Munda v Western Australia
[2013] HCATrans 168
[2013] HCATrans 168
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P34 of 2013
B e t w e e n -
ERNEST MUNDA
Appellant
and
THE STATE OF WESTERN AUSTRALIA
Respondent
FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 6 AUGUST 2013, AT 2.15 PM
Copyright in the High Court of Australia
MR A. BOE: If the Court pleases, I appear with MR D. D. BRUNELLO, for the appellant. (instructed by Aboriginal Legal Service of Western Australia Inc)).
MR J.McGRATH, SC: May it please the Court, with MR L.M. FOX, I appear on behalf of the respondent. (instructed by Director of Public Prosecutions)
FRENCH CJ: Thank you.
MR BOE: The State’s only ground of appeal, alleged manifest inadequacy; the final terms of that ground are at appeal record book 68 where five particulars are attached to the ground. The statutory framework for consideration of that ground in Western Australia is no less restrictive than those that have been considered by this Court, some of which were discussed in the proceeding earlier; in short, error needs to be established whether in fact that is, in this case, patent error by reference to a formulation.
In the Court of Appeal below, the majority at 57, identified the formulation that the court proposed to follow. We have identified that that formulation seems to have been adopted in Western Australia following the decision in Morse out of South Australia in a case called Chan. There were five specific matters which the court undertook to do.
FRENCH CJ: What page of the appeal book are you referring to?
MR BOE: At the moment to record 183, your Honour, at paragraph 57.
FRENCH CJ: Yes.
MR BOE: In the following paragraph from 58 to 62, the court deals with the first two aspects of the formulation. In our submission, at the end of it the court is left with no yardstick with which to determine the ground of appeal, namely that the sentence imposed by the primary judge was so markedly different from those that have been imposed in past in factually comparable cases. In our submission, that almost by itself resolves or should have resolved the appeal to the court below.
At record 184, starting from paragraph 63, the court then went through a number of factors or features attending the original sentence, about which the court or the majority disagreed with the way in which the primary judge dealt with those matters. In our submission, the process that is employed in those two pages of the record book, got dangerously close to, if not to the point of elevating one particular feature of the sentencing below, or by the primary judge, into specific areas and in a fashion that should not have been permitted given the way in which the appeal ground was brought to the court below.
Now, if in fact the court’s approach is more than simply criticising or recording the way in which particular features were being weighed, then it was necessary for there to be a specific ground of appeal alleging specific error as to taking into account factors which had not been established on the evidence, for example, or taking into account matters which should not have been taken into account.
Now, we have detailed those matters in our paragraph 29 through to 31 of our original submissions, and we make the point which is a minor one in truth that in Western Australia there is a peculiar requirement that if the State had thought to argue specific error, they needed leave of that court to argue it, and without it there is no jurisdiction to entertain those grounds.
In our submission, the process that is employed in those two pages of the record book got dangerously close to, if not, to the point of elevating one particular feature of the sentencing below – or by the primary judge – into specific areas and in a fashion that should not have been permitted, given the way in which the appeal ground was brought to the court below.
If, in fact, the court’s approach is more than simply criticising or recording the way in which particular features were being weighed, then it was necessary for there to be a specific ground of appeal alleging specific error as to taking into account factors which had not been established on the evidence, for example, or taking into account matters which should not have been taken into account.
We have detailed those matters in our paragraphs 29 through to 31 of our original submissions, and we make the point which is a minor one, in truth, that in Western Australia there is a peculiar requirement that if the State had sought to argue specific error, they needed leave of that court to argue it and without it there is no jurisdiction to entertain those grounds.
In our submission, the process that is employed in those two pages of the record book got dangerously close to, if not, to the point of elevating one particular feature of the sentencing below – or by the primary judge – into specific areas and in a fashion that should not have been permitted, given the way in which the appeal ground was brought to the court below.
If, in fact, the court’s approach is more than simply criticising or recording the way in which particular features were being weighed, then it was necessary for there to be a specific ground of appeal alleging specific error as to taking into account factors which had not been established on the evidence, for example, or taking into account matters which should not have been taken into account.
We have detailed those matters in our paragraphs 29 through to 31 of our original submissions, and we make the point which is a minor one, in truth, that in Western Australia there is a peculiar requirement that if the State had sought to argue specific error, they needed leave of that court to argue it and without it there is no jurisdiction to entertain those grounds.
Our opponents resist the notion that the way in which the Court of Appeal approached those matters amounted to making findings of specific errors. The outcome of our primary argument does not turn on resolving that in our favour but we do point out that in the way in which, for example, the finding that at paragraph 67 where the majority wrote 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 to in fact make a finding that the primary judge took into account a factor which was not open for his Honour to take into account. Now, we do say, however, that the primary complaint about the way in which the Court of Appeal concluded manifest inadequacy is one where in the absence of the State providing cases that could be used in order to find that that which was imposed was so markedly different to those which had been imposed in similar cases really left the State with nowhere else to point to unless they could point out a specific error and that, essentially, leaves this Court in the situation of looking at the way in which the majority in fact sought to intervene.
In our original written submissions we have detailed that that which is being spoken of in the last sentence of paragraph 64 – that is appeal record 184 going over to 185 – where her Honour the President wrote:
As those working in the criminal law in this State would know, a grossly disproportionate number of offenders convicted and sentenced for manslaughter in the Supreme Court in recent years are Aboriginal, as are most of their victims ‑
coupled with the proposition put to the parties at record book 129 which was at the hearing of the original appeal where her Honour the President having got to a point in that discussion that the State was conceding that there were no cases – or conceding that the cases that they had placed, or it had placed, before the court were such that the appellant’s case was within the range, her Honour made clear at line 35 on record book 129:
The court is saying to you even if it’s broadly consistent with sentencing patterns, why should we not conclude in this case that the sentence is manifestly inadequate, having regard to the issues that we are familiar with, which is the prevalence of this sort of offending, especially amongst regional or Aboriginal ‑ ‑ ‑
and her Honour was cut off. The submission ‑ ‑ ‑
BELL J: Mr Boe, where do we get the concession from the Crown that the sentence was within the range?
MR BOE: At a number of places, but at the very outset around record 117. I should say, go back to – sorry, your Honours, go back to record book 116 at the top where Ms Linton was appearing for the State and then following to the middle of the page where she says:
So obviously, we would submit that they really are of limited assistance to the court –
that is the cases the State put before the court –
but to the extent that there could be said to be a range, this case obviously falls somewhere in that range.
FRENCH CJ: She is not talking about the sentence, she is talking about the case, is she not? She is talking about the case falling within the range covered by those kinds of cases that are being referred to?
