R v Kilic

[2016] HCATrans 169

[2016] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M2 of 2016

B e t w e e n -

THE QUEEN

Applicant

and

YAVAZ KILIC

Respondent

Application for special leave to appeal

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 28 JULY 2016, AT 9.32 AM

Copyright in the High Court of Australia

MR G.J.C. SILBERT, QC:   May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the applicant in this matter.  (instructed by Solicitor for Public Prosecutions (Vic))

MR D.A. DANN, QC:   May it please the Court, I appear with my learned friend, MS G.F. CONNELLY, for the respondent.  (instructed by Doogue O’Brien George)

KIEFEL J:   Yes, Mr Silbert.

MR SILBERT:   If the Court pleases.  The respondent pleaded guilty to intentionally causing serious injury by dousing his partner with petrol and setting her alight.  The injuries were horrific and, but for medical intervention, she would most certainly have died. 

The offence carries a maximum of 20 years imprisonment.  The sentencing judge sentenced to 14 years in respect of this count of intentionally causing serious injury.  There were a couple of summary offences which resulted in an accumulated sentence of 15 years, but I will stay with the intentionally causing serious injury and the 14 years in respect of which the complaint is made.  The Court of Appeal upheld a submission of manifest excess, and reduced the 14 years to 10 and a half years.  It is against that order that the Director of Public Prosecutions seeks special leave to appeal. 

The concept of current sentencing practices has swamped every other criterion as the dominating sentencing provision in Victoria.  If I move to ground 1 of the application for special leave, the Court of Appeal characterised this offence as within the “worst” category.  Your Honours will see that categorisation at pages 36 and 42 of the application book.

Using the maximum of 20 years as appropriate for the worst conceivable genus of the offence, logic would dictate that the sentence would be towards the upper range – that is to say, the upper quartile of probably 15 years onwards – and that is precisely, it seems, what the sentencing judge did.  After allowing for specified mitigating factors, he reached a sentence of 14 years as the appropriate sentence.

His Honour sentenced in accordance with the directions of this Court given as long ago as 1987 in Veen (No 2), and instinctively, that is the sentence he reached.  Yet the Court of Appeal did precisely what it said it was not doing.  It ignored the instruction and reasoned from a number of dissimilar cases to impose what I think Justice Nettle has called “a cap and collar” on the sentencing discretion.  It is submitted that there is no other way of reading the Court of Appeal’s decision, and it is submitted that that, on a plain reading, bespeaks sentencing error.

It is submitted, your Honours, that it is an exercise in semantics where the Court of Appeal uses dissimilar cases to identify error of principle that constitutes sentencing error, whereas what has clearly been done is that numerical comparison is the operative cause in reaching the conclusion reached by their Honours in the Court of Appeal. 

The Court of Appeal, it is submitted, pays lip service to Hili, Barbaro, Pham – the other decisions of this Court which constantly emphasise the instinctive nature of the sentencing process – and whilst using numbers of dissimilar cases, effectively it indulges in a comparison of apples with oranges in reaching its sentencing conclusion.

It is submitted, your Honours, that on any reading of this sentence, the current sentencing practice is a shimmer or a mantra assuming a disproportionate influence in exercising the sentencing discretion because there is no other way, it is submitted, of explaining how the Court of Appeal drops the sentence of the sentencing judge to 10 and a half.  An application, it is submitted, of Veen (No 2) clearly militates against such a decision.

KIEFEL J:   Mr Silbert, what is the general importance of an appeal in a matter such as this?

MR SILBERT:   The general importance, your Honour, is to emphasise that current sentencing practice is but one criterion in exercising an instinctive sentence.  This current sentencing practice is but one of a large number of sentencing criteria, has assumed a disproportionate effect in sentencing in the Court of Appeal in Victoria, and the general importance is that sentencing judges in the County Court in Victoria are largely hamstrung in the way that they can instinctively synthesise the various factors in order to reach a sentence.

KIEFEL J:   You focus on the instinctive synthesis idea, but is this not more particularly a case involving a limitation on the use of the worst category factor?

MR SILBERT:   That is referred to in the second ground – in fact, grounds 2, 3 and 4 are probably particulars of ground 1, in one sense.  The answer to that is yes, your Honour, it is.  It is categorised as a “worst case” category, and it is submitted that “worst case” category is a category that has long been referred to by sentencing judges, and a particular factual matrix becomes either worst case or not.

It is submitted that it should not be capable of further gradations if an instinctive synthesis is to be applied.  It is either worst case, or it is not.  The Court of Appeal affirms in its sentencing decision that it is a worst case, but yet drops the sentence down to something approximating 50 per cent of the maximum. 

