Strong v The Queen

Case [2005] HCA 30

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, KIRBY, CALLINAN AND HEYDON JJ

ROBERT JOHN STRONG  APPELLANT

AND

THE QUEEN  RESPONDENT

Strong v The Queen [2005] HCA 30

15 June 2005
S152/2004

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation:

B W Walker SC with G A Bashir for the appellant (instructed by Legal Aid Commission of New South Wales)

G E Smith SC with D M L Woodburne for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Strong v The Queen

Criminal law – Sentencing – Habitual criminal – Re-determination of sentence – Appellant sentenced for primary offences of stalking and intimidation – Appellant pronounced habitual criminal and sentenced to further concurrent term of imprisonment under the Habitual Criminals Act 1957 (NSW) ("the Act") – Sentences overturned by Court of Criminal Appeal (NSW) – Appellant re‑sentenced for primary offences and as an habitual criminal – Whether whole sentence must be re-determined where one component of that sentence has miscarried – Whether appellate court required to determine for itself whether to pronounce appellant habitual criminal – Whether in doing so appellate court is exercising its own jurisdiction and powers – Whether appellate court made such determination – Whether appellate court correctly upheld sentencing judge's pronouncement of the appellant as habitual criminal – Whether appellate court's approach conformed to scrupulously thorough procedures for additional orders of preventative detention under the Act.

Words and phrases – "habitual criminal".

Habitual Criminals Act 1957 (NSW), ss 4 and 6.

  1. GLEESON CJ.   The appellant, who has a long criminal history, pleaded guilty to a number of offences, including stalking and intimidating a young woman.  The primary judge, Freeman DCJ, imposed sentences involving a total of 8 years' imprisonment, with a non-parole period of 6 years.  Later, acting under the Habitual Criminals Act 1957 (NSW) ("the Act"), he pronounced the appellant to be an habitual criminal and imposed a sentence of 14 years' imprisonment under the Act. This was to commence on the same day as the first of the other sentences.

  2. The Court of Criminal Appeal[1] allowed appeals both against the sentences for the substantive offences and the sentence imposed under the Act. It re-sentenced the appellant, reducing the sentences substantially. In a further appeal to this Court, the appellant contends that the Court of Criminal Appeal erred in law in one respect in the way in which it dealt with the appeal concerning the application of the Act. The point of law which constitutes the basis of the ground of appeal to this Court was not argued in the Court of Criminal Appeal. The members of the Court of Criminal Appeal addressed the grounds of appeal before that Court, and responded in their reasons for judgment to the arguments advanced on behalf of the appellant. There was a division in the Court of Criminal Appeal,…

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Strong v The Queen [2005] HCA 30
Case
[2005] HCA 30
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Robert Strong against a decision of the Court of Criminal Appeal of New South Wales. Strong had been convicted of stalking and intimidation and subsequently pronounced a habitual criminal under the *Habitual Criminals Act 1957* (NSW), leading to an additional concurrent term of imprisonment. The Court of Criminal Appeal had overturned the sentences for the primary offences and resentenced Strong, but it also upheld the pronouncement of him as a habitual criminal.

The central legal issues before the High Court were whether the entire sentence must be re-determined when one component of it has miscarried, whether an appellate court is required to determine for itself whether to pronounce an appellant a habitual criminal, and if so, whether it exercises its own jurisdiction in doing so. The court also considered whether the Court of Criminal Appeal had correctly upheld the sentencing judge's pronouncement and whether its approach conformed to the "scrupulously thorough" procedures mandated by the *Habitual Criminals Act* for orders of preventative detention.

The High Court allowed the appeal, finding that consistency with established authority required the "regular and scrupulously thorough" observance of the procedures mandated by statutes authorising preventive punishment for repeat offenders. The Court held that the application of the *Habitual Criminals Act* should be considered afresh on new materials that were available. The Court's reasoning emphasised the importance of adhering strictly to the statutory requirements for imposing preventative detention, particularly when new evidence regarding the appellant's mental condition had emerged.

The High Court ordered that the appeal be allowed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

