Reg v Denyer

[1995] HCATrans 63

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M77 of 1994

B e t w e e n -

THE QUEEN

Applicant

and

PAUL CHARLES DENYER

Respondent

Application for special leave to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 MARCH 1995, AT 11.01 AM

Copyright in the High Court of Australia

MR G.R. FLATMAN:   May it please the Court, I appear with my learned friend, DR. C.T. CORNS, for the applicant.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Vic))

MR D.F. HORE-LACY:   May it please the Court, I appear with my learned friend, MR S.P. CASH, for the respondent.  (instructed by Brian Cash)

MASON CJ:   Mr Flatman.

MR FLATMAN:   At the outset, this application is made in the light of two issues:  first of all that it is seeking leave to appeal against sentence and, secondly, that it is seeking leave to appeal by the Crown.  I am mindful of the fact that in relation to both of those matters, it is necessary to show that there is an important principle of sentencing involved, that it is an error that raises an important question and that leave is given in only rare and exceptional circumstances.

The question of law in this application, in my submission, involves important questions of sentencing that relate to the principles to be applied by a sentencing judge in deciding whether or not to fix a minimum term. We say that the Full Court erred in that it approached the decision primarily on considerations relating to the youth of the offender and the inability to exclude the theoretical prospect of rehabilitation set out in the first question in relation to the questions of law raised by the application, rather than all the circumstances of the case, in particular the requirements of section 11 of the Sentencing Act and the matters contained in question 2 and 3 of the questions of law. Section 11 of the Sentencing Act provides that:

If a court sentences an offender to be imprisoned in respect of an offence for -

(a) the term of his or her natural life,
.....
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.

It is submitted that that is the question considered by the sentencing judge at the time of sentence and, with respect, the Full Court misconstrued or over simplified the approach taken by the learned sentencing judge.

MASON CJ:   How can that be a matter that warrants the grant of special leave?

MR FLATMAN:   I am not relying on the misconstruction, your Honour, but rather what that led to in the decision of the Court of Criminal Appeal.  It is my submission that it is necessary to look at what the learned sentencing judge did and then look at what a Full Court did in the principles that they applied in deciding whether or not to fix a minimum term.  That, in itself, is not the basis for the application for special leave.  At page 96 of the application book the kernel or the nub of the consideration is set out, starting at line 30, in relation to this decision.  Having reviewed the facts of the case and the reason for imposing the maximum term, his Honour turned to the question:

The only question which remains for consideration is whether a period of imprisonment should be fixed after which you would become eligible for parole.  Your counsel when presenting submissions on this aspect emphasised your youth and a dreadful prospect which you would face if this were not done.  He pointed to the views expressed by the High Court in R. v. Bugmy (1990) 169 CLR 525, as to the care which a sentencing judge must take in predicting an offender’s prospects for rehabilitation. He submitted, quite correctly, that we cannot know whether in 25, 30, or at some time beyond 30 years, the fires of your aberrant desires may have been long quenched or whether our understanding of such matters may have progressed to the extent that some solution to the problem which you pose may have been found.

It is my submission in that passage he was acknowledging the care that must be taken in predicting the future prospects of rehabilitation in a person so young.  But he went on to say, in the next passage:

Unfortunately, I must sentence you now and I cannot abrogate my responsibility to some distant Parole Board. 

The responsibility, in my submission, that he is referring to is the responsibility which is the question which remained for consideration, whether a period of imprisonment should be fixed, not whether or not a person should be released on parole at a later time.

DEANE J:   Is not your problem this, that as I read the judgments, all members of the Court of Criminal Appeal said that that sentence involved an error of law and that because of it his Honour’s sentencing discretion miscarried?

MR FLATMAN:   I am sorry, I think that the difficulty whether or not there was an error of law at this stage ‑ ‑ ‑

DEANE J:   But did not the Court of Criminal Appeal find that his Honour fell into error of law in approaching it on the basis that he could not abrogate responsibility to some distant parole board in the sense that he is using those words?

MR FLATMAN:   Yes, your Honour.

DEANE J:   Then if that is so, what is involved really is not the question you put, but the question whether the Court of Criminal Appeal, in determining whether or not a non-parole period should have been fixed fell into error of law.