MR BOE: The sentence imposed in this case.
FRENCH CJ: She is talking about the sentence, is she?
MR BOE: Yes, and as we wrote in our reply at paragraph 5, we make the submission that the State put several – three cases before the court, summarised them as being cases broadly similar and at appeal record 75 said in written submission that these are the ones which are most factually similar to the present case.
As I have said, on her feet counsel then departed from that characterisation and now in this Court the State agrees with the majority’s characterisation that these cases were of little guidance. In our submission, that left ‑ ‑ ‑
CRENNAN J: Is that because they pre‑dated the change in relation to double jeopardy?
MR BOE: No. It is because of the fact that two of them were, at least, unsuccessful State appeals where the double jeopardy principle applied and her Honour the President said as much at paragraph 61 which is at record 184. Just as an aside on that question, your Honours, in our written submissions at paragraph 28 – from 27, I should say – we sought to develop the argument that following on from what this Court said in both Hili (2010) 242 CLR 520 at paragraphs 54 and 55, citing what this Court wrote in Wong v The Queen (2001) 207 CLR 584 at paragraph 59, that there is a need for there to be some sort of yardstick as her Honour Justice Bell asked in the earlier appeal as to what material was before that Court of Appeal to say that a sentence was manifestly inadequate.
In our submission, it is an essential aspect of coming to a conclusion of manifest inadequacy that there be some yardstick against which a sentence is to be considered, except for the sort of case that was considered, for example, in Cranssen where it was so obvious that the sentence was just so heavy and we can think of many examples of that. The difficulty of relying on that sort of possibility or scenario in a case of manslaughter is like the explanation given by her Honour Justice Bell in relation to grievous bodily harm.
The range of circumstances that attend manslaughter is so wide and the facts and circumstances which can make somebody liable for a killing which was either unintended or provoked is such that there does need to be some assessment with like against like. We have sought to submit in paragraph 28 that included in the constellation of cases for that sort of comparison should not be excluded cases which have not been the subject of appeal or have been unsuccessfully the subject of an appeal where double jeopardy has been applied because they are still dispositions by experienced senior judicial officers taking into account what that court has to take into account when imposing sentence – that is, a range – and putting the subjective features of mitigation against the objective seriousness.
It is for those reasons that we had put before the Court of Appeal below a schedule of cases attached to our primary written submissions below and that is at appeal book 105 – a number of cases which narrowed the framework within which to make the assessment from appeal book 105 to 111. We are not submitting that any or all of them are necessarily precisely comparable. The best is really the case of Gordon which is the one case that was put before the primary judge.
Gordon was in fact worse because he had a prior conviction for manslaughter of an earlier spouse and on this occasion had used a weapon, and the sentence imposed in this case was slightly higher than it, after taking into account the transitional provisions. I have also made the observation that if the characterisation of the approach taken by the majority in intervening is one of merely weighting errors then that would not be a permissible basis to intervene.
In conclusion, in relation to count 1, our submission is that absent a yardstick or a framework within which to assess the inadequacy of the sentence imposed that there was no proper basis to come to the conclusion and that in truth the basis for intervention was premised on a belief or an expression or prevalence of this sort of offending and an understandable concern about this sort of factual scenario, but that there simply was no evidence before the primary judge for his Honour to deal with that question and there was no evidence placed before the Court of Appeal to do so.
The desire to revisit the range as it was put by the Court of Appeal when they were hearing the matter and review the range, whilst understandable with all due respect, is not a basis from which you can individually intervene with a sentence, and we pointed in paragraph 3 of our oral submissions to a specific statutory power that would permit a Court of Appeal to review a range, but as we say, that power (a) was not invoked, in fact it is disavowed by our opponents, and secondly, that section does not change a statutory requirement for intervention.
In the result and in conclusion on ground 1, our submission is that this Court should simply order that the appeal to the Court of Appeal by the State should be dismissed.
HAYNE J: Could I just take you back a bit to make sure I understand what you are putting. I would understand you to say that manifest inadequacy requires assessment against a range, and that the range is only available from past dispositions for the offence in question. Is that part of what you have said?
MR BOE: It is part of what we have said, your Honour.
HAYNE J: I would understand the proposition you say follows from that is that a Court of Appeal on a State appeal against sentence cannot vary that range by determining that the sentence under consideration is inadequate in light of what it then regards to be the proper range of sentencing for the offence in question, is that right? Have I captured it or not? I just need to understand what you are telling me.
MR BOE: The only nuance on that, your Honour, is that, whilst it could lift the range when disposing of a State appeal and lift the range to be imposed, it cannot be used as a basis for concluding manifest inadequacy. The premise of prevalence can inform the imposition of a sentence; in some jurisdictions a statute provides it. If there was evidence placed before a sentencing judge of prevalence, and the judge had not properly taken that into account in imposing sentence, that premise could also be used to find specific error on a State appeal. But where there is no specific error alleged, where there is no evidence of prevalence before the court below, the premise of prevalence should not be used as a means for finding manifest inadequacy in the absence of a yardstick against which that conclusion is otherwise reached.
HAYNE J: As to prevalence, is there any decision to which you would point which says that a court of appeal can inform itself or can be informed about prevalence only by evidence that was led at first instance?
MR BOE: The two cases that we have cited, one of which is in footnote 27 to the reply submissions, which is R v Downie and Dandy (1997) 95 A Crim R 299 – it is a decision of the Court of Appeal in Victoria, and Justice Callaway at pages 303 to 305 goes through, or essays, quite a few cases in coming to the final proposition that there is a need for evidence and the nature of that evidence can vary, but certainly that a court should be quite certain of the premise of prevalence.
FRENCH CJ: This case was not on your list of authorities?
MR BOE: It was not, your Honour.
HAYNE J: It is a long time ago, Mr Boe, but my memory is that that proposition may have been controversial at the time at which it was stated, but it is a very long time ago and I would be glad of any reference later to any subsequent discussion that occurred.
MR BOE: Yes, your Honour. The references are in our primary submissions at ‑ ‑ ‑
FRENCH CJ: My recollection more or less supports that of Justice Hayne. Sentencing judges for a long time have referred to prevalence as a relevant factor without having had material or evidence about prevalence presented to them, not to say that that is precluded, so it is hard to see why an intermediate appeal court exercising regular jurisdiction in sentencing matters should not be able to take the same approach.
