Preston v The Queen

[1992] HCATrans 129

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IN THE HIGH COURT OF AUSTRALIA

Registry No C2 of 1992

B e t w e e n -

TROY EDWIN PRESTON

Applicant

and

THE QUEEN

Respondent

Application for special leave
to appeal

DAWSON J TOOHEY J McHUGH

TRANSCRIPT OF PROCEEDINGS

Preston 1 1/5/92

AT CANBERRA ON FRIDAY, 1 MAY 1992, AT 10.01 AM

Copyright in the High Court of Australia

MR T.J. O'DONNELL: If the Court pleases, I appear on behalf

of the applicant. (instructed by C.J. Staniforth,

Legal Aid Office (ACT))

MR K.J. CRISPIN, QC:  May it please the Court, I appear with

my learned friend, MR A.J. ROBERTSON, for the

respondent. (instructed by the Director of Public

Prosecutions (ACT))

DAWSON J: Yes, Mr O'Donnell?

MR O'DONNELL:  Your Honours, I am instructed that the

application book is obviously defective in that it

does not contain the judgment of

Mr Justice Jenkinson, as short as it is.

DAWSON J:  We assumed that he had concurred.

MR O'DONNELL:  He agreed, yes. That is with the list of

authorities that I would seek to hand up to

Your Honours in due course.

DAWSON J:  We do not need a list of authorities, but have you an outline of submissions?

MR O'DONNELL: Yes, I do. I apologize that that was not

tendered at the time of lodgment of the

application.

DAWSON J:	I do not think it has to be, but anyway, if you hand it up now, together with the other material.
MR O'DONNELL:	I am sorry, but they are all with the cases

and the documents I have referred Your Honours to;

they are all together. There are some other

documents in there which I would seek to refer

Your Honours to also.

In the course of the argument in support of the application for special leave, it is also

sought to rely on an affidavit of my instructing

solicitor concerning his searching of the supreme

and Federal Court files in relation to the

frequency of appeals, Crown and otherwise, in the

Australian Capital Territory. That affidavit has

not been filed. My learned friends do have a copy

and I would seek leave to file that in Court and

read the affidavit, Your Honours.

DAWSON J:	Mr Crispin?
MR CRISPIN:	I have no objection, Your Honour.

DAWSON J: Very well.

MR O'DONNELL:  It is an affidavit of Martin Reginald

Hockridge.

Preston	1/5/92
DAWSON J:	You have only one copy of that, have you?

TOOHEY J: There is a copy in the file.

MR O'DONNELL: There is a copy in the documents that have

been handed to Your Honours. That is the original.

Also, in those documents, I would seek to provide

to Your Honours an additional document which is

part of the transcript of the sentencing

proceedings which were referred to in the appellate

court but which are not in the appeal book, and

that relates to some comments by the learned

sentencing justice in relation to the likelihood of

the appellant becoming the object of homosexual

activity if imprisoned.

TOOHEY J:	Does this mean that the applicant gave evidence as part of the sentencing process?
MR O'DONNELL:	Yes, he did, Your Honour.

TOOHEY J: What about during the trial?

MR O'DONNELL: There was no trial, it was a plea, so he gave

evidence on the plea. The document I would seek to

supplement the application book with is a copy of

the sentencing transcript, pages 13 and 14.

DAWSON J: That is in the material.

MR O'DONNELL: That is in the material also, Your Honour.

DAWSON J: Very well. If you would proceed to your

argument.

MR O'DONNELL:  Thank you. Your Honours, as is obvious,

special leave to appeal against matters of sentence

or legal importance, with the central

is a rare event and, of course, is permitted by the public

proposition being that it should be to develop and

clarify the law or to maintain procedural

regularity in the subordinate courts, including

appellate courts. Obviously, that area has been

well traversed in the case of Morris v The Queen in

relation to applications for special leave

generally; and in Lowe's case in relation to

applications for special leave against sentence.

I will not take up the Court's time by going through the parts of those cases which are referred
to in the outline of argument. Obviously,

Your Honours will have heard them on a daily basis,

perhaps, or had them certainly pointed out to you

on a daily basis, and the Court will be well

familiar with those cases and the restrictions

Preston 3 1/5/92

placed upon applications for special leave, in

particular in relation to sentence.

But it would be my submission that, in this

case, there are questions of particular injustice

where the High Court, in the exercise of its

supervisory role, could safeguard such injustices

occurring in the future, and in fact rectify the

injustice which, it is submitted, occurred in the

delayed imprisonment of the applicant.

The question of the element of chance, when a

sentencing superior court justice is reviewed on

what is, essentially, questions of fact and the

balance of the objects of sentencing by an

appellate court, and in this case there have been

four Federal Court justices who have dealt with the

matter, two have come to one conclusion and two

have come to another. Of course, in the appellate

court the majority found that the suspended
sentence was manifestly inadequate and, as such, an

error of law and overturned it.