MR FLATMAN:   I agree with that, your Honour, but the difficulty about interpreting how they fell into error of law relates to their findings which, in turn, depend upon the error of law they perceive in the primary sentencing judge.

DEANE J:    I see that, but all I was pointing out to you was it is not a matter of your trying to immunise what the sentencing judge said from an appeal, it is a matter of you attacking the exercise of the discretion by the Court of Criminal Appeal.

MR FLATMAN:   That is what I am proposing to do, your Honour, but so much of the judgment of the Court of Criminal Appeal relates back to this particular passage, indeed it is contained in the judgment, that I wanted to make my starting point this particular passage.

DEANE J:   Then let me not delay you any longer.

MR FLATMAN:   I am sorry, but I will try and do it as succinctly as I can. 

Unfortunately, I must sentence you now and I cannot abrogate my responsibility to some distant Parole Board. 

In my submission, that relates to the question of whether or not - his decision whether or not to fix a minimum term.  If I can move on to the judgment of the Court of Criminal Appeal on this point, which is at page 112, his Honour Mr Justice Crockett said at line 35, having set out the whole of the passage at page 97:

From those reasons, it is apparent that the judge’s refusal to fix a non-parole period was based upon a perception that the applicant posed a danger to the community.  At all events, there was, I think, no other good ground for such a refusal.

If you go on with the passage following in the primary judge’s reasons for sentence, he says:

Recognising the importance of rehabilitation as a sentencing consideration, there are very occasionally situations in which that factor must be subordinated within the confines of a proportionate sentence to the need to protect the public against the truly dangerous.  The evidence before this court is tragically clear on that aspect.  You do constitute such a danger, and at our present state of knowledge, apart from separating you from society, there is nothing that can be done about it.  Any non-parole period which I fix would have to be very long in any event and calculated without reference to the potential risk which you could then pose.  Perhaps there will come a day when you will be able to walk among the ordinary people of our community.  Whether you will ever do so must await the passage of years and the decision of the Executive Government of the time.

It is my submission that the expression “within the confines of a proportionate sentence” is a matter that did weigh with the sentencing judge and it is an over-simplification to say that it is apparent that the judge’s refusal to fix a non-parole period was simply based on the perception that the applicant posed a danger to the community.

His Honour Mr Justice Crockett went on to say he thought that there were “no other good ground for such a refusal.”  Moving across to the facts on page 113, having talked about his past history being unremarkable:

Guilt of the crime of murder, of itself, is not sufficient to require the sentencer to abstain from fixing a non-parole period.  We were told of a number of cases where such a period was fixed where murder was the offence and the circumstances of its commission were every bit as sickening as those in the present case.  Moreover, perpetrators of multiple killings have not been denied the benefit of an order fixing a non-parole period.  Indeed, it might be thought that a refusal to fix a period that rests solely upon a finding that there is now, and there may be for the rest of the applicant’s life, a risk of danger to the community were he to be granted his liberty at any time in his lifetime was a refusal which the section did not empower the judge to make.

Certainly, if that was the basis for the decision of the primary judge, that is correct.  But his Honour goes on, in setting out the considerations on page 113 to page 114, at the bottom of page 114, line 26:

In these circumstances the judge’s refusal to fix a non-parole period does, I think, require that close attention be given to whether his discretion in this regard has miscarried.  Undeniably his Honour was correct in holding that the applicant is, if free, a danger to the community and that that fact is highly relevant to the selection of sentences considered appropriate to pass upon the applicant.  However, the need to protect the public from an offender’s depredation does not permit his incarceration beyond what is an appropriate sentence having regard to his moral culpability.  The sentence cannot be allowed to act as one of preventive detention:  Veen v. The Queen (No. 1) (1978) 143 CLR 458.

Now, that is clearly a correct proposition of law. 

