Munda v The State of Western Australia

[2013] HCATrans 136

[2013] HCATrans 136

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P28 of 2012

B e t w e e n -

ERNEST MUNDA

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

HAYNE J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON THURSDAY, 6 JUNE 2013, AT 12.37 PM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   If it please the Court, with my learned friend, MR A. BOE, we appear for the applicant.  (instructed by Aboriginal Legal Service of Western Australia)

MR J. McGRATH, SC:   May it please the Court, I appear with MS S.H. LINTON for the respondent.  (instructed by Director of Public Prosecutions (WA)

HAYNE J:   Yes, Mr Callaghan.

MR CALLAGHAN:   As the Court is aware, on 10 May this year special leave to appeal was granted against the decision of the New South Wales Court of Criminal Appeal in R v Bugmy [2012] NSWCCA 223. There are three points of comparison between the issues which will confront the Court in the hearing of that appeal and the issues which present in this application. In both cases it will be argued that the appeal court, the intermediate appeal court, has conflated an opinion about weighting error with a conclusion as to manifest inadequacy.

In both cases, the Court will be asked to consider the factors that will be relevant to the exercise of the residual discretion discussed in Green v The Queen 244 CLR 462 and both cases involve consideration of the principles articulated in R v Fernando (1992) 76 A Crim R which – those principles which gave rise to a special leave question in Bugmy and which had a place to play or a part to play in any real consideration of whether this applicant’s sentence was manifestly inadequate.  We will further contend in this application that the Court of Appeal erred in their application of these principles. 

The first point we make is that the Western Australian Court of Appeal erred in its application of the principles applicable to the process of determining whether the sentence imposed on the applicant was manifestly inadequate, that is, we contend that what the court did really was no more than to substitute its own opinion for that of Commissioner Sleight. 

That this happened is the conclusion necessarily to be drawn, we say, from five separate factors.  The first three are things which her Honour the President appeared to acknowledge that the court had to do in the disposition of the matter but which, upon analysis of her judgment, were not, in fact, done.  To see what they were, can I take you to application book page 35 and paragraph 57 of the judgment where her Honour, we submit, raised an expectation that those things discussed in that paragraph would be done. 

Our first point is that contrary to the expectation raised in that paragraph, the court did not, in fact, have regard to the standards of sentencing customarily observed for the offence of manslaughter.  The court was provided with material which would have enabled such a process and you have in application book 97 a document which is, I am told, not exactly the same but very similar to the document that formed part of the applicant’s submissions to the Court of Appeal.  I can take you, if necessary, to the part of those submissions where that was put to the court.

BELL J:   Can I inquire; is it right that the respondent accepted that the sentence imposed by Commissioner Sleight was within the range of sentences for this offence in Western Australia at the time?

MR CALLAGHAN:   Your Honour, to avoid any ambiguity, the best answer to that is to take you to the transcript of proceedings before the Court of Appeal which you have now in the supplementary volume of applicant’s authorities.  It is under tab 1 and the passage in question is at page 4 and if you read from the top of the page, Justice Mazza says:

Sorry, I am a little confused.  It is or it isn’t?

The answer there is what is there.  So to the extent that that is a concession that it is within range then yes, perhaps that may not have been what counsel was intending to convey, but the words there speak for themselves. 

BELL J:   Then about halfway down the page you see the prosecution contention was that nonetheless on current sentencing outcomes it was “an inadequately lenient sentence for the facts”. 

MR CALLAGHAN:   That is right.  As long as we are on that page, it is part of the materials to which I was going to take you because towards the end of the page you can see it is put to counsel that this was an appropriate case for the court to revisit and review the range of sentences that are customarily imposed.  This is one of the things, one of the five factors to which we were going to take you and it is out of order but I will deal with it now that we have opened this volume because it is one of a number of points in the proceedings.