But it would be my submission that while I

would have to argue that what was done by the

majority, Mr Justices O'Loughlin and Jenkinson in
the Federal Court was, in a very real sense, an
assessment of facts, where they then came to the
conclusion that there had been an error of law and
there was a turning around of the sentencing

objects from, essentially, rehabilitative objects

to general deterrent objects and punitive objects,
those sorts of distinctions or differences occur on

a daily basis with sentencing judges at first

instance, and where Crown appeals are brought the

same logical problems occur, that the question that

is of general importance is the question of the

caution that is needed by an appellate court in
turning what is an assessment of evidence and the

priority of sentencing objects about, and then

coming to the conclusion on what can only be a

judgment of fact that there has been an error of

law.

DAWSON J:  It was not so much an error of fact, or a

judgment of fact, rather, here but an assessment of

the gravity of the offence, was it not?

MR O'DONNELL:  Yes, and with respect, Your Honours, it is

not conceded that this is not -

DAWSON J:  The facts were not in dispute in this case. They

were entirely the applicant's version.

MR O'DONNELL:	Yes, indeed. It is more that, as a question of fact, I would seek to dispute the value of the
precedent relied on by Mr Justice O'Loughlin in the

Preston 4 1/5/92

Watmough case. The Watmough case is actually in

the bundle of documents, but it would be my

submission that the Watmough case was an unprovoked

attack on a client in a tavern where the attacker

took the outrageous and irrational view that the

person he attacked was a child molester

TOOHEY J: But do you say, Mr O'Donnell, that where the

Crown appeals against sentence that the appellate court should approach the matter differently than where the prisoner appeals against sentence?

MR O'DONNELL:  No, Your Honour. I would rely and adopt the

decision of the Federal Court in Tait and Bartley,
but I would submit that the differences where
caution should be exercised which are alluded to in
Tait and Bartley are not exhaustively stated in

Tait and Bartley. I think the grounds in Tait and

Bartley, 24 ALR 473, particularly at page 476 - it

is suggested that there are some restrictions on a

Crown appeal that would not be so on an appeal by

an accused person, and they arise out of the

proposition of double jeopardy upon sentencing, and

it is suggested relate to things such as the appeal

proceeding on a different basis from the sentence

at first instance.

I would seek to adopt and rely upon the

arguments of Mr Fiori Rinaldi - there is an article

with the documents which is called "The Dismissal of Crown Appeals Despite Inadequacy of Sentence",

and that is an article in (1983) 7 Criminal Law

Journal 306.

DAWSON J: What is the particular argument, in your own

words, that you rely on, that is contained in that

article?

MR O'DONNELL:  Essentially the heads of cases that the

author goes through and he has them under five

heads which, in a sense, are additional to the	limitations that are referred to in Tait and
Bartley and in his article he has the cases listed
under the heads - he refers to them generally as
questions of unfairness, but it may be too broad a brush, but he refers to delay, disparity, totality, the ignoring of rehabilitation, and Crown
neutrality on sentences, cases where there may have been an error of law or a basis on which, if Crown
appeals were on the same footing as accused
appeals, the court could have overturned the decision on the basis of an error or that the
sentence was manifestly inadequate.

TOOHEY J: Well, delay is obviously a consideration. For

instance if the Crown sought an extension of time

in which to appeal against sentence for the purpose

Preston 1/5/92

of arguing that a custodial sentence should replace

a non-custodial sentence, a delay would clearly be

a relevant consideration, but is it a consideration

here?

MR O'DONNELL:  Yes, it is submitted, Your Honour, that it is

and the affidavit of Mr Hockridge outlines a

parallel appeal that was determined by the same

sentencing judge within a day or two; a matter of

Talbot which also went on appeal as an accused's

appeal, as a prisoner's appeal to the Federal

Court, and was determined on the same day. Talbot

was released on that day which was a date early in November, as I recall, and in the case of Preston,
the applicant in this matter, judgment was
reserved - he went through the Christmas period

with his fate still unknown and was taken into

custody voluntarily on a date sometime subsequent

to 24 January.

TOOHEY J:  I am not clear what you are saying, Mr O'Donnell.

Are you saying that the Crown delayed the

prosecution, or the bringing of an appeal, or - - -

MR O'DONNELL:	No, Your Honour, I am not suggesting that, I am suggesting that the appeal was lodged within
time and the submission in relation to delay is
that the Crown appeal was not expedited in any way, that it ran an absolutely parallel course with the
appeal in Talbot, to be, in fact, determined on the
same day and that the delay then - - -

DAWSON J: What date was he sentenced on and what was the

date of the - - -

MR O'DONNELL:	Yes, Your Honour.
McHUGH J: He was sentenced on 19 July;	the Crown appealed

on 30 July; the appeal was heard on 4 and 5

November 1991 and the court gave judgment on

24 January 1992.

MR O'DONNELL: That is correct, Your Honours, yes. Talbot

runs a similar path but for the fact that he was

released on the same day that the matters are - the

order is made for his release on the same day that

both matters were heard and it is submitted that

the delay in this matter is really in the hands of
the Federal Court and my criticism, with respect,

would be of the court in delay.

