Wilde v The Queen

[2004] HCATrans 233

[2004] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B5 of 2003

B e t w e e n -

SANDRA JAYE WILDE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 11.55 AM

Copyright in the High Court of Australia

MR A.J. GLYNN, SC:   May it please your Honours, I appear with my learned friend, MR B.G. DEVEREAUX, for the applicant.  (instructed by Legal Aid Queensland)

MR D.L. MEREDITH:   If the Court pleases, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ:   Yes, Mr Glynn.

MR GLYNN:   Your Honours, in this case the applicant was sentenced for a series of offences.  The sentence for one offence, namely that of dangerous driving causing death, was significantly increased on an appeal by the Attorney-General to the Court of Appeal.  It is that particular sentence which is the subject of this application. 

Initially the applicant was sentenced to four years imprisonment which was reduced to three years to ameliorate the effect of a cumulative sentence of 18 months for earlier offences.  It was further reduced by eight months for pre‑sentence custody which legislatively was not able to be taken into account but which was accepted by everybody, including the Court of Appeal, was appropriately to be deducted from her sentence.  Her effective sentence for the dangerous driving causing death, from the trial judge, was effectively three years and her effective sentence for all of the offences was four years and six months allowing for the eight months that she had already served. 

At first instance, the Crown, it is submitted, in accordance with the established precedents, submitted for a sentence in the range of three to four years.  On appeal, the Attorney-General contended for a range of four to five years.  The court simply said that the submission at first instance was far too low and the submission by the Attorney-General was too low and said that an appropriate sentence, or a starting sentence, was one of six years, which they reduced to five years to take account of the eight months plus the cumulative nature of a further 18 months which was imposed upon her.  At paragraph [23] on page 51 the court sets out those propositions. 

The court referred to a decision of the Court of Appeal of McAnelly where on an Attorney-General’s appeal a sentence of four years for conduct somewhat more serious than that of the applicant by a person with similar antecedents was held to be lenient but not to be interfered with.  The Court of Appeal distinguished McAnelly on the basis of the fact that in this case the appellant callously left the scene, as the court said, after the fatal collision and, secondly, that there had been changes in the Penalties and Sentences Act in relation to persons who caused harm to others.  At paragraph [29], the court simply said: 

We work from a starting point of six years’ imprisonment.

That was the court’s simple starting point.  The court does not, at any stage, discuss a range of sentence.  It simply picks a figure of six years.  At paragraph [26], the court said this:

The learned judge noted the Court of Appeal has indicated that, with legislative changes which have occurred from time to time in particular, sentencing courts in relation to this crime should not consider themselves unduly fettered by previous trends.  The variety of circumstances confronting sentencing courts in cases like this means it can be especially difficult to translate the result in one case to another.  What is abundantly clear is that the community expects, and rightly expects, appropriately deterrent penalties, and they were not achieved here. 

The problem with particularly the last statement is that it tends to mask error and it tends to mask the fact that what the court is doing is really substituting its own opinion for what should have been imposed rather than making a finding that the court of first instance has fallen into manifest error.  It also leaves, particularly in this case where there had been, again, very substantial publicity both leading up to the sentence and up to the appeal, that the respondent to the appeal is being punished to ameliorate a public need for blood, as it were, rather than in accordance with the requirements or with appropriate sentencing principles.

Your Honours, in Everett v The Queen – and this is where I do have to apologise for the fact that no tabs have been inserted in the record book and nor has it been paginated.  I am afraid I only appreciated it last night when it was too late to do anything about it, but I apologise and I accept responsibility for it.  Your Honours, Everett is towards the back, I would say about 25 pages from the back of the book.

GLEESON CJ:   We have Everett v The Queen here.  What is the page number that you want to refer to?

MR GLYNN:   I was going to take your Honours to Everett starting at page 299, about three-quarters of the way down the page.  The court refers to the fact that:

there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case.  An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.

The court goes on to discuss that and then, on the next page, the court refers to a comment by Chief Justice Barwick in Griffiths v The Queen where his Honour said:

“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”

The court goes on, after referring to that passage:

The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick C.J. saw as constituting “error in point of principle”.

