Perini v The Queen & Anor

[2011] HCATrans 201

[2011] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B17 of 2011

B e t w e e n -

MAURIZIO PERINI

Applicant

and

THE QUEEN

First Respondent

THE ATTORNEY-GENERAL OF QUEENSLAND

Second Respondent

Application for special leave to appeal

HAYNE J
HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 12 AUGUST 2011, AT 9.30 AM

Copyright in the High Court of Australia

MR J.J. ALLEN:   If the Court pleases, I appear with my learned friend, MR J.D. BRIGGS, for the applicant.  (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, SC:   If the Court pleases, I appear with my learned friend, MR A.D. ANDERSON, for the respondent.  (instructed by Director of Prosecutions (Qld))

HAYNE J:   The Court might be assisted, Mr Allen, if we heard first from Mr Moynihan.

MR ALLEN:   If the Court pleases.

MR MOYNIHAN:   Your Honours, the critical findings in this case, which I will take your Honours directly to, mean that the appeal was correctly decided on the facts and the law at the time, including issues going to both jurisdiction and competence, and no matter what the test applied the findings mean that the sentence was plainly unreasonable or unjust and there is no miscarriage of justice which would attract this Court’s visitorial jurisdiction.

If I can take your Honours directly to the findings?  At page 27 of the application book at paragraph [15], there the Chief Justice found that the “diminished responsibility” was plainly a matter that “reduced the respondent’s moral culpability”.  Then in paragraph [17] his Honour found that “there is a high likelihood that” the respondent would “re‑offend violently . . . unless strictly controlled”.  Then importantly one goes to the findings in paragraph [20] where the learned Chief Justice synthesised all of those competing considerations to determine the sentence:

with a view to ensuring that the sentence which is imposed is proportionate to the crime, allowing for all relevant considerations.

Then at paragraph 22 the Chief Justice concluded that the sentence of 13 years imprisonment importantly, “did not adequately reflect the gravity of the crime”.  Further, “the need for community protection, and made too substantial an allowance for mitigating circumstances” which the Chief Justice identified as “the plea of guilty” and “the diminished responsibility”.  The Court then concluded that the sentence should have been one of 18 years imprisonment and substituted that sentence for the one of 13 years.

Now, the test at the time was that which applied before this Court’s decision in Lacey came down, and the test then was whether, having regard to the original sentence, the Court was to come to its own view of the proper sentence limited only by the criteria of substantial disagreement.  Now, whether one applies a substantial disagreement test or whether the inadequacy has to be manifest in the sense of House, that it is plainly unreasonable or unjust, the finding that the sentence should be increased by a margin of five years on either test satisfies that and the Court certainly have the jurisdiction then to increase the sentence by that amount.

HAYNE J:   But it follows, does it not, that from the sequence of events that the Court did not consider the matter according to proper principle?

MR MOYNIHAN:   Well, they certainly considered it according to the principle that applied at the time.

HAYNE J:   That is exactly the point I am making, that they did not apply it according to the principle as later established by this Court in Lacey.

MR MOYNIHAN:   That is certainly correct, your Honours, but that would mean that it really engages the Court’s visitorial jurisdiction because it was correct on the law and facts at the time, and then one looks to see whether there has been any miscarriage of justice.  So, if it were remitted to be heard again, it is difficult to see how the Court would come to any different conclusion because, if it had have been known at the time that the word “manifestly” had to have been pleaded then certainly allowance would have been made for that to happen and the findings would be little different.  If the Court made the same findings made in paragraph [22] and had to find manifest error then certainly the findings would be the same and the outcome would be the same.  If not, given Justice White’s view that a life term could have been imposed, then it is difficult to see that any different outcome would have applied no matter what principle was applied.

HAYNE J:   If we were to form the view that there had been an error of principle that required the grant of special leave, is there any reason why we should not at once determine the appeal and simply remit it for further hearing?  What do you say to that, Mr Moynihan?

MR MOYHNIHAN:   No, there is no reason that you would not do that, your Honours, other than that the outcome would be even – well, I am repeating myself – even if it is sent back and considered according to the test, as now articulated from Lacey, the outcome would be, one would suggest on the findings made, identical, but there is no ‑ ‑ ‑

BELL J:   That may well be right, Mr Moyhnihan, but the difference is this, is it not?  It turns on the question of the assessment of the needs in terms of the protection of the community for a sentence of greater severity than that imposed by the judge at first instance.  What the Court of Appeal was not concerned with, having regard to the state of the law as it was understood, was a question of whether the trial judge erred in the exercise of his discretion in the view taken as to the sufficiency of the sentence to address protection of the community, amongst the other considerations.  It is one thing for the Court to conclude that a different answer was to be arrived at in terms of the balancing of the considerations to that arrived at by the trial judge in circumstances in which it considered its discretion was unfettered.

MR MOYHNIHAN:   Except, your Honour, that the Court did find at paragraph [22] that the learned primary judge did not give sufficient weight to the need for protection of the community.