MR BOE: Your Honour, the two further references is in paragraph 22 of our primary submissions and the cases are Powell v Tickner (2010) 203 A Crim R 421 at paragraph 84 and DPP v Karazisis (2010) 206 A Crim R 14 at paragraph 116. We have quoted the relevant pages at paragraph 22. In Powell v Tickner in particular at paragraph 84 the court wrote:
If the State wishes to submit that there should be harsher penalties for an offence on the ground of prevalence or increasing prevalence, it should place material before the sentencing court which establishes and explains the foundation in fact for the submission as to prevalence or increasing prevalence.
A number of cases are there cited and then –
The material may include, for example, statistics compiled by police or other law enforcement agencies or a schedule of previous comparable cases and sentences.
HAYNE J: I can understand the proposition that says, look, if the prosecution want to say this is a prevalent offence and the goal posts need to be moved, that has got to be put on the table clearly and squarely at the initial sentencing hearing, do not wait and save it up until you get into a Court of Criminal Appeal and say, by the way, let us move the goal posts now. That is a proposition I could understand, but it is the proposition that this is a matter for evidence and not for a Court of Criminal Appeal, recognising the nature of the work that is coming through its docket, which it is a bit hard to shut your eyes to the cases you are dealing with, Mr Boe.
MR BOE: Yes, your Honour, but a concept of natural justice would have to flow then because the party who is defending the sentence or seeking to contradict that as a premise for lifting the sentence should be told what cases are being gone to and given an opportunity to come back with its own catalogue of cases to address them. The converse proposition applies also where do courts of appeal then have a power to lessen sentences because from their understanding of the cases coming before it, there is less prevalent offending in a particular area of offending?
One example might be, say, the use of heroin which is an offence which seems to be diminishing. It is, with respect, a dangerous arena for a court of appeal which is conducting an appeal by way of rehearing only to introduce a factual premise into the framework for intervention, and all the more so in a case when it is a State appeal or an attorney’s appeal.
BELL J: I think, Mr Boe, this Court in statements made respecting the limitations that it is likely to impose on itself in the area of sentence has been inclined to say, well, the intermediate courts are better placed to understand the incidents of crime within the State and to have an understanding of the range of sentences for a given offence than is this Court. Now, statements of that kind do not depend upon a view that the Court has had evidence tendered before it but takes account as Justice Hayne says of what comes before the Court.
MR BOE: Yes, your Honour. With respect, the irony in this case is that if this offending is so prevalent why are there not any cases being placed before it showing that in terms of identifying a range to show even that the range is low? There just does not seem – with great respect, Mr Munda is in a situation where he does not know the site at which this argument is starting from. There could be lots of cases for manslaughter. There may be lots of cases involving Aboriginal offenders and victims, but to then put that all together and say that the nature of offending of the kind for which he has been convicted of an offence is prevalent, seems to cut across a formulation for intervention by an appeal court, particularly in a State appeal, in our submission.
Those are all we propose to say in relation to ground 1. In terms of ground 2, could we first respectfully adopt that which was exchanged between the court and the appellant in the previous case. We simply did not think there was any great utility in repeating all that fell. Our submissions are best captured in our reply submissions by reference to the limit, as we put it in our submissions, as to the Canadian jurisprudence, in particular in paragraph 15. We respectfully submit that what ultimately fell orally from the appellant in relation to those factors does not go further than that which we had identified in paragraph 15.
We have never embraced the systemic point that was in writing and we were content to submit that the primary judge in Munda did apply Fernando and that the appellate court diminished and criticised unduly the way in which that was applied. There is one further feature that is in Munda which is the issue of the likelihood of he receiving traditional punishment and if I can just deal with that briefly.
Firstly, can I take the Court to record 44 just to contain the factual matters in relation to traditional punishment. Prior to around line 40, the appellant’s counsel below had put to the Court firstly the letter from the elders which set out the detail of what, in fact, would be imposed. That is at appeal book 3. From it, it could be ascertained that the appellant is regarded as a man in Walmajarri culture, that he has to be punished in the Walmajarri way, and that was described in detail in the letter, that he might get hurt and may have to go to hospital, that if the families of the complainant are satisfied that what is inflicted is sufficient, that will be the way to make peace between families and will result in the community bringing him his kids so they may grieve together the loss of their mother.
Additionally to the prospect or likelihood, or as put by counsel below, the certainty of him receiving that ancillary punishment, at paragraph 23 of Dr Watts’ report, which is referred to in the record book but distributed separately, it is recorded by the doctor that one the hardest aspects of being imprisoned, it is at page 4 of that document, one of the hardest aspects of being imprisoned for Mr Munda is not being able to go home and resolve the family business and that was a reference to him going home to receive tribal payback.
Now, I took your Honours to appeal book 44 just to highlight that the State made the specific submission that they had nothing that they could point to to contradict the material that was placed before the primary judge that tribal punishment will occur. It is in that context that the sentencing judge had regard to that feature at record book 55 paragraph 27 of the sentencing remarks and His Honour found that:
the amount of weight that I can give to the likelihood of you suffering a payback in the future is necessarily limited.
We acknowledge that he properly took into account a relevant feature. We submit that there was no proper basis to say that the likelihood of suffering payback was necessarily limited because the evidence was all one way on that issue.
KIEFEL J: But in this case, Mr Boe, the evidence was that the traditional punishment was likely to hospitalise Mr Munda. How can the courts condone an assault to that level?
MR BOE: In taking into account the fact of punishment including serious punishment does not mean that the court is condoning that that take place. It is realistically recognising that it is going to occur because there will be consent and there can be consent to punishment short of grievous bodily harm and one could suffer ‑ ‑ ‑
KIEFEL J: Therein lies the importance of the evidence about hospitalisation.
MR BOE: One could be hospitalised, with respect your Honour, without suffering grievous bodily harm.
KIEFEL J: But without the court knowing that there will be consent to what is a near assault, how can the court take it into account in any serious way?
MR BOE: That is an issue that has been grappled with by a number of intermediary courts of appeal, in particular the Full Court of the Federal Court in the case that is footnoted in our paragraph 50 of our original submissions at footnote 130. In fact, I would invite the Court to actually read – skim through paragraph 50 and 51 of our original submission, because several courts that have considered this have had to grapple with the issue that your Honour has just raised. In particular paragraph 51:
In doing so, the court does not ‘sanction unlawful violence’ or ‘retribution’, particularly where ‘there was no evidence . . . that the form of punishment imposed was unlawful’.
That is, when there is consent, and separately the courts have said it really does boil down to how you accommodate traditional punishment. For example, the court could not take into account the receiving of traditional punishment to allow people to be released on bail to go and receive it because you are actually then encouraging it occurring. But if it has already occurred, well clearly, that can be taken into account in an ordinary way.
