R v Franklin

[2009] HCATrans 221

[2009] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M43 of 2009

B e t w e e n -

THE QUEEN

Applicant

and

BRETT DOUGLAS FRANKLIN

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 4 SEPTEMBER 2009, AT 10.02 AM

Copyright in the High Court of Australia

MR J.W. RAPKE, QC:   If the Court pleases, I appear with my learned friend, MR T. GYORFFY, for the applicant.  (instructed by Solicitor for Public Prosecutions)

MR M.J. CROUCHER:   May it please the Court, I appear with my learned friends, MS S. LEIGHFIELD, and MR C. O. H. PARKINSON, on behalf of the respondent.  (instructed by Galbally & O’Bryan)

MR RAPKE:   If your Honour pleases.  Your Honours, this application raises for the Court’s consideration two related questions concerning modern sentencing principles and practice.  The first is, can a sentence which is just and appropriate and proportionate to the total criminality involved in the individual offences on a multi‑count presentment and the total course of criminal conduct ever be crushing?  The second question is, is the concept of “crushing sentence” a factor to be considered in applying the principle of totality, that is, it is taken into account in fixing the individual sentences when calculating cumulation, or is it rather a test used to measure a sentence to determine if it complies with that principle?  That is the principle of totality.  This is the last look notion which has been referred to in some of the authorities and by Andrew Ashford in his work on court sentencing and penal policy who wrote that it bears no relation to proportionality.  Indeed, Ashwood described the concept as a throwback to individualisation.  So, is it a test for mercy or totality? 

Your Honours, we want to turn briefly to the facts of the present case to see how this concept of crushing sentence was used by the Court of Appeal to reduce what we suggest was a merciful sentence imposed on a man convicted of serious criminal offences.  You had a 28‑year‑old man who drove his car in such a grossly negligent manner that it killed two female pedestrians and seriously injured another two, one of whom is probably maimed for life.  The sentencing judge described the driving as “grossly culpable”, that is the application book at 100 and the “drunken hoon driving”, again at 100.

His speed at the time of the impact was described by the sentencing judge as being “grossly excessive”.  He had been roaring down a wet road on which he knew there were pedestrians doing what were described as burnouts and fishtailing while continuing to accelerate.  He had a blood alcohol content which was estimated to be between 0.117 and 0.182, around about three times the permitted legal limit.

HAYNE J:   Mr Rapke, we have read the application book.  You will take such course as you think fit, but we are familiar with the papers.

MR RAPKE:   I am grateful for that, your Honour.  It is apparent from both the sentence of the sentencing judge and the approach taken by the Court of Appeal that the Court of Appeal was satisfied that all relevant sentencing considerations had been taken into account and the Court of Appeal said so at pages 117 and 118 of the application book.  The sentencing judge was also mindful and stated specifically that he did not intend and was mindful of the need not to impose a crushing sentence and was aware of the principles of totality.  He also said so at page 106 of the application book. 

The Court of Appeal found that each individual sentence on each count was unimpeachable and, in fact, the Court imposed the same individual sentences on each count when it came to exercising re‑sentencing discretion.  With orders for cumulation, as your Honours know, the total effective sentence was then 11 years with a minimum of seven.  So the minimum sentence imposed was, in fact, equivalent to that imposed on a single count of culpable driving. 

The respondent then appealed and he argued in the Court of Appeal that it was manifestly excessive and he drew attention particularly to counts 1, 2 and 3 and argued that there had been an error made in cumulation.  That was argued and a year later the Court of Appeal handed down its judgment and it disagreed there was any error shown in the individual sentences which had been imposed.  Each sentence was found to be proportionate ‑ ‑ ‑

HAYNE J:   Sorry, did you say a year elapsed?

MR RAPKE:   Yes.

HAYNE J:   A year elapsed between hearing the appeal and deciding it?

MR RAPKE:   Yes, your Honour.  It found that each of the sentences was proportionate to the criminality involved in the respondent’s conduct, but it found that the total effect of sentencing was manifestly excessive.  As your Honours know, they then adjusted the sentence to a total effective sentence of nine years and fixed a new non‑parole period of five and a half months.  So there had been a reduction in the head sentence by about 11 per cent and the minimum term by about 20 per cent.  So we come to the question of how did the Court of Appeal arrive at this result?  The Court of Appeal said that the sentencing judge had imposed a crushing sentence and is said to be ‑ ‑ ‑

CRENNAN J:   Well, first of all, before talking about a crushing sentence what her Honour said was that:

the cumulation order did not give due weight to the principle of totality –

That is really the ratio of her Honour’s decision.

