Stickland v State of Western Australia

[2005] HCATrans 882

[2005] HCATrans 882

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P33 of 2005

B e t w e e n -

DELVILLE JAMES STICKLAND

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 26 OCTOBER 2005, AT 10.37 AM

Copyright in the High Court of Australia

MR S.D. FREITAG:   May it please the Court, I appear with my learned friend, MS A.N. BLACKBURN, for the applicant.  (instructed by D.G. Price & Co.)

MR K.P. BATES:   May it please the Court, I represent the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

GLEESON CJ:   Yes, Mr Freitag.

MR FREITAG:   Your Honours, the first matter that I need to cover is that this application was one day out of time.  It ought to have been filed on 21 July ‑ ‑ ‑

GLEESON CJ:   Is that opposed?

MR BATES:   No, your Honour.

GLEESON CJ:   Yes, you have that extension.

MR FREITAG:   Thank you, your Honour.

GLEESON CJ:   By the way, this has nothing to do with the merits of this application, but how does it come about that the State of Western Australia is the respondent?

MR FREITAG:   Because the State of Western Australia is now the respondent in all criminal matters and the State of Western Australia commences prosecutions in superior courts.

GLEESON CJ:   I see.  This is the first time I have come across it.

MR FREITAG:   Yes, it is as a result of legislative change.

GLEESON CJ:   Thank you. 

MR FREITAG:   Your Honour, I think our Attorney‑General has decided to remove “The Queen” and swap those matters over.

GLEESON CJ:   I actually was able to pick that up without it having to be explained.

MR FREITAG:   Your Honours, in relation to the reason why special leave ought to be granted in this matter, we simply say it is a matter of public confidence in the appeal system, in particular in an appeal system where someone appeals their original conviction and it is found that they did not get a trial according to law, they are then retried and resentenced and they get ‑ ‑ ‑

GLEESON CJ:   I understand the very well-established principle that you should not be worse off as a result of a successful appeal, but there is rather more to it in the present case, is there not, which is that there was a failure by the primary judge to sentence at all in respect of 15 offences, and then a Crown appeal against that which was rendered superfluous by the success in the appeal against conviction.

MR FREITAG:   Your Honour is absolutely right about both of those points.  There are 15 charges of gross indecency for which sentences were not originally imposed.  At the end of the process six of those matters again resulted in convictions, and those six matters then resulted in sentences where there had not been sentences before.  That is part of the mix, I suppose, of offences that has altered.  We accept that it has altered slightly, but what we say is that looking at the applicant’s overall situation, the factors in his favour were much stronger than the fact that there were three more – if I do the maths correctly – offences involving oral sex that stood against him at the end of the process.

So we say there are a small number of additional offences for which he was eventually called to be sentenced for which he had not originally been sentenced, but there were other offences for which he had originally been sentenced which fell out of the process.  So I accept your Honour’s point that the matters do not exactly line up.

GLEESON CJ:   Well, it goes a bit further than that.  Justice Pullin said on page 186 of the application book in the first sentence of paragraph 35:

an effective comparison of the 2001 aggregate sentence and the post‑2001 sentences becomes almost impossible.

MR FREITAG:   That is one of his findings that we disagree with, with respect, your Honour.  We say you can compare the circumstances, and when the circumstances are compared it is more favourable to the applicant at the end of the process than it was after the original trial before his Honour Judge O’Sullivan.  We say that the applicant has been convicted of 18 less matters.  Even if you only deal with matters for which he is to be sentenced, he is to be sentenced for three less counts than he was originally – 26 counts versus 23 in relation to the new matters.

More importantly than that, we say that he has been sentenced in relation to offences against two less complainants, that is Mr Littlewood‑Johnson and Mr Mullen.  I would say also it is important to note that he fought this process over a number of years – through the original trial, through all the retrials – but at the conclusion of the process did plead guilty to two indictments comprising six counts.  We say that is a significantly mitigatory feature in his favour which, if there is to be a balancing and a comparison, ought to weigh heavily in his favour.