But if there is evidence that it is cogent, that the participant in the traditional punishment is volunteering or consenting to it, that it is to be imposed in an arena which is in accordance with the traditional values and customs of the community from which he or she comes from, then recognising that as a matter of fact that it will occur, is not to be encouraging it, rather just taking into account a factor. These were all ….. matters of evidence in weight.
BELL J: It may be relevant to note that the State in its submissions before the Court of Appeal said that the learned judge had properly taken into account the likelihood of payback but that he had given it little weight. That is at appeal book 81, paragraph 39.
MR BOE: Yes, your Honour, and in this Court the State acknowledges that it is a relevant factor to take into account. We add that the majority of the Court of Appeal simply had no regard to traditional punishment. Nowhere in the reasons of the President was there any acknowledgement of that feature.
Insofar as one additional statutory reference for the Fernando principles, we had not averted to it in our written submissions but we should point the Court to section 39 of the Sentencing Act (WA) which was considered by this Court in Dinsdale (2000) 202 CLR 321 at paragraph 13 and paragraph 54 where the Court recognised that the way in which that list is formulated was to say that gaol was to be a “punishment of last resort”.
Finally, your Honours, in relation to residual discretion, we are content to rest on our written submissions, given that there was some discretion about what factors could still stay in place following the enactment of section 41(4) in Western Australia. Your Honour Justice Crennan pointed out to the footnote in Green and we adopt that. That are, in fact, in our written submissions and, in particular, in this case, if the basis for intervention by the Court of Appeal below on the premise of prevalence was to be permitted by this Court, in our respectful submission,
that is a critical feature as to why the residual discretion ought to have been exercised not to intervene in the instant case.
We have listed in paragraph 61 of our written submissions, five propositions which I will not rehearse. We would submit that primarily in relation to point 1 but also in combination that is why the residual discretion should have been exercised. Those are our submissions, your Honour.
FRENCH CJ: Thank you, Mr Boe. Yes, Mr McGrath.
MR McGRATH: May it please the Court, I would propose to deal with each of the three grounds in consecutive order, turning first to the first ground concerning manifest inadequacy, it seems the appeal ground distils into three contentions. One, …… in the Court of Appeal and the manner in which the court approached the distilling of the sentences customarily imposed; second, the manner in which prevalence was used by the Court of Appeal; and third, the allegation of the Court of Appeal in circumstances where there was one ground of appeal transmogrified that ground into allegations of express error.
In respect to the yardstick or the range of sentences customarily imposed, the Court of Appeal approached the sole ground of appeal, in my respectful submission, consistent with principle. The plurality determined the ground by having regard to the maximum sentence for the offences the sentences customarily observed a consideration of the place which the criminal conduct occupies on a scale of seriousness and the personal circumstances of the offender.
The president at appeal book page 183 point 30 considers the applicable principle in determining what is the range of sentences customarily imposed. Her Honour says, in referring to the decision of Brown v The State of Western Australia, that:
the range of sentences customarily imposed does not establish the range of a sound sentencing discretion –
in itself. In this particular case, if we turn to as to what was put before the learned sentencing judge by the State, the State in its written submissions at appeal book page 75, line 10, acknowledged that reference was to be made to three cases: Luff v The State of Western Australia [2008] WASCA 89; The State of Western Australia v Walley [2008] WASCA 12; and R v Gordon.
Your Honours, they are the three cases to which the State referred before the Court of Appeal and were the ones also before the learned sentencing judge. Before the learned sentencing judge, the submission of the prosecutor, at first instance, was the sentencing range in the particular circumstances of this case should be between seven to nine years. This is at appeal book page 44, 20. So the State, before the learned sentencing judge, in reliance upon what the appropriate sentencing range was, did state that the appropriate range was seven to nine years. That submission may have some bearing in respect to the application of residual discretion. The submission of the State before the Court of Appeal was the range was seven to ten years’ imprisonment, and that is at appeal book page 74, 40.
The cases that were cited in the court below, Luff, Walley and Gordon, were put as the cases that were most factually similar, but to make it abundantly clear ‑ in the written outline of submissions it was abundantly clear that what affected the reliability or applicability of those decisions was that the double jeopardy principle that in respect to Gordon, a case to which the learned sentencing judge gave some store, was a determination made when the double jeopardy provisions applied and that was the cause of concern before the Court of Appeal.
In respect to what the learned prosecutor said during the oral submissions before the Court of Appeal – I will now take your Honours to it – but as I have submitted, before both the learned sentencing judge and in the written submissions before the Court of Appeal, the range was said to exceed the seven years. My learned friend took you to page 116 of the appeal book at which the prosecutor is asked questions regarding the appropriate range. If I take your Honours to 116, line 40, which is the final paragraph, what it is the learned prosecutor is saying is distilled there, that in respect of:
this type of conduct, it’s outside the range for this type of manslaughter involving this type of sustained attack on a defenceless victim in those circumstances –
and that submission has to be understood in light of the written submissions and what was said before the learned sentencing judge.
BELL J: The sentencing judge assessed the appropriate sentence as one of seven years and six months at application book 57, paragraph 33 ‑ that sentence was reduced to take account of the plea of guilty ‑ but in circumstances where the sentencing judge’s assessment was of a sentence within the range you have some difficulties, do you not, in a contention of manifest inadequacy?
MR McGRATH: There are a number of submissions I could make in respect to that. The first is, as I commenced, the range of sentences customarily imposed in itself is but one factor that determines what is the appropriate disposition in respect ‑ ‑ ‑
BELL J: I understand that, but ‑ ‑ ‑
MR McGRATH: And that is, with respect, paramount because of the particular circumstances and the ‑ of the offending and the antecedents of the offender must be considered. The Court of Appeal approached it in this way in determining what it is said to be the range. If I could take your Honours to appeal book page 84, line 62, because what arises from your Honour Justice Bell’s question is what is it is the range that is open.
BELL J: I think generally it may be accepted that manslaughter is notoriously an offence for which it is very difficult to define a range, but I had understood, perhaps mistakenly, that there had been some consideration of the appropriate range for manslaughters broadly of this character and that that had been suggested to be seven to 10 years.
MR McGRATH: Yes, that is correct, your Honour.
BELL J: Now, given a ground of appeal that asserts implicit error in the imposition of a sentence that is outside the range in the sense of being manifestly just, it being so inadequate, how does one deal with the range that it seems was common ground?
