Pollock v The Queen

[2013] HCATrans 21

[2013] HCATrans 021

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B50 of 2012

B e t w e e n -

ANDREW MURRAY POLLOCK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 15 FEBRUARY 2013, AT 11.06 AM

Copyright in the High Court of Australia

MR S.J. KEIM, SC:   May it please the Court, I appear with my learned friend, MS A.E. CAPPELLANO, for the applicant.  (instructed by Legal Aid (Qld))

MR A.W. MOYNIHAN, SC:   May it please the Court, I appear with my learned friend, MS C.M. HURLEY, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ:   Now, as I understand it, Mr Keim, just looking back at the rather convoluted history of this matter, your client was initially sentenced on 9 November 2006 life imprisonment for murder allegedly committed in 2004 and two years for an armed robbery committed in 1999 and that at the time of that sentence he had served – I think it was two years and four months in predisposition custody?

MR KEIM:   That is correct, your Honour.

FRENCH CJ:   Yes, and the allocation of the two years was made without distinction by the sentencing judge between the life term and the two‑year term, not surprisingly perhaps, because it was, in a sense, academic.

MR KEIM:   It was both academic and, by definition, had to be served concurrently.

FRENCH CJ:   Yes, that is right.  Then when the matter came back after the murder conviction was set aside and he had been convicted of manslaughter, the Chief Justice reopened that, as it were, allocation.

MR KEIM:   Yes, and no complaint is made about that.

FRENCH CJ:   No.  Well, that was by consent, I think, that he reopened it.

MR KEIM:   Yes.

FRENCH CJ:   What you are complaining about, at least in part, is that the two years of the two years and four months served prior to 9 November 2006 was not taken into account in the sentence in relation to the manslaughter conviction?

MR KEIM:   Yes, your Honour.  The Court of Appeal said by definition that was not necessary to be done.  The Chief Justice, when he sentenced, indicated that he did but, in effect, if one looks at the non‑parole periods, the applicant has been sentenced to, in effect, 12 and a half years for the two offences.  Either he has been sentenced to an amount way beyond the range for the manslaughter or, in fact, there has been no reduction according to the totality principle and also the robbery, which is an unsophisticated robbery when the applicant was 17 years of age, for which he completely co‑operated in the investigation of that and agreed to an ex officio indictment.

As part of that package he has been given the full two years for that without any reduction for the totality principle.  So either it is been an extraordinarily beyond the range sentence for manslaughter or in fact the whole period of two years has been allocated for the robbery and no reduction for totality has been ‑ ‑ ‑

FRENCH CJ:   You say that is, in a sense, an accident of the curial process?

MR KEIM:   It is an accident and it certainly happened through no fault of the applicant because it is not his fault that he had two unfair trials and resulted in a hung jury on the third trial, and in terms of statement of principle the Court of Appeal has said that there is no requirement to deal with the matter using the totality principle.  Rather they said that the totality principle does not require the court to approach the matter as if the sentences were being imposed at the same time and make the reductions that one has to do in applying the totality principle.  That is the complaint in principle.

In terms of the justice of the case, it is the fact that is he has been effectively sentenced to 12 and a half years for a robbery that should have netted no time in custody at all and for manslaughter where the acknowledged range was nine to 12 years but this was clearly a case, both in terms of the substantive offence and the co‑operation involved, where it should have been no higher than the middle of the range, certainly towards the lower end of the range.  The range, it was acknowledged, for cases of this kind, is nine to 12 years, but it was also argued – and it is quite clear, we say, that this was a case that should be towards the bottom end of that range.

FRENCH CJ:   He intended to kill, but he succeeded on provocation.

MR KEIM:   He succeeded on provocation.  The facts were that it was a very long and ugly night and he did not behave well during the night but the court accepted that the inference that had to be drawn from the facts and the scientific evidence was that the father, who had been interrupted in the middle of sexual exploits attributable to the applicant, came into his room and attacked him, and the sentencing court also found that there was a taunt, a verbal taunt which was made by the father to the words of, “Go on, go on, you cannot do it, you weak”, et cetera.  So, those two things were the provocation. 

So we say in the case of a young man who is 23 years of age, who had been molested sexually by his father when he was a boy, who had been subject to humiliating behaviour during the whole of his life, in those circumstances it was a manslaughter - an intentional, but provoked manslaughter - towards the end of the range.  The range was discussed, your Honours, in the case of Sebo, which is not in our list of cases, but the facts are discussed both in the sentencing court description – in the sentencing remarks and in the ‑ ‑ ‑

FRENCH CJ:   I think we have it in the respondent’s materials, Mr Keim.

