Wiskich v The Queen

[2000] HCATrans 359

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A17 of 2000

B e t w e e n -

PETER JOSEPH WISKICH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 10 AUGUST 2000, AT 12.28 PM

Copyright in the High Court of Australia

MR W.F. BRAITHWAITE:   May it please the Court, I appear with my friend, MR I.D. PRESS, for the applicant. (instructed by I.D. Press, Legal Services Commission of SA)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MS M.L. ROBERTS‑THOMSON, for respondent.  (instructed by the Director of Public Prosecutions (South Australia))

GUMMOW J:   Yes, Mr Braithwaite.

MR BRAITHWAITE:   Your Honour, on behalf of the applicant it is contended that the Court of Criminal Appeal in this case has grossly violated correct sentencing principles and, in doing so, has entrenched a new and erroneous principle.  The violated principle is this:  a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The new principle which it is contended has been entrenched by the Court of Criminal Appeal in this matter is this:  a sentence must be proportionate to the objective gravity of the offence.  A sentence need not be proportionate to the degree of responsibility ‑ ‑ ‑

GUMMOW J:   Where do we see that?

MR BRAITHWAITE:   It is not, your Honour.  I contend that this is the principle that comes out of this case and that will be the burden of my submissions.  I just want to let the Court know at the outset what I say the effect of this decision is.  The effect of this decision, your Honour, is to have it that a sentence need not be proportionate to the degree of responsibility or blameworthiness of the offender.  Subjective factors, such as seriously diminished responsibility affect the level of punishment, only in so far as they show a greater or a lesser need for the sentencing process to be used as an instrument of social regulation by pursuing such purposes as general deterrence.  Well, the protection of the public.

I will argue that this either treats diminished responsibility as not mitigatory at all ‑ ‑ ‑

GUMMOW J:   Now, page 137 of the application book, paragraph  6(i), Ms Abraham says that you are proceeding on a misapprehension.

MR BRAITHWAITE:   Yes.  Well, with respect, sir, I am not, I would contend and certainly I will ‑ ‑ ‑

GUMMOW J:   No, a misapprehension as to what really is involved in what the Court of Criminal Appeal decided.

KIRBY J:   You had better point us, if you are saying this is violation and a completely erroneous approach, you had better point us to the best passage in the reasons of Justice Martin.

MR BRAITHWAITE:   Page 112, your Honour, at about line 30, 35.

GUMMOW J:   “In my opinion”?

MR BRAITHWAITE:   Yes, your Honour, particularly the sentence starting:

The mitigating effect of the respondent’s mental condition was far outweighed by the gravity of the crime and the importance in the particular circumstances of the element of general deterrence.

GUMMOW J:   That does not sound like any new principle.

MR BRAITHWAITE:   With respect, sir, it leads to a number of departures from principle.  Firstly, the gravity of the offence has been assessed without factoring in the applicant’s mental condition.  Secondly, the sentence was not increased ‑ ‑ ‑

GUMMOW J:   It does not say that.

MR BRAITHWAITE:   It does, sir, it says:

The mitigating effect of the respondent’s mental condition was far outweighed by the gravity of the crime –

So the gravity of the crime has been assessed without factoring in the respondent’s mental condition.

GUMMOW J:   No, that is not what is being said at all.  It said various things have been taken into account.  Some are more weightier than others in the particular matrix of this case.

MR BRAITHWAITE:   With respect, sir, it follows from that paragraph, I submit, that the sentence was not increased because the applicant deserved it but because the length of the sentence was considered insufficient to deter others.  The court in this matter, the Court of Criminal Appeal, had no trouble accepting the learned sentencing judge’s assessment of the objective gravity of the offence.  In fact, the Court of Criminal Appeal said that it was accurately described.  Similarly, with the assessment of the diminished responsibility evidence.  It was uncontested.  Reports were tendered there, evidence was called, and the Court of Criminal Appeal had no problem at all and considered that the learned sentencing judge had accurately assessed that as well.

KIRBY J:   Mr Braithwaite, I think I understand the point you are trying to get over to the Court.  I wrote an opinion in Champion which was referred to, I think, and I know the general issue, but no one, as far as I know, has ever suggested that a sentencing judge, or a Court of Criminal Appeal reviewing the sentence, ignores the objective facts of the crime.  It is a matter, as Justice Gummow has said, in the matrix of the particular case, of taking into account the objective facts and taking into account the matters that are relevant to any issue that goes to the culpability of the accused, the prisoner, and when I look at what Justice Martin said there, he just seems to be saying, correct me if I am wrong, that you look at the respondent’s mental condition, you accept that that is a factor to be taken into account by way of mitigation, but you also have to look at the gravity of the crime and the importance in the particular circumstances of general deterrence.  Now, that seems to be pretty orthodox stuff.  Tell me where that is an incorrect impression, because I had marked that as what you asserted to be the error and I do not see the error there and I want to fully understand your argument.

