Thew v The Queen

[1999] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S128 of 1998

B e t w e e n -

ROY SHANE THEW

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 MAY 1999, AT 12.31 PM

Copyright in the High Court of Australia

MR S.R. NORRISH, QC:   May it please the Court, I appear for the applicant with my learned friend, MR R.M. SWEET.  (instructed by A.R. Walmsley & Co)

MR A.M. BLACKMORE:   If the Court pleases, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Norrish.

MR NORRISH:   Your Honours, in our submission, this matter raises a number of issues that warrant the grant of special leave to appeal.  In our submission, those matters might be conveniently summarised as follows.  Firstly, it raises the issue of what is the true meaning of “manifest inadequacy” as it is expressed in Crown appeals, having regard particularly in this matter to the Crown’s stance at first instance, and in that regard we say that in the judgments of the majority and the minority there is a clear division of opinion in respect of that issue. 

GLEESON CJ:   Just what was the extent of the difference between the majority and the minority?

MR NORRISH:   Justice Hulme, if I could just take your Honours to what he said in relation to the matter at application book page 76, said, line 15:

In context, I understand “manifestly” to mean demonstrated or clearly revealed.  I do not understand the term to require that there be a substantial inadequacy in the sentence under appeal although the fact that what is appropriate in any case will necessarily extend over an imprecise range means that it will commonly be difficult to conclude that a sentence falls not far outside the range of what is permissible.

We respectfully submit that as far as his Honour’s statement of the principle as to what “manifest inadequacy” means, being the common basis of complaint by the Crown in Crown appeals, in fact usually the only complaint, that proposition is in fact half right but, in our submission, particularly noting what his Honour says about the imprecise range, in all sentencing matters where there are no mandatory penalties, we respectfully submit that “manifest” must, in reality, mean substantially inadequate, and that his Honour’s statement of principle only goes halfway to what we respectfully submit should be proper principle.

GLEESON CJ:   I am not sure what you get by criticising the minority judgment in the court.

MR NORRISH:   I am not criticising his Honour in the sense of saying that his Honour was completely wrong; I am simply saying that his Honour’s judgment of the matter in fact noted the question of imprecision and, by definition, imprecision of a range makes it difficult not to come to the conclusion that manifest inadequacy must be not only obvious, but substantial inadequacy.

GLEESON CJ:   Let me put the question slightly differently.  Where do you find error in the reasoning of Justice Sheller?

MR NORRISH:   There are two aspects of the reasoning of his Honour Justice Sheller that reflect error, in our view, in our submission on behalf of the applicant.  Firstly, his Honour’s determination that the sentencing judge failed to give adequate weight to general deterrence ‑ ‑ ‑

GLEESON CJ:   Where is this?

MR NORRISH:   If your Honours please, at application book pages 62 to 63.  His Honour cited with approval what the Court of Criminal Appeal had said in Dodd v The Queen at line 15, stating the general principle as to the requirement to give appropriate weight to general deterrence and not give too much attention to persuasive subjective matters.  His Honour went on to say:

Moreover, as was pointed out in that case, deterrence, both general and personal, is an important consideration of which the sentencing Judge in this case made no mention.  It is true, as Mr Sweet who appeared for the respondent emphasised, that a mental handicap, short of providing a defence on the ground of mental illness, is a basis for reduction of sentence;

What his Honour did not recognise, with the greatest of respect, having regard to what he quoted from Dodd, is that the principles set out in Scognamiglio and Anderson and in Engert, another decision of the court, recognised that the issue of mental handicap in the appropriate case is not just a persuasive subjective consideration, it is a highly relevant matter to determining the objective circumstances of the offence and, more importantly, determining whether in the instant case ‑ ‑ ‑

GLEESON CJ:   He said it is a basis for reduction of sentence.

MR NORRISH:   Well, yes, your Honour, but on a basis, with respect, that did not recognise its importance so far as it concerned the weight to be given to principles of general and personal deterrence.

GLEESON CJ:   I am having difficulty just putting my finger on that portion of his judgment which you say involves or reflects an error.

MR NORRISH:   If your Honours go to ‑ ‑ ‑

GLEESON CJ:   Where is the error in what he said at the bottom of 62 and the top of 63?

MR NORRISH:   The error is, your Honour, that the way in which his Honour approached the matter by the consideration of the unchallenged evidence, as it transpired on appeal, to the mental state of the applicant, his Honour was concerned that that evidence was simply persuasive subjective material ‑ ‑ ‑

GLEESON CJ:   Why do you say that?

