Stone v The Queen; Stone v The Queen

[1991] HCATrans 229

•

..

, .

-~·~

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M47 of 1990

B e t w e e n -

ANTHONY ARTHUR STONE

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M48 of 1990

B e t w e e n -

CLIVE EDWARD STONE

Applicant

and

THE QUEEN

Stone 1 30/8/91

Respondent

Applictions for special leave

to appeal

DAWSON J TOOHEY J McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 AUGUST 1991, AT 3.40 PM

Copyright in the High Court of Australia

MR C.L. LOVITT, QC: If it please the Court, I appear with

my learned friend, MR D.M. SALEK, on behalf of the

two applicants.	(instructed by the Director of
Legal Aid)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friend, MR G.J.C. SILBERT, for the

Crown. (instructed by Mr J.M. Buckley, Solicitor

to the Director of Public Prosecutions for the

State of Victoria)

DAWSON J: Yes, Mr Lovitt.

MR LOVITT:  If the Court pleases. The two applicants in

this case, Your Honours, submit, in effect, that

error was made by the Court of Criminal Appeal

which does give rise to an important question of

principle and further submit that the interests of

the administration of justice would be properly

served in this case by overturning the decision of

the Court of Criminal Appeal, in particular because

there was, it is submitted, with respect, a

gross - - -

DAWSON J:  We are able to hear those cases together, are we,

Mr Lovitt?

MR LOVITT: Sorry, Your Honour.

DAWSON J:  We are able to deal with both cases together, are

we?

MR LOVITT:  Yes. I am sorry if I did not make that clear

but the same points will arise in both cases,

Your Honours. It is submitted that there was a

gross violation of sentencing principles in the
course of the Court of Criminal Appeal's
determination that the sentence of the learned
sentencing judge for each of the two applicants be
increased, and increased substantially, from 25

with a minimum of 15 to life with a minimum of 22

and 21 with a minimum of 12 to life with a minimum

Stone 2 30/8/91

of 22, respectively. I am referring to Clive and

Anthony respectively. In order to differentiate

between them, where necessary, I will, if I may,

refer to them simply as Clive and Anthony Stone, if

the Court pleases.

Your Honours, the Crown's appeal in the case of the Stone brothers came at a time when, as

Your Honours will see from the material, there was some confusion - there was certainly a dichotomy in

terms of the way that section 3, as amended, of the

Crimes Act in Victoria was then being interpreted.

And we make it clear from the outset, we do not

submit that the question of whether the Court of

Criminal Appeal was right in adopting the reasoning

of Mr Justice Murray in Elder's case and holding

that Mr Justice Hampel had fallen into error in

Halar's case, and hence in the present case, when

he sentenced the Stone brothers on the same day as

he sentenced Mr Halar, we do not suggest that that,

of itself, creates a special leave point.

We say that because there is a lot of water

flown under the bridge since then, of course.	We
are painfully aware that - - -

DAWSON J:  Am I right, that at the time the sentence was

imposed the sentencing judge had a choice between

life imprisonment or a term of years?

MR LOVITT: Effectively, that is right, Your Honour.

DAWSON J: But at that time head sentences were subject to

remissions and minimum terms were not?

MR LOVITT: Yes.

DAWSON J:  And it was that circumstance that led the judge

to take into account the question of remissions,

contrary to - which case is it? - some previous

decision.

MR LOVITT: Yates.

DAWSON J: Yates' case - and led him to adopt the course

that he did. But now this position has changed and

a person convicted of murder is not entitled to any remissions of sentence or remissions of the minimum

term, is that the position?

MR LOVITT: That is so except for one thing, Your Honour.

The sentencing judge, in this case, His Honour

Mr Justice Hampel, declined to take into account that there were still remissions applicable to the

maximum sentence. In other words, he did not adopt

the reasoning of Mr Justice Murray in Elder's case

but took the view that Yates' case, which was a

Stone 30/8/91

decision of the Full Bench of this State, still
applied, at least to the extent whereby in deciding

the appropriate sentence he should first of all

impose the head sentence and then, and only then,

turn to the question of the appropriate minimum.

Mr Justice Hampel's view was that Yates' case

still applied to that extent and that it would be

in conflict with basic sentencing principles to

arrive at the minimum sentence and then

artificially inflate it in order to arrive at -

DAWSON J: That was rejected by the Court of Criminal

Appeal, was it not?

MR LOVITT:  Yes.