So we say it is possible to do a comparison, it is heavily in his favour.  In that circumstance, we say on the face of it it is unjust that he then serve two more years in custody because of course, as we have set out in the papers, whilst his head sentence has been reduced by two years, his actual time in custody has been increased by two years because of the alteration to the parole and remission system in this State through the so-called truth in sentencing legislation.

GLEESON CJ:   I am not suggesting this is critical to the outcome of your argument, but what is taken to be the effect in Western Australia of the truth in sentencing legislation upon the approach of sentencing judges?

MR FREITAG:   What I have done, your Honours, is we have got copies of the transitional provisions and also copies of a table setting out the way we show the sentences under the old legislation and the new sentences as if they had been under the old legislation, and under the new legislation.  I have shown that to my friend.  I just seek to perhaps hand that up to your Honours at this time.

GLEESON CJ:   Truth in sentencing in this State I presume affects the parole and remission system to the legislative end, if I might put it this way, that what you see is what you get.

MR FREITAG:   Yes.  Now what you see in WA is closer to what you get.  It is still not obviously exactly lined up.  The way the transitional provisions instruct judicial officers to approach the matter is to reduce a sentence that they might have imposed by a third.  So under the old system - if we take Mr Stickland’s sentence, the rules changed if you were sentenced to more than six years under the old system.  These matters are referred to in the authority book – I will just take your Honours to that – at pages 50 and 51.  What we have done there is set out section 93 of the Sentencing Act as it then was, and then the new section 93 of the Sentencing Act.

The table that I have just handed up demonstrates how the matter works in relation to the applicant.  Where the applicant’s original sentence was 12 years, four years would have been removed as remission.  He would then have served six years in custody before becoming eligible for parole.  The parole period if he had been granted parole would have been two years.  Now, the new sentence results in a minimum time in custody of eight years for a head sentence of 10, because under the new section 93 any term of more than four years the parole term is simply the head sentence less two years.  The most one can be on parole is two years under that legislation.  So what we say is the comparison that is important is between the original sentence under the old legislation and the new sentence as if it were under the old legislation.

GLEESON CJ:   I would like to understand how this should work out in practice.  There were three new sentencing judges, were there not?

MR FREITAG:   There were, that is correct.

GLEESON CJ:   Is your proposition that judge No 3 should have treated the practical effect, which is the first column here, of the sentences that were imposed previously by Judge O’Sullivan as putting an upper limit on the sentencing discretion available to judge No 3?

MR FREITAG:   Yes.  The authorities suggest that it is never an absolute limit, and there are some circumstances of course where a sentencing judge can go beyond the limit.  What we say is that in a situation like this where the final judge, who was his Honour Judge Jackson, had all these circumstances before him including the pleas of guilty, including the fact that other matters had been the subject of what is now a notice of discontinuance had been removed from the process, he was aware of all the situations that had flowed through the various trials.  In that situation he ought not to have imposed any more effective time on the applicant.

GLEESON CJ:   So it was really a challenge to the exercise of discretion by Judge Jackson that was the subject of the appeal?

MR FREITAG:   Certainly originally it was only in relation to Judge Jackson and I suppose later on the appeal against the sentence of Judge Eaton came into play and the applicant argued that he should be able to get past equality, I suppose, that he should be in a better position and he obviously could not achieve that unless he challenged the judgment of Judge Eaton, because after Judge Eaton had sentenced, the matter was at an effective term of six years on the bottom, so to speak, that is six years to actually serve.

GLEESON CJ:   So Judge Jackson should not have imposed an additional custodial term at all?

MR FREITAG:   That is certainly the applicant’s argument, and that was certainly the applicant’s argument at the time of sentencing.  I appeared for him in front of Judge Jackson and my submission at that time was that this is enough time now.  He has come to basically where he was and he ought not to get any more, and set out the reasons that I have discussed with your Honours today – the changes in his personal circumstances, the changes in the number of offences and so on – and simply said that for all practical purposes this has to be an entirely concurrent sentence, otherwise this man is in a situation of injustice.

