Thomas v The State of Western Australia

[2015] HCATrans 68

[2015] HCATrans 068

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P51 of 2014

B e t w e e n -

SHANNON BERT THOMAS

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO PERTH

ON FRIDAY, 13 MARCH 2015, AT 11.56 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   May it please the Court, I appear with MR D.D. BRUNELLO for the applicant.  (instructed by the Aboriginal Legal Service of Western Australia)

MR J. McGRATH, SC:   May it please the Court, I appear with MR L.M. FOX for the respondent.  (instructed by Director of Public Prosecutions (WA))

BELL J:   Yes.

MR CALLAGHAN:   Your Honours, it is said against us that this application does not involve a question of law that is of public importance.  We reject that because the Sentencing Act 1995 is of high importance to the public of Western Australia because of its general application to every sentence imposed in that State.  But, in any event, we are unafraid to bring this application as a particular one in which the interests of justice or the interests of the administration of justice require this Court to consider the judgment delivered by the Western Australian Court of Appeal.

Our willingness to present the case on that basis derives from the fact that unless the decision is reviewed, unless the matter is remitted, the applicant will spend at least five months in custody as a direct consequence of a process that was flawed.

GAGELER J:   Well, does that make every sentencing case ‑ ‑ ‑

MR CALLAGHAN:   The Sentencing Act applies ‑ ‑ ‑

GAGELER J:   No, if that submission on that basis is accepted, does that make every sentencing case a special leave case?

MR CALLAGHAN:   No, we have to demonstrate a bit more than that, and we propose to do so by demonstrating error in the Court of Appeal and that the error is not only of functional significance but one that does involve the interpretation and application of the Sentencing Act itself.  Having said that, your Honour, we are unafraid to say that if it can be demonstrated that someone is going to be in custody for at least five months as the result of a process which is demonstrably flawed, then the interests of justice are engaged because no one in any part of Australia should be required to do that.  Our demonstration begins with section 9AA of the Sentencing Act which appears in the application book at page 46.

For the purposes of the application, can we fasten immediately upon section 9AA(4)(b) and call attention to the fact that it is framed disjunctively.  That is to say, there is a discretion to reduce an otherwise applicable sentence by up to 25 per cent, and that discretion is enlivened if the offender pleads guilty at the first reasonable opportunity or indicates that he or she would do so.

Now, it is true that the applicant has put his case on the basis that he did both; plead at the first reasonable opportunity and indicate the plea at the first reasonable opportunity.  But, that is not an invitation to conflate notions that the statute has so explicitly kept apart.  So, we ask the Court for the moment to consider only whether the applicant did in fact plead guilty at the first reasonable opportunity.  The chronology appears in the application book at page 39 and as recorded there the applicant offered twice, and his offer was put by, by the State, twice before it was finally accepted.

BELL J:   Mr Callaghan, before we get to that, can I just raise with you this.  Under the Criminal Procedure Act 2004, as soon as practicable after an accused’s first appearance in a court on an indictable charge and before requiring the accused to plead to the charge, certain material must be supplied to the accused.

MR CALLAGHAN:   Yes.

BELL J:   This is under section 39, is that right?

MR CALLAGHAN:   Thank you.  Yes.

BELL J:   One view would be that the first reasonable opportunity upon which an accused might plead guilty to an indictable offence is on the occasion when the accused appears in court after the requirements of section 39 have been complied with; that is, at a time when the accused has a copy of the prosecution notice containing the charge and has had time to consider the notice and seek legal advice about it.  Is that so?

MR CALLAGHAN:   In an ordinary case, that might be so.

BELL J:   Well, we are looking at the moment at the concept of the first reasonable opportunity as it might apply in the sentencing of offenders pursuant to section 9AA(4).

MR CALLAGHAN:   We are, and the first reasonable opportunity is something different from the first possible opportunity.  So, the reasonableness of an opportunity will depend upon the circumstances of every case.

BELL J:   Indeed, and in the exercise of the sentencing discretion, a judge might be persuaded that, following compliance with section 39 and the service of the notice, an accused had a reasonable opportunity to plead guilty in one case, but perhaps for good reason in another a judge might take a different view.  Now here, when is it said that the section 39 notice was served on your client, in terms of this chronology?

MR CALLAGHAN:   I believe it would be 27 March.  I am looking at the chronology on page 39.

BELL J:   I see.  All right, and on 7 May he first offered to plead guilty.

MR CALLAGHAN:   Yes.

BELL J:   Now, Commissioner Sleight – this is at application book 14, paragraph 23 – took into account in litigation the indication of a willingness to enter a plea of guilty to manslaughter on 7 May 2013.