DAWSON J: But on that point, whether or not you take into

account remissions, that has disappeared, has it

not, under present legislation?

MR LOVITT: That is why we are not raising it as a special

leave point, Your Honour. We are saying that it

does very, shall we say, considerably paint the

background picture which led the Full Court into

error in their decision.

DAWSON J: Well, what is the special leave point?

MR LOVITT:  Your Honours, the Court of Criminal Appeal, in

our submission, held that the form of section 3 of

the Crimes Act, which introduced the sentencing

discretion for murder in this State, justified the

conclusion that the ordinary principles of

sentencing do not apply. And in particular, the

court said that the wording of the section was

relevant. If I may just quote the section itself:

Notwithstanding any rule of law to the

contrary, a person convicted of murder is

liable to imprisonment -

(a) for the term of his or her natural life;

or

(b) for such other term as is fixed by the

court as the court determines.

Now, the Court of Criminal Appeal came to the conclusion that that wording - yes, it appears at the bottom of page 147 - in effect - - -

DAWSON J: Well, it appears at page 33 of the appeal book.

MR LOVITT: Yes, I am sorry. I am referring to the report

of Stone, which is reported, of course, in the

Victorian - - -

Stone 4 30/8/91

DAWSON J:  We do not have that but we do have the

application book.

MR LOVITT: In that case I will take Your Honours to the

pagination of the appeal book. What the court said

about section 3 was that in expressing the

appropriate sentence for murder in that, shall we say, dual way, there was, in effect, at least two steps that a sentencing judge in imposing a

sentence for murder ought to take: one is
primarily to ask himself whether an appropriate

sentence would be for the term of his or her

natural life. If the answer to that question was

yes, then that was the end of the sentencing task;
if the answer was no, then and only then, would the

court go on and consider what other fixed term

should be imposed.

In our submission, Your Honours, the court was

clearly in error about that. The court, in the

course of its judgment, placed considerable store

on the fact that the section was worded as it

appears at page 33 of the appeal book and not

worded as we often see in sentencing statutes; for

example, "shall be sentenced to a term of not more

than 10 years imprisonment".

In our submission, there is no difference

between that - as I just quoted - type of

stipulation, "a term of not less than 10 years

imprisonment", and what appears in section 3 as set out at page 33. The reason for that is simply that

it would be ridiculous to place in a statute "shall

be sentenced to a term of not more than life

imprisonment". It would, on its face, appear,

frankly, silly.

TOOHEY J:  Mr Lovitt, why did you qualify an answer you gave

to Justice Dawson when he asked you whether the

sentencing judge had an option of sentencing for

life imprisonment or some other term, you said,

matter? "effectively"? Is there any argument about the

MR LOVITT:  The reason for that, Your Honour, is that the

court, in this case, we say, adopted the approach
of determining upon part (a) of section 3 first,
rather than simply saying, "What is the appropriate
head sentence in all the circumstances of this

case, bearing in mind that the maximum term is life

imprisonment?". The court in this case, after it

finally came to determine this point, having spent

most of the judgment looking at the question of

whether Yates applied or not, simply said that the
wording of the section allowed it to - and, in

fact, required them to - approach the sentencing task or for the sentencing judge to approach the

Stone 30/8/91

task by asking him or herself primarily or firstly,

"Is the term of life imprisonment an appropriate

sentence?". And if the answer to that, as I said,

go on and consider the imposition, in the exercise of his or her discretion, of the lesser term.

is yes, then, according to the Court of Criminal

TOOHEY J: Could I ask you this: what was the basis upon

which the Crown appealed to the Court of Criminal

Appeal? We do not have the notice of appeal, but

was it simply inadequacy of sentence or did it

involve a question of construction of legislation?

MR LOVITT:  It was really based on the claim that the

sentence was manifestly inadequate, Your Honour,

although there were a number of grounds of appeal.

Ground 1 was manifest inadequacy; ground 2 was -

shall be say - the deterrent aspect - - -

TOOHEY J: Well, that probably answers my question. It was

not an appeal that turned upon the construction of

the Act, is that right?

MR LOVITT:  No, sir.

TOOHEY J: Could I ask you another question: in the light

of that answer, was the appeal conducted on the

basis simply that the sentence was inadequate and,

if so, how did the Court of Criminal Appeal come to treat the matter in the way that you suggested they

did, namely to say that the judge's task is first

to look at section 3(a), and only goes to

paragraph (b) if the answer is that paragraph (a)

is not appropriate? I may not have put that very

clearly; I suspect I did not. But I am just a

little puzzled as to how this question of

construction of section 3, as you put it to us,

emerged in the course of the Court of Criminal

Appeal's judgment? I do not want to deflect you

from your argument but it may be of some importance

to understanding what you are putting to us at the

moment.

