Roberts v The Queen

[2004] HCATrans 431

[2004] HCATrans 431

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P84 of 2003

B e t w e e n -

FRANCIS GERALD ROBERTS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 28 OCTOBER 2004, AT 9.27 AM

Copyright in the High Court of Australia

MR P.G. GIUDICE:   May it please the Court, I appear for the applicant.  (instructed by George Giudice Law Chambers)

MR B. FIANNACA:   May it please your Honours, I appear for the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

HAYNE J:   Yes, Mr Giudice.

MR GIUDICE:   Thank you, your Honour.  This is an application for special leave of the High Court to appeal against the decision of the Full Court of the Supreme Court of Western Australia sitting as the Court of Criminal Appeal in Roberts v The Queen.

The appeal to that court was from the sentence imposed by her Honour Justice Wheeler on 20 December 2002.  The sentence appealed from was the sentence of strict security life imprisonment with a minimum term, before eligibility for parole, of 20 years.  That is the minimum which can be imposed when a sentence of strict security life imprisonment is adopted.  No issue was taken at the appeal with the appropriateness of the minimum term.  However, if the appeal was allowed, the minimum term would have to be considered.  In a sentence of life imprisonment, which is the alternative to strict security life imprisonment, the minimum term is between 15 and 19 years.  There is also an application for extension of time, your Honours.

HAYNE J:   Yes, what is the position about that?

MR FIANNACA:   No difficulty with that, your Honours.

HAYNE J:   Yes.  We will perhaps consider that at the later time, but do not delay on that issue, Mr Giudice.

MR GIUDICE: No, your Honour. In effect, the grounds of appeal could be reduced to the following question, and that is as to the approach to be taken by sentencing judges in exercising the discretion conferred under section 282 of the Criminal Code (WA), to choose between sentence of life imprisonment or strict security life imprisonment for prisoners convicted of wilful murder. The special leave factors here, your Honours, in my submission, are the following. Is the discretion unfettered? If not, are the factors listed in Williams exhaustive?  Thirdly, does any one factor, as a matter of law, have primacy over the other factors?

HAYNE J:   Well, as to that last point, it must be unexceptionable, I would have thought, that there is no single factor in sentencing – absent statutory provision to the contrary, there can be no single factor that is universally pre‑eminent.  Now, the question then becomes whether there are statements made in the Full Court in the various authorities to which we have referred that are somehow to be understood as elevating one factor above all others in every possible case.  That would be an unusual result at which to arrive.

Now, in this case it seems to me at least at the moment one of the major hurdles you have to get over is that strict security life with 20 on one view seems to be well within the range that was available for this crime.  Why would this Court get into this point that you seek to agitate if it was apparent that strict security life with 20 years was within the available sentencing range?

MR GIUDICE:   To ensure that inconsistency between decisions in Western Australia is resolved ‑ ‑ ‑

HAYNE J:   Well, our jurisdiction is to make such order as the Court of Criminal Appeal should have made.  If the Court of Criminal Appeal should have been of opinion that no different sentence should be passed, are we not then just writing an essay on the topic?  We have enough essays to write on enough topics.

MR GIUDICE:   Except, of course, your Honour, that it is a very important essay to write, because this is the most serious crime known to the law and the most serious sentence that can be imposed and people should be sentenced according to certain and unambiguous law.  In this particular case, it is my submission that Justice Wheeler sentenced according to the case of Griffin, which was at odds with the case of Williams.  So there is that public interest factor involved, your Honours.  It is not only a very interesting point of law, but a very important one, in my submission.  It is a matter for the High Court of the country to settle the law on the question.

In addition to that, my second point in answer would be that Mr Roberts himself has the right to be sentenced according to an unambiguous and certain law which, in my submission, he was not at the time.  Those are my answers.

HAYNE J:   Yes.

CALLINAN J:   Mr Giudice, what do you contend for, that no primacy of any factor or the view of Chief Justice Malcolm?

MR GIUDICE:   Well, I would agree with what has been said already, that there should be no primacy and the discretion should be unfettered, and all the circumstances should be taken into account as a matter of principle.

CALLINAN J:   Well, is that not what the sentencing judge did at application book 30, lines 30 to 45, and then the following paragraph?

MR GIUDICE:   It is my submission that what her Honour did was to say that because of the gravity of the crime a strict security life imprisonment sentence should be imposed, applying directly what was said in Griffin at paragraph 40 on page 30.  Then she turned to other matters in mitigation in determining the minimum term.

CALLINAN J:   As Justice Hayne has put to you, all the factors have been taken into account.  Realistically, the result would be likely to be the same.

MR GIUDICE:   All the factors have been taken into account, but the decision was made on one factor, the gravity of the crime.