So, too, was his Honour plainly correct in holding that during the applicant’s lifetime his condition may undergo a spontaneous resolution or that advances in medical science may lead to the discovery of a treatment that will solve the applicant’s mental problems.  The evidence of the two experts could be no more than an opinion held by each.  it was no possible positively to assert that there might not be a cure, spontaneous or otherwise, that would at some time in the future permit the applicant to be granted his freedom without risk to the community.  Of course, such a cure might not occur.  It may be that skilled and reliably informed professional judgment will operate against the applicant’s release.  In such a case the Parole Board can be expected not to allow his release ‑ assuming that it was otherwise empowered to do so.  The reaching of a decision on such a matter is the Board’s statutory function and responsibility.  So to acknowledge and, accordingly, for a sentencer to fix a non-parole period after the expiration of which the Board would have the duty to consider the question of the applicant’s possible release is not in my respectful opinion an “abrogation” by the sentencer of his “responsibility to some distant Parole Board”.  So to act would in my opinion be to discharge his duty in the expectation that the members of the Parole Board of the day would in due course discharge them.

My submission there is that the issue is not abrogating a duty to some distant parole board as to the length of time appropriate for incarceration but the issue is whether or not to impose a minimum term and whether or not to impose a minimum term is not a matter that should be left to some distant parole board but should be considered ‑ ‑ ‑

GAUDRON J:   But how could it, in any event, be left to a distant parole board.  That is the difficulty.  It makes no sense.  The statement makes no sense unless it is read the way in which it was read in the Court of Criminal Appeal.

MR FLATMAN:   It could not be left to a - except it makes sense if the judge is saying, if I decide to fix a minimum term, I am in fact abrogating my responsibility on the question of whether or not to fix a minimum term, because within the range of proportionality, and having regard to the circumstances of this case, it is not appropriate to set a minimum term.  I appreciate that I have caused some of this difficulty myself by going back to the primary judge’s reasons, but it seems to me that it is an integral part then of the judgment of the Court of Criminal Appeal. 

That is not the question; the question for the Court is not to be concerned about the appropriate length of incarceration at some future time which theoretically could be available. The question for the Court is the application of section 11, and the application of section 11 is where, having regard to the nature of the offence and the history of the offender, it is inappropriate to set a minimum term. The difficulty with the judgment as it proceeds, it is my submission that because of the initial approach taken to the primary sentencing judge, it moves into the proposition that what is important is rehabilitation.

Now, if I can jump ahead to page 117 of his judgment his Honour says, at line 10:

“Perhaps there will come a day when you will be able to walk among the ordinary people of our community.  Whether you will ever do so must await the passage of years and the decision of the Executive Government of the time.”

That passage does, I think, reveal the judge has “abrogated” his duty to pass sentence according to law.  It must be irrelevant to the sentencing process to have regard to whether the Executive Government of the day might intervene in the sentence passed by a court of law.

The difficulty with that is that that was a result his Honour was talking about, not a suggested alternative course.  But the next part is important:

I am of opinion that neither the “nature of the offences nor the past history of the offender” entitled the court to conclude there would never be a prospect of rehabilitation.  Consequently it was the duty of the judge to have fixed a non-parole period.

That, in my submission, gets the test around the wrong way.  The test ought to be whether or not the nature of the offence and the history of the offender precludes the judge, or entitled the judge to exercise his discretion. 

I see my time is running short.  If I can run on quickly to page 121 of the judgment of his Honour Mr Justice Southwell because the same error, in my submission, is made in that.  At page 121 his Honour does deal with the question of what are the issues that have to be decided in determining whether to impose a minimum term or not and he says:

There may well be cases where having regard to the nature of the offence, the antecedents of the offender, and his age at the time of sentence and, quite apart from seemingly imponderable considerations concerning the future protection of the community, the justice of the case, in the opinion of the sentencing judge, requires him to find affirmatively that the prisoner should remain incarcerated for the term of his natural life.  Taylor (of the Russell Street bombing case) who was aged 51, was held by the sentencing judge to be in that category.

However, in the present case the judge did not, so it would appear, regard the applicant as being in that category.  Since the applicant is aged only 21 years, it would be surprising if the judge were to have held otherwise.

Now, in the first paragraph of that passage, his Honour says:

There may well be cases where having regard to the nature of the offence, the antecedents of the offender -

and they are two of the matters in section 11, the nature of the offence and the history of the offender, but then goes on to say -

and his age at the time of sentence and, quite apart from seemingly imponderable considerations.....the justice of the case, in the opinion of the sentencing judge, requires him to find affirmatively that the prisoner should remain incarcerated for the term of his natural life.