MR LOVITT:  My difficulty at the moment, Your Honour, is

simply a pagination problem but I will overcome

that in a moment. At the bottom of page 43 of the

appeal book, page 11 of the judgment, this passage

appears. After referring to the different

legislation that by now existed, namely the

introduction of section 60 of the Corrections Act,

the court went on:

The mandatory sentence of life

imprisonment for murder has been abolished. A

person convicted of murder is now liable to be

imprisoned as the Court determines either for

Stone 6 30/8/91

the term of his natural life or for such other term as is fixed by the court. It is thus for the court to decide whether a person convicted of murder is to be imprisoned for the term of

his natural life or for a term of years.

And the court went on and referred as follows:

It is to be noted that the choice thus given

to the Court is in a form not usually employed

in statutes prescribing punishment for offences. The more usual form is, for example, to be found in section 74 of the

Crimes Act which provides:  "A person guilty

of theft is guilty of an indictable offence

and liable to imprisonment for a term not
exceeding ten years." It was suggested to us

by counsel for Clive Stone that we should

treat a sentence of life imprisonment as a

sentence to be reserved only for the very

worst cases -

et cetera. Then in the next paragraph:

The new section 3 of the Crimes Act,

however, does not prescribe a maximum sentence for murder, although of course a person cannot

be imprisoned for longer than the term of his

natural life. Instead of fixing a maximum

sentence for murder Parliament has fixed upon

an alternative. It has said that the sentence

is either to be for the term of the prisoner's

natural life or for a term of years as the

Court determines.

And then goes on to say -

But Parliament has gone much further -

and deals with the new -

power to fix a minimum term -

And then, over the page, about 10 lines down:

From all that new legislation we think it

is clear that Parliament had shown its concern

for the minimum term to be served by a person
convicted of murder and for the duration of

the parole of a person so convicted. It has

also shown its concern that a person convicted

of murder should not be released into the

community without a period of supervision on

parole. It is true, of course, that the
amendment to the Community Welfare Services

Act does not in terms apply to a person

sentenced to imprisonment for a term of years

Stone 30/8/91

but it cannot be doubted that Parliament did
not intend to produce a situation in which a

person convicted of murder would complete the

"head sentence" -

and it then reverts back to the difficulty confronting the sentencing judge where the remission is attached to the maximum but not to the

minimum.

TOOHEY J: But does any of that bear upon the point that you

are making?

MR LOVITT: Certainly, Your Honour.

DAWSON J: 

I am not, for my own part, quite clear as to the

point you are making, Mr Lovitt. Are you saying
that the court should not have imposed a sentence
of imprisonment for the term of his natural life
upon the accused because this was not one of the
worst cases and that is the maximum penalty which

can be imposed? Is that what you are saying?

MR LOVITT: 

We say that the court departed from normal

sentencing principles, taking the view, we say

erroneously, that section 3 allowed it to, in

effect, decide whether part (a) of section 3
applied and only if it did not did it then go on

and consider part (b); and taking the view that

part (a) applied, the balance of -

DAWSON J:  I thought that you were contending that was the proper way to go about it? You must first decide

whether the particular offence is an appropriate

one to be punished by life imprisonment or by

imprisonment for a term of years and if you decide

yes that is the end of that inquiry; if you decide

no you go on to consider what term of years should

be imposed.

MR LOVITT:  No, in our submission, that is not appropriate,

Your Honour.

DAWSON J:	How do you say you should go about it?
MR LOVITT:	We say it is inappropriate because what the

court ultimately did was to simply look at the

offence, say this was a very bad type of murder,

which it clearly was, and say that therefore life

imprisonment was appropriate, therefore the offence
fell within part (a) of section 3 of the Crimes

Act, therefore the head sentence would be life

imprisonment; and then went on to consider a

minimum term. It did not, in our submission, take

any cognizance - apply any other sentencing

principles, such as whether this was one of the

worst types of cases. And we are not suggesting

Stone 30/8/91

for a moment that one can grade types of murders

and say, "Well, they're the worst types and they're

the second worst", or anything like that. That

would be clearly impossible and serve no purpose.

DAWSON J:  But implicit in that submission is that life

imprisonment is a maximum sentence; not an

alternative type of sentence, that is alternative

to a term of years?

