Thompson v The Queen

[2004] HCATrans 249

[2004] HCATrans 249

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B36 of 2003

B e t w e e n -

IAN RAYMOND THOMPSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 2.57 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please your Honours, I appear with my learned friend, MR A.J. KIMMINS, for the applicant.  (instructed by Price & Roobottom Solicitors)

MRS L.J. CLARE:   May it please the Court, I appear for the respondent.  (instructed by the Director of Public Prosecutions (Queensland))

GUMMOW J:   Yes, Mr Walker. 

MR WALKER:   Your Honours, this is another case within your Honours’ list today in relation to the Court of Appeal’s approach to a sentencing appeal brought by the Crown.  It has some significant differences from those that your Honours have already heard argument about.  In this case there was an increase to six years of a head sentence of five.  In this case as well, I need to point out, there was an increase to 30 months of the eligibility for release, which had earlier been set at 18 months. 

GUMMOW J:   It is now two and a half years. 

MR WALKER:   Yes. 

HAYNE J:   They were radically different, were they not?  One was suspended, one was simply a straight term. 

MR WALKER:   That is a difference, and it is an important difference.  In terms of what I will call “certain prison time” there was a change from suspended after 18 months to eligibility for release after 30 months – two and a half years.  Now, I draw that to attention because I start, obviously, by saying that an increase from five to six is the hallmark of – to use a term of art – “tinkering”, a wrong appellate approach, whereas I am bound to point out that an increase from 18 to 30 may very well wear a different character.  Nonetheless, in our submission, the whole is infected by the same error. 

The second matter to which we draw attention as being special and rendering this case an ideal vehicle to consider the issues in this State – both special to this State, but also common around the country, concerning Crown appeals – comes from the dissent of Justice Holmes.  As her Honour pointed out at page 19 of the application book ‑ ‑ ‑

GUMMOW J:   Did any of the judges in the Court of Appeal approach section 669A – which is the relevant section, is it not? 

MR WALKER:   Yes. 

GUMMOW J:   Approach 669A upon the basis that the reference to “unfettered discretion” is to a de novo consideration? 

MR WALKER:   Only implicitly.  There is nothing at all explicit in relation to the proper understanding of ‑ ‑ ‑

GUMMOW J:   Because if that is correct, you have a real problem.  

MR WALKER:   Yes.  When I say, only implicitly, may I take your Honours to what we submit is the best demonstration of that, page 19 of the application book, paragraph [16]. 

GUMMOW J:   In other words, it would be an answer to the tinkering question? 

MR WALKER:   Yes. 

GUMMOW J:   Page 19? 

MR WALKER:   The closest one gets is in the last two sentences, line 13 and following on page 19.  The first step, error, has been passed at the beginning of the paragraph, and then the Chief Justice turns:  

I consider a sentence of up to seven years imprisonment to have been warranted, and a court could have been justified in recommending parole after three years in a case of this gravity.  But having regard to the moderation traditionally characteristic of the court’s approach on an Attorney’s appeal, I would now impose six years imprisonment –

et cetera.  Then he returns at the end of that paragraph, in its last sentence, again to the detection of error.  Now, that is the closest one gets to this case being one which raises the possibility that 669A has introduced a very different approach to sentence appeals, including by the Crown, and, in particular ‑ ‑ ‑

GUMMOW J:   Well, only by the Attorney‑General. 

MR WALKER:   By the Attorney‑General, I am sorry.  I meant by the prosecution’s side. 

GUMMOW J:   Well, it is important.  The Attorney‑General is a political officer of the State.  He is not an independent figure like the Director of Public Prosecutions.

MR WALKER:   No, quite, and I accept your Honour’s strictures.  For my point, in this paragraph, it is clear that his Honour is considering himself bound – fettered if one likes – only by what is called, in this case, a “tradition” as opposed to a custom.  It does not seem to have made a great deal of difference, but there is a difference and I obviously ‑ ‑ ‑

GUMMOW J:   Australians are always calling habits “traditions”.  It is a product of a short history.

MR WALKER:   I obviously do not complain about his Honour having taken the approach that he described as “moderation”.  It seems to have been reflected in something of the nature of perhaps, of up to a year.  One can put to one side this idea of traditional, customary, habitual, whatever moderation in relation to the 669A point.  One sees in paragraph [16] and in all the reasoning that led up to it, in our submission, an approach to the appeal which did not require demonstration of error other than that which is said or considered to be obvious from the disagreement expressed in paragraph [16]. 

What Justice Holmes focuses on, in our respectful submission, correctly, is that in a case where the court has, as it were, eschewed detection of a range, that is, sentences below which it would be manifestly inadequate and above which it would be manifestly excessive, it is very difficult then to understand, in terms of a judicial approach to an appeal, what is found to be wrong in the sentence below.  For this, of course, I focus in particular upon the difference between five and seven or five and six.  It may be that logically the real difference is five and seven. 

