions of section 50 with respect to the imposition of conditions on a parole order in the case of a sentence of three years or less. There was a clear error of the type that was the subject of complaint in the grounds relied on by the Crown in their challenge.
MR THANGARAJ: Yes, I conceded that ground.
BELL J: And that is accepted?
MR THANGARAJ: I conceded that below..
BELL J: Yes.
MR THANGARAJ: Just to defend his Honour, the material not before your Honour, but he was told he could do that. It was wrong, but he was told that and that is what led him to do it. He was taken to some other provision that said you can make any order you want.
BELL J: Yes, all right.
MR THANGARAJ: Your Honours, the two paragraphs that I refer to of Knight at paragraph 18 of the outline of oral argument, the first is at paragraph 4, which is the judgment of the Chief Judge at Common Law.
FRENCH CJ: Just before you go to that, just looking at the orders you are seeking, you want the matter remitted to the Court of Criminal Appeal to determine the application for leave to appeal against sentence.
MR THANGARAJ: I am sorry, your Honour, I think that is wrong. What I had at the end of our first written submissions was the potential orders in the alternative.
BELL J: Yes.
MR THANGARAJ: So effectively the sentence would be five years because he had already served two, but the only way that this Court, or any court, can make an order of parole is the way that his Honour Judge Black failed to do. The sentence has to be of a particular level or less. There is paragraph 4, which is relevant, from the Chief Judge. If I could take your Honours to paragraph 47 of Knight, which is in the judgment of Justice Howie. His Honour says:
In my opinion it is clear that the judge failed to give sufficient weight to the standard non‑parole period even though it provided only a guidepost or indicator of the appropriate sentence. Even after a plea of guilty there must be an appropriate relationship between the standard non‑parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation.
With respect, that is not correct. That has been an error in several decisions in the Court of Criminal Appeal since Way. It is not consistent with Way and, with respect, it is not consistent with the legislation. Could I move to briefly address your Honours on ground 4. While his Honour did not say that this is what he was doing, that he was following certain High Court cases, cases such as Power, Bugmy and Deakin do focus, with respect, to the non‑parole period on rehabilitation. I am not suggesting for one moment that that is the sole basis of establishing a non‑parole period. I am not suggesting for one moment it is the dominant or primary factor, but it is a relevant factor and those decisions say that rehabilitation is a matter of relevance to the non‑parole period, with a different emphasis placed on the head sentence which may look more at protection of the community, risk of reoffending and those cases, such as Veen and Bugmy.
What his Honour has effectively done is he has done that. He has sought to impose a head sentence on the basis of protection and sought to focus on rehabilitation in relation to the non‑parole period. I have outlined why we say it is that some factors are more important in determining the head sentence and other factors are more important in determining the non‑parole period. I do not mean to suggest for one moment that factors are only relevant to one or only relevant to the other, but is a matter of emphasis.
The judge was entitled to have a greater focus on rehabilitation in determining the non‑parole period and, especially in serious cases, it is only a question of eligibility. The non‑parole period does not mean that someone is released at that time. It is a question then of probation and parole, who are in a better position, because it is some years in advance, then the sentencing judge, who has to engage in some form of speculation, to determine whether or not someone ought be released into the future. So there is that aspect of proportionality being taken into account.
Could I just finally take your Honours to paragraphs 23 and 24 of the oral outline. Could I start by asking your Honours just to read, from the Crown’s written submissions, paragraphs 6.41 to 6.43 inclusive. Could I just take your Honours to what Professor Hayes said at appeal book 46. At line 46 Professor Hayes says:
Mr Muldrock has deficits in empathy, that is, understanding how another individual is thinking and feeling . . . he cannot understand how his victim would feel. He also holds a number of cognitive distortions regarding the offences . . . Mr Muldrock needs to participate in a programme designed for a sex offender with an intellectual disability, which focuses upon the development of empathy skills and which addresses the cognitive distortions.
Then over the page at 47, line 25, the Professor says:
Regarding the issue of possible sentencing options for Mr Muldrock, I respectfully suggest that a custodial sentence may mean that he does not receive or have access to the services, interventions and treatment programs that he requires in order to reduce the risk of re‑offending.