MR LOVITT:  Your Honour, section 3 simply introduced a

discretion so that people could be sentenced to a

head sentence of less than life imprisonment. In
other words, section 3 could be read - but it would

be silly if it read that way - "to be sentenced to

a term of no more than life imprisonment". But

because it would look and appear, on its face, to
be somewhat - shall we say, well, as I said
before - silly to say not more than life

imprisonment, one can hardly sentence someone to

more than life imprisonment, the legislature

adopted the approach that it did and drew up a

provision that quite adequately sets out what one

would have thought its intention was that, from now

on, when sentencing for murder a judge can either

sentence to life imprisonment or a lesser fixed

term as he determines.

That does not mean that he primarily asks

himself, "Well, is this an offence that it would be

appropriate to fix a minimum term?", and departing

from other sentencing principles simply by holding

that it was a type of offence.

DAWSON J: But even looking at it that way, life

imprisonment does not represent a maximum in the

sense that you cannot go beyond life imprisonment,

but it may cover a range of offences which are not

necessarily the worst of offences; that is, life

imprisonment might be an appropriate penalty for a

range of offences varying in seriousness. But you

cannot say because of its very nature that it is

the penalty that is reserved for the worst possible

case - worst imaginable case; you just cannot say

it.

MR LOVITT: Well, in our submission, one ought to be able to

say that, Your Honour, without in any way seeking

to particularize what are the worst types of cases.

You can always think of a worse case and you can always - - -

DAWSON J: But it just is not appropriate when you are

talking about life imprisonment because it has to

stop at a certain point. Surely, there are many

cases which are not the worst imaginable cases for

which life imprisonment may be appropriate.

Stone 9 30/8/91

MR LOVITT: There are many cases, Your Honour, where life

imprisonment would be appropriate;	we concede
that.

DAWSON J: Ranging in seriousness or severity.

MR LOVITT: In our submission, Your Honour, the thrust of

cases such as the decision of this Court in Ibbs is

to reserve the maximum penalty for the worst sorts

of cases.

DAWSON J: But you never get to a maximum penalty, as it

were, with life imprisonment. I mean, it sets its

own maximum, beyond that you cannot go - in terms

of imprisonment, anyway.

MR LOVITT:  Your Honour, one could also say, I suppose, that

simply because one is sentenced to life

imprisonment does not mean that one will spend the

rest of one's life in gaol, but one may. We cannot

presume that the parole board, assuming a minimum

term has been fixed, will grant parole. Here we
are not dealing with remissions because there are

none now applicable to either the head or the

minimum sentence. But one cannot assume that the

parole board will grant parole either at the

expiration of the minimum term or a short or even a

lengthy time after that. One does not know.

Statistically, it is likely, of course, that parole

will be granted at the expiration of the minimum or

soon afterwards. But we are not in a position to be sure of that and it does put people at risk if

they are sentenced to life imprisonment that they

will serve the rest of their life in gaol.

TOOHEY J:  I am having a lot of difficulty with this

argument, Mr Lovitt, because I thought you opened

by saying, in effect, that the Court of Criminal

Appeal fell into error by treating paragraph (a) as

the object of first inquiry and that if life

sentence appeared to be appropriate, well then it

was not necessary to go further. And that in

taking that approach the court erred. But if you

look at the foot of page 48, the court simply says:

First the court must decide whether the

particular murder is appropriate to be
punished by life imprisonment or by

imprisonment for a term of years, bearing in

mind that it is the indeterminate nature of

life imprisonment that has led to its being

criticized as inappropriate punishment.

Is there anything wrong with that?

MR LOVITT: Yes, Your Honour, with respect. In our

submission, that is not the first task of a

Stone 10 30/8/91

sentencing judge under section 3 at all. He does

not simply decide whether the particular murder is

appropriate to be punished by life imprisonment or

by imprisonment for a term of years; he decides

what is the appropriate maximum head sentence.

TOOHEY J: But you are reading that as if it is a sort of

two-stage inquiry. But is the court saying
anything more than that the options open are to

impose a sentence of imprisonment for life or one

for a term of years? And the sentencing judge has

to consider which of those is appropriate.

MR LOVITT: Well, the passage that I read out earlier,

Your Honour, from page 44 of the appeal book -

page 12 of the judgment - in our submission - that

is the second paragraph on that page - does go that

far.	And, in our submission, with respect, is in
error.