It is my submission that that is the error, and the error also exists in the decision of Mr Justice Crockett, namely that consideration of rehabilitation and the age of the offender have subsumed and become more important than the real issue, which is the application of section 11, whether it is appropriate to fix a minimum term or not. I think I have over ‑ ‑ ‑

DEANE J:   Except does not the phrase “the justice of the case” bring into play the considerations that you have stressed?

MR FLATMAN:   The justice of the case is, in fact, what you glean from the nature of the offence and the history of the offender.  The justice of the case is something that has to be taken into account when deciding whether or not to impose a minimum term , because of Power, Bugmy and Deakin and the other cases.  But this has promoted into the justice of the case, above the issues of proportionality, the nature of the offence and the history of the offender, has promoted the age of the offender into a special category which is not part of the sentencing consideration.  The justice of the case does not put that in its proper perspective.

DEANE J:   But surely, if you are deciding to fix a non-parole period in a case of life imprisonment, the age of the person concerned must necessarily be a critical factor.

MR FLATMAN:   It must be an important factor, it might well be outweighed by the nature of the offence itself.  That paragraph reads:

There may well be cases where having regard to the nature of the offence, the antecedents of the offender, and his age at the time of sentence.....the justice of the case, in the opinion of the sentencing judge, requires him to find affirmatively that the prisoner should remain incarcerated ‑ ‑ ‑

GAUDRON J:   Would one not have to read into that “whatever the age or the circumstances of the offender”?  I mean, age and circumstances of the offender must be relevant.

MR FLATMAN:   It might be that it is relevant as part of the general consideration, but my complaint is that here there are three issues that have been put forward that constitute the justice of the case:  the nature of the offence, the antecedents of the offender and the age at time of sentence.  And it is my submission that that is putting the age at time of sentence on a different level than it is entitled to.  What should be looked at is the nature of the case and the history of the offender, and then the matters that are underneath that are all looked at together, including the age of the offender,

the prospects of rehabilitation, the danger to the community, his other individual circumstances, are all part of what is a category underneath.  The fundament issue is the nature of the case and the history of the offender.       It is my submission ‑ ‑ ‑

GAUDRON J:   But in many respects you have got to look to those underlying circumstances in this case.  Just to say it is a matter of murder, which is the nature of the offence, is really to overlook the matter on which you must rely.

MR FLATMAN:   But if the murder is a particularly horrific murder, the nature of the case becomes terribly important, if it is one of the worst kind of cases imaginable, and this question of the age of the offender might still have a part to play, but a lesser part to play, because the two issues that have to be considered are the nature of the case and the history of the offender.  And the nature of the case envisages the possibility of a particularly bad kind of murder.  To divert into simply the age of the offender, effectively if that is equally as important as the other two, then young people could anticipate coming before the courts and getting the benefit of that decision whether or not to impose a minimum term, getting that benefit simply on the basis of their age.  It is my submission that that is a misstatement of the law and it is a misstatement of the law on a very important principle.  The other cases, Bugmy ‑ ‑ ‑

MASON CJ:   I think you are renewing your main argument now, when the red light has been showing for some considerable time.

MR FLATMAN:   My apologies, your Honour.

MASON CJ:   Yes, Mr Hore-Lacy.

MR HORE-LACY:   May it please the Court.  There are two issues, in our respectful submission: one, whether there is an error of the type that is envisaged in the recent case of Everett and Phillips v The Queen which would entitle the applicant to be granted special leave at all.  I suppose what is really involved in that question is whether there is any error at all.  If I could submit simply this, before going to the matters raised in the argument of my learned friends, what the submission seems to be, in view of what has happened and the course of the appeal, is that the Full Court was bound really not to impose a minimum term.

In our submission, that is always a matter of discretion and the Full Court made it quite clear that it was a matter of discretion.  As has been pointed out, and as has been raised in the respondent’s summary of argument, the Full Court did not lay down any broad principle concerning sentencing for serial killers, as has been suggested, or indeed any other sort of killers.  The Full Court decided the case unanimously on the basis that the learned sentencing judge erred.

MASON CJ:   One of the problems seems to be that neither the sentencing judge nor the Court of Criminal Appeal had the precise terms of section 11 very closely in mind at any stage.