Then at line 38, says:
There is a lack of availability of programmes for sex offenders with intellectual disabilities in custody –
So her concern was far broader than what the additional support unit has to offer and we have seen from the additional support unit affidavit that these issues are not addressed by that unit. If we can just go to appeal book 87. This is an affidavit from the person involved with the criminal justice program and paragraph 4 specifies – I do not need to read it out – but if your Honours could read, it specifies what it is that the program actually does. These are the services offered by the program at Orange. These are not the services offered internally within corrections. I will just read out what is at paragraph 6.45 of the Crown’s document so I can take your Honours to a couple of appeal book references:
A program aimed at sexual offenders with intellectual disability and other cognitive impairments had been written and was being finalised. It was expected that it would be trialled in late 2009.
Just in relation to that, that is found at appeal book 84, line 40, but then we also need to look at appeal book 100, line 20 where, in the same month, someone from Long Bay says:
Furthermore, it is unclear whether the adapted sex offender treatment program will be available to Mr Muldrock, given that there is no confirmed commencement date and his suitability is yet to be assessed.
Finally, could I take your Honours to pages 103 to 105 of the appeal book and just read out the relevant passages that we rely on? At line 20:
Mr Muldrock has been moved between the Intensive Behaviour Unit and the Additional Support Unit while located at Metropolitan
Special Programs Centre due to his challenging behaviour towards staff and inmates.
Mr Muldrock’s Management Plan has been regularly reviewed between May and August 2009 following alleged inappropriate sexual comments, verbal and physical altercations with other inmates and threats made towards Correctional staff. It is noted that this poor behaviour culminated in him being placed in segregation for two weeks.
It is clear that they are not in a position of resource to deal with these issues. His:
classification has prevented him from participating in pre release leave.
. . .
The Authority is also referred to page 5 of the Clinical Psychological Assessment Report dated 25 September 2008 where it is noted that “Mr Muldrock need to participate –
et cetera. That is the report we went to earlier, and then over the page:
Further to this, the report on page 6 also takes into account that there are currently no sex offender programs . . . Notwithstanding, the Psychologist from the Additional Support Unit has indicated that she will be referring Mr Muldrock for an assessment for the CUBIT program to confirm whether the program can be adapted in any way to accommodate the inmate. This is considered at this stage to be an unlikely option.
Then finally, page 105, line 52, under “Summary Recommendations”:
Mr Muldrock’s intellectual disability and subsequent behavioural problems have been the main contributing factor to his offending behaviour and the ongoing management issues within the Additional Support and Behavioural Management Unit –
So those are the reasons, it would seem, why Professor Hayes made the recommendations that she did in relation to Mr Muldrock. Thank you, your Honour.
FRENCH CJ: Thank you, Mr Thangaraj. Yes, Mr Maxwell.
MR MAXWELL: Your Honours, could I deal with ground 2 first before the standard non‑parole period point? I have provided an outline of oral submissions. My learned friend raised the point yesterday that there was no specific ground of appeal indicating that the sentencing judge had erred in his view that the offender had significant intellectual disability and that is true. There is no specific ground to that effect, but there is ground 1 which can be seen at appeal book 115, which is:
He gave excessive weight to rehabilitation and the respondent’s disability –
So the respondent contends that that really allowed the Court of Criminal Appeal to venture into that aspect of intellectual disability and allowed the Court to look at it in the way it did at appeal book 123.
HAYNE J: And make a different finding as to the extent of that disability?
MR MAXWELL: Your Honour, the respondent answers that by saying yes, because what the CCA did was to carry out an exercise which a sentencing court should carry out to look at these circumstances of the offence. It did it in terms of what that indicated about level of intellectual disability. For instance, when you look at the agreed facts at appeal book 13, from about line 40, the second last paragraph:
the [appellant] came over and offered to ride Glenn’s bike alongside Joshua’s –
Joshua being the victim –
to test it out. The [appellant] suggested that they cycle twice around the circle of Beltana Drive.