DAWSON J: That is the point I was putting to you, what

appears in that first sentence. Life imprisonment

is not a maximum in the sense that when the
legislature is considering, say, a term of years,

it says from one to 10 years, and 10 can be

described as a maximum, because they could have

provided 12, 15, 20. Once you get to life

imprisonment that is the most that you can impose.

So, in that sense, it is not a maximum. Do I make

myself clear?

MR LOVITT: Yes, Your Honour. It is never a maximum in that

sense, but my point was simply that it may be the

rest of a person's life.

DAWSON J:  Of course it may. But what that entails is that

you may get a range of cases for which life

imprisonment is appropriate. It may not be just

the appropriate sentence for the worst imaginable

case, which is at the heart of your submission.

MR LOVITT: It might be said, for example, that a very bad

crime committed by an elderly person might result

in that type of result, Your Honour, but the

point -

DAWSON J: Could I make the point clear: you may get a

murder which warrants life imprisonment; you may

get another murder which is worse than that one,

much worse, but you cannot give more because life

imprisonment is all that you can give. So it is

not useful to talk about the worst imaginable case

in this context.

MR LOVITT:  Your Honour, I take the point, but it surely

must be the law, as I understand it it is,

certainly it is as stated by this Court in Ibbs,

Stone 11 30/8/91

for example, that only cases that involve the worst

types of the offences that fall within the

particular section should attract the maximum

penalty. And whether the maximum penalty is a

finite term or life imprisonment, in our
submission, the same rule should apply, that one

should not reach the situation -

DAWSON J: Ibbs was a case of what? What was the offence?

TOOHEY J: It was a sexual penetration case, was it not, in

Western Australia?

MR LOVITT: Yes, that is right. It was a person with a long

history of sexual offences, Your Honour.

DAWSON J:  And there a term of years was prescribed by the

legislature, no doubt.

MR LOVITT:  Yes, Your Honour.

DAWSON J: That is a different situation.

MR LOVITT: Well, in our submission, no, Your Honour.

Perhaps if I can put it rhetorically. Why should

the offence of murder or any offence that carries
the maximum of life imprisonment be dealt with in a

different way than an offence that carries the

maximum of a finite term of imprisonment? Why

should a person - take a different offence, drug

importation - it is probably relevant because of

what has occurred here earlier today - if the
maximum penalty is life imprisonment, how could it

be said that cases other than the worst types of

cases of that particular type of offence should

attract life imprisonment?

DAWSON J: Because the legislature could not go beyond that

in terms of imprisonment.

MR LOVITT:  Your Honour, in that case, the court could

always - - -

DAWSON J:  In other words, when you are dealing with a term

of years, the legislature said, "Well, even the

worst offence will not merit more than 10 years and

we make that clear because we could have said 12 or

15, but we've said 10 and we've indicated that

that's the maximum for the worst offence." But you

cannot say that with life imprisonment because that

is as far as you can go and the legislature has no

other alternatives.

MR LOVITT: Well, in that case, Your Honour, you can impose

a sentence of 50 years with a minimum of 40 or

whatever in order to - that is less than life, in

theory. In theory, you could impose a finite term

Stone 12 30/8/91

to adequately cover the situation. But that has

never been, as far as I am aware, regarded as,

shall we say, a higher sentence, a finite term, no

matter how high. In this State it has never been regarded as a higher sentence than a term of life imprisonment. We do not have the 99 years and so

on that they have in other places.

DAWSON J:  No, that is right that so far as the sentencing

judge is concerned he would regard life

imprisonment as the highest penalty he could

impose. But that does not mean that he then has to

reserve it for the worst case that he could
imagine, because there will be a number of cases

varying in seriousness which may warrant life

imprisonment.

MR LOVITT: There will be a number of extremely bad types

of murder which may warrant life imprisonment.

DAWSON J: Yes, some worse than the others.

MR LOVITT: Well, because we can never point to a case and

say, "Well, that's the worst example one can think

of II•

DAWSON J:  No, not that at all. One can imagine cases, some

worse than the others, which would warrant life

imprisonment. And, indeed, the Court of Criminal

Appeal said this was one.

MR LOVITT: That would be because they fall within, in our

submission, with respect, and I do not want to keep

repeating myself, but because they would clearly be

the worst types of examples. You cannot simply say

- you can always say A is worse than B but you

cannot say that only A should attract the maximum

penalty because that is, in effect, then asking for
someone to say, "Well, I can think of an offence
that's worse that A or an offender who did

everything that happened in A but also had three

convictions for doing the same thing." We can

always come up with examples of worse types of

offences in the circumstances. So, in that sense,

there has got to be a range of offences that fall

within the character which are appropriately dealt

with by means of the imposition of a life term.

