Muldrock v The Queen [2011] HCATrans 55

[2011] HCATrans 55

[2011] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S231 of 2010

B e t w e e n -

DEREK MULDROCK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2011, AT 11.19 AM

Copyright in the High Court of Australia

MR M. THANGARAJ, SC:   Your Honours, I appear with MR D.P. BARROW.  (instructed by Catherine Hunter Solicitor)

MR C.K. MAXWELL, QC:   If the Court pleases, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Thangaraj.

MR THANGARAJ:   Your Honours, we formally need an extension of time in relation to this matter. 

FRENCH CJ:   Is that opposed?

MR MAXWELL:   No, your Honour.

FRENCH CJ:   You have your extension.

MR THANGARAJ:   Thank you, your Honour.  Your Honour, special leave is sought on two bases:  one, as questions of general importance and alternatively, as a matter of interest of justice in the particular case but not limited to this individual himself but the effect that the community would suffer from the current sentence imposed on him as an individual.  Could I start with the standard non-parole period point?  The Chief Judge was critical of the asserted failure of the trial judge ‑ ‑ ‑

GUMMOW J:   Does any point emerge that you rely on for construction of these provisions of the Sentencing Procedure Act?

MR THANGARAJ:   I beg your pardon, your Honour?

GUMMOW J:   Is there any point of construction of the legislation ‑ ‑ ‑

MR THANGARAJ:   Yes, your Honour.  That is the critical issue with respect to the standard non‑parole period.  The Court of Criminal Appeal in Way and in other cases has decided that even for matters that do not fall within mid‑range seriousness, that the standard non‑parole period ought still be regarded as a benchmark or a guidepost.  In our submission, that is inconsistent with the legislation. 

The fundamental starting point clearly is the legislation and what Parliament has decided is that once offending has got to a certain level, that is mid‑range offending, then the standard non‑parole period would apply.  This is not a position where the legislature has increased the maximum penalty.  If Parliament had decided to increase the maximum penalty for these offences then, obviously, low‑range offences would be susceptible to an increase in penalty but what has happened is that the construction of section 54 has been, with respect, incorrect.

GUMMOW J:   Is that 54A?

MR THANGARAJ:   Yes, and B, because it is clear that, with respect, Parliament has limited standard non‑parole period to mid‑range offences.  In this case, of course, both the first instance judge and the Court of Criminal Appeal found correctly that this was below mid range.  So, if our statutory argument is correct, it would have an impact on the actual sentence that was imposed on the applicant.  So the special leave question could be addressed in two ways.  What is the relevance of standard non‑parole periods to offences that fall below the mid‑range offending, of which, of course, there are many, many, many such sentences in our courts, New South Wales courts. 

GUMMOW J:   What is the content of this phrase in 54A(2) “in the middle of the range of objective seriousness”?

MR THANGARAJ:   What a sentencing judge needs to do is to form a hypothetical mid‑range offence for the offence that is currently before that court, determine then whether or not where the extant offence lies and then determine whether or not the standard non‑parole period applies but critically for our case, the low‑range offending, the Court of Criminal Appeal has said even if it is a low‑range offence, you would still have regard to the standard non‑parole period as a benchmark or a guidepost.  So everyone agreed in this case that this offence fell below the mid range. So that is the criminality.  That is before we even get to the subjective factors. 

On the criminality alone, that was agreed.  So once we get to that point, the question, with respect, for this Court is, has the Court of Criminal Appeal been correct in asserting that low-range offending is still subject to the standard non‑parole period penalties as a benchmark or a guidepost because clearly that has had the effect of pushing up sentences when, with respect, that is not what the legislature has said. 

GUMMOW J:   Are you inviting us to look at R v Way (2004) 60 NSWLR 168 at paragraph 122?

MR THANGARAJ:   Yes, your Honour.  To the extent that Way has said what I said and the Crown accepts that submission - in fact, the Crown relies on Way as being a proper formulation of the law - to the extent that Way says that low‑range offending ought to have some regard to the mid‑range standard non‑parole period, Way, with respect, is incorrectly decided.  That case has been followed a number of times by our Court of Criminal Appeal.

FRENCH CJ:   Can I just ask what the process is - when a non‑parole period is fixed, there is then an administrative process by which a determination is made as to whether parole is granted?