Now, following Veen (No 2), “worst case” is reserved for, hypothetically, the worst conceivable case, so one is never going to see it, but it is meant to be, it is submitted, a yardstick, which would be the first basis from which a court would reason if it categorised or characterised a matter as “worst case”.

The gradation of “worst case” category, it is submitted – further gradations within that category, it is submitted, serve only to limit by a numerical process the sentence that is applicable.  If it is worst case, it is submitted it starts at a particular area and one reasons upwards if it is aggravating, and downwards if it is mitigating, as the sentencing judge did in this case.  There were mitigating factors which brought the sentence down to 14 years in his assessment, but it is ‑ ‑ ‑

GORDON J:   Mr Silbert, can I ask you about ground 3?

MR SILBERT:   Yes, your Honour.

GORDON J:   Is that a complaint that although the concept of equal justice applies, we are not dealing with the principle of parity – that is, treatment between co‑offenders?

MR SILBERT:   Yes, your Honour, precisely.  The sentencing remarks of the Court of Appeal at application book page 42 at paragraph 67, your Honours will see:

Notwithstanding the latitude that must therefore be extended to sentencing judges, particularly when sentencing for an offence falling within the worst category, there is such a disparity between the sentence imposed and current sentencing practice as illustrated by the authorities relied upon by the parties, that we are satisfied that there has been a breach of the underlying sentencing principle of equal justice.  The sentence imposed is unjustifiably disparate from other sentences imposed for worst category offending by offenders in comparable circumstances.

There is a footnote there, your Honours will see, on page 43 of the application book, footnote 41, to Lowe v The Queen and Postiglione v The Queen, both decisions of this Court which relate to the sentencing of co‑offenders and the principle of parity.  The brief answer to your Honour Justice Gordon is yes, it does.

KIEFEL J:   I take it, Mr Silbert, that your ground 5 has as its theme that appellate courts ought to identify an error in sentencing procedures rather than simply giving their own view about what an appropriate sentence might be?

MR SILBERT:   Precisely so, your Honour.  It relies on the limb of House v The King, it being unreasonable or plainly unjust, but it does not expand or elaborate on that.  It is submitted that what it simply does is substitute its own view for the sentence imposed.

KIEFEL J:   Mr Silbert, we might call on the respondent at this point, thank you.

MR SILBERT:   I am obliged to your Honour.

KIEFEL J:   Yes, Mr Dann.

MR DANN:   If the Court pleases.  It is submitted that this application raises no question of sufficient public importance to warrant a grant of special leave.  It is submitted that the various complaints made by the applicant do not amount to an error of law or a gross violation of principle such as to warrant a grant of special leave, bearing in mind that this is an application relating to sentence.  It is an application relating to the Crown ‑ ‑ ‑

KIEFEL J:   Quite so.  You may take it that we understand that special leave in sentencing is not easily granted.  But can you explain in this case how the Court of Appeal came to identify any error which justified the reduction in sentence in a case of this kind?

MR DANN:   Yes, your Honours.  The Court of Appeal reached a conclusion that the sentence imposed was manifestly excessive ‑ ‑ ‑

KIEFEL J:   That is the conclusion.  What is the reasoning?

MR DANN:   They based that conclusion on a broad range of considerations in this case.  It was not just – I think at one stage of the applicant’s written submissions, it talks about just three cases.  It was a consideration of all of the relevant factors relating to the offending; all of the relevant factors relating to the offender.  The cases that have been provided by both the defence and prosecution on the plea – so these, what are said to be dissimilar cases, largely were provided by the prosecution to the County Court judge, involving cases dealing with the infliction of serious injury by fire.

The basis for the conclusion is really set out at application book 43 whereby important considerations were there assembled – not just in respect to the consideration of current sentencing practice and the similar cases which we say are similar cases, but the findings that this was a case that lacked premeditation, that this was a case that was not committed by a person with relevant prior convictions, that this was a case where ‑ ‑ ‑

KIEFEL J:   Had the sentencing judge made a finding that there was a lack of premeditation?

MR DANN:   I think that was accepted, your Honours.  I will try and take you to that relevant portion if I can.  It is application book 12, paragraph 16 of the sentencing remarks.

KIEFEL J:   I am not quite sure what that first sentence means, in the context.  He just happened to have some petrol available.

MR DANN:   There was a discussion on the plea as to this point, whether it was premeditated or not premeditated – when I say the plea, the plea in the County Court – whether the petrol had been brought to the premises or not.  The submission was made on behalf of the respondent in the plea that this was not premeditated offending, and that discussion arose in this context whereby the County Court judge was asking whether this falls into the “worst case” category.  Defence counsel on the plea was saying no, and set out a number of reasons, the lack of premeditation being one of them.

KIEFEL J:   Well, if the sentencing judge has taken that into account, that is not really a factor that the appellate court can use, is it?