MR McGRATH: I should go back one step. When I accepted the range as put by the learned prosecutor of being seven towards 10 years, it was a submission made taking into account the final sentence imposed, that is, the discount for the early plea of guilty which under Western Australian legislation be section 9AA of the Sentencing Act. So what was clearly being put by the learned prosecutor is not a submission in absence of the taking into account all factors that bear on the exercise of the sentencing consideration and that the submission of the learned prosecutor, before the learned sentencing judge, mirrored that submission that was subsequently made by the learned counsel in the Court of Appeal.
That that submission could be made is on this basis. What the State put before the Court of Appeal was all previous authorities that may be of assistance to the Court of Appeal and the most likely cases factually to assist – Walley, Gordon, Luff were identified. What can be said is this, the appellant in this Court and the court below put no other cases – decided cases of a Court of Appeal contrary to those cases and in respect to each of those cases as they are considered by both the President and Justice Buss, they are of limited assistance. They are of limited assistance because of the application of double jeopardy and the fact that they were ultimately extraordinarily lenient, and we deal with that in our written outline of submissions which I could take your Honours to.
At paragraph 19 we steal from the reasons of decision of Justice Buss and President McLure, the difficulty in a sentencing judge or the court below relying upon Churchill, Gordon or Wally. In respect to Gordon, which was the case to which the learned sentencing judge had consideration and determined it was of limited relevance, I note that Justice Wheeler, in dissent, would have allowed the appeal imposed a sentence of nine years, which is six years post-transitional. Her Honour Justice Wheeler, though imposing that great sentence, expressly considered that there would be leniency because of the principle of double jeopardy.
So it is in that context that the respondent for the learned sentencing judge of the Court of Appeal made that submission. So the extent that it was a useful yardstick, it was put before the court below and considered by the plurality. It is in that context the President determined the cases were of limited guidance. It is well understood why. The second aspect which my learned friend raises and that is the decisions at first instance and whether or not an argument can be sustained that they can be a useful yardstick.
In my submission, extraordinary care must attend in consideration of sentences imposed at first instance. My learned friend took the Court to the schedule in the appeal book of those cases. Six may be described as offending involving Aboriginals in domestic circumstances. There is a variation in respect of those sentences.
One particular case is the matter of Tyson which is on that schedule – 106 where in 2009 a sentence of seven years in prison was imposed for a manslaughter. It would appear that the Fernando principle was applied, however, I do note it was not one of domestic violence. His Honour Justice Buss at appeal book page 202 came to this conclusion. While:
some features comparable to the respondent’s offending, each of them is distinguishable, and the sentencing outcomes in those cases are of limited utility in considering the disposition of this appeal.
The conclusion was it reflected that:
there is no sentencing tariff for manslaughter because of the great variation –
BELL J: Why is it suggested that sentences imposed, at first instance, that are not the subject of challenge are not informative at least to some degree about the pattern of sentencing for a particular offence or category within an offence?
MR McGRATH: Your Honour, it would have to be accepted they are informative to some degree but, in my submission, it would be a very limited degree.
BELL J: The matter that I want to raise with you is this. Courts of Criminal Appeal perform a role amongst other things of endeavouring to promote consistency in sentencing.
MR McGRATH: Yes.
BELL J: To that extent, if either an offender feels aggrieved that a sentence is excessively severe or the State feels that a sentence is excessively lenient, the matter is challenged and comes before the Court which then, among other factors, has an eye to the need for consistency. But if one sees that within the State of Western Australia judges at first instance are imposing sentences within a particular range for a given category of offence, why would that not be relevant to a view about what is within the range of sound discretion?
MR McGRATH: It would be informative. The degree of difficulty arises of undertaking the analysis of all factors in respect to each and every case and descending into the detail. The second point that the State or Crown chooses not to appeal a particular decision may not attend with it that the Crown agrees that a decision – the sentencing decision – is not manifestly inadequate. Other factors may bear upon that decision.
In this particular case, there was an extraordinarily narrow set of examples of previous sentencing yardsticks. One of the decisions to which the Court below was taken was of Luff and in Luff the sentences imposed there were seven years three months and that was after the imposition of double jeopardy. That supports, in my submission, that the sentence was outside the range, but I can take the point your Honour Justice Bell raises no further.
I should also say that in Western Australia we do not have a judicial commission or sentencing commission that regularly publishes details of sentencing ranges and past sentencing results are not readily available or simulated or published. That is not an answer to your Honour’s proposition, but I did look towards a New South Wales decision with some envy that that sort of information was available. May it please the Court.
If I turn briefly then to the weighting errors, we deal with this in our submissions at paragraphs 22 to 25. It is put that her Honour transmogrified the appeal ground into specific errors and we say, with respect, for the reasons that we state, that that contention is erroneous.
Given the concealed nature of implied errors, a finding of manifest inadequacy may or may not be a result of insufficient weight be given to the principle of deterrence. The use of weighting errors, this was not a ground of appeal, it was a ground brought solely on manifest inadequacy. A reference to other sentencing considerations that bear on the exercise of sentencing discretion is a proper task of the Court of Appeal and the learned sentencing judge.
Dealing with prevalence now; in understanding what is contended here it is important to have the distinction between an allegation of growing prevalence of a particular offence as against prevalence. During the hearing before the Court of Appeal her Honour the President posed a question that should this be an opportunity to look at the prevalence to raise – because of the increased prevalence, and if I can take your Honours there, this is appeal book page 117, line 10. Her Honour simply poses the question, is it “time to look at the level of sentences customarily imposed because” of the increasing incidence of this violent behaviour.
The State in the court below immediately disavowed that suggestion, that is understandable, that did not form part of the respondent’s case in the Court of Appeal, and at appeal book page 117, line 25, the learned prosecutor – counsel refers that this is not an allegation of “increasing prevalence”. Ultimately, before the court below there was no contention of increased prevalence that required an increase on the tariff.
Now, certainly the President did consider and understandably referred to the prevalence of Aboriginals in the justice system in Western Australia and this is at appeal book page 184, line 40. Her Honour makes two statements. There is the reference to Richards and it is based upon that:
the experience of judicial officers in this jurisdiction that the gross over‑representation of Aboriginal people in this State’s criminal justice system –
That is enormously regrettable, it is enormously true, it is a statement of fact. Her Honour then continues:
As those working in the criminal law in this State would know, a grossly disproportionate number of offenders convicted and sentenced for manslaughter in the Supreme Court in recent years are Aboriginal, as are most of their victims.
Once again, deeply regrettable that highly experienced appellate justice makes that conclusion which is quite clearly correct. The reference though is disproportionate as a percentage of the number of manslaughters, Aboriginal persons are overrepresented. They are non‑controvertible but they are not involve the President using the prevalence to determine there is a growing prevalence and hence there must be an increase in the range of sentences customarily imposed, but that is not what is being said.
