MWH v The Queen

[2002] HCATrans 355

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M111 of 2001

B e t w e e n -

MWH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 SEPTEMBER 2002, AT 10.41 AM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC:   If the Court pleases, I appear with my learned friend, MR C.B. BOYCE, for the applicant.  (instructed by Basil Nuredini)

MR J.D. McARDLE, QC:   May it please the Court, I appear with my learned friend, MR T.P. BURKE, for the respondent.  (instructed by the Office of Public Prosecutions (Victoria))

GAUDRON J:   Yes, Mr Tehan.

MR TEHAN:   Your Honours, how does a court sentence a 57‑year‑old man for offences which commenced when he was an 18‑year‑old youth, a youth who was himself a recognisable result of violence, sexual abuse and alcoholic excesses which he himself suffered and witnessed as a child and then inflicted on others.

How does a court sentence the different man, the man who has worked hard, led a blameless life and in fact become an asset to the community 30 years after the last of his offending, your Honour?

GAUDRON J:   Well, now, those matters were taken into account by the sentencing judge, were they not?

MR TEHAN:   They were.

GAUDRON J:   Well, then, what do you say was the error if the matters were taken into account?

MR TEHAN:   The error is that the judge failed, in our submission, to ameliorate aspects of deterrence and punishment because of the long delay and the sustained and continuous period of rehabilitation that the applicant had undergone.

HAYNE J:   Should that have been reflected in different individual sentences, in a different order for cumulation or in a different order for non‑parole?  Where do you say the error has occurred?

MR TEHAN:   It should have been reflected, your Honour, in different orders as to cumulation, a different total effective sentence and a different non‑parole period.

HAYNE J:   Because you began in the Court of Appeal, did you not, from the premise that the sentences imposed for the individual offences were taken separately, each within range?

MR TEHAN:   Yes.

HAYNE J:   That is still the position, I take it, is it?

MR TEHAN:   Yes.

HAYNE J:   Therefore, you are concerned with the orders for cumulation?

MR TEHAN:   Yes.

HAYNE J:   Now, accepting that the judge had to tailor the sentence to arrive at a result, what point of principle emerges, what question arises about the way in which the cumulation orders are structured in this case?

MR TEHAN:   The principle is this, your Honour, that it is a recognised principle that where prior to sentence there has been a lengthy process of rehabilitation, and the evidence does not indicate a need to protect society from the offender, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.  Now, it is that principle, in our submission, which has been violated in this case, and it has been violated, as indicated by the length of the sentence imposed, at first instance, and affirmed by the appellate rules?

GAUDRON J:   But does that not merely come to an argument that, in the circumstances, the sentence was manifestly excessive?

MR TEHAN:   That was the argument in the Court of Appeal.

GAUDRON J:   Is it any better than that in this Court?

MR TEHAN:   It is the argument in this Court, with the additional matter that we raised and that is the applicability of the legislation under which the applicant fell to be sentenced, because – and that is a matter upon which special leave should be granted because the applicant, in our submission, fell squarely within the terms of the principle that we have just put to the Court.

GAUDRON J:   But the sentencing judge said, in terms, did he not, that it was, notwithstanding section 6D(a) of the Sentencing Act which is a provision you refer to, neither necessary nor appropriate to oppose a sentence that was longer than that which the gravity of the offences required?

MR TEHAN:   That is only one aspect of the provision that we are dealing with, your Honour.  That does not mean that the judge did not regard the protection of the community as the principal purpose for the sentence that he was imposing.

GAUDRON J:   He did not so say.

MR TEHAN:   Well, he did say.  He said that in ‑ ‑ ‑

GAUDRON J:   They were horrific crimes.  They were horrific crimes.  There were a substantial number of crimes.  Is that not correct?

MR TEHAN:   That is right, your Honour.

GAUDRON J:   They were crimes which, on any view, objectively, warranted a considerable sentence, and it is conceded, I take it, that the sentence imposed for each individual offence, was appropriate?  You are forced back to the position of saying, are you not, “The sentence is manifestly excessive given the subsequent rehabilitation of the offender”?