MR NORRISH:   If your Honours go to the conclusion at application book page 68 his Honour says, firstly, at line 16:

In my opinion, taking account of the objective seriousness of the two offences to which the respondent pleaded guilty and accepting the subjective considerations as found by the sentencing Judge, the Crown ‑ ‑ ‑

GLEESON CJ:   Now, that is a fairly orthodox proposition.

MR NORRISH:   Yes.  Over the page at application book page 69:

In my opinion, taking account of the objective seriousness of the offences, the respondent’s plea of guilty before the trial began, the high degree of contrition displayed, as found by the sentencing Judge, the depressive condition found during the period before the offences were committed and when they were committed, and the other subjective matters which his Honour took into account, the appropriate sentence for each offence is one of penal servitude for nine years to be served concurrently.

GLEESON CJ:   If you had been expressing that, how would you have put it better, consistently with principle?

MR NORRISH:   Your Honours, I would have expressed it as taking into account the objective seriousness of the offence, including the material relating to the mental state of the respondent at the time of the commission of the offence, and then gone on to identify in summary the subjective matters that were entitled to be taken into account in the court determining that the appropriate sentence was one of nine years.

HAYNE J:   On the basis, what, that this man was not a suitable vehicle for the expression of general deterrence?

MR NORRISH:   General or personal deterrence, and in our submission ‑ ‑ ‑

HAYNE J:   Let it be assumed specific deterrence of this man did not loom large.  I do not read the judgments as suggesting it did.  Why was this man not a suitable vehicle for the expression of general deterrence?  You say because of his depressed condition and other medical problems, is that the point?

MR NORRISH:   Because the mental state of the applicant at the time, as a fact, not only drove him to commit the offences but drove him to attempt suicide himself, to take a number of tablets which the trial judge found had completely deprived him of logical reasoning.  That was a critical issue that went to the conduct of the applicant in assessing not only its objective seriousness, of course, but in determining whether this man should be held up as an example.  I mean, Scognamiglio ‑ ‑ ‑

HAYNE J:   For my part, you do not need to convince me that this is a tragic case.

MR NORRISH:   It is not just the tragic case, it is the importance of understanding the relevance of the given mental state in the instant case to the issue of whether this particular person is an appropriate vehicle for a message of general deterrence, and the authorities, in our submission, are quite clear that, in the appropriate case, that person should not be such a vehicle.  Veen, both in Veen [No 1] and [No 2], is the quite opposite side of the spectrum, a significant abnormality of mind that makes the person a continuing danger to the community.

GLEESON CJ:   But here you have a carefully, one might even say elaborately, prepared series of reasons coming to a conclusion with which one might agree or one might disagree, but where is the error?

MR NORRISH:   The second aspect of the matter to your Honour’s question – I said there were two answers to the question your Honour asked about the way Justice Sheller approached it – can be found in the way in which his Honour sought to rely upon the sentence in Roberts as providing some guideline in relation to the matter.  It was acknowledged that Roberts was a different case.  That was acknowledged by the sentencing judge, and he saw fit not to follow it, as providing, in effect, a yardstick for his sentence.  In fact, his Honour was ‑ ‑ ‑

GLEESON CJ:   Had Judge Delaney referred to Roberts in his reasons?

MR NORRISH:   He did, yes, your Honour.

GLEESON CJ:   Which is presumably the explanation of how it came into the picture.

MR NORRISH:   No.  It came into the picture, firstly, as the only case the Crown produced to Judge Delaney as a case upon which he could consider determining the appropriate sentence.  His Honour determined that Roberts was a different case.  The criminality in Roberts was more significant in many respect and, of course, there was not the relevant mental state issue which his Honour took into account in determining the final sentence.  But it was also raised by the Crown in respect of the appeal.

GLEESON CJ:   All Justice Sheller said about Roberts was, at page 66 line 26, it “was a useful indicator”.

MR NORRISH:   With respect, he went beyond that, your Honour, because if your Honours have regard to application book page 66 his Honour said this, if I could just read it in context:

Despite the differences, I would have thought the decision in Roberts was a useful indicator that the sentence imposed in the present case for attempting to murder the offender’s two infant daughters was manifestly inadequate.  I do not regard the failure of the Crown to refer to the cases now relied upon as requiring or supporting the submission that this Court should, as a matter of discretion, not intervene.

GLEESON CJ:   Mr Norrish, perhaps we can come back to Roberts after the adjournment.

MR NORRISH:   Yes, as your Honours please.

GLEESON CJ:   We will adjourn until 2 pm.

AT 12.42 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

GLEESON CJ:   Yes, Mr Norrish.