My learned friend took your Honours to Powell v Tickner. In respect of that case, it was the State of Western Australia utilising statistical evidence in respect to the overrepresentation of glassing cases in the West Australian criminal justice system, and in order to make the submission to the Court of Appeal that the range of sentences imposed for that type of offending should be increased statistical evidence was provided as to the growing prevalence in Western Australia over the last two to three years, and for that reason the tariff and the sentences customarily imposed changed.
This was not the approach of the respondent in this case. They would be my submissions on ground 1. If I could turn then to ground 2, the antecedents. I obviously stand here with the enormous benefit of hearing senior counsel on behalf of Mr Bugmy this morning. I respectfully adopt the submissions of Mr Babb in respect to the overriding principle, and that is the adoption of his Honour Justice Brennan in Neal v The Queen (1982) 149 CLR 305 at 326. That is the paragraph as it is known to your Honours and also the principles from Fernando. It is certainly the case which we accept that social deprivation of a particular Aboriginal offender does not diminish merely because of the passage of time, nor does the applicability and relevance of social deprivation in respect of an Aboriginal offender diminish merely because the particular offender is a recidivist.
The principle, though, is this: that all relevant sentencing considerations must apply in respect to all persons, including Aboriginal offenders and that the emphasis in the particular circumstance that would be given to disadvantage or deprivation is a matter for the sentencing judge in light of the other sentencing considerations. It is not that that it just may be extinguished if there has been a history of social deprivation and that is accepted.
So the nature of the disadvantage must be identified and it must be identified and established by appropriate evidence. So the relevant importance in a particular case are that the considerations such as rehabilitation, deterrence, community protection and social rehabilitation may be paramount. The mitigating factor should not be given a weight that results in the imposition of a penalty which is disproportionate to the gravity in the instant offence. The final aspect is, of course – which is very applicable in this case – that there should not be the unintended consequence of devaluing the effects of offences on victims.
The learned senior counsel for Mr Bugmy referred to the historical context and to the extent to which it is reconcilable to the proposition of Justice Brennan in Neal. That is, that whilst it might be a relevant sentencing consideration, how does it stand with a proposition that aboriginality itself should not be a race card? The two propositions are very difficult to reconcile and how one would use this general, gross depravity in respect to the entire Aboriginal community and how it would inform in respect to a particular offender.
HAYNE J: Gross deprivation, I think, is what you mean.
MR McGRATH: Sorry, sorry, your Honour. Yes, I did, your Honour.
FRENCH CJ: What is her Honour’s approach to deprivation? She seems to be linking it really to the question whether addiction to alcohol and drugs is mitigatory in this case, is that right? I am just looking at paragraph 65 and following.
MR McGRATH: That is correct. Her Honour’s approach, if I take you in the steps, is firstly at appeal book page 182 at line 40 where her Honour recognises the respondent as an Aboriginal man and deals with salient aspects of his antecedents in that regard. Her Honour then at appeal book page 184, line 40, identifies the principles relating to the sentences of Aboriginal offenders which was canvassed in the court in Richards which ‑ ‑ ‑
FRENCH CJ: But not by reference to any particular, for example, childhood deprivation of this offender.
MR McGRATH: No. Then, as your Honour the Chief Justice said, her Honour then considers the deprivation at appeal book page 185, line 10, and after considering the evidence ‑ ‑ ‑
FRENCH CJ: She is discussing general propositions there, I think, is she not?
MR McGRATH: Yes, she is, your Honour.
FRENCH CJ: It is all related to substance abuse.
MR McGRATH: Yes it is, that is accepted.
BELL J: In that context, the principles stated by Justice Wood in Fernando (1992) 76 A Crim R 58 at 62, tend to place emphasis on the significance of alcohol in the sentencing exercise in the case of Aboriginal prisoners who have grown up in communities where that is a problem and the principles themselves exert the conflicting considerations, including the need to ensure that members of an Aboriginal community receive protection, that is that alcohol‑fuelled violence should not be, as it were, condoned.
I am paraphrasing the principles, but I say that because it seems to me that the President’s analysis at appeal book 185 is directed to the consideration of the significance that this offence occurred in the context of excessive consumption of alcohol and the circumstance that it was an offence of violence against his partner, and one can see without reference in terms to it the twin consideration of Fernando coming out there to some degree.
MR McGRATH: Yes, your Honour, and the Fernando principle as set out in the decision of his Honour Justice Buss at page 197, 198 and the propositions (D) and (E) to which your Honour refers. The reasoning of his Honour Justice Buss was that whilst acknowledging the aboriginality of Mr Munda, it was not a case whether it exists the mitigating factors often present in respect of Aboriginal offenders who have grown up in circumstances of severe deprivation difficulties.
Mr Munda’s antecedents did disclose some history of disadvantage and of an unsatisfactory upbringing. It was not of an entrenched kind or degrees minimising the resort to substance abuse or criminal behaviour, and that was the approach of Justice Buss in respect to it, and what your Honour Justice Bell and the Chief Justice says in respect to page 185 is correct.
BELL J: I think certainly Justice Buss took into account that there was evidence that Mr Munda was able to be abstinent on occasions, but against the background which I think the State acknowledges relating to the difficulties with alcohol that some Aboriginal communities have and as I understand it the evidence here that on occasion Mr Munda drank very much to excess, I just wonder about discounting entirely the significance of the abuse of alcohol because he was able on occasions to spend time in a dry community.
MR McGRATH: It is certainly a determination that is made on the basis of the evidence available and your Honour Justice Bell has referred to one aspect of it. There is also the submission made on Mr Munda’s behalf of the plea in mitigation. I would take your Honours to appeal book page 23, line 10 to 20. In those paragraphs there is reference to the escalation of drinking. dynamic change since the early 2008.
What is striking about Mr Munda is that he did not begin drinking until the age of 16 which is appeal book page 22, line 20, and you have the occasions when he does descend into binge drinking and as his Honour Justice Buss identified, there were those occasions when he was able to cease drinking and remain largely sober and there was this escalation in 2008. So in that respect there was sufficient evidence to say that there were significant periods of non‑consumption of alcohol.
In respect to the background, I note in the pre‑sentence report, which was available to both the court below and the sentencing judge, that under the heading family background, the pre‑sentence report noted the appellant’s family shielded him from the worst aspects of alcohol and violence and that he only saw a violent act once in his childhood. I do not say that to diminish it because he was in the community where this was occurring and Mr Munda is extraordinarily fortunate, but I raise that to give context to her Honour the President’s finding, that her Honour correctly considered the available evidence, and Mr Munda in that respect stands somewhat different to many unfortunate persons in his position.