It was not a matter that could be, I suppose,

properly hastened by the Crown, that the court saw

fit to deliver speedy judgment in relation to

Talbot who was in custody and their view was that

he should not be in custody and then took a

considerable period of time, some two and a half

Preston 6 1/5/92

months, to determine that Preston should go from

being at liberty, subject to the restrictions of

probation and attendance centre attendance and the

like and then go into custody.

In my submission, that is an inordinate delay, although, in real terms, as it takes lawyers time

to do things, it does not seem very long. But my

submission is that in these sorts of cases there

should be genuine and urgent expedition and for

this Court, in my submission, to make such a

pronouncement, effectively, by way of

recommendation would be a matter of public

importance.

I have referred Your Honours in the outline to

a number of cases where there has been delay and

there are cases where there have been Crown appeals

not allowed because the prisoner was at liberty and
had certain expectations in relation to the

continuance of his life at liberty.

TOOHEY J: But that is the point, is it not, that if the

Crown delays in bringing an appeal, for instance,

then the prisoner is entitled to assume that there

will be no challenge to the sentence that has been

imposed? So if the Crown then seeks an extension
of time, it might be a very good reason for

refusing the extension, but here the Crown appealed

within time. The applicant knew that the sentence

imposed on him was under challenge, which puts it

in a different perspective, I think. Your

complaint then has to be about the delay that

elapsed between the hearing of the appeal and the

delivery of judgment.

MR O'DONNELL:- Essentially that is my complaint, yes. In

general terms, if I could refer Your Honours to the

comments of appellate courts where there have been

such reversals in fortune. I am not suggesting

that there cannot be such reversals in fortune,

where a person goes from liberty to custody, but	that it should be done with caution and for very
good reason, and that the reason should be quite
clearly spelt out.

In my submission, the judgment of the majority

in this case does little more than assert an error

and then take the applicant from a position of

liberty. He had in fact been subject to probation.

He had been liable to attend 30 hours of attendance

centre and anger management which he had accepted
as a condition of his probation, and all of that

then was overturned.

In addition - I am probably jumping ahead of

myself - not only was the head sentence reaffirmed

Preston 7 1/5/92

to start from a much later date, which in my

submission is an additional punishment which was

not addressed by the majority, but he also had

undertaken the real punishment of probation.	I am
not sure what arrangements had been made, but

certainly there was no suggestion that he was not

going to comply with the anger management

attendance centre order, which was a 30-hour order.

TOOHEY J:  You seem to be running two arguments in parallel.

So far as delay is concerned, as opposed to your

general challenge to the setting aside of a

suspended sentence, are other cases of any use to

us unless you have got a decision in which a final

court of appeal suggests that delay on the part of

an appellate court in dealing with a challenged

sentence somehow is a reason why the Court should

exercise great caution in interfering with that

sentence. Is there any case on that point?

MR O'DONNELL:  Not as strictly as Your Honour raises it, and

that is obviously why I would submit these are

grounds for special leave, that there is no such

decision. But there are cases along similar paths

and, if I could refer Your Honours to the cases

referred to in paragraph 8 of my outline of

argument, in particular the cases of Hicks, which

is in the documents handed up to Your Honours -

that is Reg v Hicks, (1987) 45 SASR 270 - and the

dictum of Chief Justice King at page 273. At
page 273, the Chief Justice says, in the second

paragraph - that was a case involving dangerous

driving causing death and an elderly prisoner:

As has been pointed out in those cases -

referring to the cases above -

prosecution appeals fall to be decided on

somewhat different considerations than appeals

by persons under sentence. When a person such as the present respondent has been told that	he will not have to go to prison, a great load
is lifted from his mind. The consequences of.
reversing that intimation could be
devastating. I do not think that any -

particular -

consideration of justice or the protection of
the public demands that this particular

respondent, after he has been told by a court

that he will not have to go to prison, should

now be told by this appellate Court that he

must serve the sentence.

Preston 1/5/92

And it is cases like that - there is the case of

House and Thorne which Mr Justice Higgins referred

to in his dissenting judgment where, in that case,

Thorne, who played the minor part in a - they were

two Canberra Aboriginal young men, and Thorne had

played the more minor part in a rather nasty rape

and he had received a sentence which was suspended

in part and he had in fact been released after

having served six months. It was suggested the

Crown had indeed expedited that appeal and

Mr Justice von Doussa, in Thorne, 28 FCR 194 at

202, which again is in the papers that Your Honours

have, said:

The matter of the respondent Thorne

raises a particular difficulty. Although the

sentence imposed on him was in my opinion

inappropriate and inadequate, he has already

served the term of imprisonment which was

fixed, he has entered into a recognizance on

the conditions formulated in the sentence, and

he has commenced to fulfil those conditions.

Which is not on all fours, obviously, with this

case, but not dissimilar, in my submission.