MR TEHAN:   We make that point, your Honour, and we say that the applicant in this case clearly fell within the principle that we have enunciated because he posed no threat to the community ‑ ‑ ‑

HAYNE J:   And the judge accepted that, see pages 66 to 67.

MR TEHAN:   ‑ ‑ ‑ protection of the community was irrelevant.  The problem is this:  he failed to be sentenced under legislation which provided that the court, in determining the length of imprisonment to be imposed upon him, have regard to the protection of the community as the principal purpose for the ‑ ‑ ‑

HAYNE J:   Does not his Honour reject that at the head of 67?

MR TEHAN:   At application book page 66 ‑ ‑ ‑

HAYNE J:   I am looking at the top of 67.

MR TEHAN:   All the judge said was:

I accept the opinion of Dr Wahr, that you are not likely to re‑offend, in considering the sentencing purpose of protection of the community from you.

That is not a rejection of the proposition contained within section 6D(a).

GAUDRON J:   What you have at page 66, which seems to me to be important, his Honour the sentencing judge said of the statutory requirement to protect the community, neither:

necessary or appropriate to achieve that purpose to impose a sentence that is longer ‑ ‑ ‑

MR TEHAN:   There was no ‑ ‑ ‑

GAUDRON J:   Then he says he does not:

give specific deterrence any particular weight.

Page 66.

MR TEHAN:   At line 23, your Honour, on page 66, his Honour said:

As I have said, the Act provides that protection of the community is the principal sentencing purpose for offences for which you are being sentenced as a serious sexual offender and which are relevant offences under the Act.

GAUDRON J:   Not likely to re‑offend, so ‑ ‑ ‑

HAYNE J:   “Behaviour paedophilic, you are not a paedophile.”

MR TEHAN:   The dilemma in this case is this, that this was a case where protection of the community was really irrelevant as a sentencing consideration, and yet the legislation under which the applicant was sentenced provided that the court had to regard that factor as the principal purpose for sentence.  Now, the need to properly answer the dilemma created by that tension ‑ ‑ ‑

GAUDRON J:   Well, it does not seem to me that it helps your case to point to the statute.  It seems to me that the statute – the trial judge could as easily have said, “Protection of the community important.  That includes general deterrence and there must be condign punishment by way of general deterrence for the horrific crimes committed”, and they were horrific.

MR TEHAN:   Protection of the community is only one of the factors.

GAUDRON J:   But it could have been taken into account much more than it was, it seems to me, without there being any error of sentencing principle, and it is very difficult for you to say that there was an error of sentencing principle if the sentencing judge was simply giving effect to the statute.

MR TEHAN:   Well, that is the problem, your Honour, giving effect to the statute and making it work in a ‑ ‑ ‑

GAUDRON J:   Well, what else can you do but give effect to the statute?  Assuming that is what was being done, by what warrant can you say a sentencing judge can ignore the mandates of the Sentencing Act?

MR TEHAN:   We submit that the statute is a directive or a signpost as to the first and primary matter that a judge is to look at in sentencing a serious sexual offender.  We submit that the judge has to make a finding in relation to that issue.  In this case, the judge made no finding in relation to that issue.  That was a finding which obviously would have been advantageous to the applicant.  We have been deprived of that advantageous finding, both in the court below and by the primary judge, and in that sense we say ‑ ‑ ‑

GAUDRON J:   Mr Tehan, that is not right.  It was accepted that he was not likely to re‑offend.

HAYNE J:   That was the whole premise of what his Honour did.

MR TEHAN:   That simply means that the statute – and it has become practice in this State to simply chant the words of the statute.  It has to be given some meaning.  We submit, that the meaning that it ought to be given is that it is nothing more than a primary directive which in this case the judge should have found was not applicable.

GAUDRON J:   He did – he virtually did.

MR TEHAN:   Well, your Honour, with respect, we do not accept that proposition.  We submit that by the statements of his Honour contained at page 66, in particular ‑ ‑ ‑

GAUDRON J:   What is wrong with them?  We can go through them one by one.

MR TEHAN:   All the judge said, with respect, your Honour, was that he was unlikely to re‑offend.