GLEESON CJ:   Well, your argument was that otherwise he is worse off as a result of his successful appeal against conviction.

MR FREITAG:   That is right.

GLEESON CJ:   Then Justice Pullin, rightly or wrongly, said, “Well, there’s more to it than that”.

MR FREITAG:   Yes, and he is right in saying that the mix of sentences is different.  We accept that and we accept that there were, as I have indicated, three more oral sex offences than there had been previously and that the balance did shift to a degree.  Now, that balance originally was 13 touching offences, if I can call them that, and 13 offences of oral sex.  That balance then shifted, as I have indicated.

We say in criminality such as this and the applicant’s course of criminality over a long period of time in Harvey, we say that one cannot simply put the rule of restraint, if I can call it that, to one side when the matters do not exactly line up.  The rule still, we say, has application.  That is where we say that Justice Pullin went wrong in that he said effectively the rule has no application in a case like this where things do not exactly line up.  We say one of the fundamental purposes of the rule is when things do not line up and things are in an applicant’s favour it ought to be used, that is the original sentence, as something of a ceiling and he ought to be able to get a lesser sentence than he originally did.

GLEESON CJ:   Well, how do you in your argument take account of the, as it were, unconsummated Crown appeal against sentence?

MR FREITAG:   It is obviously a factor that the court needs to look at, but it is not something on which a court can really speculate.  In the end Judge Eaton said that he did not have the same problems as Judge O’Sullivan had had originally and he imposed sentences of 20 months in relation to the original gross indecency matters.  Other than that, the judges – that is Eaton, Martino and Jackson – broadly said that the original sentences were fine.

In relation to the Crown appeal, getting back to your Honour’s question, we will not ever know what would have happened with that appeal.  It is obviously a matter of relevance that there was an appeal and I think a sentencing judge can look at the fact there was an appeal and ask himself whether the sentences would have survived but there is no answer to that because of the way these matters proceeded, and perhaps it is something that my friend might address.

In relation to the other aspects of the rule of restraint, the authorities indicate that where a sentencing judge thinks the original sentences were inadequate, they can depart from the ordinary rule, which is obviously that a person should not normally get more time than they had originally received on a retrial.  What we say to that is that none of the sentencing judges in this process - and the Court of Appeal did not say that they had covered this point - said that the sentences originally were inadequate.  As I have indicated before, the sentencing judges through this process adopted the quantum of sentence imposed by Judge O’Sullivan where those offences were still in the system.  Obviously, as I have indicated, where there were offences for which there had been no sentence, Judge Eaton then imposed relevant sentences.

We do not take the point that any of the individual sentences were excessive or really that the sentence as a whole was manifestly excessive for the course of conduct.  We simply say the point is not whether it is as a whole manifestly excessive but whether it is unjust, given the history of this matter and given the successful appeal against conviction.  We say what has happened in this case is that the Court of Appeal in this State has misapplied and misinterpreted the rule of restraint when it comes to a situation like this because Justice Pullin effectively says, in our submission, unless everything lines up exactly, the rule of restraint really has no application.

GLEESON CJ:   I think the difficulty with this case is that the successful appeal against conviction derailed the Crown appeal against sentence.

MR FREITAG:   I agree with your Honour to this extent.  The picture would have been clearer had the Crown appeal against sentence been concluded and there had been some guidance as to the issue of whether sentences ought to have been imposed for the gross indecency matters.  But in a way that question was resolved by the various trials because special verdicts were sought in relation to the age of the complainants in relation to those matters, so sentences were able to be imposed.  I think his Honour referred to section 321(2), I think it is, of the Code, which is the current equivalent of the old gross indecency provisions.  So we were able to resolve the matter in a way with the special verdicts allowing there to be sentences imposed, but I agree that there is not a Court of Appeal ruling on this particular case in relation to whether his Honour Judge O’Sullivan was right in the first place.