It would be cruel to return him to gaol.

That is stating the matter rather strongly,

but in my submission to Your Honours, although it

is now a fait accompli that the applicant has been

taken into custody and his expectations have quite

clearly changed, there was that same element of

cruelty which was, indeed - I am not saying this in

any sense of criticism, but just the inevitable

cruelty of it, and that was aggravated in my

submission by the, perhaps, well-intended comments

of Mr Justice Gallop on sentence, which I have

referred Your Honours to at page 13 to 14, about

the likelihood of him meeting homosexual advances

while in prison, and the fact that he was a likely

candidate for such advances.

TOOHEY J:  Mr O'Donnell, you said something a while ago that

head sentence was to run, as if somehow the sentence was to run from a later time than previously?

led me to think that in removing the suspension the the

MR O'DONNELL:  Yes, Your Honour.

TOOHEY J: But the thing at page 18 of the appeal book, the

sentence of three years is to run:

Preston 9 1/5/92

from the date upon which the respondent is

taken into custody.

MR O'DONNELL:	Yes.
TOOHEY J:	I see, and that day, presumably?
MR O'DONNELL:	In reality, he gave himself up several days

later, if I may say so from the bar table.	He gave
himself up in the last week in January.

TOOHEY J: Yes.

MR O'DONNELL:  So that the head sentence had been running

from 19 July for the three years and it now runs

from - - -

TOOHEY J: And the non-parole period, of course, runs

equally from the date on which he surrendered.

MR O'DONNELL: 

The 26th or 27th, or whatever, of January,

yes. In my submission, that is an inadvertent
increase, that it would appear from the judgment of

Mr Justice O'Loughlin that there was no intent to

increase the penalty, and I argue, on a similar

basis, that the failure to take into account,
certainly by way of any comment at all, the fact
that he had been on probation and liable to 30

hours at an attendance centre, to disregard that is

also an effective increase in sentence.

But the points that I would submit are of

significance in the application for special leave

still relate back to the question of where, as a

question of law, a person, looking at the objects

of sentencing and making assessments in relation to

facts, can say that a disagreement as to facts or

sentencing objects is, indeed, an error of law, and

it is a - - -

DAWSON J: Why cannot you? What happened here was the

appeal court decided that, in effect, the

sentencing judge had placed too much emphasis on
the personal circumstances of the applicant and had

no regard to those other aspects of the punishment

which, in this case, they thought were

predominant - that is the need to provide

deterrence and to satisfy the community sense of

outrage at a crime of this sort.

MR O'DONNELL:  Yes, and again, it is not suggested for one

minute - - -

DAWSON J: And what they, in effect, said was, "Well it's

manifest that he failed to have regard to these two

latter aspects of punishment because if he had had

Preston 10 1/5/92

regard to those aspects, he would not have done

what he did".

MR O'DONNELL: Again, as a question of logic, it is very

difficult to nail that down because any error must

relate back either to an assessment of fact or

sentencing objects as they fit facts, so that it

all does, of course, become circular, and I am not

suggesting for one minute that such a finding

cannot be made to elevate such differences to being
as significant as being an error of law, but it
would be my submission that such an elevation

should be done with extreme caution particularly in

a Crown appeal.

McHUGH J:  You keep using the expression "error of law", and

perhaps that is the correct classification, but it

is an error of the exercise of the sentencing

discretion and there will be an error of law if the

judge has failed to take into account a fact that

he should have taken into account, or he has failed

to give sufficient weight to a matter which he

should have given weight to. Here, you find the majority saying that the judge failed - while he

gave great emphasis to the factors that militated in favour of the respondent, he gave insufficient attention to matters of deterrence, retribution and

protection of the community.

MR O'DONNELL:  Yes, and what I submit is, that that as a

question of logic is a very difficult proposition

to nail as either a miscarrying of a discretion or,

indeed, an error of law.

If I could just raise the case that is with the papers, Reg v Young and Others, (1990) VR 951.

It is a decision of the Full Court of the Supreme

Court of Victoria. It is a decision of the court,

Chief Justice Young, Justices Crockett and Nathan,

and if I could simply refer to the observations of

the court at page 955, the court there says that

which is perhaps only obvious but, in my

submission, it highlights the difficulties and the differences that I suggest should be taken careful note of when an appellate court is deciding whether

or not to intervene on a Crown appeal.	The court
cites the previous case of Williscroft:

the purposes of punishment are manifold.

There will often be differences of opinion as

to the purposes both amongst sentencing judges

and amongst members of the public or of any

section of the public and in addition the

purposes may vary from offender to offender and from one offence to another. Any judge with experience of sentencing knows that no

two cases are the same and that the

Preston 11 1/5/92

circumstances of particular offences and

particular offenders are infinitely various -

and the court went on to say, again citing

Williscroft:

"Now, ultimately every sentence imposed

represents the sentencing judge's instinctive synthesis of all the various aspects involved

in the punitive process. Moreover, in our

view, it is profitless (as it was thought to

be in Kane's Case) to attempt to allot to the

various considerations their proper part in

the assessment of the particular punishments

presently under examination."