HAYNE J:   Can I just flag a point that may lurk behind all this and comes out of the way in which the Court of Appeal has structured its order, a point to which I perhaps have hitherto given insufficient attention.  At page 19, the order is to alter the sentence on count 5 and to otherwise confirm all the other sentences.

MR WALKER:   Which were all lesser, of course.

HAYNE J:   They were, but a possible point of view is that if you reopen the sentencing discretion, particularly with three complainants, spread over time ‑ ‑ ‑

MR WALKER:   And when the number of complainants is a relevant matter.

HAYNE J:   Yes, the structuring of that sentence may require rather more detailed analysis than simply saying, “Well, overall, the criminality requires six rather than five”.  If we were to unpick it, that is, if you were to get leave, if it were to be unpicked, it would go back, but it would go back on terms, “Look at the whole and sentence separately”. 

MR WALKER:   To the whole, yes.

HAYNE J:   With possibly very different consequences. 

MR WALKER:   I accept everything your Honour has just said.  In our submission, that does not render this less appropriate for this Court to consider the kind of approach taken in this case, an approach which, for the reasons that Justice Holmes has pointed out, particularly in her careful consideration of such other cases – I will simply call them precedents, because the term “comparable” is hopelessly tendentious in this context ‑ on pages 21, 22 and the top of 23 in the application book.  That was, and, with respect, still is, an entirely orthodox criminal appellate approach to considering an Attorney’s argument that there is manifest inadequacy. 

Manifest inadequacy, as her Honour pointed out in her opening paragraph on page 19, paragraph [20], might appear either from showing that it fell below that which argument, the special facts of the case and such precedents as were relevant might have revealed as the so‑called range, or, alternatively, what her Honour calls “a need to alter an existing sentencing range”.  But that was not done in this case, the majority does not say that is what they are doing, and it would not appear that there is any trace of that issue having been alive in the argument.  That, in our submission, means that the reasoning illustrated on 21, 22, and the top of 23 was an orthodox answer to the notion of manifest inadequacy.

HAYNE J:   It is, I hope, a startlingly odd case, this.

MR WALKER:   Yes, the facts are odd, but that is one of the reasons why, I suppose, noting the very high maximum, for example, the court more or less despaired of reaching a range.

HAYNE J:   Yes.

MR WALKER:   That, of course, is one of the reasons, as Justice Holmes points out, why, all the more importantly on an appeal, albeit under 669A, before you get to the unfettered discretion, error be shown in a way which involves an application of principle. 

GUMMOW J:   Where does the section say that?

MR WALKER:   It says “appeal”, just the word “appeal”.  I get that out of the one word “appeal” and what that carries in its train, which is error.

GUMMOW J:   And the removal of any requirement of leave.

MR WALKER:   Yes.  There is no requirement of leave, and I say nothing about that.  I get everything I have just said ‑ ‑ ‑

GUMMOW J:   Ordinarily, you get leave by suggesting some prima facie case of error.

MR WALKER:   It is difficult if you cannot do that, and you may need more than that, of course, particularly if you are the Attorney or the Crown.

GUMMOW J:   But there is no requirement of leave here.

MR WALKER:   No, there is no requirement of leave, and so I get what I have been saying in relation to the need to show error by an application of principle – that is, for an appeal to be upheld, so that then the unfettered discretion to vary sentence is available – from the fact that it is an appeal and it is from a court and it is to a court.  So it is judicial power, it is in relation to sentencing, and sentencing is a matter which, as a discretion, will attract different reasonable outcomes from different reasonable minds, and that is not a demonstration of error. 

That is, in our submission, precisely what Justice Holmes points out, with respect, with considerable force on pages 23 and 24 of the application book.  In paragraph [33], what her Honour points out is that the very absence of a so‑called range – and we do not, of course, complain about the fact that an odd offence cannot be fitted into a readily available grid from a hand‑up, as it were.  But when there is no such clear range, as a matter of the onus on an appeal, as a matter of the proper approach to the sentencing judge’s decision as one which is not provisionally incorrect or provisionally correct, but which requires to be shown to be erroneous before a complaint be set aside, that absence of a so‑called range makes it all the more important for the approach by the Court of Appeal to include an identification of error otherwise than by observing a difference between five and six or five and seven in relation to the head sentence.  May it please your Honours. 

GUMMOW J:   We do not need to call on you, Mrs Clare. 

Whatever be the true construction of section 669A(1) of the Criminal Code Act 1899 (Qld), we are of the view that an appeal entertains no prospect of success in this matter. Accordingly, special leave is refused.

We will now adjourn to reconstitute. 

AT 3.12 PM THE MATTER WAS CONCLUDED