DAWSON J: Is your argument here that the Court of Criminal

Appeal fell into error because they imposed a

sentence of life imprisonment for this case which

was not the worst imaginable sort of case?

MR LOVITT:  Your Honour, that is a small part of the

argument.

DAWSON J:  What is the other part of the argument?

Stone 13 30/8/91

MR LOVITT:  The other part is that the Court of Criminal

Appeal simply decided that life imprisonment was

appropriate in this case without adverting to a

number of proper and relevant sentencing

principles.

DAWSON J: Such as?

MR LOVITT:  The relevance of the background, previous

convictions, of the respective applicants.

DAWSON J:  But they did not need to. The very circumstances

of the offence were, quite clearly, in the opinion

of the Court of Criminal Appeal, such as to warrant

a term of life imprisonment. It was a particularly

callous and unpleasant murder.

MR LOVITT:  It was, Your Honour, we do not resile from that.

But we do say that there have been a large number - - -

DAWSON J: Worse cases, I know you say that.

MR LOVITT:  - - - of examples of extremely bad murders in

this State that -

DAWSON J: That comes back to the point that I was putting

to you. That is what you say, that there are worse

imaginable cases, therefore life imprisonment was

not appropriate; that is your argument, is it not?

MR LOVITT: That is one of them, Your Honour.

DAWSON J: Well, what are the others?

MR LOVITT:  Your Honour, when you look at the way in which

the Court of Criminal Appeal came to the determination of a head sentence of life

imprisonment, in our submission, they did so in a

very summary way. This was, as I said, a case

where these two men had been sentenced to maximums
of 25 and 21 years respectively.	By the time the

court gave its decision, late in May - 27th I think

it was of May 1987 - the maximum penalty, as well

as the minimum, did not attract remissions. So the

court was aware that the 25 and 21 years now were

not the subject of remissions.

The necessity to then tinker with any

sentence - if I can use that term - because of the

difficulty associated with Yates' case and the

dichotomy between Mr Justice Murray's view in Elder

and Mr Justice Hampel's view in Halar had

disappeared. There was no need for the court to

even trouble itself with that dichotomy any more

because it was no longer relevant because

section 60(5) of the Corrections Act having been

Stone 14 30/8/91

introduced and leading to the doing away with

remissions for maximum terms, and section 113 of

the same Act making that legislation

retrospective - - -

DAWSON J:  I do not understand you - I thought you were not

raising this point. What you are saying now is

that the term imposed by the trial judge, the

sentencing judge, was adequate and therefore the

Court of Criminal Appeal was wrong in interfering

with it, is that what you say?

MR LOVITT:  The court, Your Honour, spent - as I said

before - almost the entire judgment looking at an issue that, in our submission, was no longer even

relevant for it to determine. It did not have to

determine it because the legislation newly

introduced was retrospective and, consequently, it

was now dealing with sentences of 25 with 15 and 21

with 12, both the maximums and the minimums of

which did not attract remissions. So there was no

need for it to go into the issues that it did

concerning Yates' case. But it did and,

immediately having determined that

Mr Justice Hampel had made an error of law in not

following Mr Justice Murray in Elder's case, it

then went on and, in our submission, with respect,

in a very cursory way, a very summary way, decided

to impose a term of life imprisonment.

DAWSON J:  And that is your point, that they were wrong,

they fell into error in imposing that term; that

is your point, is it not?

MR LOVITT: Yes, Your Honour.

DAWSON J:  Now, why were they in error, other than that they

proceeded on the basis that life imprisonment was

not reserved for the worst imaginable case?

MR LOVITT:  Your Honour, they ignored all of the features associated with the case other than the mere nature

of the offence itself.

DAWSON J:  But that was enough for them. They said it was a

barbarous and callous execution, deliberate and

calculated, which must have inflicted much pain on

the victim before death.

MR LOVITT: Accepting all of that, Your Honour, in our

submission that of itself ought not to necessarily

attract a maximum term of life imprisonment when

there are other factors that are relevant.

McHUGH J: Why not? If this crime had been committed by two

sixty year old Bishops, what other sentence could

be given except life imprisonment?

