Yeo v Attorney-General for the State of Queensland
[2007] HCATrans 326
•21 June 2007
[2007] HCATrans 326
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B12 of 2007
B e t w e e n -
RAYMOND YEO
Applicant
and
ATTORNEY‑GENERAL FOR THE STATE OF QUEENSLAND
Respondent
Application for special leave to appeal
GUMMOW J
KIRBY J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON THURSDAY, 21 JUNE 2007, AT 10.57 AM
Copyright in the High Court of Australia
MR P.E. SMITH: May it please your Honours, I appear for the applicant in this matter. (instructed by Fisher Dore Lawyers)
MR W. SOFRONOFF, QC: May it please the Court, I appear with my learned friend, MS M. MALONEY, for the respondent, and attending with us is my learned pupil, MS T.J. MASTERMAN. (instructed by Crown Solicitor for the State of Queensland)
GUMMOW J: Yes, Mr Smith.
MR SMITH: Your Honours, the application concerns the Dangerous Prisoners (Sexual Offenders) Act and the special leave point is whether a judge who applies this Act must apply the principles expressed by this Court in Chester and subsequent cases before the court determines that a person be detained indefinitely under the Act ‑ ‑ ‑
KIRBY J: You got a division in the Court of Appeal, Justice Williams thought the judge did not have to. The judge herself thought she did not have to. The majority said she did have to and that she had implicitly done it, even though she denied that she did have to.
MR SMITH: That is correct.
KIRBY J: The paradox you point up is that that leaves the state of the law in a state of some confusion, but at least so far as this case is concerned, it leaves a real question as to whether your client got the benefit of the principle in Chester if the primary judge thought you did not have to apply it.
MR SMITH: That is exactly our point, your Honour.
GUMMOW J: How do you fit it into statute? That is the question.
MR SMITH: Can I take you to the statute, your Honour? The Act is in the respondent’s material.
GUMMOW J: Yes, it is at page 2.
MR SMITH: Page 2.
GUMMOW J: It is set out in the judgment of the primary judge.
MR SMITH: Yes. Your Honour, the power to make the order is section 13(5) and that provides:
If the court is satisfied as required under subsection (1) –
and going back to that subsection ‑
the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order –
then the court may order (a) “continuing detention order” or (b) “supervision order”. So at that point there is a discretion, even if a person is a serious danger.
GUMMOW J: But what is the discretion? Is the discretion to do either (a) or (b), or neither?
MR SMITH: It can be to do neither, in my submission, because subsection (6) then provides further in what circumstances either (a) or (b) would occur:
the paramount consideration is to be the need to ensure adequate protection of the community.
So the applicant’s position really is that there is a discretion at both stages here and at this point the Court should be cognisant of the exceptional nature of the power.
GUMMOW J: The question, I think, that is put against you is subsection (6) asserts a paramountcy which does not sit all that well, perhaps, with the notion of exception that you want to rely on.
MR SMITH: The paramountcy is not the only consideration. It is a paramount consideration. That is not to say that this exceptionality should be ignored. In my submission, it is not necessarily ‑ ‑ ‑
GUMMOW J: The difficulty with (6) in a way is that no other considerations are explicit.
MR SMITH: No, that is true. But going back to (5), of course, at that first step, there is still that discretionary side of things ‑ ‑ ‑
KIRBY J: You say it is important because, though Parliament has said that this is paramount, if Chester still is brought in by “may”, paramount consideration must do battle with the principles of liberty and the normal principles defensive of the specificity of loss of liberty by court orders.
MR SMITH: Yes, your Honour. That is really our point about that first step, the second step being the choice between supervision and continuing detention – it can come into play there at that point as well, and that is the reason I have referred to that Canadian authority, Johnson, where if there is an alternative available a court should try and prefer the less onerous approach. The difficulty with this legislation is that my learned friend, or at least his predecessor who drew the outline, seeks to distinguish Chester, Moffatt, Buckley, by saying this Act is here for treatment of these prisoners. But, in reality, my client is still detained in prison. Section 43A of the Act deems my client to be a prisoner. My client is a dangerous prisoner. It is difficult to see how distinction can be made.
KIRBY J: Could you just help me, I am a little bit confused as to the crime that brought him into this particular period of his imprisonment which has now been extended by this order.
