Strong v The Queen

[2004] HCATrans 92

[2004] HCATrans 092

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  Nos S457 and S513 of 2003

B e t w e e n -

ROBERT JOHN STRONG

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GLEESON CJ
GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 APRIL 2004, AT 10.38 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please your Honours, I appear with my learned friend, MS G.A. BASHIR, for the applicant.  (instructed by Legal Aid Commission of NSW)

MR G.E. SMITH:   May it please your Honours, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, if I may proceed to the substantive matters, the way in which we put this case as deserving special leave is that our client was denied, in the Court of Criminal Appeal, the approach to the matter of the highly exceptional application of the Habitual Criminals Act to his position, which, in a very near analogy, has been ruled by this Court already in McGarry as being but part of “a single sentencing decision”.  That is from paragraph 8 of McGarry (2001) 207 CLR 121 at 126.

So much would appear – apart, with respect, from being established by a decision of this Court and recently – from the nature of the matter, bearing in mind what must in every case be the integral link between the substantive sentencing for a crime involving Veen [No. 2] principles, which in turn involve, at the head of a list, “protection of society”, and the possible addition of preventative detention beyond criminal sentencing under the Habitual Criminals Act.

GLEESON CJ:   Mr Walker, as I understand it, the point of departure between the majority and the minority in the Court of Criminal Appeal was whether the information available to the sentencing judge was adequate to make this declaration.

MR WALKER:   Yes, and therein lay error.  Could I take you ‑ ‑ ‑

GLEESON CJ:   I wanted to ask you just a question of fact first.  What is the status of the document that begins on page 51, which is a report of Dr Allnutt dated 16 July 2002?

MR WALKER:   That was received in evidence by dint of the affidavit at page 50 in the Court of Criminal Appeal, upon what I will tendentiously call “the resentencing”, a single sentencing decision, which it was the duty of the Court of Criminal Appeal to carry out.

GLEESON CJ:   It seems to have been aimed at a rather different point.  It seems to answer a series of questions raised by the solicitor, in effect, about whether your client was fit to plead, or fit to be tried and sentenced.

MR WALKER:   Among other things, and no doubt it could serve, and did serve, other purposes as well.  Its very nature means that – and we can leave aside for all other purposes a fitness to plead matter or fitness to give instructions – it certainly served a purpose of ordinary sentencing and it is, par excellence, adapted to the questions very rarely dealt with, but nonetheless requiring in this case to be dealt with, as to the swingeing extra possibility under the Habitual Criminals Act.

GLEESON CJ:   It shows him to be a fairly dangerous character, does it not?  Have a look at the top of page 63, for example.

MR WALKER:   There is no doubt that my client’s record is not a record which I could put forward as exhibiting that there is no cause for anxious concern in the Court of Criminal Appeal, just on traditional sentencing.  However, in relation to a Habitual Criminals Act exercise, the big difference between the majority and the minority is that the majority held, in effect, that though the sentencing below was to be set aside as vitiated by error, engaging the Court of Criminal Appeal’s statutory power and duty to resentence afresh, they would regard, quasi administrative law, the first instance judge’s determination that there ought to be an order made under the Habitual Criminals Act as somehow standing protected by a House v The King barrier against merits disagreement.

The error there, of course, is that it meant that they were thereafter proceeding on the resentencing to decide the sentence for themselves.  But for the Habitual Criminals Act, they started on an wholly artificial foundation whereby they treated as immune from simple disagreement by themselves – House v The King protection – the first instance judge’s determination that there ought to be such an order.

GLEESON CJ:   Where do we see that best?

MR WALKER:   You see that most graphically at page 109 of the application book.  The heading just before paragraph 93 is a heading consistent only with House v The King and, in our submission, all the references thereafter are of exactly the same kind.

Can I take your Honours back, in particular, to pages 100 and 101 of the application book, where Justice Sully set out the grounds in relation to the Habitual Criminals Act proceedings.  The last of those represents another difference between the majority and Justice Buddin dissenting.  The last is ground 9 on page 101, line 35.  That fresh evidence included two reports from Dr Allnutt.

GLEESON CJ:   Just before you go on to ground 9, the heading that you criticise is taken directly from ground 6 of the grounds of appeal, is it not?

MR WALKER:   Yes.