DAWSON J: That is why it is very often impossible to point

to any specific error on the part of the sentencing

judge but if the Appeal Court takes the view that

this was a case - taking this case - which called

for the offender to serve some custodial sentence

and that if any less was imposed upon him then it

was manifestly inadequate, why cannot it do so?	I
mean, that is what you have got to address.

MR O'DONNELL:  Yes, Your Honour, I could not - - -

DAWSON J: This was a crime, and they deal with it in the

judgment, which they regarded seriously. It was a

crime which had various aspects to it which marked

it as callous and serious in the sense of the

injuries inflicted. There was the fact that the

applicant left this man unattended, for all he

knew, to die. And, in those circumstances, they

said the community demands that he serve some part

of a sentence in gaol and the sentencing judge in

entirely suspending the sentence must have been

wrong because that is just not enough.	Now, that
is what you have got to meet.

MR O'DONNELL:  Yes, indeed, and again, as I keep attempting

to submit, that proposition cannot be met in any

finite way. It is ultimately a question for

judgment.

DAWSON J: Yes, it can be met, in a sense, by pointing to

the personal circumstances of the applicant: he is

young, he has no prior record, he gave himself up

to the police and co-operated, in a sense. Those

are all things which certainly are in his favour

and they were taken into account by the Appeal

Court. But, on the other hand, it was the very

nature of the crime that they said demanded this

sentence.

MR O'DONNELL:  I have been endeavouring to avoid, of course, the particular facts that I would, with respect, be

Preston 12 1/5/92

critical of in the judgment of the majority in this case but if the particular instance in this case is of assistance in determining whether or not this

Court's supervisory role would perhaps lead to a

judgment which might indicate caution on the part

of appellate courts I would seek to turn to some of

the aspects which, in my submission, are

shortcomings of the assessment of the majority in

this case.

TOOHEY J: Could I just remind you, Mr O'Donnell, we are not

here as simply another Court of Criminal Appeal to

impose our own views as to what may or may not be

an appropriate sentence. You are here on a special

leave application. A lot of the arguments you have

addressed to us would have been and, no doubt, were

properly addressed to the Full Court of the Federal

Court as to why the sentence should not be

interfered with but having been interfered with by

that court you have to identify some question of

special leave that justifies this Court

interfering.

MR O'DONNELL:  Yes, I am acutely aware of the distinction.

The difficulty is that - that which I am asking

this Court to do is to perhaps promulgate some

guidelines in this Court's supervisory jurisdiction

as to the frequency of Crown appeals. In

Griffiths' case, the dictum of

Chief Justice Barwick, (1977) 137 CLR 293, in particular the final part of the Chief Justice's

judgment at page 310 where the Chief Justice then

said:

Gross departure from what might in experience

be regarded as the norm may be held to be

error in point of principle.

He went on to say at the start of the second-last

paragraph on that page:

an appeal by the Attorney-General should be a

rarity -

Of course, it is only an observation, but the

reality is that appeals - I would invite the Court

to effectively supervise by way of a judgment in

this case against the proposition that Crown

appeals are being brought simply to effectively

resentence or get a second opinion in relation to

sentencing objects or, indeed, emphasis on the

evidence.

,

McHUGH J: But the statute gives the Crown the right of

appeal and the Crown has got to show a wrongful

exercise of the sentencing discretion. There are other rules which have been built up in the cases

Preston 13 1/5/92

in relation to Crown appeals which hinder, if they

do not defeat, the bringing of the Crown appeal.

What more is there for this Court to say?

MR O'DONNELL: Other than that, I would submit that if this

Court simply in the - and I address this, being

very mindful of what Mr Justice Toohey said in

relation to the argument in relation to special

leave. I would invite this Court, when acting in

its supervisory role, to observe in relation to

this particular case that there was a misstatement

of the effect of the sentencing precedent,

Watmough - the actual decision of Watmough is in

the documents with Your Honours - that that case

was in fact every bit as callous as this, and in a

sense in this case there was provocation offered to

the applicant by the victim.

Mr Justice Gallop found as a question of fact

that there had been a homosexual overture to the

applicant by the victim which, in a sense, has been somewhat glossed over in the majority decision. At

page 2 of the appeal book, Mr Justice Gallop says:

Such overtures were repelled by the accused,

who took them to be, as they obviously were

homosexual advances to him.

Now, in Watmough's case - and Mr Justice Gallop

also went on, at page 4 of the appeal book to

distinguish between this case and the types of

cases that had been urged upon him by way of
general deterrence by the Crown which were

colloquially called the poofter bashing cases that

had recently then occurred in Sydney and

Mr Justice Gallop said that this is not such a

case.

