Perkins v The Queen

[2018] HCATrans 267

[2018] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S188 of 2018

B e t w e e n -

ANDREW PERKINS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2018, AT 11.56 AM

Copyright in the High Court of Australia

MS G.A. BASHIR, SC:   May it please the Court, I appear with MS S.F. BECKETT on behalf of the applicant.  (instructed by Legal Aid NSW)

MR P.J. McGRATH, SC:   May it please the Court, I appear with MS H.R. ROBERTS on behalf of the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

GAGELER J:   Yes, Ms Bashir.

MS BASHIR:   Your Honours, we seek an extension of time that rule 41.02 be dispensed with for the reasons set out in the affidavit of Ms Witmer.

GAGELER J:   Is that opposed?

MR McGRATH:   No, your Honour.

GAGELER J:   You can have that extension of time.

MS BASHIR:   Your Honours, at the heart of each of the judgments in this case is the issue of whether a causal connection or connecting link must be established between a background of disadvantage and consequent offending behaviour in order to have that background taken into account in sentencing, including in relation to an assessment of moral culpability for an offence.  In our submission to impose such a test or hurdle is not necessary and is not desirable in the exercise of the sentencing discretion and it misconceives the very nature of disadvantage.

Your Honours, this Court’s decision in Bugmy v The Queen, that is the 2013 decision, did not require such a link and both Justices White and Fullerton recognised this in their judgments.  However, Justice White labelled a critical statement of principle in Bugmy at [44] and this is at the application book page 59 – the passages from Bugmy are set out.  A critical statement of principle, that is the very first line and second line of paragraph [44] in Bugmy are factual findings and that is ‑ ‑ ‑

GAGELER J:   I am sorry, where are you reading from?

MS BASHIR:   I am sorry, your Honour, application book 59, the indented paragraph [44] is paragraph [44] of Bugmy and then at paragraph 76 of his Honour Justice White’s reasons he finds that that first part of the first sentence of paragraph [44] in Bugmy is a factual finding.  He does go on, your Honours, to say that it is entitled to considerable weight, but, your Honours, it was a statement of principle by the Court and it led his Honour to question, at the end of paragraph 76:

what is meant by “full weight” and whether a deprived background is a matter of any weight by way of mitigation if there is no causal link to the offending.

Your Honours, his Honour Justice White also held, and this is over at page 61 of the application book, paragraph 80, that:

Establishing a connection between a background of social deprivation or profound social deprivation and the offending is likely to reduce the offender’s moral culpability.

Then there was a reference to her Honour Justice Simpson’s decision in Millwood and I will come back to that, but his Honour went on to then in fact require a causal or connecting link to be established for relevance to moral culpability.  That is most keenly seen by contrasting his Honour’s finding in paragraph 84 where there was said to be a link inferred feeding into the error his Honour did recognise about the treatment of substance use leading up to the crime ‑ ‑ ‑

GORDON J:   That was the cannabis.  Was not that to do with his cancer rather than the deprived childhood?

MS BASHIR:   Yes, your Honour – well, your Honour, it was in relation to the alcohol use as well and the cancer.  Then going back to 82, if we contrast it with what occurred at paragraph 82, which is that in terms of the nine years childhood exposure to domestic violence, including his mother, of course, nearly being killed three or four times, his Honour said:

has been shown not to have been causally connected to his offending.

Then his Honour goes on, and the reasoning in that is essentially the good character of the applicant, even though he is still a very young adult.  He is 18 years old, in his 18th year, and at 83, because of that:

It does not follow –

apparently, that that exposure lessens his moral culpability.  In our submission, these two paragraphs are at the heart of erroneous reasoning in this judgment.  It is to be contrasted with the approach in the judgment of Justice Fullerton over at paragraphs 102 to 104 at application book 67.  At about line 40 in paragraph 104, her Honour refers to her reasons above, meaning:

it was an error for the sentencing judge to discount it as irrelevant because there was no evidence of it being causally related to his offending.