Then a little later:
When they were riding at the end of the street, the [appellant] asked Joshua whether he wanted to go down to the lake to see the animals.
So what you have got is albeit someone with intellectual disability but someone who has the capacity to change the arrangement that was initially presumably agreed upon by the victim so that it would take him to a venue where the offence could be committed. That may be too long a bow at that stage, but the fact is that when you go further into the facts, when they arrived at the lake, which was one to two kilometres away, the decision was made to go for a swim and so the offences took place. No reference to that at all was made by the sentencing judge.
FRENCH CJ: Your complaint was that the sentencing judge gave excessive weight to the disability. It was not a complaint about the characterisation of the disability which is what you seem to be getting into.
MR MAXWELL: Yes, your Honour. Well, my point is it was open to the court when considering ground 1.
FRENCH CJ: Not on that ground, surely?
MR MAXWELL: Giving excessive weight to rehabilitation, your Honour, means giving little or no weight to the factors going to the seriousness or the gravity of the offence.
FRENCH CJ: That is a different question.
MR MAXWELL: It is a different question, your Honour, but it does bring it, in the respondent’s submission, within ground 1.
BELL J: When it is appreciated that the appellant is a retarded person, it is very difficult to talk meaningfully about the gravity or seriousness of the offence in the same way that one would characterise the same conduct, luring a child to go for a bike ride in order to sexually assault him, done by a person who has intellectual capacity within the range of the normal is one thing, but to treat the matter, given the evidence of his intellectual capacity and an IQ of 62, there was no issue about this, upon the basis that he had sufficient capacity to obtain a driver’s licence and to have undertaken paid employment, and to effectively put to one side the unchallenged evidence about his disability seems problematic.
MR MAXWELL: Your Honour, the point I am perhaps trying to make, but it is not coming through all that clearly, is that that approach only takes into account the psychological expert evidence. It takes no account of what, in fact, was done in the commission of the offence. True it is there was a level of intellectual disability, but even given the level of intellectual disability he had, he was able to effect this criminal offence. The gravamen of the offence is a sexual assault by the application of inequality of power.
Your Honour, if you did not look at the circumstances of the offence, if you did not take into account his attempts after the offence to minimise his role and/or deny, then it would be simply like taking the view, as one of the reports says, that his capacities are those of a 5½-year-old child.
BELL J: Indeed.
MR MAXWELL: But it is like saying a 5½-year-old child goes along with a nine-year-old child who is the victim and what follows in terms of offence follows. The commission of this offence was done by someone who had the capacity to engineer, to at least involve, some premeditation and planning in the commission of the offence. That is what was recognised by the Court of Criminal Appeal at paragraph 34 at appeal book 125, about line 28:
The offence which the respondent committed was premeditated, his victim being induced to take a bike ride with him to a secluded location where the offence was committed.
The respondent submits that that finding was open to the court. Perhaps there is less calculating premeditation and planning than you would have with someone who had no intellectual disability, but the fact remains, looking at the circumstances of the offence, there are those elements. The sentencing judge did not take into account any of that and the Court of Criminal Appeal recognised that as an error.
Coming to ground 1, which is the most significant ground, and the way that Division 1A should be interpreted, your Honour Justice Hayne suggested an approach which, in effect, as the respondent sees it, would be like the final check that my learned friend suggests – in other words, the sentencing judge adopts the same approach as he or she would adopt in any sentencing exercise for any offence, standard non‑parole period or not. It goes through all of that and then at the end looks to see whether the non‑parole period that is arrived at departs from the standard non‑parole period and, if it does, then to give reasons.
HAYNE J: No, that is not what I am putting forward at all.
MR MAXWELL: I am sorry, your Honour.
HAYNE J: What I am suggesting is that to approach it in that fashion is to suggest a scientific exactness to what is ultimately a question of judgment. What I suggest is that the sentencer knows at least two things. First, that the worst case would attract the maximum or close to the maximum, that is, the sentencer knows the maximum. The sentencer is also told now by the legislation that there is a range of offences for which the standard non‑parole period would be appropriate. The sentencer knows that. The sentencer then makes a series of findings about aggravation or mitigation in the ordinary fashion and arrives at a result. What this part of the Act requires is that the sentencer described the reasoning that supports the conclusion by reference to the criteria that are statutorily identified. That is not a case of get to one result, then check it against something or anything else. It is not sequential.