MR THANGARAJ:   Yes.

FRENCH CJ:   Now, there is a power to impose conditions in relation to parole.  In this particular case, the condition that was imposed was that parole was not to be granted unless.

MR THANGARAJ:   Yes.  The sentencing judge - this is not before your Honour but the sentencing judge was told that to impose a condition – for the court to impose a condition – the head sentence needed to be three years or less.  His Honour did not do that.  His Honour imposed a very high head sentence but his Honour did acknowledge that it may be that parole may not be granted.  He did acknowledge it may be that the applicant spends nine years in Selwood Lane and really, that – so that means that the error that his Honour made does not really matter in this case.

KIEFEL J:   How do you say that the standard non‑parole period was actually applied in this case?

MR THANGARAJ:   What happened was his Honour, the Chief Judge, who wrote the judgment, had a heading “The standard non‑parole periods” and his Honour said categorically that the sentencing judge had failed to have any regard to the standard non‑parole period and that he should have and then his Honour then went to look at cases where the range of offending in those cases far exceeded the mid range and certainly far exceeded that of our case and used those to say, well, those cases show that the non‑parole period imposed in this case was incorrect.  His Honour had consideration of the standard non‑parole period provisions.

KIEFEL J:   Is it your argument that his Honour the Chief Judge went further than even Way suggests in terms of using the standard non‑parole period as some sort of reference point?

MR THANGARAJ:   Only to the extent of having, with respect, incorrect regard to those cases.  We put that in as one of the questions or one of the asserted errors that the cases that his Honour had regard to really had nothing to do with this case.  That was before you even got to the subjective factors.  So the effect of Way and the effect of this judgment is that rather than doing what Parliament wanted, which was to increase non‑parole periods for mid‑range offending, what we effectively have is a quasi‑grid sentence and something that is reflected by increasing maximum penalties by upping the sentences for low‑range offences.  That is, with respect, an incorrect point. 

This Court made that abundantly clear, if it is needed to, in Hili and Jones, by saying that the starting point is always the legislation and in the same way that this Court said the idea of a norm of 60 to 66 per cent of federal offences were without statutory foundation, we make the same point here that this idea of low‑range offending being subject to a benchmark of mid‑range standard non‑parole periods is also without any statutory basis and is quite analogous to the idea of a norm.

The idea that, as per Jones, a benchmark is applicable in a case such as this, in my respectful submission, that is inconsistent with the legislation.  It is not a matter of extending it.  It is inconsistent because Parliament has not increased the maximum penalties.  The benchmark as an idea may be relevant in certain circumstances.  If, for example, a mid-range offender has strong subjectives that may be relevant if a mid-range offender has the typical offence but simply pleads guilty and that is the only reason why the standard non‑parole period does not effectively apply. 

It is a benchmark because it is a mid‑range offence.  It is permissible to look at the standard non‑parole period that Parliament has decreed because it is a mid‑range offence and the mere fact that there is one element, a plea, an important element, no doubt, but that is legitimate to look at it as a benchmark, but low‑range offending, with respect, that is not.  May I ask your Honours to go to the appeal book at page 54.

FRENCH CJ:   It is still only an application book, Mr Thangaraj.

MR THANGARAJ:   I am sorry, your Honour, application book.  The Crown at paragraph 3.9 about line 48 relies on Way and says in the last sentence:

In that sense it is similar to the maximum penalty and indicates the seriousness with which the legislature regards the offence.

With respect, that is the error because Parliament has not increased the maximum penalties which would justify all sentences going up.  The only other matter that the Crown refers to in relation to the standard non‑parole period argument is found in 3.10.  What the Crown is effectively saying there is that there are cases where section 54B(3) requires reasons to be given and, therefore, just because the standard non‑parole period is not applied it does not mean it is a benchmark.  That is correct but it is only – that only applies also to mid‑range offending in the same way that the idea of a norm ‑ ‑ ‑

FRENCH CJ:   Is there a disconnect between 54A(2) and 54B(2)?  Section 54B(2) seems to give the standard non‑parole period a sort of general application without tying it to offences in the middle of the range of objective seriousness.