MR KEIM:   Sorry, your Honour, yes.  In the Court of Appeal – in Sebo that was a case where a man killed his 16‑year‑old girlfriend in circumstances – so we say where the physical relationship between the two were very different, where the relationship of father to son was involved, where the father physically attacked the son, where the additional taunt occurred, in those circumstances it is a much less serious case than Sebo, and that was acknowledged as much when the learned sentencing judge made an error.  He actually pointed to the fact that in Sebo the victim was much younger and he accepted that that was a case which distinguished them, making Sebo a more serious case in that respect.  That was during argument during the sentencing hearing. 

So they are the factual circumstances which clearly indicate, in our submission, that an injustice has been suffered by the applicant in this particular case, but the matter of principle is as clear – the failure to apply the totality principle by the Court of Appeal, and we take the decision of this Court in Mill as the authoritative statement of the principle, and that was accepted by the Court of Appeal as well, but in paragraph [19] at page 108 of the record book, the application book, that is where the court sets out what it drew from Mill and the Court of Appeal stated that there is no:

inflexible rule which required the sentencing judge to adjust the sentence to be imposed having regard to the time served for an entirely different offence, as if the applicant had been sentenced for both offences at the same time.

We say with regard to that, if you say there is no inflexible rule you say there is no rule, you say there is no principle, so you are denying the principle, and we also say with regard to that, what the Court of Appeal says is not the rule is exactly the rule and it has to be applied in all circumstances where consecutive sentences are being considered.

The court seems to acknowledge, we say, that the totality principle would apply if the applicant had been sentenced for both offences at the same time.  As we have already discussed with your Honours, the reason why he was not sentenced at the same time here was because of the vagaries of the trial and appeal process and occurred through no fault of his. 

We point also that Mill was a case where bank robberies had occurred on both sides of the border and after the sentence had been served in one State there was sentencing for some of the offences committed at about the same time in the other State.  So that was a case where the sentencing was being done at the same time.  So the facts in Mill lend the lie, we say, to the statement of principle by the Court of Appeal here, as well as the statement of principle in Mill itself.

Your Honours, the Court of Appeal actually set out one of the key passages from Mill.  It is from pages 62 to 63 of Mill.  Mill is case No 4 in our bundle and in the application book at page 107, paragraph [17], if one turns to the passage there, we say four statements of principle going to make up the totality principle can be seen.  The first of these is the totality principle is:

formulated to assist a court when sentencing an offender for a number of offences.

So we say it is stated in general terms.  It is not restricted to only when all these sentences are being imposed at the same time as the Court of Appeal suggested.  The second statement of principle we take from it is the effect is to require – this is the substantive content of the principle:

to require a sentencer . . . to review the aggregate sentence and consider whether the aggregate is “just and appropriate”.

So there is nothing to suggest that the totality principle is not mandatory on sentencing judges.  The third element of principle that we draw from it is “it is always necessary for the court” to compare the totality of the sentence with the “totality of the criminal behaviour”.  We would add to that that that means one has to look at the criminality of each of the offences and that is why it is very important in this case to go back to the beginning and look at the criminality of the robbery offence because that did not need to be assessed in any detail at the time that the two years was imposed for that. 

Then the fourth element of principle that comes from that passage is the appropriate result is achieved by lowering the individual sentences below what would otherwise be appropriate.  We say that that can only have been done in this case if an enormous sentence has been imposed for the manslaughter case, and that is unlikely when one takes into account the experienced sentencing judge involved in this case.

FRENCH CJ:   One can get a sense - the totality principle becomes more obvious in its application where you have a string of offences which, if you sentence consecutively, an appropriate sentence for each one would lead to a very heavy combined burden.  It is not quite as apparent in a situation where you have two offences separated widely in time and where albeit through an artefact of the, if you like, curial process that has occurred, the sentencing that is imposed in respect of the second offence is now separated in time from that which was imposed in respect of the first.  It is just a bit hard to think of this as a totality case.

MR KEIM:   But, your Honours, from the applicant’s point of view ‑ ‑ ‑

FRENCH CJ:   It seemed to me you are really saying he got the rough end of the stick because he got effectively what amounted to 12 and a half.

MR KEIM:   Yes, and it is a single sentence.  We would draw your Honours’ attention to one of the matters that was said in MAK which is case No 8 at paragraph 16 of that case that the relationship of severity of sentence to length of imprisonment is not linear but that:

severity may increase at a greater rate than an increase in the length of sentence.

So from the applicant’s point of view he has lost almost all of the credit for the time that he spent in custody prior to being sentenced, which must be an experience of great injustice in those circumstances.  He has also been sentenced for the robbery offence for an amount of – if, for example, one said, well, it falls just on the wrong side and he might have been required to serve some actual time in custody, in fact he served two years rather than having served six months for that.  So clearly the injustice arises from that.