MR MAXWELL: I understand, your Honour, but on that approach, it seems to the respondent, it would deny any role that the standard non‑parole period plays as a yardstick in the sentencing process and the respondent, with respect, does not agree with that approach. In other words, the respondent submits that the framework of Division 1A logically requires the period fixed and set as the standard non‑parole period to act as a yardstick in the instinctive synthesis that a sentencing judge approaches the sentencing exercise in the fashion that Way explains in the paragraphs already read, but particularly at 84 through to 89.
Your Honour Justice Hayne raised the difficulty and the Court has generally raised a difficulty in this case of what it means, what objective seriousness means. One way of approaching that, the respondent suggests, is to look at cases which went to objective factors of seriousness before the standard non‑parole period regime came in in New South Wales and there are a number of those cases. One of them is the case of Trevor Vernon Dodd 57 A Crim R 349. It is not a case on the list, your Honours. It is a case that is cited in the decision of R v Reid 155 A Crim R 428. Might I hand your Honours up copies of the case of Trevor Vernon Dodd.
Your Honours, it was the bench consisting of the then Chief Justice of New South Wales, Chief Justice Gleeson, and the case concerned a charge of manslaughter. The offender had come into a police station 10 years after the commission of the offence and confessed to it and pleaded guilty to it. He was given a sentence at first instance of three years of periodic detention. There was an appeal on inadequacy and in the course of argument – or it is the last page in the photocopy, the point was made, well, was excessive weight placed upon the fact that he had voluntarily confessed and that was without due regard to the seriousness or gravity of the offence, and at about point 3 of the page the court said:
As Jordan CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place.
Then the reference to Veen –
has its own objective gravity meriting at the most a sentence proportionate to that gravity ‑ ‑ ‑
CRENNAN J: It does not seem as though the expression “objective gravity” is synonymous with the expression “objective seriousness” as construed by the court in Way’s Case.
MR MAXWELL: In Way, yes. Well, your Honour, something like this case was going through my head yesterday when this question of what objective seriousness means and we found the case overnight and this, the respondent submits, comes close to giving some meaning to what objective seriousness means in the context of Division 1A. However, if that was the approach, then Way has sort of developed that somewhat from this case. But coming back to ‑ ‑ ‑
HAYNE J: Could I just stay with this a moment. I think I am right in saying that in Veen [No. 2] the plurality did not use “objective gravity”, they referred to “gravity”, but I think “objective seriousness” first appears in the pages of the Commonwealth Law Reports in the argument of counsel in Veen [No.2]. That is at 164 CLR 465 at 467 you get in assessing the objective seriousness of the offence, and that I think is the first time we find it in the pages of the CLRs.
GUMMOW J: It appears at 486 then in Justice Wilson. The first paragraph at the top of 486.
HAYNE J: Gravity in light of objective circumstances.
GUMMOW J: Then in Justice Gaudron at 496, I think.
MR MAXWELL: But, your Honour, I hand up that decision referred to, that is of Dodd, really to demonstrate that in any sentencing process, any sentencing procedure, standard non‑parole period or not, it is necessary for the judge to make an assessment of the objective gravity and the respondent submits that there does not seem to be much difference between that term and objective seriousness, that they are talking about the same thing. It is where a sentencing judge fits this offence into the level of gravity - and it must be something that any sentencing judge does.
All that the standard non‑parole period does is to, for 24 offences, particular offences indicate to the judge the kind of standard of non‑parole period, or the standard non‑parole period that should apply for offences in the middle of the range. The respondent submits it is something that has to be done. The seriousness or the gravity of an offence must be looked at by a sentencing judge, must be assessed in whatever way that occurs.
KIEFEL J: I suppose one question, though, is at what point does that arise? Do you say that the standard non‑parole period represented in the table under section 54A(2) represents a conclusion reached about an offence in the range of the gravity or seriousness of an offence objectively ascertained but that it, importantly, represents a conclusion and that the assessment then undertaken by the Court against that guidepost, to use a neutral term, is undertaken under section 21A(c)?