MR SMITH: Yes, your Honour. If I could tell your Honour about the convictions firstly, my client was convicted on 5 April 2001 of a number of counts of indecent treatment of boys. He received three years imprisonment on that sentence. On 18 April 2002, he received two years imprisonment for two counts of indecent treatment which was cumulative on that first sentence, so that gave a total of five years imprisonment dating back to April 2001, so thus the full-time release date being the 18 April 2006.
Now, your Honours, the Act provides as to the relevant definitions, in particular, whether a person is a dangerous prisoner and section 13(2) provides that:
A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence –
(a) if the prisoner is released from custody -
That term is defined, your Honours, “serious sexual offence,” in the Schedule, page 33 of the Act as:
means an offence of a sexual nature, whether committed in Queensland or outside Queensland –
relevantly –
(b) against children.
GUMMOW J: Part of your client’s situation is that he persists in denying any previous wrongdoing.
MR SMITH: That has been a problem for him, your Honour ‑ ‑ ‑
KIRBY J: We have had this before. I mean, prisoners know that unless they confess, this will stand against them.
MR SMITH: Yes.
KIRBY J: But if they assert their innocence of the offences, it is a very great burden on their mind to be forced to accept that they did the offence, if they have always said they did not and yet they know that it is very much to their advantage, in a sense, to say they did so that they can then go to the therapy courses and then that stands in their favour. But, on the other hand, there is a point where the law cannot, as it were, force people to admit to offences. That is a sort of torture.
MR SMITH: Yes.
GUMMOW J: But these are convictions.
MR SMITH: My client really is, as it were, facing an uphill battle by denial. I mean he has been convicted on three previous occasions. Having said all of that, he has been a fairly good prisoner. I mean he has been of good behaviour whilst in custody. It is an unusual offending behaviour in the sense that there was a significant gap until he was about 40 or thereabouts and then he committed these three lots of offences. But having said all of that, otherwise he is not a bad prisoner. It is the denial of guilt which leads to unavailability of courses ‑ ‑ ‑
GUMMOW J: The apprehension of what will happen when he gets out that.
KIRBY J: On that score you do have a medical report that says that they cannot be sure that he will not commit offences again. Indeed, I think it even rose a little higher than that ‑ ‑ ‑
MR SMITH: It does.
KIRBY J: The likelihood is that he would. I saw some material in the – I do not know if this would be admissible before a Full Court – about his having some religious conversion whilst in prison.
MR SMITH: Yes.
KIRBY J: Was that before the trial court or the Court of Appeal?
MR SMITH: It was, your Honour. In fact, an affidavit and my client’s release plans were two documents tendered in hearing before the Court of Appeal. If this Court was to hear an appeal about this matter, we would seek to put that evidence into an appeal book, because that was evidence before the Court of Appeal.
KIRBY J: He got 100 per cent for understanding the Christian life and only 96 per cent for understanding St Paul’s letter to the Galatians.
MR SMITH: Yes, as I understand the position. But relevant is that he did set forth some definite release plans. Your Honours might have seen the draft supervision order in the application book. There are some pretty significant conditions on someone’s liberty if a supervision order is put in place, which one can see from that.
KIRBY J: The Full Court of the High Court of Australia is not going to be looking at this matter just because of the position of your client. I mean the case is fact specific and it is particular and there is a series of repeated offences and the opinion of the doctors. The issue is do we have any enlightenment to add? Is there a matter of general importance because of the belief of the primary judge and Justice Williams, which was not embraced by the majority in the Court of Appeal, that they were not required by the law of this country to read a “may” in a statute as telling them that it is still a very serious matter to take away people’s liberty for what they might do in the future as distinct from what they have done in the past?
MR SMITH: Your Honour, the reason, I would submit, that this case does fall into a special leave category is because in Queensland we are now left with a mixed Court of Appeal decision about that point ‑ ‑ ‑
KIRBY J: It is not really. It is Justice McMurdo and Justice Helman. They are the majority. They have established the principle which will apply in this State and judges of trial will be obliged to follow. Unless something funny is to happen to the law of precedent and of ratio decidendi that I do not know of, they will have to follow what the President and Justice Helman said.