GLEESON CJ:   So all they have done is repeated the ground of appeal that they are addressing.

MR WALKER:   Your Honour, that is a reference to the discretion as to the merit.  In a ground of appeal, that is a reference to the merit of the actual decision to choose a particular period, if to choose any period at all.  There is, in our submission, no doubt that the way in which the reasoning followed that heading is exemplified at page 114, paragraph 99.

GUMMOW J:   Starting at 97, really.  They seem to have been treating the Habitual Criminals Act element in the sentencing process below as freestanding.

MR WALKER:   Yes.  That is a fallacy, for the reasons this Court pointed out in McGarry, and, to go back to the question your Honour the Chief Justice asked, that heading, verbatim reflecting language of a totally different kind, going to a totally different point, that is, the sentencing discretion – after all, House v The King is a sentencing case – that had already been set aside.  The court had already decided that there had to be a resentencing.  Paragraph 99 on page 114 showed that they were regarding, as Justice Gummow points out, in a freestanding fashion, the decision that there should be an order, some order, under the Habitual Criminals Act ‑ ‑ ‑

GUMMOW J:   They thought there was a separate appeal, as it were, against the Habitual Criminals Act pronouncement.

MR WALKER:   Yes, and whether, in form, there was or not ‑ ‑ ‑

GUMMOW J:   There was, was there not?

GLEESON CJ:   This is listed as two matters before us.

MR WALKER:   Quite, that is why it is important what I am about to say.  Whether, in form, there is or not, in substance and for the reasons shown in McGarry and because of the integral link between how you decide to sentence for the offences – Veen [No. 2] – and then whether there should be, and if so, what there should be under the Habitual Criminals Act, showed that what has miscarried as a matter of process in the Court of Criminal Appeal is this inappropriate freestanding or leg‑up approach to the application of the Habitual Criminals Act ‑ ‑ ‑

GLEESON CJ:   Do we have that Act?

MR WALKER:   I do not think your Honour has the whole Act.

GLEESON CJ:   That is distinctly unfortunate, if part of the argument that we have to deal with is the question of the relationship between that Act and the sentencing process.

MR WALKER:   Could I take your Honours in the application book to pages 120 and following, where, I think I am correct in saying, all substantive provisions appear.  Could I draw to attention the material similarity that one observes in subsection 4(1) of that Act, set out in paragraph 113 of Justice Buddin’s reasons, where, about two thirds of the way down that subsection as printed, your Honours will pick up the expression: 

the judge may, in addition to passing sentence upon such person –

et cetera.  That can be compared with the Western Australian provisions upon which this Court passed, which are relevantly quoted in paragraph 7 of McGarry and, relevantly, there again, there is a discretion in a sentencing judge, upon the prerequisites being met, to order the offender to be imprisoned indefinitely and to do “in addition to imposing the term of imprisonment for the offence”.

Now, one difference between Western Australia and New South Wales is that there is a maximum in New South Wales, whereas it was indefinite in Western Australia.  That makes no difference to the point of principle, which, in our submission, is that the Court of Criminal Appeal, having found error in the initial sentencing, had committed to it, not as a matter of choice for it but as a matter of duty, the consideration as to whether there should be, in addition to any sentence which they were about to pass themselves, de novo, in the Court of Criminal Appeal – whether, in addition to that, there ought to have been an order made under the Habitual Criminals Act.

GLEESON CJ:   Where do we see them, as it were, accepting some constraint in their decision making? 

MR WALKER:   Paragraph 99 at page 114 of the application book is, in our submission, the plainest indication that they regarded themselves as not exercising afresh, from the ground up, the one sentencing decision – to use the McGarry phrase – but rather bifurcating it into the sentencing for the crime, which was being from the ground up, de novo, and the Habitual Criminals Act, where all they were going to do was to adjust, if at all, the period.  In our submission, the very power and its prerequisites which are referred to in subsection 4(1) of the Act, show that an anterior question is to establish the proper sentence for the offence in order then to consider whether, in all the circumstances which transcend that particular offence, of course, this highly condign power is to be exercised. 

GLEESON CJ:   Is it paragraph 98 that you quarrel with?