MR RAPKE:   With respect, your Honour, we would put it that what happened here was that the Court looked at what the sentence was, had determined that it was crushing – and I will take your Honours to a specific sentence by her Honour the Chief Justice, in which she said that was what reopened the sentencing discretion.  They characterised it as crushing and then worked back from that to say, how did we get to a crushing sentence?  We got to that because there must have been some error made in cumulation.

HAYNE J:   Well, it would be plain error, I would have thought, to argue from the word “crushing” to a conclusion.  This is simply a last category House v The King appeal, is it not?  Now, one may agree, one may disagree with the conclusion, but the conclusion of the Court of Appeal was manifest excess, is that right?

MR RAPKE:   Well, your Honours, we suggest that what the Court of Appeal said was the error that was made by the sentencing judge in this case was that a crushing sentence had been imposed and that was what gave rise to the discretion in the Court of Appeal to reopen the sentencing issue.  Her Honour the Chief Justice said that in paragraph 30 of the ‑ ‑ ‑

HAYNE J:   Paragraph 30, page 119 where she had earlier described the conclusion as being:

that the cumulation order did not give due weight to the principle of totality and resulted in a total effective sentence which was manifestly excessive.

Now that ‑ ‑ ‑

MR RAPKE:   And then went on to say in paragraph ‑ ‑ ‑

HAYNE J:   Just a moment, Mr Rapke.

MR RAPKE:   Sorry, your Honour. 

HAYNE J:   That was a proposition expressed in orthodox terms, was it not?

MR RAPKE:   Indeed.

HAYNE J:   It is a proposition that engages House v The King, is that right?

MR RAPKE:   Well, all sentencing discretions involved that, your Honour, yes.

HAYNE J:   Yes.  That is that, although the nature of the error may not be discoverable, the exercise of the discretion is to be reviewed on the ground that a substantial wrong has, in fact, occurred, as they say in House, is that right?

MR RAPKE:   Yes, your Honour.

HAYNE J:   Where do we go from there?  Do you say that their Honours then, having determined a House v The King point, manifest excess, go on to assign specific error?

MR RAPKE:   Yes, your Honour.

HAYNE J:   Where?

MR RAPKE:   Paragraph 32, page 119 of the application book.  Her Honour then considers the question of the characterisation of the sentence and her Honour commences:

In the circumstances, I consider that this was such a sentence. 

That is, it was a crushing sentence.  Then in the final couple of lines of that paragraph on page 120 her Honour said:

adherence to general deterrence ought not result in a sentence that would be crushing which I consider arises here.  Hence, the sentencing discretion is reopened.

That is because the sentence is crushing, has been determined and characterised as being crushing, the sentencing discretion is reopened.  Now, what we argue, your Honours, is that once a sentencing judge has taken into account all mitigating, all aggravating circumstances, has properly weighted them and is conscious of proportionality and the sentences are proportional, then there is no room for another added on principle so‑called to effectively double dip.  Because what happens here is the sentencing judge will take into account the age, the antecedents, all those sorts of matters which are the very sorts of matters that the Chief Justice referred to as making the sentence crushing.  Her Honour said in paragraph 30 on page 119:

Eleven years’ imprisonment, in the circumstances of this case, having regard to the age, history and background of the appellant is in my view a crushing sentence.

Now, that approach to characterisation of sentencing flies in the face of, for example, the approach taken by the Court of Appeal in Vaitos where each one of the three judges who had to consider whether or not the sentence imposed in Vaitos, a very long sentence, was crushing and each one of the judges said you take out of the equation the personal circumstances of the individuals.  Your Honours may recall having read in Vaitos comments such as this from the Chief Justice at page 257 of the judgment in the Court of Appeal:

Is the effective sentence to be regarded as crushing?  This question can only be answered in relation to the facts of the case.  The answer cannot be arrived at mathematically by reference to the offender’s age and the length of sentence to be served. 