MR NORRISH:   If your Honours please, if I could just briefly finish with the reference to Roberts.  There are three points to be made.  At application book page 66 in Justice Sheller’s judgment ‑ ‑ ‑

GLEESON CJ:   Perhaps you could just take us back to where Judge Delaney dealt with it.

MR NORRISH:   Yes.  Judge Delaney dealt with the relevance of Roberts to his approach to the matter at application book page 14.

GLEESON CJ:   Thank you.

MR NORRISH:   He does mention it at application book page 6.  That is probably quickly a good starting point.  At application book page 6 line 30 he said:

The Crown have submitted to me in the course of this case that the submissions made by Mr Sweet as to penalty, particularly a submission that any minimum term should be less than three years, was a decision, should I make it, which would lead me into error and, in particular, I asked the Crown to provide me, if such information was available, with decisions which I could use to assist me in coming to a view as to the approach of appellate courts in matters of a similar type.  The Crown did not resile from the fact that this was not a matter which was a regular featurer –

to use his Honour’s word –

in the Court of Criminal Appeal records but did provide me with a decision of the Court of Criminal Appeal in the Crown and Roberts to which I will shortly refer.

And then at 14 he said this, at line 6:

I have taken into account the views expressed in the unreported decision of the Court of Criminal Appeal in Crown and Roberts…..to which the Crown has referred me.  However, the facts and circumstances of that matter were so significantly different to the facts and circumstances of this case that I do not think that the comments, which were obviously obiter, of the Chief Justice in that case, that the penalty which was there imposed by Justice Matthews…..was such that it gives me assistance in determining an appropriate sentence to impose taking into account both the objective and subjective facts of this case.

Now, Justice Sheller ‑ ‑ ‑

GLEESON CJ:   I must tell you that I am completely innocent of any recollection of what Roberts was about.

MR NORRISH:   The short facts of Roberts are referred to in the Crown’s written submissions on appeal and in the schedule.  Roberts received a sentence of nine years with a five year minimum term for a stabbing attack upon his wife in bed.  It does lead me to, very briefly, Justice Hulme’s comments about Roberts which we say are very apposite to the way in which we say that the Crown relied upon it and the majority, in our submission, gave it undue weight.  At application book page 77 line 40 Justice Hulme said:

I do not find the decision in Roberts…..more persuasive.  Although the sentencing judge had found that Mr Roberts was seriously and emotionally disturbed, I regard the mental state of the Respondent here as significantly more mitigating.  Furthermore, in Roberts, the offender had some 11 days earlier threatened his wife with the knife he ultimately used and, prior to the attack which led to him being sentenced, been taken to court for it.

Now, further, it should be pointed out Roberts was not a Crown appeal, it was an application by Mr Roberts for leave to appeal against his sentence.

GLEESON CJ:   Was he the subject of an apprehended violence order at the time?

MR NORRISH:   He could well have been, your Honour.  I do not have the judgment here.  He was, my junior tells me.  He is familiar with that judgment.  It should be noted that Justice Sheller in arriving at exactly the same sentence for this applicant as Mr Roberts said, at application book page 69, that in relation to the sentence of nine years with a minimum term of five years, line 25:

This is less than I would have imposed but for the element of double jeopardy to which the respondent has been exposed.

The facts are, in Roberts, that the court said that it was rather lenient in what was described as an obiter remark, but the facts were it was thought to be within discretion.  This was a Crown appeal in relation to Mr Thew where the court had to mitigate the penalty, having regard to the principle of double jeopardy. 

Your Honours, the critical issue, however in this application is the issue of the approach the Crown made to the matter at first instance and the effect that that should have had upon the consideration of the matter by the Court of Criminal Appeal and, in our submission, this issue is relevant both to the question of whether the court should exercise its discretion to uphold the Crown appeal pursuant to section 5D and, if it did uphold the appeal in exercise of discretion, what should be the appropriate approach to the resentencing of the respondent?  In our submission, the Court of Criminal Appeal ought be constrained in the exercise of either discretion by the conduct of the Crown at the original sentencing proceedings and, in our respectful submission, the effect of that is that in a Crown appeal, if the Crown appeal was to be upheld, the respondent should be no worse off than would have been the situation if the judge had acceded to what had been suggested by the Crown, thus obviating the lodging of an appeal by the Director of Public Prosecutions subsequently.

Could I take your Honours to application book page 76.  Justice Hulme, in fact, directly picked up this issue and, we respectfully submit, correctly identified the constraint upon the court’s exercise of power in the matter.  At line 39 his Honour said this:

And I do regard the sentence imposed in this case as outside the permissible range.  Before Judge Delaney the Crown submitted that any minimum term of less than 3 years constituted appealable error and, in light of the concession by the Crown implicit in that submission, it is not necessary that I draw the line any higher. 

