Mununggurr v The Queen

[2007] HCATrans 51

[2007] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D7 of 2006

B e t w e e n -

DARREN DWAWAI MUNUNGGURR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 9 FEBRUARY 2007, AT 9.56 AM

Copyright in the High Court of Australia

MR D.GRACE, QC:   If the Court pleases, I appear with MR I.L. READ for the applicant.  (instructed by Northern Territory Legal Aid Commission)

MR W.J. KARCZEWSKI, QC:   May it please the Court, I appear with my learned friend, MR N. ROGERS, for the respondent.  (instructed by the Office of the Director of Public Prosecutions (NT))

KIRBY J:   Yes, Mr Grace.

MR GRACE: Your Honours, the issues raised in this application concern, firstly, the existence or otherwise of a causal link between the applicant’s intellectual disability and the offending and, secondly, whether or not that causal link has been established, whether the application of the principle of general deterrence was required to be ameliorated in the circumstances of the offender. The starting point, your Honours, is section 5 of the Sentencing Act (NT).

KIRBY J:   I thought that Champion and other cases said that it is specific deterrence that cannot operate in the ordinary way.  General deterrence is not affected by intellectual disability.

MR GRACE:   I beg to differ, your Honour.  I can take your Honour firstly to Champion if that would be of assistance, and to your Honour’s judgment in Champion 64 A Crim R 244. At page 254 your Honour said this, after referring to the various sources of authority for the relevant principles. At point 7 on the page your Honour quoted with approval the comments of Justice Badgery-Parker in an unreported decision of Letteri.  Your Honour said this:

In Letteri, Justice Badgery-Parker Justice (with the concurrence of Gleeson CJ and Sheller JA) said (at p 14):

“The principle … is clear enough.  It is correctly stated as follows – that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap.  In an extreme case, the proper application of this principle may produce the result the considerations of general deterrence are totally outweighed by other factors.”

The reason for this variation on the usual theme is not hard to find.  It is imputed to the general community that it will understand that a person with the intellectual capacities of a child will need to be deterred but may need special attention in order that the deterrence will be effective.  Moreover, the full understanding of the authority and requirements of the law, which may be attributed to the ordinary individual of adult intellectual capacities, cannot be expected of a person who, although adult in bodily form, retains the intellectual capacities of a child.  Because the constraints which may be demanded of a person with ordinary adult intellectual capacities may not operate, or operate as effectively, in the case of a person with significant mental handicaps, the community (reflected by the judges) applies to such people the principles of general deterrence in a way that is sensibly moderated to the particular circumstances of their case.  General deterrence still operates.  It is in place for the protection of the community and the victims of offences which the community rightly takes most seriously.  But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given.

That is the guiding principle and really ‑ ‑ ‑

KIRBY J:   There is not really much doubt, is there, about the principles of how you address cases of intellectual impairment.  The principles laid down in Champion and in Engert are pretty well entrenched in the intermediate courts, are they not?

MR GRACE:   Except there seems to be a distinct trend in New South Wales courts to apply the principle even where there is no causal link.  That has not been the approach that has necessarily been followed in other States.  In Victoria there is a sort of halfway approach, but certainly in the Northern Territory, South Australia, in some cases in Victoria, the approach has been there has to be established a causal link.  But New South Wales is different and it is exemplified by the most recent decision in 2006 on this issue in New South Wales and the case of Benitez 160 A Crim R 166. There the Court of Criminal Appeal comprised Acting Justice of Appeal Hunt and Justices Simpson and Rothman. In the judgment of Justice Simpson at page 174 Justice Simpson quoted with approval the decision of Letteri, which I have just read from, set out in some detail an extract from Chief Justice Gleeson’s judgment in Engert which I will not read, and at paragraph 38 said this:

A mental disorder such as the applicant’s depression was identified by Gleeson CJ in Engert as being part of the circumstances of the individual case.  Generally speaking, the well-known authorities indicate that mental disorder may be relevant to the assessment of the offender’s culpability and to the level to which it is appropriate to give greater or lesser emphasis to principles of general or specific deterrence.

KIRBY J:   Yes, but in this case the primary judge, the trial judge, who had these principles drawn to notice and did not question the principles in Engert and Champion nonetheless considered that objectively what your client did was a very serious offence against a very young person and that your client knew that what he was doing was wrong and that therefore whatever may be the general principles in the particular case where the primary judge obviously has advantages that we do not have, that there was not the relevance of these principles, and that is where causation is said to be pertinent.

MR GRACE:   Our submission is that there appears to be a lack of appreciation or consideration by the learned sentencing judge of the principles that go to the amelioration of the principle of general deterrence in a case such as this. 