MR DANN:   In our respectful submission, yes, because what the appellate court is asked to do in considering whether the sentence is manifestly excessive is to take into account all relevant matters that were before the sentencing judge; all relevant findings by the sentencing judge; have regard to those matters in mitigation which were assembled at that part of the reasons by the Court of Appeal, including youth; the fact that there were prospects of rehabilitation; a finding of genuine remorse; and, of course, the lack of some aggravating features – I mentioned premeditation. 

Here, of course, there were attempts by the respondent to put out the fire in circumstances where, in so doing, he was injured himself.  There were very relevant considerations to take into account, both in terms of the offender and the offending.  The court was entitled ‑ ‑ ‑

GORDON J:   But, Mr Dann, those factors that you just listed, which are in the last sentence of paragraph 68 of the Court of Appeal, are factors that the sentencing judge took into account.  Where is the error as identified by the Court of Appeal that led to them reducing this sentence substantially?

MR DANN:   The Court of Appeal had regard to those factors in combination though, and taking into account this consideration of current sentencing practices, as they were bound to, by the legislation ‑ ‑ ‑

GORDON J:   Does that mean anything more than they took a different view about where this was on the scale of worst category?  They start off in paragraph 31 describing the offending as “truly horrific” and clearly “within the worst category of this offence”.  So we have a starting point which would seem to suggest it is clearly within the realm of “worst category”, and yet, by the time we get to page 43 of the application book, we have a different view.

MR DANN:   No.  In our respectful submission, the court was entitled, even leaving aside our foreshadowed notice of contention as to whether this really was in the worst case – leaving that to one side, what the court were able to do, in our respectful submission, contrary to the position advanced by the applicant, they were able even within the worst category to consider those factors in terms of the level of injury, whether there was premeditation – they were able to distinguish and differentiate between the objective gravity of any offending that is set to fall within the worst category. 

It cannot be, in our submission, that once a label is attached that it falls within the worst category.  That precluded the court from considering, in a comparative sense, for example, the injuries sustained by the victim in this case as opposed to, say, the injuries in the case of Ali, which is referred to in the reasons and was referred to in the court below.

The court has arrived at a conclusion that there was error in the sense that this sentence imposed – I am dealing here primarily with the sentence for intentionally causing serious injury – was manifestly excessive when regard was had to all relevant matters, including current sentencing practice informed as it was by a consideration of like cases.  When consideration was had to those like cases, you had a situation where, starkly, in cases which were similar – and provided, as I say, by the prosecution on the plea – this respondent was receiving a sentence of six, seven, eight years longer than had been imposed in those cases.

That was a matter that did not bind, that did not set a precedent, and the Court of Appeal recognised all of that, and I can take the Court to all of those references where the court recognised the limitations involved in looking at similar cases, recognised the limitations in terms of current sentencing practice, referred to that whole process as providing a general understanding, or a yardstick.  But, as was required, the court had to have regard to current sentencing practice when that regard was had, and this sentence of 14 years was considered, along with all relevant matters.  That is where the court found error, and it is an error that is established when that conclusion is reached in that particular way.  That is an answer to the concern of your Honours. 

More specifically, it is submitted that in terms of the individual complaints which we have tried to tie to the grounds of appeal in our written argument, the court did not engage in any parity exercise.  The Court of Appeal was referring to the concept, and did refer to the concept, of equal justice.  The court was not trying to arrive at any numerical equivalence with the like cases, or similar cases, and indeed the sentence that was substituted by the Court of Appeal still far outstripped the sentences that had been posed in the similar cases, cases of intentionally causing serious injury by the use of fire.

It is submitted that the reference to the word “disparity” in that sense, where you have been taken by the applicant, is not – the strict parity principle was not being invoked at all.  It was a much broader principle; a principle dealing with equal justice.

The applicant makes complaint that if this offending is said to fall in the worst category, how can an individual sentence – 70 per cent of the maximum penalty – really ever be described as manifestly excessive, or how can that finding ever be reached?  In our submission, that demonstrates an error in approach.  It assumes some numerical equivalence between that first finding of the offending being in the worst category, and some numerical figure.  It does not take into account all of the matters in mitigation.  It does not take into account current sentencing practice.   To proceed on that basis would itself establish error.

It is submitted that in terms of the complaint made about injury on the Court of Appeal’s consideration of the comparative scale of injury, which is a complaint that is raised by my learned friends, that relates really and gets down to a factual consideration in terms of the evidence that was before the court – the medical evidence – and the evidence that is before the court in other cases.  Ali was used as the comparator in terms of permanent, physical and mental disability.

