Wigney v The Queen

[2007] HCATrans 265

[2007] HCATrans 265

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S48 of 2006

B e t w e e n -

SHANE JOHN WIGNEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 MAY 2007, AT 3.43 PM

Copyright in the High Court of Australia

MR D.A. McLURE:   May it please the Court, I appear with my learned friend, MR C.H. WITHERS, for the applicant.  (instructed by Shearman Lawyers)

MR L.M.B. LAMPRATI, SC:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

CALLINAN J:   Yes, Mr McLure.

MR McLURE:   Your Honours, leave is sought to make this application out of time.

CALLINAN J:   Is there any objection to that, Mr Lamprati?

MR LAMPRATI:   No, your Honour.

CALLINAN J:   Yes, you proceed.  Leave is granted.

MR McLURE:   Your Honours, this is a matter where an issue of general application does not arise.  However, we submit in the circumstances of this case it is in the interests of justice that special leave be granted.

Your Honours, in the written submissions we identify two errors that the Court of Criminal Appeal acted upon to resentence the applicant.  I will come to in a moment what the Crown says about those contentions, but can I say something briefly about the two errors.  The first error ‑ ‑ ‑

CALLINAN J:   One was whether the trigger was pulled deliberately, was it?

MR McLURE:   Reflexively.

CALLINAN J:   Reflexively, yes.

MR McLURE:   That is the second of the two, and the first was whether or not the Crown conceded before the sentencing judge that the applicant did not intend to kill or cause grievous bodily harm to the deceased, Mr Jackson.  Can I say something about the concession issue first.

Before the Court of Criminal Appeal, the Crown contended that the sentencing judge had erred in accepting that such a concession had been made, but the question of whether or not such a concession was made is entirely irrelevant when one recognises that it was the Crown that had the onus to prove beyond reasonable doubt whether or not the applicant had that intention, keeping in mind that this was a charge of felony murder.

CALLINAN J:   Mr McLure, that is relevant.  You correct me because I come from a Code State.  This is relevant only to the question of penalty, is it not?  He would still have been guilty of murder, felony murder, whether it was reflexive or deliberate, is that right?

MR McLURE:   That is exactly right, your Honour.

CALLINAN J:   Does that mean, therefore, that it is a matter for the trial judge to make his own findings about?

MR McLURE:   Yes.  It would have been open to the Crown to prove before the sentencing judge that the applicant did have that intention, and that would have been relevant to penalty.

CALLINAN J:   Not as an element of the offence but as a matter, you say, highly relevant to penalty.

MR McLURE:   Yes that is right, your Honour.  Now, the sentencing judge invited the Crown Prosecutor to cross-examine the applicant at the hearing on that very issue but the invitation was declined.  Consequently, the sentencing judge declined to find beyond reasonable doubt that the applicant had that intention.  So, as I have said, once it is accepted that the Crown had the onus to prove that matter beyond reasonable doubt, the question whether or not such a concession was made is irrelevant.  Can I move on to the second error addressed in the Court of Criminal Appeal ‑ ‑ ‑

CALLINAN J:   What is your position on the concession?  You do contend, however, that the concession was made, or are you unable to contend that, or is it equivocal, or what is your position on that?

MR McLURE:   Your Honour, as I said the sentencing judge invited the Crown to cross-examine the applicant on the issue.

CALLINAN J:   You say that that is an inference from the abstention from cross‑examination.

MR McLURE:   Yes, but to be fair to the Crown about it, there were conflicting statements made by his Honour and the Crown Prosecutor, and it was open to the Crown to make that challenge before the Court of Criminal Appeal but, as I say, ultimately nothing turns upon it.

Now, dealing with the second challenge – that is, whether or not the applicant discharged the weapon reflexively – can I take your Honours to page 16 of the application book, paragraph 14.  This is in the sentencing judge’s reasons.  There his Honour was dealing with two discrete issues.  The first was whether or not the applicant discharged the weapon intentionally and the second was whether or not the applicant intended to kill or do grievous bodily harm to Mr Jackson.

As to the first of those two issues, your Honours will see in the first sentence of paragraph 14 that the sentencing judge expressly rejected a submission put for the applicant that the applicant discharged the weapon accidentally.  We submit it must follow from his Honour’s rejection of that submission that his Honour sentenced the applicant on the basis that he discharged the weapon intentionally.

Now, as to the second issue as to whether or not the applicant intended to kill or do grievous bodily harm to Mr Jackson, as I have identified already, the sentencing judge declined to make that finding, and in the remainder of paragraph 14 his Honour deals with that issue.  In the context of so doing, your Honours will see on the fifth line the sentencing judge said “that the trigger was pulled almost reflexively during the struggle”.