Now, in my submission the only sentencing precedent relied upon by the majority in this case,

Watmough, is in fact almost on all fours with the

poofter bashing case - if I may use that term -

that Watmough was in a tavern; observed an unknown
group - this is clear from the case - the

transcript that is before Your Honour - if I could

refer specifically to Watmough; it is probably the

to trial and had prior convictions for

last document in Your Honours' bundles. The gone

conspiracy to assault and rob and malicious injury to property and had previously been on a suspended sentence for 12 months, which he had managed to

survive. The Chief Justice found, on sentencing,

as the trial judge, that Watmough had - at page 137

of the transcript provided:

Preston 14 1/5/92

formed the drunken view that the victim,

another customer at the tavern, was molesting
a 13-year-old girl and after exceptionally

provocative and insulting remarks to the

victim he either pushed him or tripped him.

The victim fell, hitting his head on a post

and lay on the brick floor. The offender then

moved in and brought the heel of his boot down

on the face of the prostrate victim and did so

repeatedly until someone dragged the victim

away. The offender then left the scene, none

of the company present making any effort to

stop him doing so.

At the trial he sought to explain his

behaviour on the basis that he had grounds for
belief and reasonable grounds for belief that the victim was a child molester. In my view,

such a belief was no more than a drunken and

arrogant delusion.

So it would be my submission that the court in this

case - if I may go to the particulars, but only on

the basis that I would urge that the Court should

do so in the Court's supervisory jurisdiction. The

court in this case, in my submission, completely
misstated the effect of Watmough and its comparison

with this case, in that the victim in Watmough had

made no approach to the prisoner and - - -

DAWSON J: But you see - and I doubt the usefulness of going

into these comparisons, but there are other

countervailing circumstances in this case. Here
the applicant, instead of just bundling the man out

of the car, if he wished to - and then the victim

was -very drunk, according to the applicant -

instead of just bundling him out of his car and

going on his way, he took the car to an oval,

turned the lights off so he would not be seen, and

then attacked the man who, if the applicant is

believed, was in a somewhat defenceless condition.

TOOHEY J: Not only that, but he had already got out of the

car. All he had to do was just drive off.

MR O'DONNELL:  Yes, and the evidence was also - and that was

without contest - that the victim outside the car

made what was also taken to be a subsequent advance

to the applicant.

TOOHEY J: Well, what does that mean? There was no

suggestion that there was any physical violence

shown by the victim towards the appellant.

Preston 15 1/5/92

MR O'DONNELL:  No, and it was never suggested, at first

instance or on appeal, that this was not a most

serious offence of grave violence.

DAWSON J:	The point is that the serious aspects were not the same aspects as were serious in Watmough, and
there is limited usefulness in comparing the two.
MR O'DONNELL:	Yes, but in my submission that is not the

approach that was taken by the majority actually on

appeal; that great significance was placed on

Watmough.

DAWSON J: Because it was a comparable case, for the reasons

we have just investigated.

MR O'DONNELL:	Yes, but in reality it was - - -
DAWSON J:	You are saying it is not comparable?

MR O'DONNELL:  Yes, indeed. Now, that does not assist me

with an application	for special leave, other than
that I would submit	that this is a case where this
Court's supervisory	jurisdiction should be invoked.

DAWSON J: What would we say? What would we say if we -

would we put a third view?

MR O'DONNELL:  No, Your Honour, I am not suggesting that for

a minute and, in my submission, the special leave

argument would be no more or less strong, even if,

at the end of the day, Your Honours took the view

that this was a case deserving of imprisonment and

absolutely so; that the problems involved in delay

and rejigging of the sentencing objects that

occurred in this case are matters that this Court

may profitably rule on, irrespective of the

ultimate fate of the applicant. It may well

be - - -

DAWSON J: Where do you say that the Appeal Court went

wrong? The point you are making now is that it

regarded Watmough's case as a case of comparable

seriousness and you say that was wrong?

MR O'DONNELL:  Yes.

DAWSON J: Where else do you say it went wrong?

MR O'DONNELL:  I would submit that it simply rejigged the sentencing options without - - -

DAWSON J: What do you mean by "rejigged"?

MR O'DONNELL:  It turned the punitive aspects and deterrent

aspects around, making them superior to the

rehabilitative aspects that the judge at first

Preston 16 1/5/92

instance, whose view must be respected, had given

it. It was never suggested - sorry, Your Honour?

DAWSON J:	The point you are making is that it placed undue emphasis on the deterrent and retributive aspects
of punishment at the expense of the applicant's personal circumstances, reversing the emphasis which the trial judge placed on the case?
MR O'DONNELL:	Yes, and which the trial judge was perfectly

entitled to emphasize one way rather than the

other, as is indicated in Young, and as a question

of day-to-day knowledge and common sense.

DAWSON J: Yes.