In other words, if there is a sentencing error and it is going to affect the standards.  However, as the court itself recognised, in cases of this sort it is very difficult to set standards for sentencing for offences of this type because of the wide variety of issues that arise.  Therefore, a court would be particularly slow to intervene on an Attorney-General’s appeal where it was not going to be a matter which would affect the relevant standards. 

Your Honours, Everett v The Queen was a decision made under the Tasmanian legislation where there is a requirement for leave to appeal to be given to the Attorney before an appeal could be heard.  Under Queensland legislation the Attorney has a right of appeal but, in my submission, that has no bearing on the principles referred to in Everett.  There appears to be an attempt by the Crown to say that that fact has some bearing but, in my submission, when one has regard to what is said, particularly by reference to Griffiths, that is not the case.  In Dinsdale v The Queen, which is also amongst the cases which your Honours have ‑ ‑ ‑

GLEESON CJ:   We have a bundle of authorities from the respondent and Dinsdale is the first in that.

MR GLYNN:   Did your Honour get authorities from us?  I hope you did.

GLEESON CJ:   Yes, but it is convenient to work from the respondent’s authorities. 

MR GLYNN:   At page 340 in the judgment of Justice Kirby at paragraph 62, his Honour says: 

For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender.  When first introduced, Crown appeals were considered to cut across “time‑honoured concepts” of the administration of criminal justice in common law legal systems.  For this reason, it has sometimes been said that, as a “matter of principle”, such appeals should be a comparative rarity.  The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced.  The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains.  The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences.  This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate “tinkering” with sentences.

Your Honours, here the Court of Appeal sought not to identify an appropriate range nor sought to suggest that it was in any way appropriate to sentence towards the bottom of that range.  In fact, it made no reference to an appropriate range, it made no reference to double jeopardy and it certainly made no reference to sentencing at the lower end of the appropriate range.

HEYDON J:   It is a very controversial statement by Justice Kirby about the lower end.  It is conventional to give a lower sentence than would have been given by a sentencing judge correctly addressing the problem, but it is not the case that it is at the lower end always.  There is a discount because of the disappointment, as it were, to the appellant. 

MR GLYNN:   Yes, you certainly do not get towards the top of the range. 

HEYDON J:   Why do you not get towards the top of it if someone has fatigued, driving in good light, has reckless inattention over a substantial difference, flees from the scene, has a bad record, was unlicensed at the time and was on bail for other offences?

MR GLYNN:   For the reasons suggested by Justice Kirby.  It is not because of the offending behaviour.  The offending behaviour may lift the person into a higher range of sentence, but on an appeal by the Attorney‑General, particularly where the initial submission by the Crown was for a sentence of three to four years, the top of which was the starting point by the sentencing judge.  So that, your Honour, I accept that though the conduct as described certainly goes to put the applicant in a higher range, but on an appeal by the Attorney-General the submission is that it would be appropriate to sentence, as his Honour said and as your Honour says, at a point lower than would otherwise be the case, not necessarily to use the words of Justice Kirby, although I would adopt that as being an appropriate approach.  But here the court has not sought to identify a range.  It has not indicated any amelioration for the fact that it is an Attorney‑General’s appeal and, in fact, it is plain that no such amelioration occurred. 

Your Honours, the final point is this, that from Everett it is plain that it is only in the most exceptional circumstances that the appellant in an Attorney‑General’s appeal can depart from or submit for a range higher than what it submitted for at the original sentencing.  In my submission, that is to be interpreted also as putting some limit upon the extent to which the Court of Appeal can go if it decides to interfere.  In other words, there is no point in putting the limitation upon the Crown but saying that the court has open slather when it comes to imposing the sentence.  Those are my submissions. 

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Meredith.

The conclusion by the Court of Appeal that the original sentences imposed in this case were manifestly inadequate was clearly open to the Court of Appeal and we are of the view that no error has been demonstrated in the Court of Appeal’s exercise of discretion in resentencing.

We think that there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed.

AT 12.12 PM THE MATTER WAS CONCLUDED