MR SMITH: I acknowledge that, your Honour, but the difficulty, as I have set forth in the outline, with the majority decision is that ultimately Justice Helman came to the conclusion that at the least implicitly the learned trial judge adopted the relevant principles for which I contend should apply to this legislation, and, in my submission, that is not correct in the sense ‑ ‑ ‑
KIRBY J: That is hard to square with her Honour’s view that she did not have to apply the principles, that they have been supervened by (6), but (6) is saying what is paramount. It does not mean that there is not something sub‑paramount, something very important sub‑paramount.
MR SMITH: That is the nub of my submission on that point, your Honour.
GUMMOW J: So you quarrel with paragraph [43] of the primary judge’s reasons ‑ ‑ ‑
MR SMITH: I do, your Honour.
GUMMOW J: Page 11?
MR SMITH: That is really the nub or the central complaint that my client has.
GUMMOW J: At about line 36 on the page:
The Act in s13(4) mandates precisely the criteria to be considered by the court, although any other relevant matter may additionally be considered. Furthermore, the Act specifies . . . the paramount consideration.
Then she used the phrase “additional gloss.”
MR SMITH: That is where we would argue the error came into it, because one is these principles cannot be said to be a gloss. They are important principles, I would submit.
GUMMOW J: Would they be a “relevant matter” under (4)(j)?
MR SMITH: They could be, your Honour. I have concentrated upon that discretionary aspect in subsection (5), but certainly ‑ ‑ ‑
GUMMOW J: We will need to know what you say.
MR SMITH: Yes. Whichever step one looks at it, they are not gloss. Justice Helman referred to them as a formula ‑ ‑ ‑
KIRBY J: What do you say should have happened? Do you say that the majority in the Full Court should have said her Honour erred in paragraph [43], her discretion or power under the section miscarried, therefore we either have to send it back to her or to someone other than the primary judge, or decide it for ourselves?
MR SMITH: Yes, your Honour.
KIRBY J: Deciding it for ourselves and applying the paramount test but in a context where it is also, as the High Court has said in Chester and in many other cases, a very important principle, we balance those considerations and come to this conclusion.
MR SMITH: Yes, your Honour.
KIRBY J: Now, therefore, the question becomes does that hold out a real prospect in the factual situation of this case of your client not ending up in the same boat as he is in, because if it does not, we do not do him a favour by extending the agony and bringing it up here.
MR SMITH: Your Honour, on that question, my submission is that there were relevant considerations favourable to him which would have made a court lean towards a supervision order as distinct from a continuing detention order. There was his age and health. I have made reference to that in the written submissions. The most recent offending was noted by the Court of Appeal when it considered his appeal against conviction as being at the low end of the scale of seriousness. The good behaviour in gaol, the other factors I have listed in my outline at ‑ ‑ ‑
KIRBY J: You say it is not futile?
MR SMITH: It is not futile. One cannot be sure that the court would have approached the matter in the same way, even if the important principles had been applied. So my client has lost that chance. There are other favourable factors, your Honour, which leave one in a state of doubt about what the result would have been.
KIRBY J: We have had a number of cases in respect of a number of States where the Court has had to insist on the importance of the Chester principle and, in recent times, we have been applying what Justice Hayne said in the Court of Appeal of Victoria. Do you know what that case was?
MR SMITH: Moffatt’s Case, your Honour. That is in the bundle of authorities, which is the third case. The particular passage in that decision, your Honour, appears at page 255.
KIRBY J: This is in [1998] 2 VR 229?
MR SMITH: Yes, your Honour. At line 35 his Honour stated:
Before parting with the matter I would wish to add one further observation. The power to impose an indefinite sentence is one that will fall to be exercised in few (perhaps very few) cases. It is a
sentence that goes beyond punishing the offender to the extent that is proportionate to his or her crime.
There is reference to Chester’s Case and then at 45:
While I accept that there are safeguards in the Victorian legislation that were not to be found in the provisions considered in Chester’s case (safeguards like judicial rather than executive review and the identification of a narrower list of offences for which indefinite sentences can be imposed) the fundamental proposition that such powers are to be sparingly exercised, and then only in clear cases, applies to the Victorian provisions as much as it did to the Western Australian.
KIRBY J: I think we have approved that in several cases.
MR SMITH: You have, your Honour, or at least the Court has approved that statement in a number of cases. So, in summary, your Honours, in this particular case I do submit that the issue is of importance to the administration of this Act in Queensland. There have been dozens of these cases before the Supreme Court in recent times. It is important that ‑ ‑ ‑
GUMMOW J: Do you have any figures on that?
