Perry v the Queen S80/2000

[2000] HCATrans 605

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  Nos S79 and S80 of 2000

B e t w e e n -

BRIAN TERRENCE PERRY

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 2000, AT 11.35 P.M

Copyright in the High Court of Australia

MR A.J. BELLANTO, QC:   May it please the court, I appear with my learned friend, MR P.T. LOWE, for the applicant. (instructed by Bell & Partners)

MR R.D. ELLIS:   If it pleases the Court, I appear for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)

GLEESON CJ:   Yes, Mr Bellanto.

MR BELLANTO:   There is a preliminary question, your Honours, as to application for leave to appeal out of time.

GLEESON CJ:   Is that opposed, Mr Ellis?

MR ELLIS:   No, your Honour.

GLEESON CJ:   Yes, you have that leave, Mr Bellanto.

MR BELLANTO:   If your Honour pleases.  Your Honours, this application raises the difficult problem for sentencing judges where the offender is to be sentenced for offences of like character committed within a discrete period of time when other like offences were committed and in respect of which he or she has been sentenced and punished and where such earlier sentence has provided for rehabilitation which has been satisfactorily completed and where there is no likelihood of repetition.  What we are seeking is the extension of the principle of totality as has been traditionally applied by this Court in cases such as Mill and Postiglione.

We seek leave to appeal to argue that, in such circumstances, the sentencing court should adopt a total approach and give effect to the intention of the sentencing judge expressed on the prior occasion or occasions which was to provide for rehabilitation, and if this object has been achieved, then rehabilitation as an objective of the sentencing process assumes a more dominant role over punishment and deterrents. 

KIRBY J:   But in this case the Court of Criminal Appeal did indicate that it was aware of the fact that it had to be convinced that there was error on the part of the primary judge, the sentencing judge.

MR BELLANTO:   Yes, your Honour.

KIRBY J:   The error which it detected was the error of imposing what it regarded as a manifestly inadequate sentence.  That was the error.

MR BELLANTO:   Correct, your Honour.

KIRBY J:   The role of Courts of Criminal Appeal is to do just that, to fix within the State, according to sentencing principles, the case, the level of sentences, and to bring cases up, as the Court of Criminal Appeal said when they did so in a Crown appeal modifying the punishment that is imposed, and the problem I have is that I do not see any error in approach and this is not a super court of Criminal Appeal.

MR BELLANTO:   Your Honour, that is acknowledged, of course.  However, in this case there was a finite period of offending over 15 years and within that finite period there were a number of offences which came to be dealt with by different sentencing courts on four occasions.  Now, those earlier decisions allowed for the prospect of rehabilitation, and when the offender came before Judge Tupman in this case, he had completed nearly five years of periodic detention, was on a recognisance for nine years, had served 300 hours of community service, all with ‑ ‑ ‑ 

KIRBY J:   We know all this, Mr Bellanto, and if I had been sitting in the Court of Criminal Appeal I doubt that I would have intervened.  The sentencing judge wrote a very thorough, very careful and very detailed opinion to support her sentences.  But we can only intervene if you can establish an error on the part of the Court of Criminal Appeal.

MR BELLANTO:   The error that we submit occurred was that the court paid no heed to the rehabilitation that had been provided for by the sentencing judges in the first place, and gave the concepts of deterrents and punishment a more dominant role in the sentencing exercise and really gave little effect to the prospect of rehabilitation provided for by the earlier courts; and, in fact, the completed period of rehabilitation and the fact that the court accepted the rehabilitation was exceptional and there were no prospect of re-offending.  So that, in that sense, the problem that arose, as we see it, is that where an offender has committed no offences for some nine years, and has been totally rehabilitated in respect of a period of offending culminating at the beginning of that nine-year period and there has been no repetition, there is no likelihood of re-offending in the future, then that fact of rehabilitation should be given a dominant role in the sentencing process.

GLEESON CJ:   It was given a role.  The practical issue that confronted the Court of Criminal Appeal was a fairly sharp one, was it not?  That was the question of whether or not a sentence of anything less than full-time custody was manifestly inadequate.

MR BELLANTO:   Yes, that is so, your Honour, in isolation; in isolation.  But the problem, as we see it, was that that period of offending, that six‑year period of offending, cannot be looked at in that way.  That is why

we say a total approach must be adopted here to take into account the provision for rehabilitation indicated in the form of the sentences by the other courts, and we accept that if it was just being looked at for the six‑year period of offending on the matters that came before Judge Tupman, then that is a separate issue.  But one cannot really ignore what transpired before that in the nine-year period, and if the lower court is correct, then the other sentences imposed by Judge Nield and Judge Saunders were also inadequate because they dealt with similar offending, a multiplicity of offences. 

Now, the Crown did not seek leave to appeal in those circumstances and one can only assume that the approach by the Crown on those occasions was that they were within the range, particularly the sentences imposed by Judge Saunders, because they covered, I think, seven offences of similar kind over a substantial period of some four years.  His Honour obviously took into account the fact that this person obviously needed counselling and treatment and provided for that in the form of the sentence that he imposed.

Now, if that approach was adopted by the prisoner and rehabilitation was completed, then when he came to be sentenced by Judge Tupman, he has been sentenced for stale offences, he has been totally rehabilitated, he is not going to offend again, and that is why we say that Judge Tupman was correct when she took into account rehabilitation and gave rehabilitation a more dominant role in the sentencing process than would otherwise be appropriate.  We are not saying that rehabilitation should assume that status in every case, it obviously does not, but in this case, applying the principle of totality, as we suggest it should be applied and should be extended, then the approach adopted by the Court of Criminal Appeal, we say, was erroneous.  That is our case.

GLEESON CJ:   We do not need to hear you, Mr Ellis.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in these matters and the application is refused.  We will adjourn for a short time to reconstitute.

AT 11.44 AM THE MATTERS WERE CONCLUDED