MR THANGARAJ:   Your Honour, 54A is the overarching provision.  No authority of the Court of Criminal Appeal has suggested that the idea of a benchmark is found in the legislation.

FRENCH CJ:   Yes, but there is a sort of declaratory statement that 54A(2) - I am just wondering how it fits in with 54B(2)?

MR THANGARAJ:   Well, 54A(2) sets the parameters and 54B(2) ‑ ‑ ‑

FRENCH CJ:   It tells you what this standard non‑parole period represents but does 54B(2) say that you depart from it in all cases when you determine there are reasons or is it only talking about cases in the middle range of objective seriousness?

MR THANGARAJ:   Your Honour, in my submission it is the latter.  That is supported by the fact that despite cases saying you regard it as a benchmark there is no case that I am aware of in the Court of Criminal Appeal which says that the idea of a benchmark ‑ ‑ ‑

FRENCH CJ:   Just looking at the statute?

MR THANGARAJ:   Yes, but, in my submission, the Court of Criminal Appeal is following the statute in the way that I would ask your Honours to look at it because if it was what your Honour is floating one would have thought that that would have been used as a basis to justify the finding. 

FRENCH CJ:   Well, it is just odd ‑ ‑ ‑

MR THANGARAJ:   In my submission, your Honour, the Parliament has made it abundantly clear in 54A that it is mid‑range offending.

FRENCH CJ:   So 54B is only talking about mid‑range offending, is it?

MR THANGARAJ:   Yes, and if it was not, given that it is a criminal provision, if it intended to be broader than that, with respect, one would have expected 54A to include something far broader than it being mid‑range offending.  Even when the legislation was brought in, it was brought in on the basis that this would be instinctive synthesis.  It is not a matter of formulaic application.

GUMMOW J:   Division 1A is a qualification of some sort to Division 1, is it not, starting at section 44?

MR THANGARAJ:   Division 1A was inserted, your Honour, much later and it is limited to standard non‑parole periods, of course.  There is an analogy to De Simone if the construction that we contend for is correct.  The Parliament has decided that at a particular level of offending this legislation applies.  It is not to apply to something that is less serious in the way that one does not sentence an applicant or an offender for a more serious offence in the same way that De Simone applies.  So, in the same way that weight was a distraction in Wong and norm was a distraction for Hili and Jones, in my respectful submission, benchmark is a distraction and a constraint, an artificial constraint, which is not supported by the legislation for standard non‑parole periods.

This approach to standard non‑parole period sentencing, however, has not been confined to standard non‑parole period cases which, with respect, is another reason why this Court would consider granting leave.  Because there is a requirement in standard non‑parole period sentencing to identify precisely where the offence lies for criminality purposes, that has extended to non‑standard non‑parole period offences and even Commonwealth offences.  What that means is that then places what we say is an artificial constraint on the sentencing because by saying that a judge dealing with a Commonwealth matter needs to say precisely where in the range it sits, that, therefore, means that there is a constraint being placed.

FRENCH CJ:   We might be assisted to hear from Mr Maxwell.  Yes, Mr Maxwell.

MR MAXWELL:   Well, on the statutory construction point, the respondent submits that my learned friend has not demonstrated that the decision in Way regarding the standard non‑parole period as a guidepost is in any way wrong.  One just needs to look at section 54B(2).  Where a court wishes to depart from standard non‑parole period it needs to give reasons.  So essentially what that is implying is that it gives the reasons for the departure.  If it is less than the middle range of objective seriousness then the respondent submits, it flows, it follows that the amount of the standard non‑parole period is, in effect, a guidepost and that Way really did nothing more than recognise that proposition. 

Your Honour the Chief Justice referred to whether there was some “disconnect”, I think your Honour used, between 54B and 54A.  The respondent submits not.  Section 54A is headed “Standard non-parole period” and that precise term is picked up in section 54B(2), so the respondent would submit that the two sections are tied in that way.  My learned friend indicated that the ‑ ‑ ‑

FRENCH CJ:   Sorry, what does that mean?  Does that mean that 54B(2) works on the basis that if you are setting a non‑parole period, that is, let us say, shorter than the standard non‑parole period, one of the reasons that you would really have to resort to to justify doing that is that the – or might be sufficient to justify doing that is that the offence is somewhere below the middle of the range of objective seriousness.

