Willoughby v The Queen

[2009] HCATrans 242

[2009] HCATrans 242

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B15 of 2009

B e t w e e n -

BRENDAN JAMES WILLOUGHBY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 2 OCTOBER 2009, AT 10.28 AM

Copyright in the High Court of Australia

MR C.W. HEATON:   May it please the Court, I appear for the applicant in this matter.  (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, SC:   May it please the Court, I appear with my learned friend, MS L.P.T.C. BRISICK, for the respondent in this matter.  (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ:   Yes, Mr Heaton.

MR HEATON:   Your Honours, even though on the face of it this application is in relation to the exercise of a sentencing discretion, in my submission, the application raises for consideration a neat point and an important point for the sound exercise of a sentencing discretion.  It is about what is rehabilitation and it provides an opportunity, in my submission, for this Court to guide sentencing courts throughout Australia as to the meaning of rehabilitation and its relevance to the exercise of the sentencing discretion.

In this case there was a set of uncontested facts.  Those facts included matters relevant to the personal circumstances of the applicant and particularly in relation to the significant steps that he had taken towards turning his life around and to perhaps use the common use of the word “rehabilitation” in that context.  As to whether or not that is rehabilitation relevant in the legal sense is perhaps a question ultimately to be decided by this Court.

The majority thought that the features of those personal circumstances did not amount to rehabilitation relevant to the exercise of the sentencing discretion, whereas Justice Atkinson in dissent considered that they did.  This is therefore a question as to what amounts to rehabilitation and that, in my submission, is a question of law and of national relevance to sentencing courts.

It is respectfully submitted that it was not open to the Court of Appeal in deciding whether there was an error in the exercise of the sentencing discretion to conclude that the steps undertaken by the applicant in the period between offending and sentence were not evidence of rehabilitation.  That finding, in my submission, is evident at paragraph [50] in the judgment of Justice Chesterman.  It was also not open for the Court of Appeal to discard reference to those rehabilitative steps undertaken by the applicant in deciding whether the sentencing discretion was properly exercised.

FRENCH CJ:   In dealing with rehabilitation, though, Justice Chesterman at paragraph [47] directed attention to the nature of the offence and the indication that the applicant was not a man in need of rehabilitation in the sense that he was not a drug addict or, as he put it, in any real sense a criminal.  The commission of the offence “was aberrant and out of character”.

MR HEATON:   Indeed, he did.

FRENCH CJ:   In other words, it is not a matter of just discarding rehabilitation, it is a matter of looking at the circumstances of this particular case and then, when one goes on to [48], the lesser relevance that rehabilitation may have in cases of drug trafficking.

MR HEATON:   Well, in this application I challenge that finding, in essence, in that the majority – and Justice Chesterman spoke for the majority in this case – acted on the basis that different offences called for the different application of the principle in considering factors relevant to rehabilitation.  In adopting the view that this applicant was not a man in much need of rehabilitation it, in my submission, disregards the evidence of the significant changes that he had made in his life that are perhaps helpfully set out in paragraphs [64], [65] and [89] of the judgment, which are passages from the judgment of Justice Atkinson.

It is submitted, with respect, contrary to the view of the majority, that rehabilitation remains a relevant sentencing factor whether the offending was as a result of drug addiction or personality failings which have since been overcome or, as in this case, because the offender had made a conscious choice to gamble freedom against the potential of financial gain, which apprehension and the realisation of incarceration have been sufficient to address.

In the case of D’Arcy, at paragraph [164] of the judgment, which coincidentally is another judgment of his Honour Justice Chesterman, in that context he regarded rehabilitation in a general sense as being the “reformation of attitude or character so that the offender regards participation in criminal conduct as unacceptable”.  In my submission, it is an error for a sentencing court to disregard demonstrated rehabilitation and allow considerations of denunciation and deterrents to overwhelm the sentencing discretion.  In a particular category of case, in my submission, rehabilitation remains relevant regardless of the type of offence.