It may be, your Honours, that it is not easy to envisage it along with all of those armed robberies all happening over a period of six weeks, but clearly in terms of the injustice it is just as great and in terms of the ability of the totality principle to deal with a situation like that, it is clearly available to deal with it, it is clearly the principles that have been developed by the law to deal with an injustice of the kind that is being suffered here and there is no good reason not to apply it, and there was no good reason for the Court of Appeal not to apply it. 

We would also point out that the decision of the Court of Appeal is very forthrightly stated and so it is likely to be found to be binding in a number of cases that are likely to occur in the future where, for one reason or another, not necessarily the vagaries of the trial process, but for one reason or other, people are being sentenced at different times for different offences.  Really, the statement of principle ‑ ‑ ‑

FRENCH CJ:   Can you just identify the statement in the Court of Appeal that supports that proposition?

MR KEIM:   Yes, your Honour, it is the one that we took your Honours to before.

CRENNAN J:   Paragraph [19], is it?

MR KEIM:   Paragraph [19] at page 108.

CRENNAN J:   But you have to read that, I think, in the context of paragraph [17] and the extract from Mill v The Queen where the principle is expressed as the need to review the aggregate sentence and to consider it.  It is not expressed in terms of a mandate, a mandatory requirement to adjust.  I think you therefore have to read paragraph [19] in that context.  His Honour is saying no more than that Mill v The Queen requires a consideration of the aggregate sentence and distinguishing a consideration of it from a requirement that it be adjusted in every set of circumstances.  Accordingly, if that is right, there is no error of principle in paragraph [19].

MR KEIM:   But what we would point your Honours’ attention to is that the emphasis - even though the word “adjust” is referred to, that is not the thrust of the sentence at all, in our submission.  The thrust of the sentence is not to adjust the sentence having regard to the time served for an entirely different offence.  So there is a suggestion there that the principle only applies where you have a number of the same offence, a number of housebreaking offences or a number of bank robberies.  So that would clearly be a wrong statement of principle and also the statement that one should not approach the matter as if the applicant had been sentenced for both offences at the time.

CRENNAN J:   Inasmuch as a statement in a judgment of this kind must be considered in the light of the facts of the case the facts here only involved those two separate offences.

MR KEIM:   That is correct, but your Honour can take comfort from the fact that having made that statement of principle their Honours went on to consider manifest excessiveness only in terms of the manslaughter offence itself.  So, in going on to apply the principle that their Honours stated, they accepted that there had been no adjustment for the totality principle.  They did not go and say “Well, we will assume that there was an adjustment of 12 months made”.  They went on to say “We will consider 10 years” and

they considered 10 years and it was the 10 years that they found not to be manifestly excessive. 

So in applying their own principle, the Court of Appeal acted as if there was no requirement to make any adjustment here at all, which can only have been done, we say, on the basis that the totality principle did not need to be considered here and not the construction which your Honour has indicated may have been available on the words.  Was that our time expiring, your Honour?

FRENCH CJ:   I think you have a few more minutes.

MR KEIM:   Yes, thank you.  The other matter that is raised - there are two special leave points raised in the application and the second point relates to the way in which his Honour, the sentencing judge, dealt with the issue of bail, commission of an offence on bail, as being an aggravating factor.  What his Honour did was – and this can be seen from paragraph [15] of the Court of Appeal’s reasons - to acknowledge the principles in the cases that rationalise and justify the basis that commission of an offence while on bail may be an aggravating factor and the reasons to decide when it is an aggravating factor. 

His Honour seemed to acknowledge those principles and to acknowledge that they did not apply in this case and then he went on to say well, in any event, I will treat it as an aggravating factor because the applicant had:

received a cogent reminder of his earlier antisocial conduct and was aware that he awaited sentencing.

What we say with regard to that is that the learned sentencing judge has simply turned the facts of the particular case into principle.  They do not bear that change because they do not assist in any way in deciding when commission of offence on bail should be treated as an aggravating factor.  We also say that on the facts of this particular case, this was very much an atypical case.  It was a case where, because the applicant was only on bail because the other matter had been detected, he had co‑operated completely with regard to the investigation of that case, and because this was not only a very different type of offence, but also because it was a provoked and not a premeditated offence, this was not a proper case in which the commission of the offence on bail should have been treated as an aggravating factor.  They are our submissions, thank you.

FRENCH CJ:   Thank you, Mr Keim.  Yes, Mr Moynihan.