MR MAXWELL: Yes, your Honour.
KIEFEL J: The objective factors are the factors relating to the offence in question which are put against what a judge would – there is still here a question of judicial determination about what is meant by mid range because it cannot be scientifically granted.
MR MAXWELL: It cannot be and different judges would, obviously, have ‑ ‑ ‑
KIEFEL J: A different understanding of what mid range should be.
MR MAXWELL: That is saying nothing more than a judge applies their own particular and individual discretion to the sentencing process.
KIEFEL J: What is represented as the non‑parole period as a starting point or a guidepost is a conclusion and then the judge – the sentencing judge brings to mind other objective factors put against the objective factors which are assumed to represent the offence that is referred to in the table as the mid‑range offence and then also adjusts for subjective factors and mitigating factors.
MR MAXWELL: The respondent submits it is simply, for these offences – these 24 offences – an additional yardstick that applies to the non‑parole period.
KIEFEL J: In a similar way that the maximum penalty operates, I think is in your submissions.
MR MAXWELL: To the overall sentence.
KIEFEL J: Because that also requires a judge to have in mind what the most serious offence is, in the same way this requires a judge to understand what a mid‑range offence is. But, as Justice Hayne points out, what Division 1A produces is a reflection of the reasoning process of the judge which will indicate where the judge has started from or what has been taken into account – I should not say “started from”; what has been taken into account – as representing the mid‑range offence, and what adjustments are made against it.
MR MAXWELL: It is just a different example, if you like, of what was said in Markarian at paragraph 31 about the role that the maximum sentence plays, inviting comparison between the worst possible case and the case before the court at the time. The comparison made as part of the overall sentencing process is between the offence that the court is dealing with and a level of criminality which is in the mid range. It is that comparison that the court is making.
KIEFEL J: If it is to be productive of a comparison of seriousness objectively ascertained and, in particular, determined under section 21A(1)(c) of “relative seriousness”, it must be assumed, must it not, that what is referred to as the seriousness of the offence in section 54A(2) are factors relating to the offence which can always be compared? That would put out of the picture matters which are subjective or which might go to mitigation because they would prevent a proper comparison.
MR MAXWELL: Yes, the respondent accepts that.
KIEFEL J: When you come to matters such as a person’s disability, you could approach it either by reference then to a mitigating factor under section 21A(3)(j) or you might approach it by reference to a subjective factor relating to the person under 21A(1)(c), but it could not be described as an objective factor which relates to the seriousness of the offence in that process of comparison that I have just discussed, could it?
MR MAXWELL: I understand, and the respondent does accept that approach as bringing some clarity to the interpretation of Division 1A.
FRENCH CJ: Just coming back, for a moment, to the interface between 54B and 21A, we find language of constraint in 54B(2) “is to . . . unless”, and, in 54B(3), “only those” reasons “referred to in section 21A”.
MR MAXWELL: I am sorry, your Honour, I was just going to the legislation.
FRENCH CJ: That is all right. I am just saying there is a language of constraint used to set the standard non‑parole period, unless the court determines and then the class of reasons which may empower it to go longer or shorter in fixing the – are “only those referred to in section 21A”. But looking at the scope of 21A(1) and also the provision at the end after (c), which picks up any rule of law – I am not sure whether that includes common law principles of sentencing – what is excluded by the word “only” in 54B(3) that would otherwise be relevant to sentencing? It is hard to imagine anything, is it not?
BELL J: To add to the Chief Justice’s question might it be taken that the fact that the offence is not in the middle range of objective seriousness is a matter that the Court can have regard to under 21A as a circumstance for departing from the mandate to impose the standard non‑parole period.
MR MAXWELL: Does your Honour refer to a particular provision in 21A?
BELL J: Well if one looks at 21A(1), one sees that:
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
One might think that falling within that would be a consideration, but under this Act the standard non‑parole period is specified to represent the non‑parole period for an offence in the middle range of objective seriousness.