Now, that is to be contrasted with what the present Chief Justice said in the application book on page 119.  In the same case, Vaitos, Justice Murphy said at page 276:

It was submitted the sentence is a “crushing” one.  In my view, whatever epithet is properly to be applied to it, it does no more than meet the crimes committed, and I see not the slightest reason to interfere with it.

So again his Honour is considering whether or not the sentence was crushing against the background of the facts of the case rather than the background of the offender.  Finally in Vaitos, Justice O’Bryan at page 301 of the judgment said:

I have some difficulty appreciating the concept that a richly deserved sentence, not manifestly excessive, should be disturbed because the person upon whom the sentence is imposed may feel crushed by it.

Now, that sort of approach to examination of a sentence, the facts of the case rather than the concentration on the individual to determine whether it is crushing or not, was endorsed by the Chief Justice of South Australia in a case which we have referred to and is in the folder, R v E, AD (2005) 93 SASR 20 and at page 30 of that judgment the Honourable Chief Justice said:

Care must be taken in using the concept of a crushing sentence.  Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed.  The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing.  At the end of the day if that is what is called for, that is the sentence that must be imposed.

That is what we contend, that if a sentencing judge has done the exercise, taken into account all appropriate factors, rated them all, then there is no room for this concept of crushing sentence the provenance of which we would say is doubtful in any event.  As your Honours would be aware, it originated in a paragraph in Thomas’ book Principles of Sentencing, I think at page 57.  The only authority cited by Thomas for the proposition is a case called Raybould in a footnote.  Now Raybould has never been able to be found by anybody who has looked for it, including us, and our research has extended to the Crown prosecution service in London.  Also in Western Australia in a case called Butler Justice Franklin was looking for Raybould and to the provenance of this concept of crushing and his Honour said it is not otherwise referred to in Thomas and the reader is left in ignorance as to the circumstances in which a principle came into being or the reasoning behind it.  It was not referred to in Mill which, whilst adopting certain passages from Thomas, did not expressly adopt that passage.  So we now have courts in Australia, South Australia and Western Australia and perhaps other jurisdictions as well, applying a concept which is based on one paragraph in a text book, citing an unreported decision that nobody can find.

Now, your Honours, we put to the Court that the approach taken by the Court in Yates, which is one of the early cases where the crushing concept was referred to, also raises interesting issues.  Yates was a case where you had a 68‑year‑old man on a series of sexual offences, received a long sentence, 10 years with a minimum of eight years, and the court had to consider whether or not his age or whether the sentence imposed was a crushing sentence.  Now, in a dissenting judgment Justice Murphy at page 49 of Yates, which is also in the authorities, said that the word “crushing”:

cannot be, I think, determinative of the real issue, which is, whether the sentence imposed is appropriate to the crimes having regard to all the circumstances.

His Honour went on to say:

I dislike the use of this word “crushing” and personally do not understand it.  It is a pejorative word and not, I think, appropriate, in particularly in this context.

Imprisonment in the past has not “crushed” the applicant, nor deterred him.  Yet there are no doubt cases where the ignominy attaching to the imposition of even the smallest term of imprisonment is such as to ruin the life of the offender.  This is not one of those cases.

If the Court considers that this sentence involves the “destruction of any reasonable expectation of useful life after release” –

I just interpolate, that was the phraseology or the definition given by the Court in Yates –

and so reasons that it is therefore excessive, I am not able to see the logic of this reasoning.

Now, although it is a minority opinion in Yates, the approach taken by Justice Murphy seems to have resonated with judges who have subsequently held that the effect of the sentence on the offender is not determinative of whether a sentence is to be regarded as crushing.  Concentration on the effect of the sentence on an individual at the expense of culpability and criminality has the potential, in our submission, to lead to social discrimination, otherwise one cannot explain a case such as the one that we came across in the South Australia, a case of Smith which was a relatively young man, a 22‑year‑old Aboriginal, who had been convicted or pleaded guilty to three armed robberies. 

He was given a 30‑year sentence with a minimum of 18 and the issue was whether or not that was crushing and the court said, no, it was not crushing.  Now, was that because he had a dysfunctional background, he had a chequered history or what?  Once can perhaps understand that for an elderly person a particularly long sentence may snuff out an expectation of useful life after release, but can it be said the same of a young offender?  In this particular case, if the respondent had been asked to serve every day of the head sentence, he would have been 39 years of age on release and 35 years of age had he served the minimum sentence. 