McHUGH J:	But at the most it reads that the majority in the Full Court wrongly interfered with the trial judge.
There is no question of principle involved in the
case, is there? What proposition of law could you
get out of a judgment in this case which should be
of a general application in the community?
MR O'DONNELL:	With respect, Your Honour, I would submit

that this Court could usefully restate without

criticism of the law as it has been laid down in

Tait and Bartley, but adding the clear distinctions

that are made in the Rinaldi article, as to the
sorts of areas where Crown appeals may be too often

brought or too easily brought or too easily

allowed, and as to the question of delay and

expedition, that this Court could usefully, and as
a question of legal and public importance, could
indicate to appellate courts that decisions that

are likely to take a person into custody should not

be left over a Christmas vacation, for example.

MCHUGH J: Yes, but on that theory we could just about grant

special leave in any case.	We could write an essay
on the law.

MR O'DONNELL: Indeed, Your Honour, and there have been

cases where - and I do not wish to suggest that on

previous occasions special leave has been granted

where it should not have been, but there are quite

clear cases, in recent times, where special leave

has been granted on sentence on relatively flimsy

grounds. The case of Deakin - - -

TOOHEY J:	You had better not start embarking on that - - -
MR O'DONNELL:	If I could just simply refer to the small

report - - -

McHUGH J: A message ought to go out to the criminal bar

that sentence cases are cases in which special

leave should rarely be granted, unless there is

some questions of principle.

Preston 17 1/5/92

DAWSON J: In fact, the first case in which special leave

was granted in that case of sentence, was Power's

case, I think.

MR O'DONNELL:  Power's case.

DAWSON J: Which was in 1973, that is eight years

after -

MR O'DONNELL:  Yes, I appreciate that, I divined that from

Your Honours' reasons for judgment in Morris also,

the rarity of it, and also in Lowe of course. In
my submission - and of course I am acutely aware of
the restrictions on special leave, and the wasting
of this Court's time with applications that are not

of general public importance or of legal importance

and, in my submission, Your Honours do not have to

send a message to the criminal bar to make that

point. I come very much knowing that it is an

uphill battle. But the situation is that there are

problems such as delay, and if I may use in shorthand the term "rejigging of sentencing

objects", which occur all the time, in the guise of

areas of indiscretion, and, again, even in terms of

simply making the point, irrespective of what

happens to this applicant, in my submission, it is

a point that could and should be made. If I could

refer to the affidavit of my instructing solicitor

in relation to the number of Crown appeals.

TOOHEY J:  But what do you want us to say, Mr O'Donnell,

that the Crown ought not to appeal? I mean, that

would be a fairly high-handed statement.

MR O'DONNELL:  No, Your Honour, and I do not seek to be

flippant, but worse things could be done than to

endorse the dictum of Chief Justice Barwick in

Griffiths. There would be significant use, in my submission, in getting to a point in relation to

Crown appeals that was slightly more definitive

than Tait and Bartley, and I say that with no

disrespect to the Federal Court that decided Tait

and Bartley.

DAWSON J: Griffith's case was decided at a time when, I

think, the neutrality of the Crown in relation to

sentence was observed. I am not sure that it is

observed now and I am not sure that Tait and

Bartley does not say that it ought not to be

observed. Indeed, once Attorney-General's appeals

were instituted, courts of criminal appeal - or at least the sentencing judge complained that if that

was not put to him by the Crown, how dare the Crown

now appeal on some basis which had not been put,

and I understand the practice now to be that the

Crown does make submissions as to sentence.

Preston 18 1/5/92

MR O'DONNELL:  Yes, and judges sometimes say - - -

DAWSON J: Whose instructions lie behind the submissions, I

do not know, but then I may be old-fashioned about

this.

MR O'DONNELL:  Yes.

McHUGH J:  There is one other factor. The administration of

criminal law has changed dramatically in the last

15 years. Fifteen years ago, courts were

relatively small bodies. Judges knew what other

judges were doing in relation to sentences.	Now,
courts have expanded.	One judge in a court may

have no idea what other judges are doing and,

therefore, it is necessary for the courts of

criminal appeal to intervene more readily on behalf of the Crown than they would have done 15 years ago

so that there is some parity of sentencing.

MR O'DONNELL:  If I may pick up what Your Honour has just

said and refer both to the affidavit of my

instructing solicitor and the reported cases,

Boudelah and C, and House and Thorne, which were

the four Crown appeals that related to the

inadequacy generally of very short custodial

sentences and cocktail sentences in relation to

rape.
It would be my submission that there could be no objection taken to such frequency of Crown

appeal in those circumstances because they were

four related matters where the same error was

submitted in each of the four matters. That is

technically four distinct trials, but the issue on

appeal was identical in relation to all of them,

that is whether or not a serious sexual offence

should, as a matter of course, receive a

significant custodial sentence, and the Federal

Court said, "Yes, that's right".

So, four of those appeals related to that

significant proposition, but there were others - it

is not referred to particularly in the affidavit,

but there were appeals against head sentences of a

recidivist child sex offender. Whether there is a

question of public importance in that is arguable.