We have given you a series of references in the index to this volume on the first page.  Under heading 1, we have given you references under the heading “Transcript of proceedings dated 13/02/2012”.  There are a series of references there to passages in the transcript and before the Court of Appeal where it is apparent that the court was putting to counsel that the court was entitled to and was going to use the applicant’s case to review the range of sentences customarily imposed, something, we say, that was not permissible on an appeal in which the only ground was that the sentence was manifestly inadequate.  So that is one of the five circumstances from which you would draw the conclusion that the Court of Appeal erred.

The first was that they did not deal with the standards of sentencing customarily observed and I was making the point that they had material which enabled them to do so.  Her Honour the President dealt with the concept of other sentences in paragraphs 59, 61 and 62 of her judgment, application book 35 and following.  In our submission, her treatment reduces, in essence, to the proposition that such sentences provide little guidance.

Well, it is try to observe that no two cases are alike but we submit that the concept of comparable decisions was not to be dismissed with such facility and certainly not on the basis of the logic suggested by her Honour, for example, in paragraph 61, that is to say that because cases had been considered on appeals and by reference to principles applicable on appeals, the cases themselves provided little guidance.  They still had value as a point of reference of the way in which cases were decided at first instance.  The double jeopardy principle to which her Honour refers at paragraph 61 clearly had no application to the sentences imposed at first instance.

The now third point that we draw attention to is that again, contrary to the requirement apparently set up in paragraph 57, her Honour did not, and realistically could not, have regard to the place which the applicant’s conduct occupied on a scale of seriousness, and realistically that could not happen if she had not done the exercise we were just talking about of reviewing the customary – or sentences customarily imposed because there was no context in which such a calibration could be meaningful.

To borrow the language from the case cited in paragraph 59, “comparable cases provide a yardstick”.  Once you have a yardstick you have a scale and it is meaningful then to talk of or make a finding about where the applicant’s offending was on that scale.  So even when her Honour noted in paragraph 60 that the prosecutor had conceded “that the case was not in the worst category”, it cannot be said that this was any part of a meaningful engagement with the concept of manifest inadequacy because there was nothing to compare it to in terms of cases which were even worse or cases which were not as serious.

HAYNE J:   But is the available field for comparison sufficiently captured at pages 97 to 100, which are I think 11 cases?

MR CALLAGHAN:   Well, the applicant would say yes, but even if ‑ ‑ ‑

HAYNE J:   Because it is a very narrow field.

MR CALLAGHAN:   It is.

HAYNE J:   For which much thanks, I suspect.

MR CALLAGHAN:   And narrowed for the purpose of assisting the court, because it is all very well to say you might get two years or you might get 12 years, but at least an attempt has been made to compare like with like and to that extent – the reason I am perhaps hesitating is because your Honour used the word “sufficient” and that will always be a question about which argument might be raised.

HAYNE J:   Yes.

MR CALLAGHAN:   It was a start, it was something, and there was no engagement even with that and that is indicative, we submit, of error.  Our fourth point again relates back to paragraph 57 and concerns the treatment by the court of the applicant’s personal circumstances, and it is under this heading that we need to turn attention to the Fernando principles, and the manner in which the court dealt with this topic is, we submit, erroneous, both on its face and when considered by reference to those principles. 

The personal circumstances of the applicant are dealt with by the President in paragraphs 49 and 54.  There might be some tension between what is recorded in those paragraphs, but be that as it may, the focus of this discussion should really turn to paragraph 67 and her Honour’s conclusions there.  That is really the functional part of the judgment insofar as the applicant’s personal circumstances were concerned.  You can read that paragraph. 

Our argument is or our arguments are that there is a bit more to the process than dismissing the applicant’s addictions on the basis that they were not a matter inviting mitigation.  Even if something is not a matter of mitigation, as the Fernando principles recognise, they can be highly relevant to the sentencing process by way of explanation for offending behaviour.

We would go further and say there is a second error that has been committed in that paragraph alone and that is to say that the relevance of social disadvantage, and that is really what we are talking about when we discuss the Fernando principle, social disadvantage from whatever cause, but its relevance is not confined to circumstances in which an offender is raised.  We understand there might be some language in Fernando which talks about the manner in which an offender has grown up but the point is whatever the circumstances of his being raised were, however long he stayed sober, the applicant was at a social disadvantage once he found himself at Fitzroy Crossing and he was entitled to have that considered and engaged as part of his personal circumstances which, as her Honour indicated in paragraph 57, were going to be considered in the course of deciding whether the sentence was manifestly inadequate. 