As it transpired, his Honour did draw the line somewhat higher in that he fixed a minimum term of three years six months in the context of a total sentence of seven years.

GLEESON CJ:   Three years was the sentence in Dodd, was it not?

MR NORRISH:   Dodd was sentenced to three years periodic detention.  I think it was ‑ ‑ ‑

GLEESON CJ:   No, the sentence imposed by the Court of Criminal Appeal in Dodd.

MR NORRISH:   I think it was a three-year sentence with some minimum fixed.  I cannot remember whether it was a fixed term or a minimum term but it may well have been converting the periodic detention term to a fixed term.

HAYNE J:   But the origin of the reference to three is apparent at application book 6, lines 29 and following, is it not, where counsel for the prisoner had sought something less than three and the Crown said, in submissions, no, if you do that, that is appealable error.

MR NORRISH:   Yes, that is exactly right.

HAYNE J:   What then is the implicit submission that the Crown – positive submission that the Crown is making in that course of events?

MR NORRISH:   The answer to that is to be found in the judgment of the majority.  If your Honours have regard to – if I just take your Honours to application book page 60 line 30, Justice Sheller said this:

During the course of the hearing on sentence, the Crown submitted that the submissions made on behalf of the respondent as to penalty, particularly a submission that any minimum term should be less than three years, was a decision which would lead the court into error. 

GLEESON CJ:   That must be a typographical error.  It must be “was a submission”.

MR NORRISH:   Yes, that is right, your Honour.

In answer to his Honour’s request for decisions which would assist him in coming to a view as to the approach of appellate courts…..the Crown referred to R v Roberts –

and their Honours noted that his Honour saw the facts and circumstances as different.  At application book page 65 Justice Sheller returned to this issue at line 40 and his Honour said this:

As Judge Delaney said in the present case, the Crown submitted that a minimum term of less than three years would lead the trial Judge into error. 

HAYNE J:   That seems to me, if I may say so, to translate a submission in answer to counsel for the prisoner into a positive submission in a way that is impermissible.  What positive submission was the Crown making when it said, “If you accede to what the prisoner says, you are in error.”?

MR NORRISH:   With respect, your Honour, I would have thought, in a fair and clear assessment of Judge Delaney’s remarks at sentence, the Crown was clearly indicating to his Honour that a minimum term of less than three years would give rise to appealable error, and making it plain to his Honour that that was the Crown’s position so far as the bottom line of the sentence was concerned.

GLEESON CJ:   When the Crown was then asked for its assistance, they reached for Roberts.

MR NORRISH:   Yes.  Which his Honour then, as I have drawn your Honours’ attention to, correctly pointed out was a case significantly different, both as to its objective facts and its subjective circumstances ‑ ‑ ‑

GLEESON CJ:   Yes, but the Crown said, “Here is a sentence in Roberts.”  That was a minimum of five, was it not?

MR NORRISH:   Minimum of five, plus four, yes.

GLEESON CJ:   And “Here is the Court of Criminal Appeal saying that is a lenient sentence”.

MR NORRISH:   Yes.  The Crown appeared before the Court of Criminal Appeal and the only other case that they produced that was relevant to the Court of Criminal Appeal was Tarrant where the sentence was three years and six months, plus three years and six months of a total sentence of seven years.

MR NORRISH:   Your Honours, I see the time has expired.  May I just have several more minutes, if I may?

GLEESON CJ:   Just to bring your submissions to a summary conclusion.

MR NORRISH:   Your Honours, in relation to the last point, we say that when one has regard to what the High Court has said in Everett about the role of the Crown, when one has regard to what the Full Federal Court said in Tait about the role of the Crown, this particular application raises a new issue for this Court to determine so far as it relates to the proper approach of a Court of Criminal Appeal in properly disposing of a Crown appeal, both in relation to the discretion issue and in relation to the resentencing issue, when the Crown has taken a particular position at the court below.  In our respectful submission, a grant of leave ought be granted for the Court to examine that issue and to determine whether, in fact, there has been a gross

violation of proper principle in this matter.  They are my submissions, if the Court pleases.

GLEESON CJ:   Thank you, Mr Norrish.

This case involved a difficult sentencing problem.  However, it was determined in the Court of Criminal Appeal by the application of well‑established principles to the facts and circumstances of the individual case and the Court is of the view that it does not raise an issue proper for the granting of special leave to appeal.  The application is dismissed.

AT 2.12 PM THE MATTER WAS CONCLUDED