So her Honour does not hold the ‑ ‑ ‑

GORDON J:   So if you go back to 83 of Justice White’s judgment is that not, in a sense, the same conclusion?  It is not irrelevant but it does not reduce his moral culpability.

MS BASHIR:   Your Honour, in our submission, her Honour Justice Fullerton went further and said that it does not get knocked out – we would say knocked out, for moral culpability also.  So, your Honour, in fact it is most keenly seen at 112 where – and this is in relation to – her Honour says they are interrelated factors and they are relevant to the question of moral culpability. 

Your Honour, just going back then to 102 to 104, in 102 there is recognition that Bugmy did not say that and then at 103 her Honour highlights the error and that is this hinging on the word used in Bugmy of “marred” and “marred” being picked up and may explain also being used as requiring a causal connection.  Her Honour also taps into what is another error which is to think about disadvantage in the same terms as mental illness, for example.  In our submission, it is not to be treated in the same way.  That may be an additional factor in mitigation – mental illness.  Childhood disadvantage, as her Honour says at paragraph 101:

the insidious effects of exposure . . . on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented.

We have gone into that at application book paragraphs 88 to 89.

GAGELER J:   Surely none of this can be put at a level of high principle?  One has to delve into the detail.

MS BASHIR:   Your Honours, the way that we put it, your Honour, is that first of all this approach creates disharmony with how exposure to family violence in childhood is treated in other curial contexts.  But most importantly, your Honour, Bugmy was not a call by this Court that those who are exposed or subject to such abuse as children to prove a connection or a causal link between the upbringing and the crime itself in sentencing proceedings and this sort of compulsory triage through that lens in our case is error of principle.

GAGELER J:   One sees, at least arguably, what you call that triage in the judgment of Justice Hoeben.

MS BASHIR:   Yes.

GAGELER J:   One sees it perhaps not quite as clearly in the judgment of Justice White.

MS BASHIR:   Your Honour, just in relation to Justice Hoeben, if I can come to that, we say it is most keenly seen where his Honour says in paragraph 41, application book 43, where his Honour, referring to another case, says at about line 30:

where criminal activity was regarded as the norm –

in that family, that:

When the offender became involved in precisely that kind of activity, the connection between his upbringing and the offending could be readily inferred.

That is not the case here.  Now, apart from the fact that one might ask why not, when there had been an upbringing of exposure to alcohol abuse preceding violence and then that is what occurred in this crime, such an approach represents an error of principle in our submission.  To hold that Bugmy only has application where the charged offence is identical or even similar to the background offence is error.  It conflicts directly with other judgments of the Court of Criminal Appeal and we have referred to that in our written submissions at the bottom of page 86, top of page 87 and footnote 6 is just a little summary – that is at application book page 87 – which should be read as the childhood deprivation and then the forward slash is the offending behaviour. 

One can see, and particularly in Kentwell (No 2) it is most keen, he is removed as a young child and put into a family that is not indigenous and to use Mr Kentwell’s words it was felt that he was “a black fella growing up in a white fella’s world” and all of the consequences of that were taken into account in mitigation in Kentwell (No 2) when it went back on remitter from this Court.

But, your Honours, just coming back – so we would say that is error of principle.  Furthermore, Bugmy held that it is a feature of the person’s makeup that is carried with them throughout life and in paragraph [44] – we say it is in direct conflict with paragraph [44] of Bugmy that the effects do not lessen over time.  Also, the seriousness of the offending is seen by Justice Hoeben as meaning that a connection could not be inferred.  Now, that is again in paragraph 41.

GORDON J:   Well, it follows on in 42, does it not, in the sense that he ‑ ‑ ‑

MS BASHIR:   Yes, your Honour.  He says it is not a matter which:

he could properly take into account by way of mitigation.

That is fed into by – instead of balancing the seriousness of the offence with the moral culpability the seriousness of the offence, the good character, all of those things are said to knock out the background.  We say it is part of the person’s makeup and must be taken into account and could be a matter in mitigation.