MR SMITH: No, I do not. I think Ms Maloney might know, your Honour, because Ms Maloney, I think, is responsible from the Crown Solicitor’s point of view as to the administration of the Act.
KIRBY J: Mr Sofronoff has the vast resources of the State of Queensland behind him. He will be able to help.
MR SOFRONOFF: Not here at the moment, your Honour.
MR SMITH: But certainly dozens. I can tell your Honour that. One sees them come out every week from the Supreme Court. Supreme Court judges should not be left in a state of doubt about the application of the principles. In this case, my client did have favourable factors which could lead to a different result.
GUMMOW J: We do not need to hear you any further, Mr Smith. Yes, Mr Solicitor.
MR SOFRONOFF: Your Honours, there are currently 26 supervision orders in place.
GUMMOW J: Supervision?
MR SOFRONOFF: Supervision orders, and five continuing detention orders.
KIRBY J: This is supervision in detention or supervision out of detention?
MR SOFRONOFF: No, supervision in the community. Your Honours, could I ask your Honours to go to Chester 165 CLR 611, which is in the book. At 616 your Honours will see ‑ ‑ ‑
GUMMOW J: They were construing section 662, were they not?
MR SOFRONOFF: That is right. It is at page 616 of the report. Your Honours will see that what their Honours were construing was a very general section providing for continuing detention or an indefinite sentence ordered at the time of sentence ‑ ‑ ‑
KIRBY J: But why do you go to Chester? This is another sign of how barristers love judges as distinct from going to the statute.
MR SOFRONOFF: I am seeking to criticise that approach, your Honour, by showing that section 662 was a general provision and, if your Honours turn over two pages at 618, their Honours then, because of the generality of the provision, had reference to the common law and, in particular, to the attitude of the common law relating to preventative detention. Having regard to the state of the common law, their Honours concluded that it was necessary to regard the power as one reserved for those “exceptional cases”, et cetera. Now, when one comes to the statute ‑ ‑ ‑
KIRBY J: That invites the old debate. Is it really a principle of common law standing outside the statute - Justice Brennan often wrote about this – or is it ‑ ‑ ‑
MR SOFRONOFF: Implied.
KIRBY J: ‑ ‑ ‑ an implication in the statute that by using the word “may”, a statutory principle is imported into the exercise of the power which reflects the principles which the common law has formerly expressed for itself?
MR SOFRONOFF: Here, your Honours, whereas it could be said in Chester v The Queen that the common law does not sanction preventative detention, one can see that the Dangerous Prisoners (Sexual Offenders) Act does sanction it according to criteria that are set out in section 13. If your Honours would go to that section ‑ ‑ ‑
KIRBY J: Yes, but surely Mr Solicitor, we do not read any provision of any statute in this country where there are discretions without having regard to the utmost importance that our country and our law has always applied to individual liberty and to the dangers of preventative detention, because judges and jurors are not handed a prediction mechanism whereby they can tell how people will behave in the future.
MR SOFRONOFF: Of course, your Honour.
KIRBY J: No crystal balls.
MR SOFRONOFF: I agree with that entirely, with respect. That is why this is not a special leave case. That is what his Honour Justice Helman was referring to, in our respectful submission, when he said in the application book at page 33, at the foot of the page, four lines from the foot:
It may be accepted that those principles –
the Chester principles –
apply mutatis mutandis ‑ ‑ ‑
KIRBY J: Yes, but that is Justice Helman. We are talking about the person who actually sentenced the applicant, who took the view that it is wrong to gloss the statute with this fundamental principle. It is not glossing the statute. It is reading it in the context of a legal system which is defensive of liberty. Everybody, including offenders who have been convicted of offences of this kind.
MR SOFRONOFF: But, your Honour, the Court of Appeal, which reviewed the order that her Honour Justice Philippides made, did take those principles into account and affirmed the order that her Honour had made.
KIRBY J: They did so in a way that is a bit curious to me. They said she implicitly took it into effect, when she had specifically said to take it into effect is a gloss, which implies she did not take it into effect.