Stone 15 30/8/91

MR LOVITT: In our submission, Your Honour, the nature of

the offence was such that it is easy to be appalled at certain aspects of it - the girl's tender years,

and the fact that she was intellectually backward
and certain of the physical acts that were

perpetrated upon her - but one cannot consider that without looking at other features; if you like, the

semi-backwardness of the two applicants themselves.

Clive Stone, according to the evidence, had an IQ of 85. His other brother was barely able to read

and write. They had had a very deprived

background, and without going into detail they had

been raised in impoverished circumstances. When

their family split up they were raised by their

grandmother.

All that material was placed before the

sentencing judge, and he paid attention to it in

arriving at his sentence and made reference to it.

They then started drinking at a very early age,

around the age of 13 and 14 and both of them, it

appears, were chronic alcoholics. Clive Stone had

been drinking on a binge for about a week and was

described by people who saw him at the very time of

this incident as being exceedingly drunk.

Clive Stone was a person who, with the exception of a technical conviction some 12 years earlier for violence, had no convictions, although he had a

somewhat troubled history as far as petty offences

of dishonesty was concerned, and matters pertaining

to traffic offences and drink driving, of course,

he had no convictions for violence at all. This

offence, horrifying though it was, was just totally

out of character when one looked at his prior

convictions, and there was character evidence

called before the sentencing judge that it was out

of character when one looked at Clive Stone.

McHUGH J: These are all matters for the Court of Criminal

Appeal.

MR LOVITT: But they did not advert to them.
McHUGH J:	The message has to get through to the Bar, at least so far as I am concerned, that cases in which
special leave will be granted in sentence matters
are fairly rare. There has to be some real
question of principle involved.

MR LOVITT: Well, .Your Honour, we say that the major

question of principle really is the non-advertence

- the inadvertence if you like, though non-

advertence is more appropriate - of the Court of

Criminal Appeal to these other matters.

DAWSON J: Quite obviously they considered the particular

circumstances of the particular murder quite

Stone 16 30/8/91

sufficient to warrant the sentence which they

imposed.

MR LOVITT:	We say no, with respect, Your Honour.
DAWSON J:	No doubt these matters were put to them.
MR LOVITT:	The matters were put to the sentencing judge.

They were certainly raised in the course of the

appeal by counsel who appeared for the then

respondents, the Stone brothers, on the Crown
appeal. But there is no reference to them at all

in the judgment, not at all.

DAWSON J: Because, obviously, the Court of Criminal Appeal

did not consider them relevant in the

circumstances.

MR LOVITT: In our submission, Your Honour, in deciding to

raise sentences to life imprisonment, and in

deciding to increase minimums which are not subject

to remissions by seven and ten years respectively,

and in imposing not only a maximum of life, but a

minimum term of 22 years for each of the two

applicants and thereby creating a somewhat

statistical anomaly in this State in terms of

minimum sentence for murder, it is virtually, with

the exception of the two more infamous - if I can

put it that way - cases of Julian Knight and

Hoddle Street and the Russell Street bombing,

Craig Minogue and Stanley Taylor, these two

minimums are the highest that have been imposed.

And they are way out of kilter, in our submission, with the sort of minimums that have been imposed under the relatively new section 18A of the Penalties and Sentences Act, a question that all

three of Your Honours looked at in some detail, of

course, in Bugmy's case. Your Honour

Mr Justice Dawson will recall that the majority

judgment in Bugmy's case actually made considerable

reference to the statistics and seemed to adopt

with a great deal of, shall we say - - -

DAWSON J: His Honour Justice Toohey would probably recall

it, and even Justice McHugh might recall it too.

MR LOVITT:  The Court also, in our submission, quoted with

approval what Mr Justice Crockett said about the

need for the desirability for uniformity in
sentencing. There, the court was dealing with a

minimum term imposed of eighteen and a half years in what would on any version, albeit a person who had had a very deprived, sad background, was a

savage attack on a helpless person in a public

toilet for a few pieces of silver. And it happened

seven months after two almost as savage attacks on

total strangers for similar motives.

Stone 17 30/8/91

TOOHEY J: But you can always carry out that sort of

exercise, Mr Lovitt, can you not? I mean, you

could always point to cases which might appear high

by comparison or low by comparison. Unless some

real pattern emerges, it does not help very much.