GLEESON CJ:   By the way, what exactly did Judge O’Sullivan do in relation to those 15 offences?

MR FREITAG:   He simply decided to impose no sentence in relation to those matters.

GLEESON CJ:   So what was the order that he made in relation to them?

MR FREITAG:   I would have to say I am not sure what it says on the official court paperwork.  In the transcript he simply says for a number of reasons, mainly to do with the age of the boys not being raised in evidence and the State case not being put in a particular way, that he is going to choose not to impose a sentence.  Obviously he recorded judgments of conviction on those matters, and as far as I can really assist your Honour, he recorded a judgment of conviction and declined to impose sentence.

GLEESON CJ:   What exactly does that mean?

MR FREITAG:   There are provisions in our State Sentencing Act for there to be conviction and no further penalty imposed.  I think it is section 45 or thereabouts in our Sentencing Act.  Now, I do not recall that having been mentioned by ‑ ‑ ‑

GLEESON CJ:   If that corresponds to section 556A of the Crimes Act (NSW) it would involve a finding of guilt but not proceeding to a conviction. It really does not affect the outcome of your application today, but I wondered technically what Judge O’Sullivan actually did in relation to those 15 offences.

MR FREITAG:   I am being told it is section 46.  What I think the effect of it is, is that a conviction is recorded but no further penalty imposed.  Section 46 is headed “Release without sentence”.

GLEESON CJ:   What does it say?

MR FREITAG:   It says:

A court sentencing an offender may impose no sentence if it considers that –

(a)      the circumstances of the offence are trivial or technical –

which in this case obviously would not have applied –

(b)      having regard to –

(i)       the offender’s character, antecedents, age, health and mental condition; and

(ii)      any other matter that the court thinks is proper to consider,

that it is not just to impose any other sentencing option.

GLEESON CJ:   So he was acting under section 46, rightly or wrongly.

MR FREITAG:   I presume so.  As I say, I cannot refer your Honour to anything in the transcript specifically.  He does not refer to that ‑ ‑ ‑

GLEESON CJ:   All right.  I do not think it matters for this morning’s purposes but I was just curious about it, that is all.

MR FREITAG:   Those are the applicant’s submissions.

GLEESON CJ:   Thank you, Mr Freitag.  Yes, Mr Bates.

MR BATES:   May it please the Court.  This was a case in which it was impossible to apply the rule of restraint because of the difficulties of comparing the 2001 sentences with the recent sentences.  The original sentencing judge sentenced the applicant in 2001 in respect of only 26 counts of the 41 counts of which he had been convicted, and there were some 15 counts of gross indecency for which no sentence was imposed by the original sentencing judge. 

So Judge O’Sullivan sentenced the applicant for 26 offences; 13 of those involved oral sex and the remaining 13 involved touching.  Judge O’Sullivan sentenced him in relation to eight complainants, and there were originally 63 counts on the indictment.  There were 41 convictions.  He sentenced in respect of 26 and did not sentence in respect of 15.  After the Court of Criminal Appeal ordered separate trials in the matter, those trials proceeded and there were five indictments which were before the courts.  There were three trials, one before his Honour Judge Martino, one before his Honour Judge Eaton and one before his Honour Judge Jackson, and then there were pleas of guilty on two indictments which contained six offences.

So in total the three sentencing judges in the second exercise sentenced for a total of 23 offences, 16 of which involved oral sex and the remaining seven involved touching.  There were six complainants in respect of those offences in the second sentencing exercise.  The offences against the other two complainants in 2001 were in relation to isolated incidents and there was no continuing offending.  Of the six victims, five were dealt with by the applicant over a period of years.  The gross indecency charges all involved oral sex.  They were more serious than the offences of touching of the boys’ penises and, as has been mentioned, there was the State appeal against the decision of his Honour Judge O’Sullivan not to sentence on the gross indecency charge, which was not heard because the appeal was successful on the ground that there should have been separate trials and that the joinder was improper.