MR SOFRONOFF: Assume, your Honour, that she did not. Assume against me that her Honour did not. What ‑ ‑ ‑
KIRBY J: Then the correct way for an appellate court – and I have sat in appellate courts for a long time – to deal with it is to say the judge’s discretion miscarried. It therefore falls to this Court either to send it to another judge to deal with it, or to deal with it itself. Usually it would deal with it itself. But they do not really deal with it themselves, because they would then deal with it on the up‑to‑date information that was available to them, as distinct from what was available to the primary judge ‑ ‑ ‑
MR SOFRONOFF: But, your Honour, their Honours took into the account the matters that were before her Honour in affirming the order that she made, and concluded in the terms that Justice Helman stated at the foot of 33 and over to 35, as he did because of the nature of the case. The case that is put against us partly involves a proposition that Mr Yeo has not been violent. The problem with that is that the definition of “serious offence” in the act includes two kinds of offences. One is violent offences – nothing to do with him ‑ ‑ ‑
KIRBY J: Mr Solicitor, the opening paragraph of [35] of Justice Helman’s reasons:
In my view it has not been shown that there was any error in her Honour’s consideration of the appellant’s case.
If you find no error in her consideration you do not enter your mind upon the task of considering what you would do if there is error, and the problem is that her Honour has said, “Do not gloss the statute, Chester is not relevant, this is a special Queensland statute, we do not have to have regard to what was said in Chester or anything like it, do not gloss the statute.” You have sent the person into battle before the lions without one of the considerations which, at least arguably, the applicant says, has to be taken into account in reaching the just and lawful order.
MR SOFRONOFF: Your Honour, granted that the additive of the common law is as it is towards preventative detention, this is a statute which sets out specific criteria which must be satisfied before the discretion is exercised. Her Honour and the Court of Appeal, all of them took into account all of those criteria ‑ ‑ ‑
GUMMOW J: They are not all that specific. That is part of the problem. Paragraph (j), you see?
MR SOFRONOFF: Other matters, your Honour?
GUMMOW J:
any other relevant matter.
It is hardly specific.
MR SOFRONOFF: Your Honour, equally the paramountcy provision is specific and it was not raised against the Attorney‑General before her Honour or the Court of Appeal that there were other matters. The legal argument that is now being agitated was raised, of course, but it was not put in those terms and it is not surprising, therefore, that their Honours did not advert to (j) in those terms. But having regard to ‑ ‑ ‑
GUMMOW J: Part of the trouble I have – and it is not a criticism of the court really, it may be a criticism of the way it was presented, I do not know, but it is a question of analysing the statute and what force one gives to this word “may” in subsection (5) or “relevant matter” in (j).
MR SOFRONOFF: Your Honours, in this case, it would, in our respectful submission, involve adding to ‑ ‑ ‑
GUMMOW J: Clearly this is displacing the common law.
MR SOFRONOFF: It does. If your Honours look at subsection (3) ‑ ‑ ‑
GUMMOW J: The question is how much and with what nuance?
MR SOFRONOFF: Could I just say this about the construction of the statute and then say something about the merits of the case itself?
GUMMOW J: Yes.
MR SOFRONOFF: As to the construction of the statute, if your Honours look at section 13(3), it is only if the Court is satisfied by two things:
(a) acceptable, cogent evidence; and
(b) to a high degree of probability;
that the evidence is of sufficient weight to justify the decision.
That subsumes, in my respectful submission, the requirement in Chester that the case be an exceptional one. It must be an exceptional one if the court will be satisfied of the relevant matters by both “cogent evidence” and “to a high degree of probability”. It is difficult to read into (3) or into the word “may,” where it appears, the additional requirement that the case also be an exceptional one.
Then if one turns over the page to subsection (4), there are all of those matters between (a) and (i) that must be taken into account. It is difficult then to say that, those matters having been taken into account in the context only of violent offenders or sexual offenders against children, the power must also be used sparingly. Inevitably, it will be used sparingly, as your Honours have heard five continuing detention orders currently. That is a ‑ ‑ ‑
GUMMOW J: How frequently are they reviewed?
MR SOFRONOFF: This one is going to be reviewed in August. Annually, your Honours.
GUMMOW J: That is what I thought.
MR SOFRONOFF: This one is going to be reviewed in August. If one looks at the merits then of this particular case and whether Mr Yeo really has a chance at succeeding, assuming he persuades the Court that there is a need for a judge to take into account that the case be extraordinary and that the power be exercised sparingly, if your Honours go to page 5 - I do not want to labour this, but what that signifies is that suddenly in his middle years Mr Yeo began to commit offences against children, young children.