MR WALKER:   No, I cannot possibly quarrel with that because the word “may” appears.  The same is true, the word “discretion” obviously ‑ ‑ ‑

GLEESON CJ:   I do not see “may” in paragraph 98.

MR WALKER:   No, “may” appears in subsection 4(1) of the Habitual Criminals Act.

GLEESON CJ:   Well, it is the second sentence in paragraph 98 that I am looking at, too.

MR WALKER:   Yes, but they are discretions, your Honour.  The word “may” bestows a discretion, but a discretion is also the right description for what happens when a sentencing judge attends to the question as to whether to send somebody to prison, and if so for how long.  That is a discretion, but that discretion had miscarried, and was, by statute, to be exercised afresh in the Court of Criminal Appeal.

GUMMOW J:   That depends on the terms, I suppose, of the Criminal Appeal Act, does it not?

MR WALKER:   Yes, your Honour, section 6 is the relevant power.

GLEESON CJ:   Now, paragraph 102 on page 115?

MR WALKER:   Yes, but, your Honour, there is a misdirection, and may I come to my next point as to the difference between the majority and the minority.  The majority, though they had referred, during that part of their reasons where they resentenced for the crime, to the so‑called “fresh evidence”, and though they had before them ground 9 in relation to the Habitual Criminals Act – see page 101 at line 35 – Justice Sully does not refer to that material at all, on the Habitual Criminals Act matter.  Justice Buddin, on the other hand, does just that – as required, in our submission – by the course of events at the appeal and the resentencing involved.  His Honour, in accordance with clear precedent, in light of that fresh evidence which he does explicitly consider, quashes, sets aside or would have set aside the Habitual Criminals Act order.

The importance, of course, is that when one goes, for example, to Dr Nielssen’s material, one sees that there is raised there material highly important and requiring to be considered which is simply not answered by what your Honour the Chief Justice has drawn to attention in paragraph 102 on page 115 of the application book.  One simply cannot rest one’s decision under the Habitual Criminals Act on a reluctance to differ from the learned trial judge when the ground of appeal which attacked the order culminates in a reliance upon fresh evidence once the one, the single, the combined sentencing decision is being re‑examined in the Court of Criminal Appeal.

GLEESON CJ:   Mr Walker, I think there was some discussion of this that I read in the papers, but section 9 of the Habitual Criminals Act refers to a report from the Adult Probation Service.  Is that service no longer in existence?

MR WALKER:   No, not under that name, and your Honour does recollect correctly discussion in the papers.  It would not appear that, overtly as such, there was, ad hoc, for the purposes of the resentencing, any such report bespoken.  Now, that does not mean that there were not, and, as your Honours know, there were a plethora of earlier reports about this man.

GLEESON CJ:   Is there such a thing now as the Adult Probation Service?

MR WALKER:   No.  There is a Probation and Parole Service.  In functional terms, it is fair to say it would be the current equivalent.

GLEESON CJ:   I suppose, because this Act is so rarely invoked, there is no practice about this, but section 9 seems to be expressed in terms to confer a discretion on the judge as to whether to obtain such a report.

MR WALKER:   I think, with respect, that is correct.  It would appear to be a discretion which one would be very, very slow to exercise against receiving a report, but, with respect, that may be so.  The Act is, of course, on the books, and we have to deal with it, and my client has suffered by reason of its application.  It is an Act, for example, whose terms are exactly the same as they were when remissions were in the order of how a sentence could be discharged.  They no longer apply, of course.

Could I take your Honours to pages 70 and 71.  This is material that Justice Buddin did look at, pursuant to his duty, and, respectfully, correctly so, in making the fresh decision as he is obliged to do.  This is part of the material upon the basis of which he would have set aside the decision.  When one looks at its nature, it is not available to the trial judge – it cannot fall within the province of deference to an experienced trial judge, to which paragraph 102 on page 115 of the application book refers.  Pages 70 and 71 show that there has been new medication for a newly described diagnosis of what may well be a new pathology in my client. 

This is at the heart of the issue in the exercise of a discretion under the Habitual Criminals Act which requires, among other things, what one could be forgiven for thinking was the well‑nigh impossible prediction as to what might happen, in the maximum case, 14 years hence.  Certainly, in this case, many years hence, 8 years hence.  This is the kind of material which simply could not have been left out of account in a court attending to ground 9 of the appeal with respect to the Habitual Criminals Act.