Finally, and perhaps, we would submit, conclusively, the operative part of the judgment, that is to say, the point at which the finding of manifest inadequacy was made, we say, is demonstrative of error.  For context, can I take you first to paragraph 63 where her Honour records her understanding of the argument being made, records, we submit, with respect, accurately. 

The argument being made is that the sentence was inadequate due to weighting errors.  Then you can go to paragraph 68 where it is noted that that argument, the one referred to in 63, is the argument which was upheld.  A conclusion of manifest inadequacy was reached and the weighting errors concerned were invoked immediately thereafter.  There was no reference to any of the matters raised for consideration in paragraph 57.  That, we would submit, is a clear indication of error. 

If I move to the question of the residual discretion and we really have three propositions, one which follows – or which follow from – each which follows from the other.  The first is that the court, with respect, ignored or at least misapprehended the applicant’s argument.  The applicant’s argument was put in writing in a document which you have in that volume of authorities.  It is under tab 2 at page 20 and it is paragraph 64.  We especially draw your attention to paragraph 64(a) in that document. 

The proposition advanced in that paragraph was not replicated nor even acknowledged in the judgment of the court, not even, we say, perhaps tellingly, at application book 81.  Now, this was in the separate judgment of Justice Buss but ‑ ‑ ‑

BELL J:   Can I just inquire about this document?  This document was a set of further submissions after the conclusion of the hearing – addressing matters raised on the hearing.

MR CALLAGHAN:   After oral argument, yes.

BELL J:   Was leave sought to file these additional submissions?

MR CALLAGHAN:   It was requested by the court, as I understand it, and both sides engaged further.

BELL J:   Yes, thank you.

MR CALLAGHAN:   That is why we submit it is interesting that when Justice Buss at application book 81, paragraph 254, purports to identify the factors upon which reliance was placed by the applicant in this context but omits even to mention this one, that is to say, the one contained in paragraph 64(a) - Justice Buss’ judgment is a separate one, of course, but it does tend in our submission to confirm that this point was lost on the entire court.  Our second point which flows from that, and perhaps as a result of or perhaps independently of that, is that her Honour the President misdirected herself as to the manner in which the residual discretion ought to be circumscribed.  Can I take you to application book 32?

BELL J:   Mr Callaghan, your point was that a State appeal contending manifest inadequacy is not an occasion for the intermediate court to review the appropriateness of a sentencing range and raise that range, as it were.

MR CALLAGHAN:   That is one of our points, yes, your Honour.

BELL J:   But additionally, you say in the way the matter was argued when the court raised these considerations, they were matters that bore on the residual discretion in the sense that even if it was open to the court to take into account that the range, as it were, was too low, in the exercise of residual discretion it ought not to intervene in this instance.  I am just not sure how the two ‑ ‑ ‑

MR CALLAGHAN:   It is because a different case is being made on appeal from the one that was being made below.  That is in essence the point, and that is a case – I am sorry, your Honour.

BELL J:   No, no, but that really went to your prime point, which was it was not a basis for allowing the appeal.

MR CALLAGHAN:   The arguments are perfectly spherical, inasmuch as – and that is where I will conclude.  I see the light on, and I will be concluding in a moment.  The point that I do wish to make is that the residual discretion was circumscribed unnecessarily, and we say erroneously, by her Honour in paragraph 41 on application book 32, paragraph 41(4), where her Honour has, we submit, in effect restricted the consideration of the residual discretion in cases where a conclusion of manifest inadequacy has been reached to circumstances where parity considerations arise.

There is nothing, we submit, said by this Court in Green which would warrant the circumscription of the discretion in such a way, and we would further submit were we given leave that it would be important for this discretion not to be circumscribed in such a way.  It has a function to perform, we would say, in cases like this where a different case is being made on appeal from the one which was faced by the applicant at first instance, and this is where the argument comes around to meet itself.