GAUDRON J:   No, he said, for the purposes of protecting:

the community . . . it is not necessary or appropriate to….impose a sentence that is longer that that which is proportionate to the gravity of each of the relevant offences, in the light of each of those offence’s objective circumstances and accordingly I do not do so.

MR TEHAN:   There was no issue as to that matter, as to section 5B in the case either before the judge or in the Court of Appeal, but if, for example, the view ‑ ‑ ‑

GAUDRON J:   Then he said:

I do not think it is necessary to give specific deterrence any particular weight.

MR TEHAN:   Which is no more, with respect, your Honour, than a statement that the applicant was unlikely to re‑offend.  That did not mean that protection of the community from the offender was irrelevant.

GAUDRON J:   Then it says – but you see, you are not reading the remarks on sentence properly, because the sentencing judge said, although they are serious sexual offences, they are:

to be seen in the context of the circumstances applicable during the period of offending and . . . to be seen in the light of your not having re‑offended and the efforts that you have made to rehabilitate yourself.

MR TEHAN:   Your Honour, I accept those matters, but what we do not accept is that protection of the community was treated as being irrelevant in this case.  We submit it should have been treated as being irrelevant because it was indeed irrelevant, and the judge was, however, bound by this dilemma which we submit raises a special leave point to chant – to give some meaning to the statute.

Now, the only meaning that can be given to the statute is that it is a directive for a court to consider this matter as a first matter to be considered when sentencing a serious sexual offender, and to make a finding of fact upon the issue of protection of the community.  In many cases it will be the case that protection of the community remains a significant, if not a major sentencing consideration, but that was not the case here.

HAYNE J:   No, it is protection of the community from the offender.

MR TEHAN:   From the offender.

HAYNE J:   Yes.  Why are the sentencing remarks not open to the construction that this judge considered that the community did not need protection from the offender, and therefore structured the sentence according to other relevant principles?  If that is so, the question becomes one of manifest excess?

MR TEHAN:   If that is so, it does become a question of manifest excess.  I accept that, your Honour, but we would submit that at line 11, page 66, the statement of his Honour referring to the statute; the continuous statement of it again at line 22, page 66, the reference to the nature of the sexual offending, all indicated that the judge was having regard to and accepting that protection of the community was a relevant sentencing ‑ ‑ ‑

HAYNE J:   Or was having regard to the repeated comments by the Court of Appeal of this State, “There is a statute which governs this.  Read the statute and apply the statute.  Tell both the offender and the appellate court, in the sentencing remarks, that you have taken into account the relevant matters”.  Why should we read it as more than that?

MR TEHAN:   And applying the statute in this case, your Honour, would have demanded a positive finding that protection of the community from the offender was not a relevant sentencing consideration, and that great weight should be given to the purpose of rehabilitation and the long delay between the last of the offending and the time of the sentence, that is a period of some 30 years.

We submit, that the judge, having considered the terms of section 6D, was bound to find that protection of the community in this case was irrelevant.  The applicant was denied that finding and in that way we submit that there has been a miscarriage of justice.

The questions that we raised at the outset are, in our submission, of real importance because, every day around Australia, criminal trial and appellate courts grapple with the problems of sentencing offenders for sexual crimes which occurred a long time ago.  In our submission, there is a real tension and dilemma between the terms of the statute under which the appellant fell to be sentenced and the facts of this case.  Applying the statute to this case would have demanded the positive finding, we submit, we were denied, and for that reason special leave should be granted.  If the Court pleases.

GAUDRON J:   Yes, thank you, Mr Tehan.  We need not trouble you, Mr McArdle.

Given the learned sentencing judge’s observations to the effect that, notwithstanding section 6D(a) of the Sentencing Act 1991 (Vic), it was neither necessary nor appropriate to impose a sentence that was longer than that appropriate to the gravity of the offences committed by the applicant. The primary argument advanced by reference to that provision is without merit.

Further, we are unable to conclude that the sentence imposed was infected with any error of the kind that would warrant appellate intervention.  Accordingly, special leave is refused.

AT 11.00 AM THE MATTER WAS CONCLUDED