MR BRAITHWAITE:   Thank you, your Honour.  The Court, and I suggest it is evident there on close scrutiny, has assessed – and I do not complain about this – the gravity of the offence objectively.  It has said that the learned sentencing judge correctly assessed the gravity of the mental enfeeblement, but the Court of Criminal Appeal said that where the error lay in the sentencing judge’s approach was that he did not place sufficient weight on the aspect of general deterrence.  Now, general deterrence, therefore, has been weighed against significant and relevant diminished responsibility and displaced it.  So one has ‑ ‑ ‑

KIRBY J:   It has not displaced, it has been given a different weight in the combination of factors that are taken into account.  After all, this is a case where your client really devised what he was going to do.  It is not as if there was any – this was a spontaneous act.  There was a matter of lying in wait, tracking the victim and then brutally killing him, and for reasons of emotional entanglement.

MR BRAITHWAITE:   It is a nasty case that provokes, in some levels, a visceral response, but it is not simply emotional entanglement which is being dealt with here, your Honour, but ‑ ‑ ‑

KIRBY J:   I realise this; not simply emotional, I agree with that.

MR BRAITHWAITE:    ‑ ‑ ‑serious mental illness and, sir, this is the nub of the error.  The Court of Criminal Appeal has said this is the sort of circumstance that people without mental illnesses often find themselves in, emotional entanglements, jealousies et cetera.  So that at that objective level it is an offence requiring a healthy dose, if you like, of general deterrence.  It does not say that ‑ ‑ ‑

KIRBY J:   So what we are therefore talking about is not a fundamental error but the error of the mix which the Court of Criminal Appeal considered was necessary in this case as against the view that the trial judge took, and that does not sound like a special leave question.

MR BRAITHWAITE:   Your Honour, the special leave point, I suggest, is this, that what has happened here because of this, I submit, erroneous approach, is that the applicant has been dealt with as though he was in full command of his faculties at the relevant time as a deterrent to others, and of course that is an entirely fictional ‑ ‑ ‑

KIRBY J:   If that were done, I would not hesitate to intervene.  But that is not what Justice Martin said.  He says expressly:

In my opinion, although the respondent’s mental condition was a factor to be taken into account by way of mitigation –

So he expressly acknowledges that principle.  Then he goes on to say in this particular case, the objective seriousness and the need for general deterrence has to be given a greater weight then the primary judge thought.

MR BRAITHWAITE:   Your Honour, with respect, it is submitted that that is not what he has done.  He has arrived there by considering that relevant and significant diminished responsibility does not operate to lower responsibility, except for that little sentence your Honour brought to my attention, which was a nod in that direction.  It operates, significant diminished responsibility, only to go to the greater or lesser need for general deterrence.  It is like trying to mix oil and water.  General deterrence is not a mitigating or an aggravating fact, with great respect.

KIRBY J:   But sentencing is all about mixing oil and water, I am afraid.  It is not a scientific exercise.

MR BRAITHWAITE:   It is not, and this is the way considerations such as general deterrence ought to operate, in my respectful submission, much in the way that Justice Deane in Veen suggests.  One arrives by having regard to the harm done, subjective culpability and all other relevant and mitigating factors, to a proportionate range.  It is not an exact science, as your Honour said, so that produces a range. Now, when that range, that proportionate range is arrived at, considerations of public policy, like general deterrence, protection of the public, may well push a sentence towards the top or the bottom of what is a proportionate range.  But what has happened here, with respect, is that general deterrence has been fed into deciding what is proportionate.  That is an error of approach.  It is not an aggravating factor in that sense.  One discerns the difference between the two by asking, “Is this fact something which makes this offender’s incursion into crime more or less serious?”  If the question can be sensibly asked about a fact in that sense, then that goes to what is a proportionate sentence. 

Then issues of public policy - general deterrence after all is just using a sentence in order to educate the public.  No judge at common law has the power to do that, if it goes beyond a proportionate range.  And a similar mistake is made, with great respect, if deterrence or protection of the public is factored in to deciding what is proportionate.  That simply unfetters a sentencing judge from fetters that the common law has placed there traditionally, and with great respect, for good reason.  So I submit that that is what has happened here.

Reference has been made to Anderson’s Case.  May I take your Honours to that.  It is in the front of the applicant’s book.  In that case, your Honour, at page 160 of that report the court said this, in adopting the reasoning of an unreported Victorian decision of Mooney, at about line 30:

General deterrence should often by given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.  The mental condition of the offender may be taken into account when passing sentence, but whether the evidence establishes legal insanity or mental illness stopping short of legal insanity, the question to be answered –

and this, I suggest, is in error:

is whether the interests of society permit or the interests of the offender require that the sentence to be passed be reduced from what would otherwise be appropriate rather than whether the offender’s responsibility for the offence should be regarded as having been reduced.

Now, whatever the interests of the offender may mean there, it cannot mean that his responsibility is reduced and he be dealt with in that manner.  The correct position, your Honour – that has a powerfully mitigating fact, that is serious mental illness, otherwise relevant, operate ‑ ‑ ‑

KIRBY J:   But you do not suggest that it stamps out all attention to the objective facts of the case, all attention to the need for the courts to uphold the principle of deterrence?