BELL J: But he was a man who had led a tribal life and had then found himself drawn to Fitzroy Crossing from time to time. To discount entirely his difficulties with alcohol might be giving little consideration to the particular circumstances of Aboriginal persons in his situation, surely?
MR McGRATH: I can answer it in this way: the approach of his Honour Justice Buss which is at appeal book 201, line 40, is the acceptance to the extent that the Fernando principles were relevant, they were limitedly relevant and they were decisively outweighed in the exercise of the sentencing discretion by other sentencing factors, namely the protection of vulnerable women, personal deterrence and general deterrence, in the context of the very serious nature of the offending and the respondent’s previous conviction.
So my answer to your Honour Justice Bell is that if one adopts the approach of Justice Buss is to be preferred that it is accepted that the Fernando principle was relevant and the circumstances to which your Honour referred were relevant, they were of limited weight and in the circumstances of this particular case in the mix the sentence was the correct sentence to be imposed by the Court of Appeal. If her Honour has erroneously completely excluded Fernando principles, it does not vitiate the correctness of the determination of the court below because it was of limited weight in the mix, your Honour.
BELL J: Is that to overlook the need to identify the error in the primary judge’s reflection of those principles in the approach that he adopted?
MR McGRATH: Well, in respect to the approach of the sentencing judge, that is at appeal book page 54, line 40, I do note that in the appellant’s submission at paragraph 39, it is contended the sentencing judge only had “faint regard” to the relevance of social disadvantage and alcohol abuse. So there is a recognition of the factors of deprivation and the recognition that Mr Munda had a limited understanding of his relationship between his drinking and violence. His Honour, at the top of page 55, refers to the social disadvantage and the recognition of the limitations on “personal and general deterrence”.
CRENNAN J: In particular, the tenor of those remarks is that social deprivation may explain rather than excuse offending, I think a distinction which has been put during the course of the day by both Justice Keane and Justice Bell. To that extent it may be an approach to social deprivation of particular relevance, I suppose, to a factor such as rehabilitation.
MR McGRATH: That is accepted. Your Honours, at this stage I was proposing to take your Honours to the competing sentencing considerations which is the balancing. However, I am content to rely upon our submissions and what has been stated by the President and Justice Buss. That is, this was first very serious offending sustained violent attack on the deceased. The learned sentencing judge characterised the offending as towards the upper end of the range and her Honour the President said it was at least that. The prior record of the appellant involved a serious act of domestic violence and he was on a lifetime violent restraining order. If I could take those factors as taken and I will then move to the hardship suffered by the appellant in prison which was the second fact of the aboriginality.
We address that at paragraphs 41 to 45. In my submission, the complaint is one about whether sufficient weight was given to the fact that Mr Munda would be incarcerated. In this circumstance, if I could take you to what the appellant’s counsel said before the learned sentencing judge which is really the gravamen of the respondent’s position. At appeal book page 36, line 40, it is the acknowledgment that Mr Munda is not in the position of “a traditional Aboriginal offender” and that “he is coping reasonably well in Greenough and that much is recognised”.
Of course, we do recognise, your Honours, that some weight must be given to the fact that he would be away from his kinship and his community during the period of incarceration. This is a question of the extent to which this was a – appropriate weight was given. We do accept it remains a legitimate mitigatory factor and that the incarceration for the appellant would be somewhat burdensome. Significantly, her Honour the President’s finding in respect to that little weight should be given to the incarceration is confined to the particulars of this case and the evidence and is not worded in any way suggestive of general application.
The third complaint was in respect of traditional punishment, both in the court below and for this Court. We accept that traditional punishment, as far as the evidence established it, was a relevant sentencing consideration. Your observations of your Honour Justice Kiefel during discourse does cause great consideration and great difficulties for a sentencing judge because the possibility here it could have involved grievous bodily harm, but we did accept that it is a relevant sentencing consideration.
The sentencing judge adopted a very cautious approach in respect to traditional punishment and his Honour determined that the weight attributable to traditional punishment was necessarily limited, and it was for the case that at the point before his Honour it had not yet occurred and there was no clear evidence that it would occur and that that inclusion does not reveal any error.
If I could then turn to the final ground of appeal? Your Honour, in respect to residual discretion, I am following the reasoning of this Court in Green v The Queen, Lacey v Attorney‑General, the court below determined that despite the exclusion of the common law principles relating to double jeopardy the residual discretion in respect to dismissing the State appeal exists and their Honours and the President in particular expressly refer to the residual discretionary factors that this Court referred to in Green and said that they would quite so evidently be applied.
My learned friend in his written submissions on behalf of the appellant says that her Honour the President in considering relevant residual discretionary factors expressly excluded delay. That was not so. Her Honour did so, and in answer to that contention I rely upon paragraphs 47 to 50 of my submission and that relies upon a fair reading of the paragraphs noted in my submissions that her Honour clearly did not exclude delay as a residual discretionary factor, which comes to the manner in which her Honour approached the application of residual discretionary factors to the State appeal.
FRENCH CJ: Now, you accept I think, do you, at 52 of your submissions that the residual discretion may be applied even in the case of manifest inadequacy where there are other factors such as delay?
MR McGRATH: That is correct and it will apply to determine whether the appeal should be allowed and also at the sentencing stage. Really, the sole issue that rises is whether or not the residual discretionary factors are factors that apply when the question is, is the sentence manifestly inadequate or are they factors that apply after that determination has been made. The construction that is placed upon section 31(4) of the Criminal Appeals Act - if I could take your Honours there - I am taking your Honours to section 31(4) of the Criminal Appeals Act 2004:
The Court of Appeal may allow the appeal if, in its opinion –
(a)in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed -
The interpretation given to that construction by the court below is that there are two preconditions prior to the enlivening of a discretion to the allowing of an appeal and that is there needs to be a satisfaction of two preconditions which are subsumed in subsection 4(a), that is there needs to be an error by the learned sentencing judge and, two, a different sentence should have been imposed in the instant case. The error, we say, is one of manifestly inadequate and, second, the court would need to be satisfied that a different sentence should have been imposed in circumstances where the court considers that was an error, then the second precondition would also be satisfied.
The wording “a different sentence should have been imposed” directs attention to the circumstances at the time of the sentencing so it has been interpreted in Western Australia as a consideration as to directing attention to the circumstances at the time of the sentencing. If it is considered the learned sentencing judge made an error and a different sentence should have been imposed based upon the sentencing considerations applicable at the time of sentencing then the discretion is enlivened which is the word “may” in section 31(4). The court then has a discretion to allow the appeal.