Your Honours, it is clear, in our submission, that when his Honour was saying “that the trigger was pulled almost reflexively during the struggle” his Honour was saying so in the context of the question whether or not the applicant intended to kill or do grievous bodily harm to Mr Jackson and it cannot be inferred from his Honour’s statement in that context that his Honour was sentencing the applicant on the basis that he accidentally discharged the weapon.  The answer to the question whether or not the applicant intended to discharge the weapon does not supply an answer to the question whether or not the applicant intended to kill or do grievous bodily harm to Mr Jackson.

Your Honours, reasonable minds may ultimately differ on whether or not the expression “almost reflexively” most aptly characterised the applicant’s conduct but, on any view, the matter about which there can be no debate is that the sentencing judge rejected the contention that the applicant discharged the weapon accidentally.  For these reasons, we submit that the Court of Criminal Appeal’s identification of error in relation to the concession issue was irrelevant and in relation to the “reflexively” issue was not an error at all, and for those reasons it was not open to the Court of Criminal Appeal to disturb the sentencing judge’s exercise of discretion.

Now, your Honours, the Crown says against that analysis that in fact the Court of Criminal Appeal did not act upon those two errors at all and that in reality the reason for the Court of Criminal Appeal resentencing the applicant was that it had determined that the sentence was manifestly inadequate.

Can I take your Honours to the reasons of the Court of Criminal Appeal to demonstrate why that submission is incorrect.  The Court of Criminal Appeal’s reasons start at page 28 of the application book.  Between paragraphs 1 and 10, Justice Grove, with whom Justices Dunford and Howie agreed, set out the background facts and then at paragraph 10 the sentence imposed by the sentencing judge.

Importantly, at paragraph 11 on page 31 of the application book, Justice Grove identified that the Crown made “two express challenges” to the findings made by the sentencing judge.  Those two challenges are the errors that I have already identified.  If your Honours look at paragraph 13, the final sentence, you will see the identification of the first challenge, namely, the finding that “the respondent fired the weapon in some reflex fashion”.

At paragraph 14 there is the identification of the second challenge, namely, whether or not “the Crown accepted that it was a fact that the respondent did not intend to kill or do grievous bodily harm to Mr Jackson”.  Justice Grove disposed of the concession issue on page 32 of the application book at paragraph 20 in the final sentence where his Honour said that the sentencing judge’s “statement to the contrary”, that is, about the concession, “was incorrect”.  Justice Grove dealt with the second challenge, namely, whether or not the weapon was fired reflexively, at page 34 paragraph 24 in the final sentence, where his Honour said “The evidence did not sustain a finding that the firing of the pistol by the respondent was ‘almost reflexive’”. 

Now, between paragraphs 25 and 29 Justice Grove deals with the antecedents of the applicant and matters that may have gone to the mitigation of penalty.  Then, finally, one arrives at paragraph 30 at the foot of page 35 of the application book where Justice Grove held that the sentence was “manifestly inadequate”.  Now, your Honours, we submit that it is clear on the face of the record that the conclusion that the sentence was manifestly inadequate is a product of the two errors that the Crown advanced and that the Court of Criminal Appeal accepted.  Now, to test that proposition.  Were it the case that the conclusion that the sentence was manifestly inadequate was an independent, freestanding finding, one would expect a number of different things to have occurred. 

First, one would have expected that at paragraph 11 Justice Grove would have said that there were three challenges advanced by the Crown rather than the two that in fact were.  Second, one would have expected Justice Grove to have said, at about paragraph 30, that irrespective of what one might say about the errors earlier identified, the sentence was manifestly inadequate.  Thirdly, and perhaps most importantly, one would not have expected Justice Grove to have taken the time to consider the two earlier challenges given that ‑ ‑ ‑

CALLINAN J:   Mr McLure, that was the only ground of appeal, was it not, that the sentence was manifestly inadequate?

MR McLURE:   Your Honour, so it was but so it had to be.

CALLINAN J:   Page 26.

MR McLURE:   So it had to be because the two challenges actually advanced by the Crown could not have resulted in the appeal being allowed unless it was also the case that the sentence was manifestly inadequate.  So one should understand the Crown’s notice of appeal and the way in which the Crown advanced the case before the Court as being the sentencing judge made two findings of fact which were incorrect which led to the applicant being sentenced on an incorrect basis.

HEYDON J:   Is it not still the case, even if your submissions are so far entirely sound, that the sentence was disproportionate to the circumstances, even as you submit them to be, and manifestly inadequate?  It was persistent criminal conduct of a very high level of seriousness committed in the course of an armed robbery.