MR LOVITT:  The difficulty is finding a pattern,

Your Honour, where sentences such as this, and

couched in the language that we say the imposition

of these sentences as imposed by the Court of

Criminal Appeal was couched, are imposed.	The
difficulty then is that there are sentences

which - I am well aware of this Court's, if I can

put it this way, unwillingness, to simply get into
the arena of dealing with sentences that are

alleged to be manifestly excessive. But on the

other hand, we do not say that this is just a

manifestly excessive sentence. What we say is that

it may well be, we say it is. But the reason that

it was so manifestly excessive was that the court

got bound up with the legal problems associated

with the new legislation and Yates' case, and how

you should now approach sentencing in murder cases,

and ultimately rushed to impose a life term, the

maximum term - I say that advisedly, Your Honour

Mr Justice Dawson - and then imposed, again making

no real reference to the background aspects and

matters that one would have thought would be

relevant and ought to be relevant, and are relevant according to sentencing principle, imposed minimums that were far and away in excess of what, in our

submission, ought to have been appropriate, and

statistically out of kilter, as I have said.

If I can just refer Your Honours to what the

court said, having decided on page 48 that the
sentences were inadequate, half-way down the page

after a reference, the relevance of which is

doubtful, to the case of Lowery and King, the court

said at page 49:

We turn to the question of the minimum

term. First, we think that notwithstanding

the barbarous nature of the killing, it is

appropriate to fix a minimum term in this

case. To do so will go a long way towards

converting an indeterminate sentence into a

finite one.

And there is reference to the opportunity to show

they should be released. There are references to

what was said in Hansard, and then at page 50:

Bearing in mind that they will have to

serve the whole of any minimum term fixed without any reduction for good conduct we

Stone 18 30/8/91

think that the appropriate minimum term in
each case is 22 years.

They then simply deal with the question of whether they should differentiate between the two

respective then respondents. They go on to say

that Clive Stone would have got 25 years, were it

not for the fact that he pleaded guilty and they

were, in effect, reducing his minimum by three

years.

DAWSON J:	What is the point of all this, Mr Lovitt?
MR LOVITT:	Your Honours, without any reference to any of the considerations and, in our submission, ought to
have been uppermost, or at least very strongly in Their Honours' minds at the time of imposing the
minimum sentence, they have imposed a minimum
almost summarily that was extremely high, was a
vast increase in the minimum terms that both of the applicants, as they are now, had received down
below, and the minimums were imposed, in our
submission, without going into any detail as to
setting out the reasons why.

Now, I am not saying that there is inevitably

a requirement that the court must state its

reasons. But we do say that where sentences of

this magnitude are being imposed, where the Crown

have appealed and their appeal is being allowed,

where the increases in sentence are considerable,

then in those circumstances it is incumbent upon
the court - assuming that they have taken into

account the matters that I had adverted to, and

other what might be regarded as mitigating factors:

the lack of premeditation, spontaneity, albeit the

barbarity of the crime - it was a spontaneous crime

that was committed over a relatively short period

of time, and there was no suggestion that either of

these people were - - -

DAWSON J: These cannot be matters which go to special

leave. This is beginning to sound like a plea.

MR LOVITT: Well, Your Honours, in our submission, they were

matters that were, according to sentencing

principle, appropriate for the court to take into

account and, in our submission, in a case such as

this to at least advert to in coming to the

conclusions that it did.

DAWSON J:  Now, you have a problem with time, do you not?

Is not the application out of time?

MR LOVITT: Yes, Your Honour.

DAWSON J:  What do you want to say about that?

Stone 19 30/8/91

MR LOVITT:  Your Honours, we simply ask the Court to allow

the - - -

DAWSON J: Well, you seek leave to extend the time?

MR LOVITT:  - - - appeal to be, as it were, instated out of

time.	We appreciate that there has been something
like a four year delay.	The reasons are set out in

the affidavits sworn by our instructing solicitor,

Your Honours, and it was due to no fault of either

of the two applicants. It clearly was due to

inadvertence, omissions, by people connected with
those instructing us.

But, in our submission, the authorities in this Court have allowed a degree of leniency in

cases where leave is being sought to appeal out of

time, certainly in cases where there has been no

fault of the applicant. The applicants that appear

have languished away in custody firmly in the

belief that their appeal was on foot, and nobody

told them otherwise for some considerable period of

time. If Your Honours please.

DAWSON J: We need not trouble you, Mr Bongiorno. In

relation to the point upon which the applicant

relies to support his application for special

leave, we are not persuaded that the decision of

the court below is attended with sufficient doubt

to warrant the grant of special leave. In the

circumstances, the applications being out of time,

we would refuse the extension of time.

AT 4.31 PM THE MATTER WAS ADJOURNED SINE DIE

Stone 30/8/91