GUMMOW J:   I think section 5E of the NSW Criminal Appeal Act provides for a distinct appeal in the habitual criminals.  You rely on what is said in McGarry (2001) 207 CLR 121 at 126, paragraphs 8 and 9.

MR WALKER:   Yes, your Honour.

GUMMOW J:   The WA system seems to be the same.

MR WALKER:   Yes, that is why I started by saying, yes, there are matters of principle that this Court has dealt with in McGarry, but my client has been denied, in our submission, application of criminal process of a most serious kind, of a most rare kind, and of a kind that affects his liberty, in a way that vaults over Veen [No. 2] protections and limits on criminal sentencing by a process which, in our submission, defies the requirements of McGarry.  When one sees the powerfully argued, both legal and factual, analysis of Justice Buddin and sees the kind of material in Dr Nielssen’s report, which must have been at the heart of any appreciation of whether there should be, and if so, how much there should be ordered anything under the Habitual Criminals Act, then, in my submission, this is a case which, both as a matter of principle and for the individual justice of the case, requires a grant of special leave.  May it please your Honours.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Smith.

MR SMITH:   The point that his Honour Mr Justice Gummow made a little while ago I was going to bring the Court to, that in the actual judgment of the Court of Criminal Appeal there was a reference that they were applying or exercising section 5E of the Criminal Appeal Act.  I submit that is quite a significant distinction from the McGarry Case, in that ‑ ‑ ‑

GUMMOW J:   It is not.

MR SMITH:   I submit that it is, if your Honour pleases, that there is a separate question as to whether it is all one appeal.

GUMMOW J:   It was in Western Australia, too, paragraphs 8 and 9 of McGarry ‑ ‑ ‑

MR SMITH:   Yes, but there are some quite significant differences between the habitual criminals legislation and section 98 of the Sentencing Act (WA) that we submit will distinguish this case from McGarry, in the sense that the indefinite sentence can only be ordered in Western Australia if there is no non‑parole period fixed or no suspended sentence.  In this case, there were non‑parole periods fixed in accordance with the Sentencing Act in relation to the primary offences.  Effectively, that is quite a significant difference, we would submit.

Also, the Habitual Criminals Act imposes a range of sentences, mandatory sentences from 5 to 14 years.  Of course, the Western Australian legislation is indefinite, and so it falls more into the category of the problems associated with this type of case, in Kable and other matters where there have been these problems of people just being sent to gaol indefinitely.

In this case, Mr Justice Sully clearly looked at what was likely to be the effect of the decision.  In a sense, rather than him staying in gaol for 14 years, he is effectively in gaol for 8 years.  Of course, the non‑parole periods, although imposed, will be, as it were, subsumed in the habitual prisoners proclamation sentence because, for at least 7 of the 8 years, he cannot be released on licence until he has served the full sentences that were imposed in relation to the other matters, as I understand it.

GUMMOW J:   Now, Mr Walker’s client needs an extension of time, I think.  Do you ‑ ‑ ‑

MR SMITH:   Your Honour, we do not oppose that.  In this case, we submit that the majority view of the Court of Criminal Appeal is to be preferred.  They looked at all the material.  The material was before them.  The fact that Mr Justice Buddin reached a different point of view, we submit ‑ ‑ ‑

GLEESON CJ:   The argument against you, right or wrong, as I understand it, is that the majority misdirected themselves in that they regarded themselves as subject to a constraint arising from the fact of the decision that had been made by the primary judge, whereas, on the argument against you, they were unconstrained in that regard.

MR SMITH:   We submit that the court considered the matter in accordance with the provisions of the Habitual Criminals Act and looked at whether it was applicable to these particular offences, and, in a sense, have carried out an examination of whether this applicant qualified for the Act and whether he should be subject to a sentence under a proclamation under the Act.  They did not misdirect themselves in their interpretation of that aspect at all.

GLEESON CJ:   I presume, if an appeal were to succeed, the consequence would be that the matter will be remitted to the Court of Criminal Appeal to reconsider the question.

MR SMITH:   Yes.

HEYDON J:   Except that Justice Buddin wanted to remit to the District Court, so that the Crown could call further evidence and cross‑examine, presumably, Dr Nielssen.  But either way, there will be a remitter somewhere.