MR CALLAGHAN: He did. Can I come back to the point that I was developing, which is that his Honour addressed one aspect of subsection 9AA(4)(b) by discussing the indication of the offer, but did not address the actual entering of the plea, and to do that, so long as your Honour takes me to the Criminal Procedure Act, can I take you to 126 of that Act?

BELL J:   Where will I find that?

MR CALLAGHAN:   It was supplied to the Court as a separate document.

BELL J:   Yes.

MR CALLAGHAN:   In particular, to subsection (1)(f).

BELL J:   Yes.

MR CALLAGHAN:   The accused was permitted to plead only once the consent of the prosecution was forthcoming, because the charge was always murder.

BELL J:   Yes.

MR CALLAGHAN:   So he was not permitted, pursuant to section 126, to plead to manslaughter until he had the prosecutor’s consent.

BELL J:   But does it not appear that Commissioner Sleight took into account the willingness to plead, conformably with the scheme, on 7 May?  That was not necessarily the first reasonable opportunity.  The first reasonable opportunity, one might think, was the occasion you have just indicated in March.

MR CALLAGHAN:   No, that is not so, because the plea could not be entered until the prosecution consented to the plea.

BELL J:   Mr Callaghan, we are at cross‑purposes.

MR CALLAGHAN:   I think so.

BELL J:   Accepting for a moment that the significance is when an accused offers to plead to a charge that the prosecution ultimately accepts – accepting that for the moment - Commissioner Sleight referred to the date on which the indication was given, 7 May 2013 ‑ ‑ ‑

MR CALLAGHAN:   And that was the date on which the indication was made.

BELL J:   The indication was given.

MR CALLAGHAN:   Yes.

BELL J:   But it is more than open to conclude that Commissioner Sleight considered that an early indication of a willingness to plead to the charge, but not the first reasonable opportunity.

MR CALLAGHAN:   He may have done, but that is not the complete answer, because the section is disjunctive.  Section 9AA(4) is disjunctive and what has to be considered is not only the indication, but also whether the applicant in fact pleaded guilty at the first reasonable opportunity.  If he did one, he does not have to consider the other.  If he did in fact plead guilty at the first reasonable opportunity, the circumstances of the offer are a distraction.  The statute ‑ ‑ ‑

BELL J:   I see.  Yes, I understand.

MR CALLAGHAN:   Yes.

GAGELER J:   If he did plead guilty at the first available opportunity, then there is a discretion to exercise up to a 25 per cent discount ‑ ‑ ‑

MR CALLAGHAN:   Yes, that is so.

GAGELER J:   ‑ ‑ ‑ and you say that there was some – what was the problem with the discretion having been treated and exercised by allowing a 20 per cent discount in the circumstances of this case?

MR CALLAGHAN:   The applicant laid claim, if you like, to a discount of 25 per cent.  Nothing was said by anyone to explain why that should not be forthcoming.  The closest we get is the passage to which your Honour Justice Bell just took me where, following a reference to the indication, his Honour has referred to the figure of 20 per cent.  There is no reference to the actual entry of the plea, there is no reference to the prosecutor’s consent which had to be forthcoming before the plea could be entered, and for all appearances, as, with respect, the respondent put it at 2.12 of his outline on page 43 of the application book, it appears that his Honour felt prohibited from giving a 25 per cent discount.

There is no other explanation of than he was distracted by the fact that the plea might have been – and it is an argument we are not having today as to whether it was in fact the reasonable opportunity, because we say there is no evidence on the point, but be that as it may, the fact is the plea was entered at the moment the prosecutor indicated consent would be forthcoming.  It could not have happened before then.

It was in fact entered, and at no stage has anyone engaged with that aspect of the section, whether it was in fact entered, and if you go through the materials, through the judgment of the Court of Appeal and through the respondent’s outline, the conflation of the issues is repetitive.  The argument switches from whether the plea was made at the first opportunity or entered at the first opportunity to, well, there was the delay because of the post‑mortem report and so on.  The statute has not been followed.

GAGELER J:   What is wrong with what President McLure says is a fair inference of the more elaborate reasoning process of the sentencing judge at paragraph 19 of her judgment, page 25?

MR CALLAGHAN:   What is wrong with that is the last sentence – and this is functionally it might be thought decisive of the case – where her Honour said:

it is proper to take into account the offender’s delay in offering to plead to the lesser offence.

If we were only talking about the indication to plead, that might be right.  But what her Honour did not do was consider the first question, which was, was the plea itself entered?  She did, with respect, at paragraph 16, a little higher on that page, say that she would:

assume, without deciding, that the appellant’s plea of guilty was made at the first reasonable opportunity.