MR HORE-LACY:   That the sentencing judge did have those matters closely in mind, your Honours?

MASON CJ:   He referred to them, but when I read what he had to say, I doubted very much whether he had them clearly in mind.

MR HORE-LACY:   Yes, he did refer to them but, with respect, it is quite clear that he did err in the manner in which it is suggested by the Full Court in the unanimous judgment of the Full Court, although it is not so clear that he erred in the manner suggested by Mr Justice Crockett in the second part of it and the manner suggested by Mr Justice Crockett and Mr Justice Southwell.  All of the judges, of course, found that he erred in the abrogation statement, and it was not just the abrogation - that part of the statement relating to abrogation, it is what followed from that which, in our submission, led the Full Court to decide that he erred, but also in relation to the comment about whether or not a future executive decision will lead your release or words similar to that.  Two of the judges, Mr Justice Crockett and Mr Justice Southwell, found he erred in relation to that.  And I might say the learned Chief Justice found that that was no more than an indication of something that might happen.  But, in any event, error was identified in relation to one matter by three judges and in relation to another matter by a majority.

Your Honours, the passage that has been read, and it is the critical passage, as I submitted before it is not just the sentence relating to the abrogation of his responsibility to some distant parole board.  His Honour at page 112 of the judgment of the Full Court, where that part of the sentence is set out, the sentencing judge said:

Recognising the importance of rehabilitation as a sentencing consideration, there are very occasionally situations in which that factor must be subordinated within the confines of a proportionate sentence to the need to protect the public against the truly dangerous.  The evidence before this court is tragically clear on that aspect.  You do constitute such a danger, and at our present state of knowledge, apart from separating you from society, there is nothing that can be done about it.  Any non-parole period which I fix would have to be very long in any event and calculated without reference to the potential risk which you could then pose. 

Then his Honour said:

Perhaps there will come a day when you will be able to walk among the ordinary people of our community.  Whether you will ever do so must await the passage of years and the decision of the Executive Government of the time.

Cases decided by this Court have made it quite clear, with respect, what the principles are concerning the imposition of a minimum term.  Power  and Deakin and cases such as those have decided that a minimum term is to be set which, in effect, takes into account all factors, including dangerousness, which is proper, considering the nature of the offence or offences, but which allows for rehabilitation.

The case of Bugmy which was referred to, I think, by all of the judges makes it quite clear, if not other cases, what the principles are to be applied in determining the maximum term and the minimum term.  All those matters referred to by my learned friends concerning the nature of the offences, the dangerousness and all the other aggravating matters that are referred to, are matters that were properly taken into account by the Full Court.  They are, however, matters which, in our submission, as with the case of Bugmy,  are more appropriate to the question of the maximum sentence rather than the non-parole period.  Indeed, it must be borne in mind that the maximum sentence that has been imposed is life imprisonment and that is a sentence which cannot be touched.  This Court has pointed out that the non-parole period is no more than a period of time which the court decides, in all the circumstances, should be an appropriate time before which the applicant, or any other person who is sentenced, cannot apply for parole.

Questions of future dangerousness, as is pointed out in Bugmy and by the Full Court, questions such as those are matters, of course, which will be considered by the parole board.  Indeed, if I could just reiterate the passage in Bugmy v The Queen at page 537 that was cited - and this is mentioned at page 116 of the judgment of Mr Justice Crockett:

“... it is hard to resist the conclusion that in his reasons his Honour was unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term.  The risk that the applicant might re-offend was of course a relevant factor in fixing a minimum term.  But a minimum term of eighteen years and six months is of such length as to take the prospects of re-offending in this case beyond even speculation.  The applicant was twenty-seven years of age when the minimum term was fixed.  He will be over forty-five before the likelihood that he will re-offend will become a matter for assessment.  It is not possible to say now what the likelihood will be then.  Equally, the applicant’s behaviour in prison is a relevant consideration, but the longer the minimum term the less importance it must assume, simply because of the impossibility of making a forecast of future behaviour so far ahead.  Again, while the desire on the part of his Honour to protect the community is material to the fixing of a minimum term as well as a head sentence, its significance must be the less the longer the minimum term, simply because relevant forecasts cannot be made at such a distance.”