MR MOYNIHAN:   Your Honours, there are really two complaints.  The first is that the Court of Appeal treated the commission of the manslaughter offence whilst on bail as an aggravating factor and, secondly, that the court denied the totality principle.  In relation to the first complaint, the court was correct in…..that committing the manslaughter on bail was a relevant and significant factor, not because it aggravated the criminality, but because it meant that because the offences were different offences in time and nature they would ordinarily be served consecutively, thus engaging the totality principle and acknowledging that the ultimate sentence would be subject to that totality principle with the overriding need in relation to the consecutive term to ensure the adequate punishment.  Your Honours will find the application of that principle set out in paragraphs [15] and [16] of the judgment.

In relation to the complaint that the Court of Appeal denied, or alternatively, confused the totality principle, the court quite clearly set out the totality principle at paragraph [17].  The court then at paragraph [19] made clear that there was no inflexible rule requiring reduction in the sentence on a subsequent proceeding, that is, that where there is a consequent sentence, there is no requirement to moderate a latter sentence.  But importantly, they made clear that in this case the Chief Justice took that principle into account and reduced the sentence to 10 years to allow for it.

Importantly, they went on then to consider what the cases purported in relation to a notional sentence.  There was no argument that the range extended to 12 years imprisonment.  The Chief Justice quite correctly described this unlawful killing as “savage” and “brutal”.  A consecutive term of imprisonment of 12 years, of which he was required to serve 10, is in no way manifestly excessive.  When one goes to the ratio in paragraph [22], it is not true that there the Court of Appeal ignored the totality principle because, at about line 15, the court made clear that they had considered the authorities and the principles to which they had referred earlier, which included the totality principle.  Then they concluded, of course, that there was no error.

It is also said in relation to Sebo that this was a less serious case.  Just one point of note which the Chief Justice pointed out at the time of sentencing was that Sebo had no criminal history and he was sentenced to 10 years imprisonment.  Of course this applicant was sentenced on the basis that he had previously committed the armed robbery. 

Just to demonstrate the point also that the Chief Justice did not treat the committing of the matter on bail as an aggravating feature, but rather that it was an important consideration because the terms of the sentences would run consecutively, if your Honours go to page 93 of the application book at about line 40, the Chief Justice says:

An additional serious circumstance –

By using that term his Honour means important – is that it was committed on bail –

I am conscious of the consideration that the term I impose today for the manslaughter will effectively be served cumulatively upon the sentence served for the separate robbery committed five years earlier.

So there is the application of the principle to which the Court of Appeal was referring in paragraphs [15] and [16] of their judgment.  Those are my submissions, your Honours.

FRENCH CJ:   Yes, thank you.  Yes, Mr Keim.

MR KEIM:   Thank you, your Honour.  Your Honour, just in terms of the way in which the Chief Justice dealt with the matter of having committed the offence on bail, he came back to it at page 95 of the application book at lines 10 to 20, where he said:

Notwithstanding your counsel’s submissions, allowing for the brutality of the killing and the circumstance that you were on bail at the time for another violent offence, this case falls naturally within the serious violent offence regime.

So he regarded that as, it would appear, one of the most aggravating aspects of the matter.  In terms of the serious violent offence regime, of course, once the 10 years was imposed that occurred as a matter of law.  It did not have to be applied by way of application of discretion. 

Just with regard to my learned friend’s concession or reliance that this was at the top of the range in order to rationalise what happened below and before the sentencing judge, the matters that would have made sure that this did not land at the top of the range were the following factors.  Immediately after the commission of the manslaughter the applicant rang 000.  He participated in a full videoed interview with police.  He participated the next day in a walkthrough.  He allowed photographs and body samples to be taken of him.  He was prepared to plead guilty to manslaughter at all of the four trials, and also the learned sentencing judge indicated that the fact that he had to go through four trials and the numerous appeals in between was regarded by the Chief Justice as a matter that should be regarded as going to his credit in terms of sentence.

So, all of those factors meant that it simply was not within the sentencing discretion to choose the top of the nine to 12 year range as the sentence to be imposed to manslaughter before applying the totality principle.  So the inference that we would ask the Court to draw is that the learned Chief Justice did not apply the totality principle in any significant way.  They are our submissions in reply.

FRENCH CJ:   Thank you, Mr Keim.

MR KEIM:   Thank you, your Honour.

FRENCH CJ:   The applicant complains that the allocation by the Court of Appeal of two years of his initial presentence custody to the armed robbery offence, to which he pleaded guilty in 2006, and not to the manslaughter offence, of which he was convicted in March 2012, is an accident of the curial process which had led to his conviction for murder in November 2006 being quashed.  He says that the sentence imposed on him in respect of the manslaughter offence offends against the totality principle.  He also complains of the reference to the fact that he was on bail as an aggravating factor. 

In our opinion, however, he has not demonstrated any error of principle on the part of the sentencing judge or the Court of Appeal which would warrant the grant of special leave.  Special leave is refused.

AT 11.36 AM THE MATTER WAS CONCLUDED