Smith v The Queen

[2004] HCATrans 479

[2004] HCATrans 479

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A34 of 2004

B e t w e e n -

MARK RAYMOND SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 2004, AT 12.28 PM

Copyright in the High Court of Australia

GUMMOW J:   This application has been dealt with us by considering the written submissions.  What I am about to say represents the views of Justice Heydon and myself. 

When aged 24, the applicant, who prepared his own application for special leave and written submissions, committed a murder in company with a man named Turner.  This was in 1992.  They were convicted of that murder in 1994 and sentenced in 1995.  Each received a mandatory life sentence.  The non‑parole period of the applicant was 25 years, and for Turner, 15 years. 

The applicant’s first complaint is that the courts below ignored the changes in the law effected by the enactment after the crime but before sentencing, of the Statutes Amendment (Truth in Sentencing) Act 1994 (SA) (“the Act”).  He claims that as a result, his non‑parole period is 60 to 70 per cent higher than the average non‑parole period for convicted murderers in the years 1984 to 1993, namely, 13.5 years.

Three points may be made about this complaint.  First, the trial judge said that because of the Act, he substantially reduced the non‑parole period he would otherwise have arrived at.  Secondly, counsel for the applicant in the Court of Criminal Appeal, Mr B.R. Martin, QC, argued that the 1994 Act, in abolishing remissions and ending the automatic grant of parole at the expiration of non‑parole periods, required the court to fix a shorter non‑parole period in accordance with the sentencing standards employed before the Prisons Act Amendment Act 1983 (SA). 

The Court of Criminal Appeal rejected that argument.  It said that the task of fixing a non‑parole period involved fixing the part of the head sentence which had to be served in prison, leaving out of account what the Parole Board might do after that period ended.  Thirdly, the average of non‑parole periods will include those devised for the worst murders and those devised for other murders.  The sentencing judge in this case, Justice Perry, rightly said that this murder was:

a callous and premeditated execution [which] could never be excused, and falls into the most serious category of murder. 

It is not to be compared with other murders in the middle or lower part of the range. 

The applicant’s second complaint is that the sentencing judge penalised him for his youth, contrary to what was later said in Inge v The Queen (1999) 199 CLR 295, by setting a non‑parole period 68 per cent higher than those of Turner. In fact, there is nothing to indicate that the judge did this. The judge explained the differences to Turner in these words:

I am prepared to assume in your favour, that you went along with what occurred that night because you had no real alternative but to do so.  I accept Ms Vanstone’s contention that you were fearful of the consequences if you attempted to do otherwise.  Because of that, and the fact you did not go to the farmhouse with the intention of assisting in the carrying out of a murder, your involvement must be distinguished from that of Smith. 

The applicant’s third complaint was that the Court of Criminal Appeal, which said that there were no factors which pointed to the applicant’s rehabilitation, should have reduced the non‑parole period to allow for the chance of it taking place.  The applicant submits that this was his first conviction for a crime of violence, but, where the crime was grave, and the applicant raised a false defence of alibi, made no admissions and showed no contrition, the prospects of rehabilitation could play no significant role in sentencing. 

The applicant claims to have made academic progress in the last nine years.  This was not known to the Court of Criminal Appeal when it decided his appeal more than nine years ago.  It was a factor which could be relevant if the applicant were to be re‑sentenced, but this cannot be done unless the appeal is allowed. 

We have referred to the lapse of time.  That necessarily involves a preliminary application for an extension of time.  Given what has been said as to the insufficient prospects to justify the grant of special leave if the extension of time were to be granted, the extension of time should be refused.

KIRBY J:   I take a different view.  On the second trial in 1995, the applicant and a co‑accused, Mr Turner, were found guilty of murder and convicted in the Supreme Court of South Australia.  In accordance with law, they were both sentenced to life imprisonment.  The sentence of the co‑accused was subject to a non‑parole period fixed at 15 years, and the applicant’s non‑parole period was fixed at 25 years. 

At the time of the offence in 1992, the applicant was 24 years of age, 26 at sentence.  The co‑accused, Mr Turner, was 42 years of age, 45 at sentence.  The crime of which the applicant was convicted was correctly described by the Court of Criminal Appeal as “a callous and premeditated execution”.  It involved the death of the victim by throwing him into the sea whilst alive and conscious, with attached weights to ensure that he perished.  The offence called for condign punishment as fixed by law and a lengthy non‑parole period. 

However, the applicant submits that the non‑parole period fixed in his case was manifestly excessive, that it involved a misapplication of the statutory sentencing regime applicable in South Australia, and that it occasioned a legitimate sense of grievance because of the disproportion in the sentences imposed on the two prisoners involved in the crime.  Cf Lowe v The Queen (1984) 154 CLR 606 at 611‑612.

The applicant, in his written submissions, asks that this Court deal with the application on the written arguments.  He states that he does not wish to supplement the same with oral argument.  However, this statement has to be understood in the light of the immediately preceding paragraph of the written submissions: 

Special Leave should be granted so that the Applicant can obtain what would then be mandatory funding by the Legal Services Commission of South Australia for an Appeal to be done by competent Legal representation.

The applicant is in custody and is without funds, the Legal Services Commission was unable to fund this Application due to serious restrictions on funding.  Hence the Applicant has made this Application himself albeit he is in custody. 

The applicant, by his written submissions, has raised in my mind a serious concern that his age may have been taken into account in sentencing him, to his disadvantage and in a way contrary to the later instruction of this Court in Inge v The Queen (1999) 199 CLR 295 at 302 to 303 [12], 317 [60].

Further, it does appear that the incorrect sentencing statute may have been referred to, because the Statutes Amendment (Truth in Sentencing Act) 1994 (SA) supervened upon the Criminal Law Sentencing Act 1988 (SA). It is unreasonable to expect this Court to consider the applicant’s complaint and the respondent’s written references to transitional provisions, without the assistance of competent counsel who can trace the operation of the relevant statute law.

This much is clear.  The non‑parole part of the applicant’s sentence is extremely onerous.  According to the applicant, it is 60 to 70 per cent higher than sentences handed down for similar offences for the period prior to the change of the sentencing legislation.  It warrants examination, with a view to seeing whether such a large disparity can be justified in fact and law.  Such a sentence may also not have made due provision for the applicant’s prospects of rehabilitation.  Such an improvement has arguably occurred in this case, in fact.  The applicant has undertaken academic studies in which he seems to have made progress. 

Proper examination of this case cannot be achieved effectively by this Court without skilled legal representation for both parties.  The prosecution has that representation.  The applicant, seemingly for reasons that he has stated, does not.  The length of the non‑parole part of the sentence, the age of the applicant, the newly‑stated principles in Inge and the sentence on the co‑accused warrant the provision of such examination and assistance.  If the only way this Court can procure such assistance in a special leave application from South Australia, in the case of a life prisoner denied legal aid counsel, is a grant of special leave, then that is the order that I would make in the circumstances:  see Muir v The Queen (2004) 78 ALJR 780 at 784 to 785 [23] to [24]; 206 ALR 189 at 194.

This Court devotes much time to cases of considerably less significance than the extended loss of liberty of the applicant in this case.  Where necessary, this Court should take its own steps to ensure that the business of the Court is not controlled by the resources of those who can, or will, pay for counsel before the Court.  I would extend time and grant special leave to appeal. 

GUMMOW J:   The order of the Court is that the extension of time is refused.  We will now adjourn to reconstitute. 

AT 12.39 PM THE MATTER WAS CONCLUDED