In our respectful submission, the respondent has now been sentenced for a different combination of offences in a different combination of circumstances from those for which he was originally sentenced.  The bulk of the offences dealt with recently were offences involving oral sex, whereas originally there was an equal number of offences involving oral sex and touching.  There were three less oral sex offences in 2001 than in the recent sentencing exercise.

In our respectful submission, his Honour Justice Pullin was correct in concluding that it was impossible to say that the rule of restraint should be applied in this particular case.  We rely upon the analysis of Justice Pullin in the Court of Appeal, which is between 184 and 185 of the application book and it is set out between paragraphs 32, 33, 34 and 35.  His Honour Justice Pullin made the observation that because of the unfolding of the circumstances, it is difficult to compare the sentences imposed in 2001 and those that have now been imposed.  He analysed the offences for which the applicant was convicted and sentenced by the original sentencing judge, and he also analysed the recent series of offences and sentences which had been imposed.

He came to the conclusion that the comparison became almost impossible, as the applicant has now been sentenced for a different combination of sentences in a different combination of circumstances from those for which he was originally sentenced, and correctly he concluded that it was impossible to say that the rule of restraint should be applied in this particular case.  We would respectfully adopt the analysis of Justice Pullin in the Court of Appeal.

So, once his Honour Justice Pullin was satisfied that the rule of restraint did not apply, he was not then required to consider whether their Honours Judges Eaton and Jackson had proper regard to it as it was no longer a relevant factor that either judge should have had regard to for the purpose of the sentencing.  In any event, his Honour Judge Jackson was not required to conduct a comparison between the circumstances of the conviction and he was entitled to exclude the rule of restraint if he was satisfied either that the earlier sentence was outside the appropriate range or that the facts as they appeared at the time of the resentencing were significantly different from those upon which the first sentencing exercise was based. 

For the reasons set out by Justice Pullin, the facts as they appeared at the time of resentence were significantly different from those upon which the first sentence was based and, in our respectful submission, the rule of restraint was correctly excluded.  So, in our respectful submission, his Honour Judge Jackson, the last sentencing judge, was entitled to impose a sentence that was effectively greater than the original sentence imposed by the original sentencing judge, his Honour Judge O’Sullivan.

Justice Pullin dealt with the question about whether the overall sentence of 10 years imprisonment was manifestly excessive, and Justice Pullin noted the late pleas of guilty and had regard to issues of totality.  The sentences imposed for those six offences on the two indictments to which the applicant pleaded guilty were all concurrent sentences.  In our respectful submission, his Honour Justice Pullin was correct in concluding that the overall sentence of 10 years was not manifestly excessive in the circumstances and did not infringe the totality principle.  In our submission, this Court ought not interfere with the sentences imposed by the original sentencing judges as upheld in the Court of Appeal.

They are the submissions we would make in response, may it please the Court.

GLEESON CJ:   Thank you, Mr Bates.  Yes, Mr Freitag.

MR FREITAG:   Just briefly, your Honour.  My learned friend for the State as part of his submissions says the two complainants against whom offences did not proceed, I suppose – that they are only isolated incidents.  We would say that the situation would be different from the State’s point of view if there were two more complainants.  The State would be urging upon a sentencing judge a significantly heavier sentence because two more young men had been offended against in this way.  So this State I think has to accept that if there are two less complainants, that ought to stand to the applicant’s credit.

The State also adopts the analysis of Justice Pullin in relation to the seriousness of the offences.  The applicant says to that simply that Justice Pullin’s analysis from paragraphs 33 onwards where – paragraph 33 starts, “The correct analysis is as follows”, through to paragraph 36 where the rule of restraint is described and excluded.  That analysis is not correct because it does not refer to the applicant’s pleas of guilty and it does not refer to the other mitigating factors that were present at that time in the applicant’s favour.  Those are the applicant’s submissions.

GLEESON CJ:   Thank you, Mr Freitag.  We think that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter.  The application is dismissed.

AT 11.04 AM THE MATTER WAS CONCLUDED