In South Australia one of the judges, Justice Bleby, who looked at this issue when he had to consider whether or not a 13 and a half year sentence with a minimum of 10 imposed on a 63‑year‑old man for offences of rape was crushing, his Honour asked, is it a crushing sentence to have hanging over him until the age of 75?  I hasten to add, this would simply not be a consideration if he were a fit 25‑year‑old.  So there we have an example of another court concentrating on the age as being the factor which might make a sentence crushing rather than perhaps even the particulars of the case. 

We now have, of course, and this Franklin Case is a good example of it, of where crushing is being used at the other end, namely, when you have younger offenders, and the question is being asked, is that crushing?  Of course, as your Honours would appreciate, the question of age is always taken into account by sentencing courts and the High Court has said that, indeed, advanced age is of course always a relevant factor to be taken into account in the sentencing process and in assessing totality.

In this particular case there could be no argument that the sentencing judge had regard to the age of the respondent.  He made reference to that in the application book at page 106.  His Honour found that the age, together with other personal factors, persuaded him to give a lower minimum term than might otherwise have been done in similar circumstances.  The question therefore arises, what is the warrant for again taking age into account when determining if a sentence is crushing, as the Court of Appeal seems to have done in this case?  If the sentencing judge has already taken it into account, is it not a case of double dipping to have exactly the same factor taken into account a second time to further reduce the sentence?

In this particular case, your Honours, the Court of Appeal used the concept of a crushing sentence as a factor to determine whether there had been a breach of the totality principle.  However, the court did not indicate what made the sentence crushing nor did it make, in our submission, any meaningful comparisons with similar cases to determine if the sentence fell outside the accepted range for such offending.  Indeed, with respect to the Court of Appeal, they did explicitly state that the sentence was indeed within the appropriate range of sentences for this type of offending. 

Now, whilst, of course, a sentencing judge should always be reluctant to impose a crushing sentence, that is, one which involves the destruction of any useful life after release or reasonable expectation of a useful life after release from prison, it does not follow that every sentence which can justifiably be described as crushing must on that account alone be held to be manifestly excessive, and so has said the Victorian Court of Appeal in Crowley and Garner.  According to the Chief Justice in the Vaitos Case, whether or not a sentence is to be regarded as crushing can only be answered in relation to the facts of the case and the answer cannot be arrived at mathematically by reference to the offender’s age and length of sentence to be served.

So what we say is this, your Honours.  The concept of crushing sentence has led and will continue to lead to inconsistency in sentencing and the imposition of idiosyncratic sentences.  We all know what happened in the present case.  Exactly three years before in a case called Ioane the Chief Justice and two other justices of appeal had to consider whether or not

a sentence of 13 years with a minimum of 10 years it had imposed upon a 27‑year‑old man for two counts of culpable driving, two counts of negligently causing serious injury and one count of reckless conduct endangering life, was crushing.  It found that it was.  It re‑sentenced the offender to 12 years with a minimum of nine years.  So, presumably a 12 year sentence with a minimum of nine years was not crushing for a 27‑year‑old man three years before, but in the case of Mr Franklin, the respondent, a 28‑year‑old man, 11 years with a seven is crushing.

So the question asked is what test is a court applying to determine whether or not a sentence is crushing and that is not apparent from the judgment of this court or, indeed, from other statements from other Courts of Appeal.  In fact, in Beck, a case referred to by the Court of Appeal, in its judgment the Court of Appeal in Beck said that the term “crushing” has never been adequately defined in Victoria and is not well understood.  We say, your Honours, that this particular application raises a matter of significance for sentencing in this State as well as in other States, and that is apparent from the number of judgments, both in Western Australia and South Australia in particular where it has been referred to. 

It is a matter which requires, in our submission, analysis by the High Court.  That has never occurred before.  Certainly there has been oblique references to the concept of crushing in other cases, but the interaction between the concept of crushing and totality has never been examined by the High Court and never has the High Court ever been asked to pronounce upon what it actually means, how is it used and what are the obligations of sentencing judges in determining whether sentences may, in fact, be appropriate and have that epithet applied to it.  If your Honours please.