KIRBY J:   But she did refer to those cases.

MR GRACE:   No, she did not, your Honour.

KIRBY J:   I thought she had referred to Engert.

MR GRACE:   No, the Court of Criminal Appeal referred to Engert.  If I could take your Honours to page 8 in the application book, at line 40 her Honour says this:

The consequence of such offending can be long lasting, as far as the victim is concerned.  The aspect of general deterrence is important, as to a somewhat lesser extent in the case of Mr Mununggur, is specific deterrence.

Darren Mununnggur has an intellectual disability.  However the psychiatric and psychological reports that have been tendered and the evidence given to the court by Mary Mununggurr make it clear Darren Mununggurr well understood that what he did was wrong.

Then her Honour goes on to other matters.

At page 9 she refers to a number of authorities which do not touch on this issue of intellectual disability, they are relevant to general sentencing patterns for offences of this nature.  She then imposed a sentence.  If you will see the penultimate paragraph of her sentencing reasons, she gives a 25 per cent discount for the plea of guilty and comes to a sentence of ten years and six months.  That reveals that the starting point must have been 14 years, just by taking into account the plea of guilty because a quarter of 14 years is three and a half and that reduces the sentence to 10 and a half but if she has already reduced the sentence for specific deterrence, then the starting point must have even been much higher. 

When you come to the Court of Appeal’s judgment at paragraph [18] at application book page 22, after quoting from her Honour’s reasons for sentence the court says this:

There was no material before the learned sentencing judge suggesting that the offending was in any way contributed to by the appellant’s intellectual disability.  The learned sentencing judge’s finding that the appellant well understood that what he did was wrong at the time he did it was supported by all the evidence.  In order for a psychiatric illness or mental disability to be regarded as ameliorating the need for general deterrence, the onus was on the appellant to demonstrate how the illness or disorder related to the offending, that is, how its effect reduced the seriousness of the offences and the appellant’s moral culpability.

[19]     It is not the law that a person suffering from a mental disorder is on that account alone necessarily entitled to a discount when being sentenced.

Then there is reference to Chief Justice Gleeson’s statement in Engert.  Nothing of much moment, other than setting out in detail some extracts from Engert, occurs in the reasoning process in the judgment.  Could I just return very briefly to Benitez.

KIRBY J:   The sentencing judge did spend quite a lot of her reasons dealing with the fact, extent and degree of mental impairment on the part of your client.

MR GRACE:   Yes.

KIRBY J:   So that she may not have referred to the authorities but the only relevance of referring to those facts was as they invoked well‑known principles concerning how you deal with a person with intellectual impairment.  You do not have to go through a mantra of the cases.

MR GRACE:   That is true.  However, this issue of the causative link was the lynchpin, we submit, for the Court of Appeal not acceding to the appellant’s ground of appeal.  Could I take your Honours to the actual reports that were tendered which have been provided to the Court independently of the application book.

KIRBY J:   These were before the sentencing judge, were they?

MR GRACE:   Yes, they were, and before the Court of Criminal Appeal.  The reports are of Dr Lester Walton and of a Ms Kim Groves.  Do your Honours have those reports?

KIRBY J:   Yes.

MR GRACE:   Could I take your Honours at once to Dr Walton’s report and to page 3 of that report.  There Dr Walton in paragraph 1 under his “Opinion” at point 7 on the page says that in his opinion Mununggurr is intellectually disabled.  There does not seem to be any dispute about that.  He goes through the various outcomes of that diagnosis in terms of his ability to be fit to plead and it says that in his opinion he would not be fit to plead if it was a contested trial but would be fit to plead if it was a plea. 

I will not trouble your Honours any further in relation to that report but if I could turn to the report of Ms Groves, Ms Groves at page 6 of her report:  “My opinion is that Mr Mununggurr is showing signs and symptoms of mental disorder consistent with a DSM‑IV diagnostic criteria for mental retardation, severity unspecified ‑ ‑ ‑

KIRBY J:   What paragraph are you reading?

MR GRACE:   From paragraph 1.

KIRBY J:   Yes.

MR GRACE:   “I would estimate the severity of intellectual disability to be moderate to severe –

Then, crucially, at paragraph 3, the second sentence:

It is my impression that his intellectual disability and alcohol intoxication combined to impair his judgment, and decision‑making abilities to result in an impulsive behaviour which he knew was wrong at the time of the offence.

That is the causative link.  That is the evidence of the causative link and it was quite wrong.

CALLINAN J:   But it does not negative an appreciation of wrongdoing.