MR SMITH:   It would be a remitter.

GLEESON CJ:   We could not remit it to a trial judge, we could only remit it to the Court of Criminal Appeal.  Justice Buddin’s view might prevail upon remitter.

MR SMITH:   That is right.

GLEESON CJ:   But if we were to grant special leave to appeal, allow an appeal and remit the matter to the Court of Criminal Appeal on the basis that it was the responsibility of the Court of Appeal to consider for itself afresh the question of the application and the consequences of a successful application, then either party would be at liberty to adduce to the Court of Criminal Appeal such evidence as it may require.  Indeed, I would have thought it would be necessary to bring the evidence up to date.

MR SMITH:   Yes, but much of the material before the Court ‑ ‑ ‑

GLEESON CJ:   That would not necessarily involve a different outcome as far as the offender was concerned, unless he has been embarked on a program of self‑improvement of a substantial kind.

MR SMITH:   Yes, which has actually caused an improvement.  Of course, much of the material before the Court of Criminal Appeal which the court considered was quite fresh – Dr Nielssen’s was the latest – but that does not mean that they would prefer his opinion to the other opinions expressed.

GLEESON CJ:   Yes.

MR SMITH:   In imposing a much lower sentence than was originally imposed, on finding error, the Court of Criminal Appeal have taken into account, we would submit, the comments of prospects of rehabilitation.  Neither the trial judge nor the Court of Criminal Appeal ever rejected this man could not ultimately be rehabilitated and by bringing it down to 8 years

there was a substantial reduction to allow that to occur, I would submit.  He just was not cast into gaol, as it were, until he turned into an old man.  He was given an opportunity by that to rehabilitate under the conditions that apply in the gaol system.  Your Honours, when one looks at the grounds for granting the proclamation and the background of the applicant, it would take most courts a lot of convincing that suddenly there has been such a wonderful recovery and he is not likely to do this ‑ ‑ ‑

GLEESON CJ:   I understand this.  We have read these papers.

MR SMITH:   Yes, I am sure.

GLEESON CJ:   We have seen what he, as it were, does.  But the argument against you is a relatively narrow one and it simply was that the Court of Appeal went about this matter in the wrong way, not necessarily that they came to the wrong ultimate result.  The corollary of that argument is that he is entitled to have them go about it the correct way.

MR SMITH:   We are at odds with my friend on that aspect.  We submit that the way that ‑ ‑ ‑

GLEESON CJ:   You are entitled to argue, and I understand you do argue, that the evidence to support application of the Habitual Criminals Act was so overwhelming that there is, as it were, no point in having the matter reconsidered, but the judgment of Justice Buddin then stands as a kind of obstacle to that argument.  That would be a stronger argument if this was a unanimous decision of the Court of Criminal Appeal.

MR SMITH:   It does not sit – we submit, despite Justice Buddin’s judgment, there is no evidence that the majority did not consider Dr Nielssen’s report.  It was part of the material before them and clearly they have gone through ‑ ‑ ‑

GLEESON CJ:   The argument against you is that the majority considered themselves constrained by the fact of the decision of Judge Freeman and that that was an error of law.  That is the argument against you, as I understand it.

MR SMITH:   Yes, I have made my submissions on that, I think, your Honour. 

GLEESON CJ:   Mr Walker, you might need to look at those grounds of appeal and narrow them down in the way that I have just expressed it.

MR WALKER:   Yes, your Honour.

GLEESON CJ:   Am I right in thinking that if you were given leave to appeal and an appeal were to succeed, you would be asking for the matter to be remitted to the Court of Criminal Appeal?

MR WALKER:   Yes, your Honour.

GLEESON CJ:   Page 145, Mr Walker ‑ ‑ ‑

GUMMOW J:   Needs drastic surgery.

GLEESON CJ:   In this matter, there will be a grant of special leave to appeal, but not on grounds (b) or (c) on page 145 of the application book, and the grant is given on the understanding that there will need to be some revision of ground (a), in order to bring it into conformity with the argument of counsel for the applicant in this Court.

MR WALKER:   May it please your Honours. 

GLEESON CJ:   We will adjourn for a short time to reconstitute. 

AT 11.09 AM THE MATTERS WERE CONCLUDED