CALLINAN J:   Well, on the exercise of the sentencing discretion it seems to me that a sentence of about the time that was imposed would have been inevitable, whether there was a finding that it was a case of strict security life imprisonment or otherwise.  The result is likely to have been the same.

MR GIUDICE:   Well, let us say it was a sentence of life imprisonment with a minimum of 19 years; we are only looking at one year difference in the minimum term ‑ ‑ ‑

HAYNE J:   A year is a long time.

MR GIUDICE:   It is.  Not only that, it affects the – my understanding, from prisoners I have spoken to, is that as a matter of course their application for parole is refused the first time.  So it really makes practically quite a big difference.  That is why the distinction is important.

HAYNE J:   This was a bad crime.  Wilful murder is one of the most serious, if not the most serious, crimes in the calendar.  This was a bad example of it.  The first hurdle you would have to surmount would be whether some other sentence should have been passed.

MR GIUDICE:   Yes, if I was to embark on that exercise, I would be looking at other cases in Western Australia to compare, your Honour.  It is my submission that, with respect, that proposition is arguable.

HAYNE J:   Yes.

MR GIUDICE:   Firstly, I have to get special leave.

HAYNE J:   Yes, I understand that.

MR GIUDICE:   It is my submission that the law has been left in a state of uncertainty in this State, and I rely on what his Honour the Chief Justice said on page 45 of the application book, when considering my proposition that there was an inconsistency in the law.  He said:

In my opinion, when Owen J commented –

that is, in Williams –

that “No one factor has primacy over other factors”, the meaning sought to be conveyed was that all of the factors which were relevant fell to be considered in any particular case, although the first matter to be considered was the circumstance of the commission of the offence and the gravity of the crime so as to rank it in the scale of other crimes of wilful murder.

Then later he said at page 50, at 35, 40:

It was submitted, however, that it was not correct to say, as I did in Griffin at [44], that the factor which has primacy over other factors is the gravity of the crime.  I have already dealt with this point.  In my opinion, whether the gravity of the crime has primacy or not, it is a very significant factor and one which looms very large in the present case.

So, in my submission, Chief Justice Malcolm has not resolved the question.  Later, Justice Steytler said that there was ambiguity at page 60, paragraph 45:

In this case, counsel for the applicant contended that the sentencing Judge, in sentencing the applicant to strict security life imprisonment, wrongly afforded primacy to the fact that she regarded the murder as falling within “the upper range than the lower range of wilful murders” . . . 

There is, in this last respect, some ambiguity which arises out of what was said by the Court in Griffin.

And he goes on to say that Williams is the law that should be applicable and he agrees with what was said by Justice Owen.  Interestingly, Justice Owen was also a judge in the Griffin Case and agreed with Chief Justice Malcolm.  Justice Parker at page 62, paragraph 54 says:

It is only on reading what has now been published by Steytler J that the potential for ambiguity became apparent to me.  Speaking only for myself, no departure from the principles enunciated by Owen J in Williams was intended by me in Griffin.

He was the judge in Griffin as well.  In support of my contention that the law is unsettled, I would say that what has been said there by the three judges is uncertain and ambiguous.  Also it is not part of the ratio decidendi of the case and that this question should be looked at and settled.

The other point of the special leave application is was Justice Owen correct in Williams in stipulating the factors that he did which are to be taken into consideration, namely, the gravity of the offence, the antecedents of the offender and the risk of the offender offending again.  That is an exclusive list of factors.  He has not made it an inclusive list, which also will cause a problem, in my submission, in the future in this State.  It could be said that you leave it up to the Court of Criminal Appeal to work it out, but when will it be worked out and how many people will be sentenced in the meantime in this state of uncertainty, your Honours?  I believe, obviously, that I can mount a strong argument for life imprisonment if I was given the chance.  That is what I have to say.  Do your Honours wish me to take you through the history of the legislation and the cases?

HAYNE J:   No, I think we have read that, thanks, Mr Giudice.  Mr Fiannaca, we need not trouble you.

The crime of wilful murder almost always warrants very severe punishment.  Identifying some cases as worse than others must not be permitted to obscure the intrinsic gravity of the offence.  We are not persuaded that it is arguable that the primary judge’s sentencing discretion miscarried in fixing the sentence passed upon the applicant.  This therefore is not a suitable case in which to consider whether, as the applicant contends, the different forms of expression found in decisions of the Court of Criminal Appeal of Western Australia reflect an underlying question about the principles that are to be applied.  It is enough to say that, absent express statutory provision to the contrary, there is no one of the very many facts and circumstances which may bear upon the exercise of the sentencing discretion in cases of wilful murder which is universally to be treated as having pre‑eminent importance.

The application for special leave is made out of time and an extension of time is accordingly required.  Because the application for special leave would fail, the extension of time should be refused.  The order is:  application for extension of time refused.

AT 9.44 AM THE MATTER WAS CONCLUDED