BELL J:   That is taking up – conventionally, one looks to has the prosecution consistently adopted a stance - if the prosecution has adopted a different stance on a State appeal that would be a reason in the exercise of the discretion.

MR CALLAGHAN:   Yes, that is right.  In this case it was really the court adopting the different stance, with respect to the prosecution.

BELL J:   Yes, I understand.

MR CALLAGHAN:   It was the court who was adopting the different stance, but having regard to what has been said by this Court about the purpose and policy of State appeals and how that might inform the exercise of the residual discretion then, yes, we say that is squarely a matter to be taken into account and, of course, had it been looked at in the first place, had the court turned its mind to what was happening when it was considering the comparable cases it would have realised that the sentence was not manifestly inadequate in the first place.

In other words, if you are having to lift the range to accommodate the sentence that you want to give that is a pretty good clue that the sentence is not manifestly inadequate in the first place and that is what the court was in effect doing by making a separate case on appeal, going about lifting the range.  Those are our submissions, thank you, your Honours.

HAYNE J:   Yes, thank you, Mr Callaghan.  Yes, Mr McGrath.

MR McGRATH:   Yes, may it please the Court.  The court below correctly identified the principles applicable to the consideration of a Crown appeal and approached the appeal in that court by reference to those principles.  If I can commence by – I am looking towards the submission dealing with the residual discretion.  The court below correctly identified the applicable principles in respect to the application of residual discretions to a Crown appeal.  The court correctly followed the approach of this Court in Green which required the identification of the particular considerations that enlivened the residual discretion. 

My learned friend puts it that her Honour the President conflated principles.  Rather, in my submission, her Honour the President expressly accepted there is a residual discretion to dismiss a Crown appeal against a sentence that is manifestly inadequate at the time of the appeal.  Her Honour expressly stated that at paragraph 33 of her reasons for decision which is at application book 33. 

At paragraph 33 her Honour considered section 6(1) of the Sentencing Act (WA) which requires that a sentence that is imposed must reflect the criminality. Her Honour then continued on to consider whether or not there is a residual discretion and those residual discretion factors would apply on the State appeal against a sentence that is said to be manifestly inadequate. There is no doubt her Honour’s approach and the recital of principles is correct.

Her Honour did then go on to make this observation and it is an observation that my friend develops in his written outline of argument that if a court was to find a sentence was manifestly inadequate it would be rare that there would be any residual discretionary factors then applicable because those residuary discretionary factors would have been applied and determined whether or not sentence was manifestly inadequate.

By that her Honour was implicitly referring to section 41(4)(a) of the Criminal Appeals Act (WA) which requires the intermediary court to consider all factors and circumstances that occurred at the time of the hearing of the appeal and after sentencing.

BELL J:   But, Mr McGrath, can I just take up with you this?  Looking at paragraph 41(4) that appears to exclude considerations such as delay in bringing a Crown appeal, such as a change in the stance taken by the prosecution between the sentence hearing before the primary judge and in the Court of Appeal.  Now, these are not considerations that bear on the determination of sentence by the primary judge, but they are factors which traditionally are significant to the exercise of the residual discretion to dismiss the appeal.

MR McGRATH:   Yes, your Honour, accepting that it must be understood, with respect, that the President was saying to the extent that such factors would apply in determining whether the sentence was manifestly excessive, if they did not apply then her Honour expressly said they would apply subsequently in the application of the residual discretion.  So it would not be a case, however they are characterised, that they would not considered, and in this particular case the factors were considered.

HAYNE J:   Does this not raise, possibly raise at least, an even more fundamental question about basic House v The King discretionary review?  This is a case in which the State invoke the last category of error identified in House v The King.  It may not appear how the primary judge has reached the result embodied but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposed in the court of first instance.  We have here the Court of Appeal using a sentence appealed by the State for the purpose of increasing the tariff to reflect prevalence.  Is that a fair characterisation of what we have?

MR McGRATH:   With respect, my answer is no.  There was a single ground of appeal, one of pleading manifest inadequacy.  There was no particularisation in support of that of the growing prevalence of this type of offending.