HAYNE J:   Yes, thank you, Mr Rapke.  Yes, Mr Croucher.  Just before you begin, Mr Croucher, are you able to shed any light?  You appeared in the Court of Appeal.

MR CROUCHER:   I did.

HAYNE J:   Was there any intervening process after the hearing of the argument in April of 2008?

MR CROUCHER:   No, that was just a delay of 12 months.

HAYNE J:   Yes, I see.  Yes, Mr Croucher.

MR CROUCHER:   Your Honours, our learned friends say that there were no comparisons.  In the very paragraphs preceding the conclusion that

her Honour reached, the critical conclusion, at page 119 of the application book, paragraph 30 where her Honour concluded:

I consider that the cumulation order did not give due weight to the principle of totality and resulted in a total effective sentence which was manifestly excessive.

Classic House v The King reasoning – her Honour two paragraphs ahead of that said this in paragraph 28:

In Johnstone, I analysed the sentences imposed in relevant cases involving multiple victims.

I should interpolate, it was a detailed analysis of all the cases that had gone before that time –

I referred to cases involving two deaths which attracted total effective sentences ranging between six years and six months’ imprisonment and nine years’ imprisonment.

HAYNE J:   The case against you, as I understand it, is that this word “crushing” seems to have taken on a life of its own and to have evolved into some sort of sentencing principle.

MR CROUCHER:   Well, it is certainly a matter that has been around for a long time.  The history of which our learned friend speaks is not quite accurate strictly speaking. 

HAYNE J:   Just before you make those points, which no doubt are forensically important to your side of the record, is the use of the expression “crushing” in this set of reasons anything more than an emphatic, not to say colourful, description of the conclusion that cumulation orders led to a sentence that was manifestly excessive?

MR CROUCHER:   Yes, it is epexegetical of what has gone before.  Our learned friend referred to ‑ ‑ ‑

HAYNE J:   I think we need not trouble you further, Mr Croucher.  Is there anything you would wish to say in answer, Mr Rapke?

MR RAPKE:   No, thank you, your Honour.

HAYNE J:   An appellate court’s conclusion that a sentence imposed at first instance is manifestly excessive is a conclusion that “although the nature of the error may not be discoverable, the exercise of the discretion is to be reviewed on the ground that a substantial wrong has in fact occurred”; House v The King (1936) 55 CLR 499 at 505.

The conclusion reached by the Court of Appeal that the orders for cumulation made the sentence imposed at first instance in this matter manifestly excessive depended upon that Court’s assessment of the particular facts and circumstances of the case.  It was not a conclusion assigning specific error in the sentencing process.  References made in the reasons to the sentence being “crushing” are to be understood in their context as no more than an emphatic statement of the conclusion that the cumulation orders made at first instance rendered the sentence manifestly excessive.  In the circumstances, no general statement of principle, whether as to what is meant when it is said that a sentence is “crushing” or otherwise, is established by or to be distilled from the reasons of the Court of Appeal.                    

No point of general principle would fall for consideration if special leave to appeal to this Court were to be granted.  It is not in the interests of justice, either generally or in the particular case for special leave to appeal be granted.  Special leave is accordingly refused.

MR CROUCHER:   Your Honours, we make an application for costs in this case for the reasons we set out at page 140 of the application book, paragraph 16:

Unlike the situation that would have obtained if the Crown had unsuccessfully appealed the respondent’s sentence to the Court of Appeal or if this application concerned a civil appeal, none of the respondent’s costs in either court will be met pursuant to an indemnity certificate under the Appeals Costs Act 1988 (Vic).

which would  normally occur.  There are authorities which we have referred to, including R v Shrestha, R v Carne and R v Tang in our list of authorities there at the foot of that page where the Court has in circumstances similar made orders for the costs despite the general ruling in all cases.

HAYNE J:   Was it also done in Lee and in Benz, or not?

MR CROUCHER:   I do not know.

HAYNE J:   So it is Shrestha, Carne and Tang?

MR CROUCHER:   Yes.

HAYNE J:   Yes.  Yes, Mr Rapke.

MR RAPKE:   The application is opposed.  We say that this is a criminal appeal.  In the normal order of applying, there is no good reason to depart from that.

HAYNE J:   Yes.  The application is refused with costs.

The Court will adjourn to reconstitute.

AT 10.30 AM THE MATTER WAS CONCLUDED