Your Honours will see in paragraph [13] his relevant first offence. Paragraph [14], a series of offences against “two boys, 9 and 11 years old”. In paragraph [15], two more offences against a 6‑year‑old boy, in each case showing, as your Honours can see in the second last line of paragraph [14] “no remorse” but more relevantly, for a sexual offender against children, absolutely no insight because of his maintenance of a stance of innocence.
So if he succeeded in persuading your Honours that those additional matters ought to have been taken into account by the judge at first instance then, in my respectful submission, the Court would, in any event, dismiss this appeal, but it seems ‑ ‑ ‑
KIRBY J: These are, of course, very fair arguments, but, on the other hand, what Chester was saying, relevant to the particular legislation, was essentially it is still exceptional in our society to take away a person’s liberty not for what they have done, but for what they might do in the future. The question is whether, in the scheme of this legislation, that unwritten statement is still there in the statute. That is an important question ‑ ‑ ‑
MR SOFRONOFF: But, your Honour, we would be in agreement on appeal because Justice Helman said one can take that those principles are applicable. Justice McMurdo agreed ‑ ‑ ‑
KIRBY J: All right. We have got to that point. But then the question is whether or not this man’s sentence was performed according to that rubric when the primary judge said that it would be to gloss the statute to take these considerations into account.
MR SOFRONOFF: Your Honour, we would respectfully submit that that is a purely theoretical question, because when one has regard to the matters that Justice Philippides took into account, set out on page 5, his offences, and also the opinions of the psychiatrists which are mandated to be ‑ ‑ ‑
KIRBY J: But where does she say with all of these principles of paramountcy and so on, there is still an issue of liberty and proportionality?
MR SOFRONOFF: She does not say that. I appreciate that, your Honour, but there are two things here. The first is whether there is a legal dispute between the parties that ought to invoke the jurisdiction of this Court in an appeal. What we have here is one side saying those Chester principles apply and the respondent ‑ ‑ ‑
GUMMOW J: What is the Chester principle, by the way?
MR SOFRONOFF: It seems to be that, as our learned friend would advocate it, in considering ultimately whether or not to make an order ‑ ‑ ‑
GUMMOW J: No, no. What are they saying in 618 in fairness to the judges? They were not just dreaming it up. At the beginning of the page, it is firmly established in 618, about line 15:
After all it is now firmly established that our common law does not sanction preventive detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime –
and then this is bite, is it not –
merely for the purpose of extending the protection of society from the recidivism of the offender:
Now, the purpose of this legislation we are looking at here is ‑ ‑ ‑
MR SOFRONOFF: Precisely for that.
GUMMOW J: Is that.
MR SOFRONOFF: Yes.
KIRBY J: There is still the issue of proportionality that exists as an assumption of our society against the basis of which the legislation is drafted. I mean, do you deny that, because that was what Justice Hayne said in Moffatt and that is what the Court said in Chester and, in my recollection, has said in cases since Moffatt in at least two or three occasions because this legislation in Queensland is not unique. I mean there is legislation like this that has been enacted in other States of Australia. The question, at least arguably, that is presented to us is, in a case like this, is it doubly important that sentencing judges and intermediate courts make sure that what is done, if it is done under legislation of this kind, is done scrupulously, without error and by reference to the correct principles?
MR SOFRONOFF: Your Honours, no doubt it has to be done scrupulously and without error and according to the principles, but Moffatt ‑ ‑ ‑
KIRBY J: It was done by the primary judge according to the correct principles.
MR SOFRONOFF: Her Honour applied ‑ ‑ ‑
KIRBY J: You sound as though you are defending the primary judge now, whereas the majority in the Court of Appeal does not. They say she erred. Yet when they come to the crunch, they did not then go to deal with it scrupulously themselves.
MR SOFRONOFF: Your Honour, the majority of the Court of Appeal concluded that her Honour had implicitly taken into account that it needs to be an extraordinary case and that these orders are made sparingly ‑ ‑ ‑
KIRBY J: Even though she did not say so and, indeed, denied it by saying that would be to gloss the will of Parliament.