HAYNE J:   Exactly so, and nor should there have been a particularisation of manifest inadequacy, but can you under the rubric of manifest inadequacy on appeal not agitated at initial sentencing hearing by the prosecution say the prevalence of this kind of offending has now reached the point where the court should move the goalposts?

MR McGRATH:   Your Honour, the court below did not rely, in my submission, on any suggestion of a growing prevalence of this type of offending in deciding to allow the appeal or deciding upon the appropriate disposition in resentencing.  Her Honour the President in determining the seriousness of ‑ ‑ ‑

HAYNE J:   I have in mind what appeared at paragraph 64 of the reasons of the President but do not stay to trouble with that if there are other points better made, Mr McGrath.  I do not seek to divert you.

MR McGRATH:   Yes, I could just deal with this point and say that her Honour never referred to growing prevalence.  The learned counsel who appeared on behalf of the State at the hearing before the Court of Appeal expressly stated that the State was not relying upon the growing prevalence.  That issue arose solely because the court raised it for the first time at the hearing.  His Honour Justice Buss in a separate judgment at paragraph 256, application book 82 stated he did:

not rely on any suggestions of prevalence in deciding whether to allow the appeal or in deciding upon the appropriate disposition in re‑sentencing.

Prevalence was not a factor relied upon the State, nor by the court in this particular case.  The reference to cases in the reasons for decision of his Honour Justice Buss and her Honour the President was for the single purpose of determining the range of sentences that have been customarily imposed. 

In respect to that I now move to the second point and that is dealing with the issue of manifest inadequacy and the range of sentences raised by my learned friend.  The court identified the chief considerations upon which it would consider that pointed to inadequacy.  It included the seriousness of the offending, the antecedence of the applicant, the particular history of re‑offending, and cases or past cases which showed the sentences customarily imposed. 

The principle, in my submission, is this, which the court accepted, that in this case, even if the sentence imposed upon the applicant was within the range of sentences customarily imposed, that was not to the question that had to be considered by the intermediary court.  The issue was whether the sentence that was imposed by the learned sentencing judge was within the range of sound sentencing discretion, given the seriousness of the offending, the antecedence of Mr Munda, the maximum penalty available and fourthly, consideration of the range of sentences customarily imposed. 

The court did not err in applying that approach in determining whether the sentence was manifestly inadequate.  That a sentence may be said to be outside the range of sentences customarily imposed does not mean that the sentence need not be determined whether it is within the sound sentencing range for those other factors.

Can I say, his Honour Justice Buss did consider other cases, but we turn to Justice McLure.  My learned friend took the Court to paragraphs 61 to 62.  Her Honour did consider past cases and concluded, your Honours, at paragraph 61, application book 36, that:

Little guidance is provided by the sentences reviewed in cases in which the court declined to allow an appeal –

reference to decisions there, and considered then the range of sentences.  Her Honour, at paragraph 62, refers to the decision of Walley.  In my submission, Justice McLure did consider the range of sentences and well understood that.  However, the particular offending in this particular case was characterised as very serious given the manner and the history of the applicant.  It was an extraordinarily narrow field of past cases upon which the court could have had reference.  So, in my submission, there should be no conjecture or any finding of error in respect to this.

My learned friend referred in discourse to whether guideline or guideline‑adjustment cases – to make it abundantly clear, this was brought on the sole ground of manifest inadequacy based upon the particular facts of this particular case. It was not the submission, it will not be the submission there is growing prevalence in Western Australia. It is simply an offence that is – prevalence, we do not make that submission that anything has changed. A guideline judgment has never been sought ever in Western Australia under section 143 of our Sentencing Act.  The court considered the single claim and applied principle. 