BELL J:   I must say I read paragraph [22] as the Chief Justice’s conclusion that such a sentence did not give sufficient weight.  It is a rather different matter to consider whether it was an error on the part of the primary judge to come to a different view.

MR MOYNIHAN:   The only answer that can be made in relation to that is the finding which I have referred your Honours to already at paragraph [17] of the reasons and [16] as well, because if one goes back to paragraph [9] it was there that the Chief Justice referred to the learned primary judge having referred to the view of the psychiatrist, Dr Schramm, that the likelihood of similar offending again was very low.  The court goes on then to set out the psychiatric evidence at paragraphs [10], [11], [12] and [13].  It sets out what Dr Schramm said at [16] in the way that it was qualified and then makes that finding at [17] that the finding of the learned primary judge that the risk of reoffending was low was really not open on the evidence and that there is a high likelihood that the offender would reoffend violently unless strictly controlled.

That was the primary issue in the appeal below as to what the learned sentencing judge made of Dr Schramm’s evidence.  When the court went through that they came to a different conclusion in relation to that and then that was one of the matters which the learned Chief Justice found was given too much weight in determining the original sentence of 13 years imprisonment.  That was directly in point below and there have been findings made in relation to that.

HAYNE J:   I must say, Mr Moynihan, for my own part I was struck by the characterisation of the offence by regard, it seemed, wholly to its objective circumstances which no doubt merit the condemnation that was made of it.  But the central difficulty in this sentencing task was what account was to be taken of the fact that the accused had a mental abnormality that substantially impaired his capacity to know that he should not do the act.

MR MOYNIHAN:   Your Honour, that is true and that is exactly the issue which the Chief Justice identified at paragraph [7] at page 25 of the record

book.  There the Chief Justice identifies that as the issue for determination in the appeal because his Honour first identifies that it was undoubtedly a horrendous offence, but then identified that the complicating circumstance in relation to the sentence was reconciling the respondent’s state of diminished responsibility at the time.  Then the court went on to identify the evidence in relation to that, what evidence the learned primary judge relied on in coming to the conclusion, then formed their own view of whether that was open as an appropriate conclusion and then, importantly, at paragraph [20], applied this Court’s reasons in Veen v The Queen [No 2], along with all the other relevant considerations, in a composite way to determine the appropriate sentence. 

So, it was always below that consideration which was exercising the mind of the Court there.  They were not blind to the effect that this man’s diminished responsibility had on the criminality in the case.  It was the central issue and it was an issue that had to be, though, synthesised with the other competing considerations, particularly the statute which required the sentencing tribunal to give primary consideration to protection of the community.

HAYNE J:   Is there anything else, Mr Moyhnihan?

MR MOYHNIHAN:   Nothing further, your Honours.

HAYNE J:   Yes.  Thank you very much.  We need not trouble you, Mr Allen.

The applicant pleaded guilty in the Supreme Court of Queensland to manslaughter, two counts of aggravated burglary, two counts of indecent interference with a corpse and burglary and stealing.  He had been originally charged with the murder of the deceased, but the Mental Health Court of Queensland found that he was of diminished responsibility because, by reason of abnormality of mind, his capacity to know that he ought not do the acts in question was substantially impaired.  The Mental Health Court found that the applicant was fit for trial and that proceedings against him for manslaughter and other offences should continue. 

At first instance he was sentenced to 13 years imprisonment on the charge of manslaughter.  The Attorney‑General appealed to the Court of Appeal.  That court ordered that the Attorney‑General’s appeal be allowed and that a sentence of 18 years imprisonment should be imposed on the applicant on the count of manslaughter.  It is common ground that the Court of Appeal determined the appeal on the footing that it was not necessary for that Court to identify any error by the sentencing judge before determining that the applicant should be re‑sentenced.  After the Court of Appeal had determined the applicant’s appeal, this Court decided, in Lacey v Attorney‑General for Queensland (2011) 85 ALJR 508, 255 ALR 646, [2011] HCA 10, that the approach adopted by the Court of Appeal in this matter was wrong.

The respondent submitted that although the Court of Appeal can now be seen to have committed error in disposing of the Attorney‑General’s appeal the application for special leave to appeal to this Court should nonetheless be refused on the ground that, applying proper principles, the actual order made the Court of Appeal was right.  Since the Court of Appeal did not consider the matter according to the principles stated by this Court, we are not persuaded that this Court can be satisfied that the actual order made by the Court of Appeal is necessarily right.

The applicant should have special leave to appeal.  The appeal should be dealt with at once and the respondent did not oppose that course being taken.  Accordingly, there will be orders:

1.Special leave to appeal granted;

2.Appeal treated as instituted and heard instanter and allowed;

3.The orders of the Court of Appeal of the Supreme Court of Queensland made on 1 March 2011 are set aside and the matter is remitted to the Court of Appeal for its further consideration.

The Court will adjourn to reconstitute.

AT 9.45AM THE MATTER WAS CONCLUDED