Her Honour followed this approach at paragraph 41 at appeal book 180. Paragraph 41 is the paragraph in respect to which it is said there may be an error of approach. Her Honour recites what - the submission I have just made at paragraph 41(1), then in deciding whether or not the appeal may be allowed, 41(4)(b) comes into application and not prior. So at this point when the discretion is considered, 41(4)(a) and (b) has application. If I could take your Honours there.
Section 41(4)(a) and (b) is both permissive and restrictive. Section 41(4)(a) is permissive that it expressly provided in determining whether the discretion to allow the appeal the:
change to the person’s circumstances, relevant to the sentence that has occurred between when the lower court dealt with the person and when the appeal is heard –
must be taken into account and is restrictive in section 41(4)(b) which is the double jeopardy principle.
Her Honour applies 41(4)(b) at paragraph 3 and expressly says in consideration of 41(4)(a), all the relevant actions and the residual discretionary considerations were also applied. Her Honour, then, which is the point of conjecture, is paragraph 41(4) because at that point the reasoning mirrors that of Justice Buss. Her Honour says:
Save where parity considerations arise, the residual discretion is only likely to be exercised if the error has not resulted in a manifestly inadequate sentence.
That paragraph must be read in context of her Honour’s paragraph 33 which is at appeal book page 178, where her Honour considers section 6(1) of the Sentencing Act where her Honour poses the question that a statutory requirement that the sentence must be commensurate with the nature of the offending. Her Honour, correctly, in my submission, does:
assume in the respondent’s favour that there is a residual discretion to dismiss a State appeal against a sentence that is manifestly inadequate at the time of the appeal. However, such an outcome would be rare. With one possible exception, the residual discretionary considerations are themselves relevant to an assessment –
Two questions arise in respect to that. What does her Honour mean in respect to at the time of the appeal, that is, is it at the precondition stage or at the discretionary stage and, in my submission, it must be at the discretionary stage because the residual discretionary consideration this Court identified in Green would not, in large part, come into existence or be known at the sentencing hearing.
The question then arises, if your Honours…..at the point when the entire appeal was heard, the question is asked is the sentence manifestly inadequate and those particular factors bear upon that then they have been considered in determination of the appeal and it is not necessary to look upon them separate. I made the submission some doubt may apply or attend to that proposition.
However, regardless at the point of when the State appeal was being considered, where all relevant factors and the residual discretionary factors are being considered, whether they apply to manifestly inadequate, or whether they apply separately in the entirety, looking at the appeal, it does not lead to error because the residual discretionary factors are not excluded.
What is abundantly clear here, though, is that her Honour considered that there were no residual discretionary factors which were relevant and would result in the State appeal not being allowed. The appellant relies upon five matters in this Court. I address those matters at paragraphs 54 to 74. Your Honour, I would rely upon my written outline of submissions in dealing with each of those factors that are raised.
CRENNAN J: What did you say about the fourth of those fifth grounds that is set out in the appellant’s written submissions on page 19:
there was nearly a year’s delay in the ‘hearing and determination of the appeal’ and, under the original sentence the appellant becomes eligible for parole on 13 October 2013.
I just cannot recall, precisely, what might have been said in paragraphs 54 to 74 on that particular issue.
MR McGRATH: We deal with this at paragraph 63.
CRENNAN J: That is the delay point. What about the eligibility for parole, is that dealt with?
MR McGRATH: I will just ‑ ‑ ‑
KEANE J: On your footnote 101 you say that he would not have been eligible for parole until 13 October 2013 under the original sentence.
MR McGRATH: Yes, I am obliged to your Honour. I was looking for that within my submissions and I could not find the paragraph, but that is the reference. As we say in respect to delay, the court procedures were followed and no extensions were granted and the appeal was heard in the timeframe set and the delay in part may be said in publication of reasons for decision is the raising of further issues at the hearing by the appellant, but of course he is most entitled to do so. May it please the Court, they are the submissions for the respondent.
KEANE J: Mr McGrath, before you sit down, can I just ask you, is it apparent from the record whether the children were at home during the assault in which the deceased was killed?
MR McGRATH: No, it is not.
FRENCH CJ: Thank you, Mr McGrath. Mr Boe.
MR BOE: …..reply. Justice Bell asked a question concerning the relevance of single judge dispositions and I just simply point to Hili v The Queen (2010) 242 CLR 520 at paragraph 54 where reference is made to that issue by the Court. There was a submission made as to the distinction between prevalence and an increase in prevalence. I can point the Court to the decision of R v Downie and Dandy (1997) 95 A Crim R 299 at 304, point 4, which I referred to earlier, where that distinction was addressed.
There was a reference to the personal circumstances concerning the issues of drinking and the bouts of binge drinking. I ask the Court to have regard to what is said at point 6.5 in our written submissions, that in addition to the bouts of binge drinking when he was not living in Mindi Rardi, that there was at least a two‑year period where his life had spiralled out of control in the way in which it is described by submissions by counsel before the sentencing judge at 6.5 that we have recorded where both he and his wife were sucked into the vortex of acute alcohol abuse such that both of them had been banned from the local tavern, such that his resort to drinking was to drink fast in the time allocated to him, and bearing in mind that there is a direct relationship between the nature of the conflict in the relationship and his and her abuse of alcohol.
Nextly, there was a reference by Justice Bell that there may have been a regard to a range of seven to 10 years. In our respectful submission, those figures only fall from the mouth of the prosecutor before Commissioner Sleight. There was never any cases pointed to to give that range. The cases that were put, there was only one case put before Commissioner Sleight and that was Gordon. Even though the sentence was seven years there, it in fact was four years, eight months for comparative purposes.
The detail of the sentences imposed in the remaining cases is now footnote 52 in our written submissions referred to in paragraph 29. There was a conversation again with Justice Bell about whether talking about the weight to be given to the Fernando proposition was concealing the inability to defend that the original judge did in fact weigh all those factors and the attack now is really on matters of weight given by his Honour, and that would be impermissible for the reasons we have submitted both in writing and what I have attempted to do earlier.
In that respect, there was a reference to our written submission 39 by reference to what had been said was faint regard. May I suggest that what had been submitted in paragraph 39 was that that which had been given by the primary judge was limited to the one consideration in Fernando, that is the difficulties of time in custody and that is what I meant by faint regard rathe than that the factual circumstances do not permit always being given to the Fernando considerations. They are the matters in reply.
FRENCH CJ: Yes, thank you, Mr Boe. The Court will reserve its decision. The Court adjourns until 10.15 tomorrow.
AT 4.01 PM THE MATTER WAS ADJOURNED
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