Could I turn then to the Fernando principles?  The court below did consider the Aboriginality of the applicant.  Her Honour did so at paragraphs 64 to 67, which is application book 36 to 37.  The manner in which her Honour approached that is, in my respectful submission, without error.  Her Honour at paragraph 67, once again, to conclude that:

The evidence in this case did not establish that the respondent was raised in circumstances of such deprivation and difficulty as to render his addictions mitigatory –

is without error.  Your Honour, comparing this to the Bugmy Case, to which leave was granted to deal with it at the same time, the Bugmy Case raised issues which were not dealt with that were dealt with here.  The ground of appeal in Bugmy of manifest inadequacy was not dealt with, it was dealt with here.  The issues of the residual discretion factors raised on Bugmy were not dealt with, neither was that issue here, and this is significant. 

The applicant raised with clarity in the written outline of submissions subsequent to the hearing of the appeal the factors upon which he sought to rely for the exercise of residual discretion.  Principle was applied to those factors and each factor was considered, certainly by his Honour Justice Buss, but also by the President in determining that the residual discretion and those factors had no application. 

The final point I would make about weighting errors, this was not a case where there was any pleading in respect to any weighting errors.  It was solely brought on the sole ground of manifestly inadequate.  The State did not rely upon weighting errors.  However, that was the case in Bugmy.  Therefore, the correctness or otherwise of the approach in the Bugmy Case has no application in this.  May it please the Court, unless there is something else I can help the Court with, they are the submissions on behalf of the respondent.

HAYNE J:   Thank you very much, Mr McGrath.  Mr Callaghan, can I take you to your proposed notice of appeal at page 87 of the application book.  Forgive me if I say it is expressed laconically.

MR CALLAGHAN:   It is in need of work.

HAYNE J:   Are you now in a position to state, not in a way which I intend should bind your side, but are you able to state in summary form the way in which the proposed amplification would be made?

MR CALLAGHAN:   Yes, your Honour.  It would be that the Court of Appeal erred in its application of principle to the process of determining whether the sentence imposed on the applicant was manifestly inadequate. 

That would be ground 1.  The second ground would be that the Court of Appeal erred in the approach it adopted to the residual discretion and the third point would be that the Court of Appeal erred in its application of the principles articulated in R v Fernando. 

HAYNE J:   I do not, for a moment, Mr Callaghan, want this to be taken as critical in any way, nor do I want to embark on some drafting exercise with you, but it does occur to me that each of those statements of ground might benefit – you may ultimately conclude that they would not, but they might benefit from a little particularisation. 

MR CALLAGHAN:   Certainly.

HAYNE J:   As I say, I do not see value in us embarking on some drafting exercise at this moment. 

MR CALLAGHAN:   Yes, your Honour.

HAYNE J:   There will be a grant of special leave to appeal in this matter.  It is probable that this matter will be listed on the same day as the matter of Bugmy presently fixed for hearing on 6 August next.  In order that the parties are ready to have the matter argued on that day if it is eventually fixed on that day, we will give directions now that the appellant’s submissions and his list of authorities are to be filed and served on or before 4 July 2013.  The appeal book is to be filed and served on or before 15 July 2013.  The respondent’s submissions and list of authorities are to be filed and served on or before 22 July 2013.  The appellant’s reply is to be filed and served on or before 29 July 2013.

So, just to recapitulate for the benefit of counsel, appellant – 4 July; appeal book ‑ 15 July; respondent – 22 July; reply ‑ 29 July.  Do counsel seek to be heard in connection with those directions?

MR CALLAGHAN:   Not with those directions, no. 

HAYNE J:   You may have leave, Mr Callaghan, to amend the notice of appeal in accordance with the substance of the discussion that has occurred.

MR CALLAGHAN:   Thank you, your Honour.

HAYNE J:   How long do counsel estimate that argument of this case would take if it were to occur on the same day as argument in the matter of Bugmy with argument in Bugmy, at least for one side, preceding argument in this case?

MR CALLAGHAN:   Given the overlap which is significant but not entire, I would estimate half a day.

HAYNE J:   Yes.  Mr McGrath, what would you say?

MR McGRATH:   I agree half a day, your Honour.

HAYNE J:   Yes, thank you.  Adjourn the Court to 9.30 tomorrow in Sydney.

AT 1.23 PM THE MATTER WAS CONCLUDED