That was certainly one; there was a matter of

Hilsley, and there is this matter. Was the Crown

argument that this was an offence which must

attract a custodial sentence? In my submission,

that was not the Crown case, that if this offence

could be categorized as a violent, maliciously
causing grievous bodily harm at the more serious

end of the scale, irrespective of the circumstances

of the offender and the circumstances of the

offence, it was my understanding that the Crown and

Preston 19 1/5/92

the majority of the Federal Court were not saying

that a custodial sentence is mandatory. They were

saying that in this circumstance the community

would be outraged, given that the man had frontal

lobe damage if there was not a custodial sentence,

essentially to allay the outrage of the community

in a punitive sense.

TOOHEY J: That tends to detract from the special leave

nature of the matter, does it not? I mean, if the

Full Court had said in sweeping terms that offences of this sort must always attract a prison sentence,

that may or may not be - at least it is a

proposition of law which might be subject to
debate. But from what you have just said, it
simply points up the fact this is a particular

sentence in regard to a particular offence about

which the Federal Court took a particular view.

MR O'DONNELL:  Yes, and that is precisely - using the words

neutrally - that about which I complain, that it

really was simply a Crown appeal on the facts. It

really was the prisoner being put in a position of

double sentencing jeopardy, as referred to in Rowe's case. If I may, I would seek to refer

Your Honours to the Western Australian decision in

Rowe, 52 A Crim R 196.

DAWSON J: That is in the bundle, is it?

MR O'DONNELL:  It is in the bundle, Your Honour, yes.

Your Honours that is a case that could have given

some confidence to both the sentencing judge,

albeit that it is in a different jurisdiction, and

to Mr Justice Higgins in dissent in the Federal

Court. That case was, again, a crime of significance violence which was prevalent and

something that courts take the view should be
stamped out. That was an attack with a beer glass

on a patron in a hotel leading to significant

facial injury and he was charged with unlawful

wounding under the Western Australian Criminal Code.

The Court of Appeal in that case dismissed a

Crown appeal, perhaps just indicating the chance aspect of all of this and the real double jeopardy aspect of all of this. At page 200 - if I might start with page 199 and just quickly indicate,

half-way through the last paragraph:

Unlawful wounding is recognised by the courts

as a serious offence -

and, obviously, this was a very serious example of

it. Mr Justice Wallace went on to say, at

Preston 20 1/5/92

page 200, that is seven or eight lines down the

page:

However this is a Crown appeal and the

principles which operate in such circumstances

where a respondent is placed in double

jeopardy, place a heavy onus on the

appellant -

and it referred to Whittaker which was the High

Court decision referred to by the Chief Justice in

Griffiths when he made his somewhat declaratory

statements. At page 201, Mr Justice Wallace said:

Public concern about a crime must never be

allowed to bring about departure by the courts

from the fundamental concepts of justice and

mercy which should animate the criminal

tribunals of civilised nations.

This is perhaps in a sense motherhood stuff, but it

is the other side of the rejigging of the

sentencing process:

Whilst protection of the public against the

commission of crimes of violence must remain

of paramount concern, if it is possible,

consistent therewith, for a court to be

compassionate and assist in the rehabilitation

of a human being so as to avoid destroying his

life, then the courts ought surely to do so.

Nor is mercy to an individual offender

inconsistent with the recognition of the

seriousness of an offence.

He refers to a South Australian case which, to my

recollection, is a Commonwealth revenue offence

but, be that as it may, in that case - it is an

appellate decision which just went the other way,

and that is the proposition that I submit that as a

question of logic anyone must find difficulty with.

When does an assessment of sentencing objects and

facts and community needs and outrage, when does

that become a disagreement on such an assessment

that becomes a miscarrying of a discretion or an

error?

It is the caution in respect of that

proposition which I submit is the question of

fundamental or significant importance because, it

may be trite to say but the applicant was persuaded

or was seen not to require a custodial sentence in

the circumstances by two Federal Court judges, one

at first instance and one on appeal, and the

converse was seen to be by the majority on appeal.

If one wants to be counting heads about it, it is

two/two - all judges of equal rank and the

Preston 21 1/5/92

sentencing judge, indeed, of significant

experience.

It is that area which I submit is important,

where the word of caution could well be stated by

this Court. I probably can say no more than that,

but the question of delay, in my submission, is not

as important as the question of possible

arbitrariness or overstating of what is a

miscarrying of a discretion. It is that element of

caution that I would submit is that which this
Court in a supervisory jurisdiction could, as a

matter of public importance, simply declare in

granting special leave, irrespective of what

happens to Mr Preston. Thank you.

DAWSON J:  Thank you, Mr O'Donnell. We need not trouble

you, Mr Crispin.

We think that Mr O'Donnell has said, and said

persuasively, all that could be said on behalf of the applicant in this application. But the Court is of the view that the application raises no point

of law, nor do the reasons of the court below or

the sentence imposed disclose any departure from
the principles which ought to guide the exercise of

the sentencing discretion.

Accordingly, special leave to appeal is

refused.

AT 11.03 AM THE MATTER WAS ADJOURNED SINE DIE

Preston 22 1/5/92