The complaint made that the facts of the cases and in fact current sentencing practice did not establish that this sentence was outside the range – that particular complaint that is raised by the applicant does not raise a question of public importance either.  All that is saying is in this particular case – we say the cases that were provided and that were considered could not lead to that conclusion.  That is not a question, in our respectful submission, that warrants the grant of special leave.  It is submitted that the Court of Appeal were well placed to have regard to those current sentencing practices.

Complaint is made that this involved just a substitution by the Court of Appeal of what the Court of Appeal thought was the correct sentence.  I would ask your Honours to accept that that is not what happened.  If you trace through the reasoning and the analysis by the Court of Appeal, what has occurred is a different process of analysis.

The court identified some concerns in the way in which this sentencing discretion was exercised.  I refer there to the manner in which sentence was imposed so quickly after the sentencing submissions had been made.  In that context, the court was also concerned as to whether certain factors had been given sufficient weight, or whether certain factors had been given too much weight.  For example, the Court of Appeal referred to the photos of the injuries that were provided on the plea.

The court traced through what happened at the sentencing hearing, had their concerns, referred then and assembled and had regard to all matters in mitigation, as well as current sentencing practice.  That is the pathway to the eventual conclusion.  It was not simply “This is what we think the correct sentence should be, and here it is”.  It is a considered, reasoned approach that is consistent with the way a ground of manifest excess is considered, and has been considered by this Court of Appeal and other Courts of Appeal.

Your Honours, just going back to that current sentencing practice, it did remain and it was able to be demonstrated that this sentence of 14 years did lie at the outer limit of all sentences that had been imposed for the offence of intentionally causing serious injury.  So whereas it is said here is a small selection of cases that the learned sentencing judge was provided and the Court of Appeal had regard to, it is in fact really a much broader consideration because where you have this sentence lying at the extreme end of the range in terms of the previous sentences, whilst it is not binding, whilst it does not fix sentences to be passed in the future, it was a very relevant consideration and it appropriately led to a comparison of the circumstances in this particular case and those cases that also fall at the extreme end.  The Court of Appeal were entitled, as part of the consideration of this sentence, to have regard to those cases which were referred to as “worst category” cases also.

KIEFEL J:   Did the Court of Appeal actually explain how they distinguished this case from the “worst category” cases to which they had referred?

MR DANN:   Part of it, your Honour, was dealing with the issue of injury, the level of injury, so that ‑ ‑ ‑

KIEFEL J:   Well, they have in common that there was brain damage.  Does that mean that there is somehow a distinction drawn between physical disfigurement and pain, and brain damage?  Where is the line drawn?

MR DANN:   The court said this at application book 43:

Subtle distinctions between serious injuries should be eschewed but without minimising the horrific injuries suffered by the victim, there is a clear distinction to be made here from those cases where the victims have sustained lifelong major physical or mental disabilities.

That was, as we understand it, a reference to Ali, one of the cases that had been provided.  There is a distinction ‑ ‑ ‑

KIEFEL J:   Yes.  It was the case involving brain damage.

MR DANN:   Yes, your Honour.  That is the point I made about the distinctions drawn in this case.  Ali, again, was a person who had numerous prior convictions.  The point here was made and recognised that this was a young person with very limited prior convictions, with no prior convictions of violence.  So, yes, the Court of Appeal were distinguishing and explaining where this case sat in terms of those other cases at the extreme end of the sentencing range.  That is in answer to your Honour’s question; yes, the Court of Appeal did explain that level of differentiation.

KIEFEL J:   Yes, thank you.

MR DANN:   If I come back to where we started.  In terms of this case and the points that are raised, and when asked by the Court in terms of what is the question of sufficient public importance, it is submitted that that question was not in fact raised in the written arguments, in answer to the questions from your Honours today.  This case is not a suitable vehicle to deal with that question in any event.  Thereafter, there is no other question that arises in terms of general public importance.  They are the matters, your Honours.

KIEFEL J:   Thank you, Mr Dann.  Is there anything in reply, Mr Silbert?

MR SILBERT:   Only, your Honours, that grounds 2, 3 and 5, it is submitted, do raise matters of general importance.  It is the sentencing law in Victoria.

KIEFEL J:   There will be a grant of special leave in this matter.  Will the matter exceed a half day, Mr Silbert?

MR SILBERT:   No, your Honour.

KIEFEL J:   Mr Dann, do you agree with that?

MR DANN:   Yes, your Honour.

KIEFEL J:   Thank you.  Would you please ensure that your instructing solicitors obtain a copy of the directions for the filing of submissions in this matter, because the timetable has been altered a little.  The sooner they obtain a copy, probably the better.

MR SILBERT:   Yes, certainly.

KIEFEL J:   Thank you, gentlemen.

MR SILBERT:   Yes, your Honour.

MR DANN:   If the Court pleases.

AT 10.02 AM THE MATTER WAS CONCLUDED