Your Honours, I have already alluded to the fact that this is a first‑time offender but just to put it as a matter of principle, in our submission, it is a matter of importance for this Court to say that the application of Bugmy principles are not excluded or reduced in the case of a young adult offender, first‑time offender here, who has maintained good character or with no prior criminal record prior to the offence in question.  It is not the case, in our submission, that first‑time offenders are in a worse position than those with long criminal records when it comes to the application of Bugmy.  So that is a second special leave question, in our submission. 

I could go on about this not being an exercise in comparative disadvantage between a young person and someone older and adult such as Mr Bugmy or Mr Munda and in our submission Justice Hoeben’s reasoning is riddled with these kinds of errors.  But, your Honours, the final reason, in our submission, is the individual justice of this case.  The highest common denominator of rational agreement in this case was that Justices White and Fullerton both held that there was House error to a material degree in the sentencing judge holding that the applicant’s life prior to the offence was an unremarkable one shared by countless other young men growing up in the Australian suburbs or that there was nothing to suggest that the applicant had some sort of longstanding dependence upon alcohol or prohibited drugs.

Each held that the discretion miscarried such as to invoke the exercise of resentence with the taking into account on resentence the evidence that was read on resentence.  Justices White and Fullerton then split in their decisions as to whether some lesser sentence was warranted.  Justice Hoeben abstained from the exercise of resentence even though he was in the minority as to the error.  So he held no error.  He was also in the

minority, of course, as to whether a causal link was required to take into account the background and he never undertook a task of assumption of the errors found or error found by Justice White, errors by Justice Fullerton and then go on to considering whether a lesser sentence was warranted, taking into account evidence on resentencing.

As such the court was split evenly on the opinion as to whether a lesser sentence was warranted, Justice Hoeben dismissing the appeal.  So one might say that there was no majority in relation to the actual ultimate question asked by the section, whether a lesser sentence is warranted, yet the appeal was dismissed.  So the individual justice of the case, in our submission, is a further reason to grant special leave.

If Justice Hoeben’s approach is erroneous on any of the grounds that we contend, the appeal, in our submission, would be upheld and the matter remitted because he has never gone through the exercise of resentence and at AB 57 your Honours will see that his Honour simply went through the exercise of whether it was manifestly excessive or not, found it was not unreasonable or plainly unjust – this is paragraph 68 – lies within the appropriate range and then straight to the orders.  So there is nothing said about lesser sentence being warranted.

Then, your Honours, again, if we are correct about our argument about the good character not being able to knock out – if we are correct about the domestic violence in childhood being relevant, then, your Honours, one could not say on resentencing that Justice White and Justice Hoeben, if he undertook the exercise, would have found no lesser sentence was warranted. 

So, in our submission, Justice Fullerton’s finding at paragraph 138 does not count against a grant of special leave, that is even if the respondent’s reading of it is correct.  In Neal Justice Brennan found that they were unable to say remitter back would not invoke for the first time a consideration of the emotional stress mitigating an assessment of the gravity of the conduct and, in our submission, this Court could not say that there was – the practical outcome would be no different or that it is not a suitable vehicle.

In our submission this is a case where the facts are very confined.  There are agreed facts.  There was no cross‑examination.  The applicant and his mother are both called.  The evidence is all there.  It raises a whole lot of questions which, in our submission, this Court should address.  It is not revisiting Bugmy.  It is a step further and these matters, in our submission, should be clarified.

GAGELER J:   Thank you, Ms Bashir.  Mr McGrath, we do not need to call on you.

MR McGRATH:   May it please the Court.

GAGELER J:   We are not satisfied that the actual outcome of the applicant’s appeal against sentence to the Court of Criminal Appeal turned on any material misconception of the decision of this Court in Bugmy v The Queen.  Special leave to appeal is refused.

The Court will now adjourn to 3.30 pm on Monday, 4 February 2019 in Canberra.

AT 12.14 PM THE MATTER WAS CONCLUDED