CALLINAN J:   By a person with not a good record.

MR McLURE:   Your Honours, I have to accept that it would have been open to the Court of Criminal Appeal to conclude that the sentence was manifestly inadequate.  That is not a matter that I am here to advance, whereby ‑ ‑ ‑

HEYDON J:   The problem is if we grant special leave, the appeal succeeds, it is remitted to the Court of Criminal Appeal, same result.  It is futility.

MR McLURE:   No, your Honour, because if it is the case that, as we submit, the Court of Criminal Appeal departed from the principles emerging from the judgments of this Court such as Dinsdale without the identification of error, it interfered with the exercise of discretion by the sentencing judge, the appropriate relief from this Court would be for the judgment of the Court of Appeal to be set aside and the judgment of the sentencing judge reinstated.

HEYDON J:   It is a question of whether, on your arguments, whether the Crown’s appeal to the Court of Criminal Appeal was properly dealt with.

MR McLURE:   Yes.  Your Honour, it might have been open to the Crown to contend before the Court of Criminal Appeal that absent any other challenges which were in fact dealt with, the sentence was manifestly inadequate, but my submission is that that is not the way the case was run before the Court of Criminal Appeal and that in fact the conclusion of manifest inadequacy was solely a product of the two challenges that had been expressly identified. 

Your Honours, I have already identified two things your Honours would expect.  The third matter your Honours would expect would be that Justice Grove would not have taken the time to address those two other challenges because they would not bear upon whether or not the sentence was manifestly inadequate.  For these reasons, your Honours, we submit that the conclusion of manifest inadequacy in paragraph 30 should be understood as a product of the acceptance of the two challenges made by the Crown and, for the reasons already identified, we have submitted that those errors were not operative errors at all.

Your Honours, there are two subsidiary issues we have raised in the written submissions.  The first concerns the interference with the non‑parole period set by the sentencing judge and the second concerns the Court of Criminal Appeal taking into account a criminal offence that the applicant did not commit.  May I say this in relation to the setting of the non‑parole period.  The sentencing judge determined that, having regard to the fact that the applicant would spend most, if not all, of his term of imprisonment in protective custody, that that was a factor that ought lead to his Honour departing from the prescribed non-parole period in the Crimes (Sentencing Procedure) Act. 

Now, in the Court of Criminal Appeal Justice Grove, at page 37 of the application book, paragraph 37, departed from the sentencing judge’s determination without the identification of any error whatsoever and in doing so the Court of Criminal Appeal departed from the principles established by the judgments of this Court such as in Dinsdale, Lowndes and House v The King.

The second of the two subsidiary matters and the final point, your Honours, is that the Court of Criminal Appeal took into account an offence that the applicant did not commit.  If your Honours would turn, please, to page 34 of the application book, paragraph 25, your Honours will see there that Justice Grove noted that the applicant had a lengthy criminal record, including a disturbing recurrence of “offences involving firearms”, which included a charge of the “possession of weapons in Queensland in 1999”.  Now, the Crown accepts that the applicant did not commit that offence. 

The fact that it featured in the Court of Criminal Appeal’s reasons is a matter, in my submission, that demonstrates that it materially affected the resentencing and it materially affected the determination of manifest inadequacy and for those reasons, in my submission, it is in the interests of justice that special leave be granted.  If I can assist your Honours any further.

CALLINAN J:   Mr Lamprati, we would be interested to hear what you have to say about the last point that Mr McLure raised taking into account non‑existent offence.

MR LAMPRATI:   Yes, your Honour.  I have spoken to my friend about this.  We thought the best way to deal with it was imply to make a concession.  There is a conviction in Queensland for a person who was not the appellant, it appears on further checking, a firearms offence, for which a fine of $220 was imposed.

CALLINAN J:   Do you say that in the overall scale of things, even if that were expunged completely, as if it had never been taken into account, the sentence would still not be a sentence which could be demonstrated to have been manifestly excessive?

MR LAMPRATI:   Yes, we would submit that, your Honour.  In the overall scheme of things ‑ ‑ ‑

CALLINAN J:   It is one out of five, I think, is it not?

MR LAMPRATI:   Yes, he had firearms offences in Victoria and New South Wales.

CALLINAN J:   In any event, that would be your submission?

MR LAMPRATI:   Yes.

CALLINAN J:   We are of the view that any appeal in this matter would not enjoy such prospects of success as would warrant a grant of special leave.  The application is dismissed.

AT 4.01 PM THE MATTER WAS CONCLUDED