MR MAXWELL: It does seem to include that.
BELL J: So in that way that would be a means of taking into account that an offence fell below the middle range, if that be the case, as a reason to depart from the mandate in 54B(2).
MR MAXWELL: Yes. Another matter that was raised yesterday in argument by your Honour Justice Bell was the reference to his Honour Justice McHugh’s judgment in Markarian and that was particularly at paragraphs 53 and 54. Markarian was really a case about the Court of Criminal Appeal focusing on the maximum sentence and then looking at factors that would allow it to reduce the sentence from the maximum. So the Court of Criminal Appeal judgment looked at the maximum sentence as a first step and then there was the two‑tiered example. So, his Honour’s criticism of that – of 53 and 54 was referred to. The second sentence of 53:
In my view, the judge who purports to compile a benchmark sentence as a starting point inevitably gives undue – even decisive – weight to some only of the factors in the case.
Now, the proposition or a criticism of Division 1A is that is what it does in the sentencing process. The respondent submits that is not so, that it is an important factor. The standard non‑parole period is an important factor, but it is just another factor in the overall synthesis of sentencing. So that Division 1A can be and should properly be distinguished from the approach that his Honour Justice McHugh adopted in Markarian.
BELL J: In this instance, the court considered there was no basis for a finding of special circumstances, notwithstanding that the appellant has an IQ of 62 and, as I think you pointed out, on one view, a mental age of five and a half years. Do you urge that approach is correct?
MR MAXWELL: Well, your Honour, special circumstances, as your Honour well knows, is a finding made when there is a good reason for departing from the usual proportion of non‑parole period to parole period, the usual in New South Wales 75/25 – 75 per cent/25 per cent. So when a sentencing judge feels that whatever the overall sentence is going to be, that the person would need longer than the 25 per cent, then it can be varied and the parole period made longer. So what the Court of Criminal Appeal was doing was firstly saying that this offence requires a custodial sentence and then looking at what sort of provision existed in the prison system for him.
Now, there is evidence, and most of it has been referred to in my learned friend’s usual meticulous and careful fashion, but I would direct your Honours to appeal book 84. This is an affidavit from the Acting Principal Officer Disabilities at the Long Bay Correctional Complex at Malabar dated 28 September 2009 indicating what the situation then was of the appellant. So at paragraph 2, he was housed in:
Five Wing is an Additional Support Unit which accommodates offenders who, because of their disability, require placement outside the mainstream correctional centre environment for assessment, general management or to participate in a specific program to address offending behaviour.
Then later at paragraph 5:
The typical daily routine . . . Inmates then participate in programs or internal employment –
Paragraph 6:
Inmates in Five Wing are required to complete compulsory programs –
Then going through the programs that it would be compulsory for him to complete. Paragraph 7:
psycho‑educational programs –
Paragraph 8, perhaps more specifically relevant to this case:
A treatment program aimed specifically at offenders with intellectual disability and other cognitive impairments who sexually offend has been written and is currently being finalised. It is anticipated that the Self Regulation Program will be trialled by the NSW Department of Corrective Services in late 2009.
So that was the information or part of the information available, but it does not stop there. There is in the appeal book the affidavit of Ms Isichei, who is a senior clinical consultant and who speaks of what Selwood Lane, the kind of program there, that being the one that the sentencing judge was, by his order, hoping to allow the appellant to get into. At paragraph 4 ‑ ‑ ‑
BELL J: What page is this?
MR MAXWELL: This is at appeal book 87. She was speaking there about:
The Community Justice Program does provide specific programs devised for the rehabilitation of sexual offenders. This service differs from such programs such as CUBIT –
CUBIT, as I understand it, is the one that is available in the corrective services system –
in that it provides holistic support in a therapeutic community environment . . . service is specifically focussed on providing sex‑offender specific intervention on a day‑to‑day basis through staff support.