MR BRAITHWAITE:   No.  My submission is, your Honour, it does not stamp out, and this allows it to happen, and it has happened in this case, need to pay proper regard to the subjective factors of the case, in particular, serious mental illness.  See, you could easily have a case, with respect, where there was no need for general deterrence anyway.  It might be the sort of offence no one is likely to commit.  According to this authority ‑ ‑ ‑

KIRBY J:   I think you have put your written argument very attractively and I have to say to you that if I had been in the Court of Criminal Appeal I do not think I would have disturbed the decision of the sentencing judge, because that is a very important principle the Courts of Criminal Appeal have to observe, but we have said so many times this is not a super Court of Criminal Appeal.  We can only intervene for errors that are shown in the reasoning of the intermediate court and when we look to that passage by Justice Martin, it does not really display an error.  We just cannot deal with every sentencing appeal in Australia.

MR BRAITHWAITE:   No, I do understand that, your Honours.  If it is consonant with principle to increase an offender’s sentence not because he deserves it but because it is insufficient to deter others ‑ ‑ ‑

KIRBY J:   It is not expressed that way by Justice Martin.

MR BRAITHWAITE:   But that is what has happened, with respect.  Can I say this, your Honour, this error having been purportedly discovered, in the re‑sentencing the court took into account no factors that the sentencing judge did not take into account.  The whole of the four years increase in non‑parole period is explained simply by insufficient regard being given to general deterrence.  That has been used in that offence as an aggravating factor, when in fact it is not, and it has displaced, not consonantly with principle, with great respect, important subjective considerations.

If I could go to one other case in the respondent’s outline, Mason‑Stuart, which is at the very top of the heap, the bottom of page 205, the last part of the paragraph there, Chief Justice King says this:

A person of seriously diminished responsibility is not an appropriate subject for exemplary punishment with a view to deterring others and the ends of justice ‑ ‑ ‑

KIRBY J:   That is not different to what you have read us from Anderson, it is not different to what I said in Champion.  We know the principle.  The question is whether or not, in this case, in the matrix of facts the Court of Criminal Appeal has given a wrong balance to the principles.

MR BRAITHWAITE:   With great respect, your Honour, if there is no difference between Mason‑Stuart and Anderson, I do not have a point.  It is the bit I was about to read that I do suggest is different, where his Honour
Chief Justice King goes on:

and the ends of justice are not served by insisting that the punishment be proportionate to the gravity of the crime viewed objectively, as distinct from the subjective gravity of the particular offender’s offending.

Now, that is a specifically disavowed notion by Anderson.  They are seriously in conflict.  Anderson actually says, your Honour, that it does not operate to reduce the offender’s culpability, it only operates to have an effect on a greater or lesser need of general deterrence as perceived by the judge.

So that there is, in my respectful submission, a very clear divergence between Anderson and Mason-Stuart and that is symptomatic, I would suggest, with respect, of the law in this area.  Indeed, to go back to Anderson, it says that it is not a consideration that leads to the offender’s responsibility for the offence being regarded as being reduced.

The problem, your Honours, is seen in Veen’s Case [No 2], if I might just take you there very quickly.  That is in the bundle of the Crown’s.  The majority judgment at page 474, your Honour – at page 472 and 473 one finds the off cited passages from Veen [No 2] which are said to support the principle of proportionality, but if one goes over the page to 474 at the top, after an article by C.S. Lewis is referred to, which article says that punishment must be proportional – it can serve other ends as well, but within proportion, the Court says this:

The plea has been heard by the courts of this country, by adopting the principle of proportionality and by having regard to the protection of society as a factor in determining a proportionate sentence.

So, with respect, that majority judgment handles that conflict, if you will, by simply changing the meaning of “proportionate”. 

The judgment of Justice Wilson leads to the same problem, in a different way, but certainly this is what I complain about, that considerations which hitherto ‑ ‑ ‑

GUMMOW J:   You are complaining beyond your limits of time.

MR BRAITHWAITE:  I will bring things to an abrupt conclusion with this remark, your Honour.  Considerations which hitherto could not be used to increase a sentence beyond what is proportionate are now, and have been in the case at bar, factored in in deciding what is proportionate.  So a judge is now, and I suggest contrary to principle, unfettered in this regard, and that mistake is evident in the reasoning of the Court of Criminal Appeal.  Those are my submissions, your Honours.

GUMMOW J:   Thank you, Mr Braithwaite.  The Court does not need to call on you, Ms Abraham.

The applicant has not demonstrated error by the Court of Criminal Appeal of South Australia in the application of sentencing principles to the particular circumstances of this case.  Nor do we read the reasons of the Court of Criminal Appeal as casting doubt on the principles stated by Chief Justice King in Mason-Stuart (1993) 61 SASR 204 at 205 where those principles apply. Accordingly, special leave is refused.

AT 12.50 PM THE MATTER WAS CONCLUDED