The appellant's arguments are correct. Consistency with an unbroken line of authority in this Court, obliging the "regular and scrupulously thorough" observance of procedures mandated by statutes authorising preventive punishment for repeat offenders[20], applies in these proceedings to require that the appeal be allowed. The application of the Habitual Criminals Act should be considered afresh on new materials that are now available.[20]Thompson v The Queen (1999) 73 ALJR 1319 at 1322-1323 [18]; 165 ALR 219 at 224. See also Chester v The Queen (1988) 165 CLR 611; Lowndes v The Queen (1999) 195 CLR 665; and McGarry v The Queen (2001) 207 CLR 121. The facts Mr Robert Strong ("the appellant") is an Aboriginal man, now aged forty-six years. He was reared within Aboriginal communities near Armidale in northern New South Wales. He grew up "in depressed economic and social circumstances and lacked normal family life and consistent role models"[21]. He suffers from intellectual disabilities. He worked briefly in a sheltered workshop; but has spent most of his life unemployed or in prison. His condition was described by Sully J in the Court of Criminal Appeal as involving "a sad picture of … a person whose real psychiatric problems are superimposed upon a background of economic and social disadvantage, and upon a history of drug abuse"[22].[21]Report of T H Trembath, Parole Officer (August 1979) in evidence before the sentencing judge.[22](2003) 141 A Crim R 56 at 72 [68]. Prior to the events of 2000 resulting in the present proceedings, the appellant had been convicted of serious offences in 1977 and 1983, connected with sexual assaults upon women. For these, the appellant was sentenced to lengthy periods of imprisonment. He served the full sentence on each occasion, without release to parole[23]. Although he was released in April 1996, following the completion of the sentence for the 1983 offences[24], in January 1997 he was again sentenced to imprisonment for six months on a charge of indecent assault of a female. In January 1998, he was again arrested for an offence of stalking a female victim and sentenced to imprisonment[25]. It was whilst in prison for the lastmentioned offence that he began writing sexually suggestive letters to a woman with whom he had had no relationship and who, following his release, became the subject of unwanted further attention.[23](2003) 141 A Crim R 56 at 89 [118].[24](2003) 141 A Crim R 56 at 89 [118].[25](2003) 141 A Crim R 56 at 59 [5]. The letters to the lastmentioned victim formed the basis of the substantive charge of intimidation[26] subsequently presented against the appellant. After his release from prison, the appellant began following and watching this victim. He moved to live opposite her home and shouted abusive and sexually suggestive statements of love for her, knowledge of which, when they came to her attention, caused the victim fear and anxiety. This conduct became the basis of the substantive charge of stalking[27].[26]Contrary to the Crimes Act 1900 (NSW), s 562AB.[27]Contrary to the Crimes Act 1900 (NSW), s 562AB.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ (dissent) HUGH J (dissent) KIRBY J (dissent)
There the matter might have rested but for an application made to the sentencing judge in June 2001 in Sydney for an order pronouncing the appellant an habitual criminal pursuant to the Habitual Criminals Act and for the imposition of a further concurrent sentence under that Act[33]. That application was dealt with on a collection of documents which the prosecution provided to the sentencing judge in advance of the supplementary hearing. No further evidence was called for either party, whether oral or documentary[34]. The sentencing judge, for reasons that he then published, upheld the prosecution application. He pronounced the appellant to be an habitual criminal under the Habitual Criminals Act. He sentenced him to the maximum term of imprisonment provided by that Act, namely fourteen years, to date (as the other sentences had done) from the day on which the appellant had been taken into custody in Enmore, 4 October 2000.[33](2003) 141 A Crim R 56 at 62 [18]-[19].[34](2003) 141 A Crim R 56 at 62 [22].The decision of the Court of Criminal Appeal Unanimous finding of error: The appellant made an application for leave to appeal pursuant to the Appeals Act. The application contested what Sully J (who gave the reasons of the majority in the Court of Criminal Appeal) described as the "substantive offences"[35]. But it also challenged the pronouncement that the appellant was an habitual criminal under the Habitual Criminals Act; and the sentence imposed under the latter Act, pursuant to that pronouncement[36]. [35](2003) 141 A Crim R 56 at 63 [27] (heading).[36](2003) 141 A Crim R 56 at 73-74 [72]. The Court of Criminal Appeal was unanimous that the appellant had established error under the third ground of appeal relating to the sentences for the substantive offences[37]. It held that the sentencing judge had erred in refusing to discount the sentence imposed for the stalking offence, given that the appellant had promptly pleaded guilty to that offence. At the least, it was held, the appellant was entitled to "a proper utilitarian discount" for that plea[38].[37](2003) 141 A Crim R 56 at 68 [50] per Sully J (Dunford J agreeing at 83 [104]; Buddin J agreeing at 83 [107]).[38](2003) 141 A Crim R 56 at 68 [51] per Sully J. This conclusion required that the appellant be resentenced by the Court of Criminal Appeal. It thus became unnecessary (as Sully J pointed out[39]) to consider separately in the appeal an additional ground of objection to the substantive sentences. This was[40] that, on the basis of fresh evidence as to a mental disorder suffered by the appellant, the original sentences were not warranted in law or were manifestly excessive in the circumstances. The fresh evidence arose out of the tender before the Court of Criminal Appeal of substantial recent evidence of the opinions of psychiatrists concerning the appellant's mental condition. [39](2003) 141 A Crim R 56 at 69 [61].[40]Ground 6: (2003) 141 A Crim R 56 at 69 [60]. That evidence, which was described by Sully J[41], was potentially important in two respects. First, it updated the psychiatric and psychological evidence that had been placed before the sentencing judge in the form of reports prepared between 1979 and 1996. Although those reports had been supplemented by one of Mr Philip Nolan, psychologist, of February 2001, it was common ground that the latter report had not been placed before the sentencing judge at the time of the sentencing for the substantive offences[42]. [41](2003) 141 A Crim R 56 at 70-72 [63]-[68].[42](2003) 141 A Crim R 56 at 90 [119] per Buddin J.

Ratio Decidendi

Legal Principle Established

Established by:

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