Clearly, the respondent does not dispute that Selwood Lane provided appropriate treatment, but a proper approach to the sentencing would be, yes, that is one aspect of it, that is very relevant to rehabilitation, but one needs to consider the seriousness, the gravity of this offence in terms of a custodial sentence. The affidavit of Mr Warne does not indicate perhaps as appropriate a program as Selwood Lane provided, but there is some provision in the gaol system and that was recognised by the Court of Criminal Appeal in the judgment that, in effect, on special circumstances, there was treatment available in the gaol system which would be available to him if he was assessed as being appropriate for it and that he would undertake that treatment and that at the end of the sentence there would be a period on parole where he could perhaps go to alternative treatment outside the gaol system, but because that treatment was available in the gaol system, then there was no reason to find special circumstances and thus vary the usual ratio between non‑parole and parole period.
Just as to the appropriate course that this Court would follow, whether to in fact resentence itself or to remit the matter to the Court of Criminal Appeal, the respondent submits that it would be more appropriate to remit the matter to the Court of Criminal Appeal if this Court took the view that he should be resentenced. The reason for that is the respondent submits it is a matter perhaps better undertaken by the Court of Criminal Appeal in light of sentencing practice generally in New South Wales. In addition there may be matters relevant on resentencing about which evidence would be called that would not be available to this Court. That is the submission the respondent makes in relation to that. Yes, thank you.
FRENCH CJ: Thank you, Mr Maxwell. Yes, Mr Thangaraj.
MR THANGARAJ: Your Honours, there is some force in what my learned friend says about the remitting question. The fresh evidence point is that is a relevant question for your Honours to consider. We do not resile from what we have suggested. I should also say, if I can give some evidence from the Bar table, we made an inquiry as of yesterday to see if there was a place still at Selwood Lane. We are told there was not, so if your Honours make the orders that we proposed, the final order would be a direction that he be sent to Selwood Lane or another facility approved by probation and parole – it would have to be.
Could I just very briefly – the worst case when someone is given a sentence, say of life, for a worst case murder, that includes all relevant factors, so a sentencing judge says, “Yes, I’ve looked at the objectives, but notwithstanding these objectives, it is worst case.” That is not the position with respect to 54(2) and determining the objective seriousness because under any assessment that excludes important subjective factors.
So it cannot be used as a yardstick in the same way, in my respectful submission. What we respectfully submit is a sentencing judge looks at the instinctive synthesis, comes to a decision, and in considering that original position, does not look at the standard non‑parole period because there is a risk of undue emphasis being placed on the objectives. Therefore it is better used as a final check because that assists the judge in giving reasons under 54B for determining that question and so that is the way in which the standard non‑parole period would apply in that way.
For a case of mid‑range offence after conviction, all the usual factors of sentencing apply in the instinctive synthesis process and what weight is given to the relevant factors is determined by the principles that have come from this Court in a long line of cases, and then the sentencing judge then imposes the appropriate penalty.
GUMMOW J: Is there anything in the statute we are looking at which assumes a two‑tier approach?
MR THANGARAJ: No, your Honour. The two‑tiered approach that the cases have talked about, of course, is not a final check. That is not a tier, and I understand what your Honour Justice Hayne is proposing would not make it clear, there is no any second stage, but the final check that I am talking about, there is a requirement to give reasons and as part of that requirement to give reasons it is appropriate to look at the standard non‑parole period as a check.
HAYNE J: That is, the standard non‑parole period is to be used as a guidepost or guide – it may not be a single post – in the fashion described by Justice McHugh in Markarian, in particular, as brought together in paragraph 84 of Markarian 228 CLR 357 at 390. It is one of but not the factors that are to be taken into account. Is that right?
MR THANGARAJ: Then it is a question of timing, your Honour. I urge the approach from Way, which is the timing is that it is the final check, because Way was looking at the actual legislation.
HAYNE J: But you certainly, as I understand it, then reject the notion that the standard non‑parole period is the start point for a process of reasoning which adjusts that.
MR THANGARAJ: Yes. The Crown does not even urge that, your Honour.
FRENCH CJ: Thank you, Mr Thangaraj. The Court will reserve its decision. The Court adjourns until 9.30 tomorrow morning in Melbourne and 9.30 tomorrow morning in Sydney.
AT 11.34 AM THE MATER WAS ADJOURNED