MR GRACE:   No, it does not.

KIRBY J:   Indeed, it includes the statement he appreciated it was wrong.

MR GRACE: Yes, it does, but an appreciation of the wrongdoing does not ameliorate necessarily the impact of intellectual disability on the application of the principle of general deterrence. Could I refer your Honours to section 5 of the ‑ ‑ ‑

KIRBY J:   We are not a general court of sentencing appeal and the Court of Appeal of the Northern Territory had the correct principles before it.  It referred to Engert and it referred to other cases and it did not consider that the matter required its intervention.  Now, why would the High Court of Australia become involved in this issue, which is not its proper province?

MR GRACE:   There are two reasons.  Firstly, in the circumstances of this case it is submitted there has been a miscarriage of justice by the wrong factual finding of the Court of Appeal.

KIRBY J:   If you look at it objectively, this was a very young boy.  He was 11 or ‑ ‑ ‑

MR GRACE:   An 11-year old.

KIRBY J:   As Justice Thomas said, these events can cause lifelong trauma to the persons concerned, and the accused knew what he was doing was wrong.  The actual sentence that was imposed, when you look at it as a non‑parole period, does not strike me as outside the range of what would be available.  I say that as somebody who has not sat in a Court of Criminal Appeal for 11 years, but that is just the intuitive impression when one looks at the sentence.  Then you ask should there have been a greater discount because of his intellectual impairment and its interaction with alcohol?  Well, that is a matter on which minds can differ.  What objective principle could we lay down other than the cases to which the Court of Appeal referred?

MR GRACE:   It has to be looked at from the point of view about whether this applicant is a proper vehicle or medium for the application of general deterrence to all those in the community who would be minded to commit similar offences.

CALLINAN J:   I do not think that is right, Mr Grace, because the trial judge made a finding of fact.  Now, I know what you say.  You say there is some, as you would put it, uncontradicted expert evidence to contradict the findings.  But the primary judge had to consider everything and had to consider the very graphic and stark facts themselves.  Sometimes the facts contradict expert evidence, but the primary judge has made a finding.  It seems to me that it is an open finding and you do not even get, in my view, a tentative view anyway, to the principle that you are talking about because the primary judge, it seems to me, has made a factual finding against you which is equally open on the facts, the uncontradicted facts of the offence itself.

MR GRACE:   We do not cavil with the finding by the primary judge of the finding of the seriousness of the offending, the knowledge that it was wrong.

CALLINAN J:   Then it seems to me that the psychiatric opinion assumes a great deal less importance and does not really assist.

MR GRACE:   It assists in terms of what the Court of Criminal Appeal said recently in Benitez, and if I could just return to that very briefly at paragraph 39 where Justice Simpson said:

In my opinion it was an error for his Honour to direct himself in terms that suggested that the applicant’s depression, if not causative of his offences, was irrelevant to the sentencing process.

CALLINAN J:   But the primary judge here had regard to all of those matters.  The primary judge did not overlook the intellectual impairment.  It is not in every case where intellectual impairment is going to affect the sentence.  There may be other very compelling factors which outweigh it.

MR GRACE:   But the applicant was entitled to have his appeal before the Northern Territory Court of Criminal Appeal determined on the proper facts.  That court, for whatever reason, did not determine that appeal on the proper facts.  It determined that appeal on the basis there was no causative link when in fact there was.  If it had found that there was a causative link ‑ ‑ ‑

CALLINAN J:   It is a very, very slight causative link and there is an intervening circumstance, a knowledge and appreciation of wrongdoing.  The psychiatrist’s report does not go further than saying that a combination of alcohol and intellectual impairment may have been the triggering factor or may have been the commencing factor, but throughout the applicant understood that this was wrongdoing.

MR GRACE:   There is an important aspect of what your Honour just said, with respect, and that is that the combination of the alcohol and the intellectual disability impaired his judgment.

CALLINAN J:   No, not to the extent at any stage of impairing his judgment of the gravity and the criminality, more particularly, of what he was doing.  It never impaired his judgment in that regard.

MR GRACE:   Yes.  I see my time is up.

KIRBY J:   Yes, thank you, Mr Grace.  Mr Karczewski, what do you say about the suggestion that the actual sentence imposed by the sentencing judge started from a point that rather indicates that she did not take into account in any way the issue of intellectual impairment?  I think in your submissions you say she did and certainly she referred to it and it is a substantial part of her reasons.  Mr Grace has just unsettled me a little by saying that you go to the head sentence and you allow that that has been reduced for the plea of guilty and then if you add then what would be the quarter on top of that, you get back to a very high sentence for this offence.