And, with the greatest of respect, this case is for all intents and purposes on all fours with Bugmy’s Case and, indeed, the Full Court say no more than that.  Whether it be because of the advent of medical science or whether it be because opinions may be incorrect, the opinion of the psychologist or the psychiatrist, in the abrogation comment of the learned sentencing judge, in my submission it can only mean that he is failing to fix a minimum term because of his perception of the aspect of dangerousness.

Could I just quickly go to the submissions of the applicant.  First of all part I, dealing with “Questions of law raised by the application for special leave.”  Paragraph 1, without reading it all, in our submission that is not a matter which is raised by this particular application:

Whether it is open to a sentencing Judge, in the exercise of the discretion vested in him.....to decline to fix a minimum term.

Had there been no error disclosed in the sentencing process, it may be that the Full Court would have declined to interfere with the judgment.  It does not follow that what is set out in paragraph 1 follows.

2.  Whether the requirement to denounce the type of conduct in the worst type of serial killing cases is relevant to the decision -

In our submission, that is not raised by the application, and neither is paragraph 3, that is:

Whether the principle relating to `worst case categories’ is relevant to the decision whether or not to fix a minimum term.

As has been submitted, their Honours decided there was error.  The Chief Justice decided that, despite the fact that there was error, he was not of opinion that a different sentence should have been passed.  I must apologise for a mistake in the respondent’s summary, and that is contained in the list of authorities and also on page 2, part I, in the second paragraph, where the Crimes Act Victoria, section 568(2) was referred to.  Of course, it should be section 568(4).  Section 568(4)  merely sets out the jurisdiction of the Full Court to pass a different sentence where it believes a different sentence should have been passed.

Again, if I could go to part IV of the applicant’s submissions, headed “Reasons why special leave should be granted”:

1. The decision of the majority in the court below means that the state of law in Victoria is that a Judge, in sentencing serial killers, is precluded from exercising his discretion under section 11 of the Sentencing Act 1991 (Vic) in cases of life imprisonment, where the offender is relatively young -

et cetera.  In our respectful submission that does not follow and, indeed, Mr Justice Southwell, in the passage that this Court has already been referred to, makes it quite clear that there might be cases quite apart from just the youth of the offender which require no minimum term to be set.  That is at page 121, about line 9:

There may well be cases where having regard to the nature of the offence, the antecedents of the offender, and his age at the time of sentence and, quite apart from seemingly imponderable considerations concerning the future protection of the community, the justice of the case, in the opinion of the sentencing judge, requires him to find affirmatively that the prisoner should remain incarcerated for the term of his natural life.

If I could just say, in relation to a question raised in the applicant’s argument, as far as the age of the offender is concerned, it is not just relevant to personal circumstances, it is very relevant to the length of time that an offender must serve as the sentence if, in fact, he receives no non-parole period, as pointed out by Mr Justice Crockett.  A 21 year old can expect to live ordinarily to the age of 70-odd, then that is a sentence of 50 years or more.

Paragraph 2 of the applicant’s reasons why special leave should be granted:

This is an exceptional case in that the approach of the majority in the Court below, in disregarding the very serious and unique facts of the case.....was so unrealistic and inappropriate that it undermines public confidence in the sentencing system.

In our submission, the approach was immaculate, if I can use that word. It dealt with the approach of the judge as it dealt with the sentencing remarks, and then dealt with all the aspects and because it seems the majority were of the view that there was nothing remarkable in the antecedents of the applicant, within the terms of section 11 of the Sentencing Act which, of course, provides that:

the court must.....fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.

All the majority has found is that there is nothing in the past history of the offender, he had no relevant prior convictions or of significantly relevant prior convictions, and because he was of a young age and because although the murders were heinous, obviously very very bad and that was recognised by all of the judges in the court below, but what the majority decided, in exercising their discretion which they were entitled to, having found that the sentencing judge’s discretion erred, in exercising their discretion they merely stated that because of the matters set out they believed a non-parole period should be set.

Now, the question as to how long the non-parole period should be or should have been is not a consideration, as I understand it, involved in this appeal at all, which leads one to speculate perhaps on what the attitude of the learned Director of Public Prosecution would be if a non-parole period of 60 years had been set.  Would the argument then be that the majority had failed to take into account the nature of the offence and aggravating circumstances such as those. 