Well, that was the moment to pause, and if it is to be assumed or decided one way or another, if that aspect of 9AA(4) was satisfied, then it was not proper to take into account the delay in indicating the plea.  Because the plea itself was entered at the first opportunity, there was no need to go on to the other part of the section.  Her Honour’s reasons can only be interpreted, with respect, as insisting upon a requirement that 9AA(4) be read conjunctively.  That is effectively what she is doing.

BELL J:   Mr Callaghan, what 9AA(4) does is to preclude a court from reducing a sentence by more than an amount.

MR CALLAGHAN:   That is so.

BELL J:   The Court of Appeal concluded – and as I understand it, you do not cavil – with the circumstance that the sentencing judge retains a discretion.  You do not submit that where a plea is entered at something that might be characterised as the first reasonable opportunity, the sentencing judge is obliged to reduce the sentence by a factor of 25 per cent.

MR CALLAGHAN:   Not in every case – not as a blanket prohibition, no, of course not.  But there is a complete absence of any material in this case.  Once it is satisfied that – once the requirement that the plea was entered was in fact entered at the first reasonable opportunity, as it must have been by reference to section 126, there is a complete absence of any material to sustain any reason for withholding the 25 per cent discount.  That then becomes a question a question of law, when there is nothing upon which the – that could supply a basis for the discount being withheld, and when there is no reason, no argument, no suggestion directed to the proposition that it could be.

All we ask, your Honours, is that the matter be remitted to the Supreme Court so that these questions of discretion can be decided according to principle and according to the proper application of the statute, because the applicant could do no more than he did, with respect, and lay claim to the 25 per cent.  If it is accepted that the only basis anywhere in this record for understanding why it might be 20 per cent is the reference to the offer, then it is mistaken; the process was flawed.

BELL J:   What is the purpose of the inclusion of the words in 9AA(4)(b) “or indicated that he or she would plead guilty”?

MR CALLAGHAN:   Well, because a plea might be indicated but, for reasons that may or may not be reasonable, might not be processed immediately upon indication, and those reasons may vary, but ‑ ‑ ‑

BELL J:   Does it not contemplate, amongst other things, exactly this circumstance:  that an offender indicates a willingness to plead to the charge for which he or she is ultimately convicted, but that plea is not accepted promptly by the prosecuting authority?  That, surely, is a circumstance.

MR CALLAGHAN:   Your Honour, that is, with respect, reading words into the section or reading a concept into the section that is not there, especially when it is read in conjunction with section 126.  You do not need to interpret the section that way.  It should be interpreted as written, as disjunctively requiring reference to whether the plea was entered or indicated; covering the field, if you like.

BELL J:   But in what circumstance does the latter work; that is, the indication of the intent to plead guilty?

MR CALLAGHAN:   The indication might be made, but then the sentence itself might be adjourned for any number of reasons.  The accused might abscond.  The accused’s legal representatives might not be available.  All of that might bear upon the reasonableness of when the plea in fact was entered, but it is still going to be relevant to have regard to when it was indicated, and that is why the sentence is expressed to cover all possibilities.  It would be, it is submitted, to a degree offensive if the applicant could be deprived of the potential benefit that might accrue to him of the full reduction that was available if, and only if, the State refused his offer to plead guilty.

BELL J:   But why is it not open to the sentencing judge to discount by an amount less than the maximum that is allowable, taking into account, amongst other things, that the willingness to plead guilty was not indicated at the first reasonable opportunity?

MR CALLAGHAN:   Because this section is directed at the so‑called utilitarian benefits of the plea.

BELL J:   Yes.

MR CALLAGHAN:   So a delay in offering might hypothetically be relevant to a concept such as remorse.  That is accepted, but that is not what the section is directed at.

BELL J:   But it might concentrate the minds of those who are prosecuting at an earlier point.  One cannot say there is no utilitarian benefit to a person signifying a willingness to enter a plea to a lesser offence at an early point.

MR CALLAGHAN:   Well, until the prosecution consents to it, it is difficult to contemplate what the utilitarian benefit could be.

BELL J:   We are looking at the range of discretionary considerations to the sentencing judge against a background of a statutory preclusion on discounting by more than the amount of 25 per cent.

MR CALLAGHAN:   Yes.

BELL J:   But a statute that otherwise leaves the discretion in the hands of the judge.

MR CALLAGHAN:   And we are not asking your Honours to exercise that discretion.  We are just asking for this man to be sentenced according to principle and according to a proper engagement with the statutory provisions that governed them, and that has not occurred, in our submission.

BELL J:   Thank you, Mr McGrath, we do not need to hear from you.

We are not persuaded that there was any error of principle in the approach adopted by the Court of Appeal.  Special leave is refused.

The Court will adjourn to 10.15 am on Wednesday, 8 April in Canberra.

AT 12.17 PM THE MATTER WAS CONCLUDED