MR MAXWELL:   Yes, your Honour.

FRENCH CJ:   That need not be the only reason?

MR MAXWELL:   No, that need not be the only reason but certainly this case is a good example of the operation of that departure and the respondent accepts that it was appropriate to do so.  What the Court of Criminal Appeal did in resentencing was to reduce it from the sentence that would have been given but for the discount for the plea of guilty from 15 to 12 years and then apply the 25 per cent discount which, in the circumstances of this case, was pretty generous because the plea was taken about – was not really an early plea.  Anyway, that point was not taken. 

Can we just come back to a point that my learned friend made and that is in the respondent’s submissions at application book page 54 at line 50, the reference there to Way’s Case and the last sentence:

In that sense it is similar to the maximum penalty and indicates the seriousness with which the legislature regards the offence.

The submission does not say it is the same as maximum penalty.  What it really recognises is that when standard non‑parole periods were brought in that the legislature recognised a whole series of offences that were serious, so serious that they demanded that there be some kind of uniformity in sentencing and that is what standard non‑parole period is about. 

FRENCH CJ:   All that, when you talk about the analogy with the maximum penalty, all you are saying, are you not, is that the methodology of working off the maximum penalty, as it were, is similar to the methodology that you would apply here except you move in two directions, or can move in two directions - up or down.

MR MAXWELL:   Yes.  Similar to the methodology in 54B(2), yes, your Honour.  So that is what the respondent would submit on that point.  As to the ground of appeal in which the applicant suggests the Court of Criminal Appeal has erred in the resentencing exercise ‑ ‑ ‑

GUMMOW J:   What do you say about paragraph 35 - 34 and 35 it is really, on page 28?

MR MAXWELL:   Paragraph 34 is an appropriate approach to the sentencing exercise that was not demonstrated in the approach of the sentencing judge.  In other words, it recognises that the sentencing judge did not take into account denunciation or punishment of the respondent, which are essential, which are legislated as purpose under section 3A of the Crimes (Sentencing Procedure) Act, as purposes of sentencing. 

Now, the Crown has always accepted that there was a level of intellectual disability in this applicant and that it was important to reflect that in the sentence.  What the Court of Criminal Appeal recognised or based its decision on was that there was virtually no recognition of those other important aspects of sentencing.  For instance, there was no reference at all in the sentencing judge to the effect on the victim and that can be seen – recognition of the harm done to him - if your Honours go to page 58 of the application ‑ ‑ ‑

FRENCH CJ:   There was a victim impact statement before the judge, was there not?

MR MAXWELL:   Yes, your Honour.  Yes, it is right to consider, of course, the subjective – the strong subjective features of the applicant but it is also, on the other hand, valid to consider that the victim was traumatised, that there was an ongoing impact in relation to this offence:

The boy said he had difficulty sleeping without the light on, he feels scared of men, scared of being alone, scared of playing with older children:  “I don’t trust anyone anymore and I am always worried that I will be hurt again.”

None of that was referred to by the sentencing judge or seemed to play any part in the sentence that he imposed or insofar as the monumentally low non‑parole period that was given.

GUMMOW J:   You may be right about that but the question is was the Court of Appeal correct in doing what it then did to deal with that situation so disclosed?

MR MAXWELL:   What it then did do?

GUMMOW J:   Yes, in paragraph 35.  What does this last sentence of paragraph 35 mean?

MR MAXWELL:   Your Honour, I cannot really add anything or assist in the interpretation of that sentence.  In any event, your Honours, the respondent submits that for the reasons advanced and essentially about the failure to reflect all of the purposes of sentencing by the sentencing judge and the reflection of that in the resentencing exercise, that this would not be an appropriate vehicle for special leave.

FRENCH CJ:   Thank you, Mr Maxwell.  Yes, we will not need to hear from you further Mr Thangaraj.  There will be a grant of special leave in this case.  Would that be about half a day, do you think?

MR THANGARAJ:   Very short matter, your Honour.

FRENCH CJ:   You agree with that, Mr Maxwell?

MR MAXWELL:   Yes, your Honour.

FRENCH CJ:   Yes, thank you.  The Court will adjourn briefly to reconstitute.

AT 11.45 AM THE MATTER WAS CONCLUDED