In support of the view of the majority, reference was made by his Honour to the case of R v Tilley; Ex parte Attorney‑General of Queensland, and, indeed, in my reference to this case in my outline I have inadvertently essentially overstated the principle contained in it.  It was said to support the conclusion that rehabilitation was of less relevance – and in this context, in my submission, those words are important in that they fly in the face of the ultimate conclusion arrived at by the majority – but it was said to be ‑ ‑ ‑

HAYNE J:   That ultimate conclusion arrived at by the majority was, was it not, no manifest excess.

MR HEATON:   It was, but fundamental ‑ ‑ ‑

HAYNE J:   This was not a case in which it was said that the sentencing judge had committed specific error, is that right?

MR HEATON:   In my submission, fundamental to that conclusion that there was no error was the consideration of the court of this point which was raised as a ground in challenge to the sentence that had been imposed.

HAYNE J:   As a particular which might explain what was asserted to be manifest excess.

MR HEATON:   Yes.

HAYNE J:   Now, if the matter is one of manifest excess or no, what is it that this Court would say, if leave were to be granted, on the subject of rehabilitation that would constitute a statement of principle?  Would not that question be swamped by the fundamental issue tendered in the Court of Appeal, was the sentence manifestly excessive?

MR HEATON:   Well, in my submission, it is impossible to divorce from the consideration as to whether or not the sentence imposed was free from error the consideration of the relevance of rehabilitation to the overall exercise of a sentencing discretion.  Whether or not the sentence was manifestly excessive necessarily involves a consideration as to the relevance of the rehabilitative steps that were undertaken by the applicant between offence and sentence.  Indeed, the proper application, in my submission, of the principle relevant to rehabilitation and the identification and recognition as to what amounts to relevant rehabilitation is evident in the outcome that was proposed by Justice Atkinson in her dissenting judgment.

In terms of the questions or the question that this application raises, can I refer the Court essentially to the questions that I have posed in the written material.  There are three which, in my submission, raise for consideration a significant principle of law.  In this particular case there was, in my submission, considerable evidence of significant steps undertaken by the applicant to turn his life around.  Indeed, at paragraph [65] of the judgment reference was made to the evidence of a

Mr Perros, a psychologist, who regarded him as having evidence – of being evidence of a “changed man”.

The relevant considerations then are set out in those paragraphs that I have referred to.  It begs the perhaps rhetorical question, why is that not rehabilitation and insofar as an objective of the imposition of penalty is the protection of the community, why does that not at least go to address, or at least to lessen the significance of the protection of the community in the imposition of the penalty?  It is in failing to categorise this as rehabilitation and failing to recognise the relevance of this demonstrated rehabilitation to the exercise of the sentencing discretion that, it is respectfully submitted, it demonstrates a significant error of principle has been reflected in the punishment that is being imposed upon the applicant.

The majority in this case have proceeded on the basis that this offending was not underpinned by personality failings which might respond to change and that this offender was not a person who was in need of a change of attitude and, in doing so, in my respectful submission, misunderstood the nature and relevance of rehabilitation to the sound exercise of the sentencing discretion.  Your Honour, those together with the material set out in my written application are my submissions, unless I can assist the Court further.

FRENCH CJ:   Thank you, Mr Heaton.

MR HEATON:   Thank you, your Honour.

FRENCH CJ:   Thank you, Mr Heaton.  We will not need to trouble you, Mr Moynihan.

No point of general principle would fall for consideration if special leave to appeal to this Court were to be granted.  Whether the sentence imposed on the applicant was manifestly excessive does not, in this case, present any question suitable to the grant of special leave, whether by reference to the significance of evidence of rehabilitation or otherwise.  It is not in the interests of justice generally or in the particular case that there be a grant of special leave.  Special leave will be refused.

The Court will adjourn to reconstitute.

AT 10.40 AM THE MATTER WAS CONCLUDED