MR KARCZEWSKI:   Her Honour, the learned sentencing judge had two cases handed up to her in the submissions on sentence by the Crown.  Both cases involved sexual offending on children and I think I am correct in saying that both of those cases involved applicants who were intellectually impaired to some extent.  What we would say is this that the sentence that her Honour imposed accorded with at least those two sentences to which her attention was drawn.

KIRBY J:   Mr Grace has pointed out that her Honour did not refer to any of the authorities.  Is that significant in this case?

MR KARCZEWSKI:   We would say no because at the end of the day when one goes to the judgment of the Court of Criminal Appeal, the Court of Criminal Appeal undertook a ‑ ‑ ‑

KIRBY J:   They certainly paraded the well-known cases and ‑ ‑ ‑

MR KARCZEWSKI:   Yes, they did, but before the Court of Criminal Appeal the third ground was that the sentence was in all the circumstances manifestly excessive and the final paragraph of the court’s judgment, paragraph [25] on page 26 of the application book the court said:

As to the third ground of appeal, having regard to the gravity of the offending and the circumstances of the appellant, the sentence, although substantial, is not outside the proper range of the sentencing discretion.  It is not excessive.

So certainly the Court of Criminal Appeal ‑ ‑ ‑

KIRBY J:   Well, in any case, as we have said many times, we are not here as such to review the reasons.  In the end we are here to review the order or judgment and if that is correct or within a range or open to the decision below, then our job is not to parse and analyse what was said.

MR KARCZEWSKI:   That is so, and we would say ‑ ‑ ‑

KIRBY J:   What do you say about Mr Grace’s suggestion that a difference of principle is emerging as between, say, the Court of Criminal Appeal of New South Wales and other appellate courts?

MR KARCZEWSKI:   We would say that is not the case.  In any event, even if it were, it does not assist the applicant in this case for the following reason, that if it might be said in this case that the Court of Criminal Appeal did err in finding no causal connection between the offending and the applicant’s intellectual disability, then that is not the end of the matter, because in its reasons below the Court of Criminal Appeal in fact examined the sentence on a broader basis.  If I could take your Honours to the application book at pages 24 and 25, paragraphs [22] and [23] of the joint judgment.  In the earlier paragraphs the court has recited at some length from the judgment of Chief Justice Gleeson in the case of Engert and then in paragraph [23] refers to the judgment of Justice Allen in the same case.

KIRBY J:   Justice Simpson appears to have thought she was applying Engert.

MR KARCZEWSKI:   Yes, she did.

KIRBY J:   And the Court of Criminal Appeal of the Northern Territory in this case applied Engert and Engert in turn had built on Champion, I think it was, so that there does not appear to be at the root of the matter a difference of legal principle or the cases.

MR KARCZEWSKI:   No.  Can I take your Honours to the judgment of Justice Allen.

KIRBY J:   I think we have heard enough, thank you very much.  Anything in reply to those submissions, Mr Grace?

MR GRACE:   No, your Honour.

KIRBY J:   The sentencing principles applicable to the disposition of the application do not appear to have been in doubt in the court below.  They are stated in cases in the intermediate courts of Australia.  There does not appear to be any difference in the expression of them.  See, for example, Champion v the Queen (1992) 64 A Crim R 244 and Engert v the Queen (1995) 84 A Crim R 67.

The applicant is described as an intellectually disabled, illiterate, innumerate person and from a remote Aboriginal community.  Intellectual impairment, if proved, is relevant to sentencing because it may render deterrence of less importance.  Here the Court of Appeal specifically referred to that principle.  It did not question or qualify it.  However, for the impairment to attract the greater significance of a specific discount, it was held necessary that a causal link be established between the impairment proved in the evidence and the offence in question.  This, the sentencing judge had concluded, was not established by the evidence.

The Court of Criminal Appeal found no error in that determination and it referred to the relevant authorities.  It upheld the sentencing judge’s conclusion and the exercise of the sentencing discretion.

The offence of rape against a nine‑year‑old child was correctly described as very serious.  The sentencing judge’s conclusion was that the applicant “well understood that what he did was wrong at the time he did it”.  That conclusion was not disturbed on appeal.

There are no reasonable prospects of success in an appeal, were special leave granted.  Special leave must therefore be refused.

MR GRACE:   If the Court pleases.

MR KARCZEWSKI:   If the Court pleases.

KIRBY J:   The Court will now adjourn to establish the video link to Melbourne in the following case.

AT 10.24 AM THE MATTER WAS CONCLUDED