The sole question of law in the appeal, not the sole but the central one as far as the applicant is concerned, is whether or not a non-parole period should have been set, not the length of the non-parole period.  As I think Mr Justice Crockett pointed out, there are terribly many very bad cases of murder and as at this date there was only one person who had failed to receive a non-parole period in the sentence and that was a 50 year old with pages of prior convictions, a dangerous career criminal.

Paragraph 3 and 4 of part IV which claim that -

These questions involve questions of law of great public importance in the State of Victoria; and

The questions involve issues which, in the interests of the administration of justice, require consideration.....in that they involve fundamental questions concerning appropriate sentences -

in our respectful submission, that is not correct.  This argument that has proceeded today, 90 per cent of it is the same argument that proceeded before the Court of Criminal Appeal and the only complaint is that the three judges’ discretion miscarried themselves when they found that the learned sentencing judge erred in sentencing principle or in the imposition of the sentence.  That is all that is involved.  There is no grave or great matter of special importance which is required for a Crown appeal and, alternatively and further, in our submission the decision of all the judges was quite clearly correct when they decided there was error and there can be no complaint of the exercise of discretion of the majority in deciding that, in all the circumstances, a non-parole period should have been imposed.  May it please the Court.

MASON CJ:   Thank you, Mr Hore-Lacy.  Yes, Mr Flatman.

MR FLATMAN:   May it please the Court, it is my submission that this case is not on all fours with Bugmy and, in fact, that is the danger in the course that was taken by the Court of Criminal Appeal.  Bugmy was concerned with considerations which affect the length of a minimum term that should be imposed and the criticism was made that the task his Honour assumed was to determine an appropriate minimum term in all the circumstances.  It was said that he approached that in the wrong way in that he “was unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term”.  It is my submission that it is almost the reverse that has happened here.  The question is not how long should the minimum term be but whether or not there should be imposed a minimum term.  To that purpose, the Full Court considered it rather on the principles outlined in Bugmy which relate to the length of the minimum term, instead of the question which really lay before it and that is whether or not to impose the minimum term.

Both Mr Justice Crockett and Mr Justice Southwell indicated that the sentencing judge could not do but otherwise, given the age of the offender. 

In my submission, that does raise a principle of law of significance to be determined.  They are the matters, your Honour.

MASON CJ:   Thank you, Mr Flatman.

In the view of this Court the decision of the Court of Criminal Appeal did not, as the applicant submits, involve the proposition that it was not open to a sentencing judge, in exercising the discretion under section 11 of the Sentencing Act 1991 (Vic), to decline to fix a minimum term in cases of life imprisonment where, because of the age of the offender, it would be necessary for the offender to receive a lengthy term of imprisonment. The Court of Criminal Appeal held that there was an erroneous exercise of discretion on the part of the sentencing judge, as the Court of Criminal Appeal was entitled to do, and then re-exercised the discretion. In so doing, in our view, the Court of Criminal Appeal did not make any error of principle. The application is therefore refused.

MR HORE-LACY:   Your Honours, I am instructed to apply for costs.  I am mindful of your Honours’ comment earlier on in the day but this is a Director of Public Prosecutions appeal which, in my submission, puts it in a different category.

MASON CJ:   Can you point to any case in which the Court has granted costs in a case of this kind?

MR HORE-LACY:   No, your Honour, I cannot.  I can point to one case in which it has not, the case this morning.

MASON CJ:   Do you want to say anything about this, Mr Flatman?

MR FLATMAN:   I think costs were awarded in a matter of Mobilio.

DEANE J:   That was a South Australian ‑ ‑ ‑

MR FLATMAN:   No, it was a Victorian - a Crown application in relation to ‑ it was on a question of consent in rape.  That was at the leave to appeal stage but at the time it was a full appeal, but we did not get leave to appeal in the matter and costs were awarded against the applicant.

MASON CJ:   Mr Hore-Lacy, can I ask you the question that I asked an earlier case.  Was this application legally aided?

MR HORE-LACY:   Yes, it was, your Honour.

MASON CJ:   There will not be an order for costs.

AT 11.55 AM THE MATTER WAS CONCLUDED