MR SOFRONOFF: I appreciate that she said that to superadd such a requirement would involve adding a gloss that does not appear in the statute, but nevertheless what her Honour actually did was to have regard to the extraordinary features of this case, namely his criminal history and his attitude toward his offences, to take into account the opinions of the psychiatrists, one of whom said that there was a high risk of his re‑offending, so that implicitly, even if her Honour expressly sought to put to one side to superadd an express provision which the statute did not state, what her Honour did was to take into account all of the factors which would, in any event - did lead the Court of Appeal and would, in our submission, lead this Court to the same conclusion.
GUMMOW J: I was taking you through 618. I had not finished.
MR SOFRONOFF: Yes, your Honour, I am sorry.
GUMMOW J: So:
merely for the purpose of extending the protection of society from the recidivism of the offender . . . In the light of this background of settled fundamental legal principle –
Well, it is a common law principle, it is not constitutionally entrenched. Anyhow:
the power to direct or sentence to detention contained in s. 662 should be confined to very exceptional cases –
What are they saying about 662? Are they saying that is how you read the word “may” if it thinks fit in 662?
MR SOFRONOFF: It is necessary, in the context of 662, which is expressed generally by reference to ‑ ‑ ‑
GUMMOW J:
antecedents, character, age, health or mental condition ‑ ‑ ‑
MR SOFRONOFF: General factors, but general relevant factors, whereas what this particular statute does is require the judge to take into account, for example, 13(4)(c):
information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offenders in the future ‑ ‑ ‑
GUMMOW J: So you say 13(4) does have recidivist considerations built in there?
MR SOFRONOFF: Yes.
GUMMOW J: That were not found in Chester?
MR SOFRONOFF: It is done after the sentence is completed or almost completed.
GUMMOW J: Yes.
KIRBY J: I did not understand the applicant to dispute that. I thought the applicant’s argument is accept all of this and accept that the balance is shifted by the statute, but it still remains the case that there has to be proportionality, that that is signalled by any other relevant matter, that paramountcy does not mean that this is overwhelming to the exclusion of all
other considerations and that, in any case, that is an important legal question. Does one read statutes of this kind against the background of a legal system which for hundreds of years has been defensive of liberty?
MR SOFRONOFF: As your Honour appreciates, Moffatt ‑ ‑ ‑
KIRBY J: And proportionality.
MR SOFRONOFF: As your Honour appreciates, Moffatt and Chester were cases where the sentencing judge in posing a sentence was being asked to consider an indefinite sentence and is obliged, therefore, to consider the purpose of an ordinary sentence to work against recidivism, whereas here we are dealing always with a judge considering ex post facto and having regard to the history of the offender in gaol and his subsequent attempt to rehabilitate himself or herself, that whether on the psychiatric evidence which is required and the other factors set out in (4), the risk of recidivism, notwithstanding the ordinary sentence, continues to exist. That is quite different, in my respectful submission. The cases, as the numbers show. will always in fact be extraordinary and ‑ ‑ ‑
KIRBY J: I would not be too sure about that. Once you start on this path of departure from fundamental principles, the only places where fundamental principles are going to be defended are in courts and ultimately this Court. They are not always going to be defended in Parliament.
MR SOFRONOFF: I will not disagree with that, your Honour, but since the upholding of the validity of legislation like this in Fardon we come to this Court and it is hardly an occasion on which anybody can say that the exercise of the power has been liberal. It has been sparing, as the numbers show, particularly the detention orders, but in Mr Yeo’s case it was manifestly justified by reason of the nature of his offences which fall squarely within the act, sexual offences against children, and young ones at that, in the case of a person who, to this day it seems, will not admit that he has committed any offences. So how does he have any prospect, in our respectful submission, of persuading this Court that the discretion on the merits miscarried? I see my time is up, your Honours.
GUMMOW J: Yes, Mr Smith.
MR SMITH: Yes, thank you, your Honour. Two matters in reply. Firstly, my learned friend relied on section 13(3) as in some way adopting the Chester principle. It does not ‑ ‑ ‑
GUMMOW J: There is no Chester principle as such.
MR SMITH: Well, the principles discussed in Chester’s Case.
GUMMOW J: You have to read Chester, understand what they were doing and then do not pluck out of it the word “exceptional”.
KIRBY J: If you were granted special leave, you would really have to move down the track to the post‑Moffatt cases in this Court. Chester has really been overtaken in this case by a very particular statute which is addressed to recidivism, as Mr Solicitor has pointed out.
MR SMITH: Yes. The point I was going to make, your Honour, is that in Buckley’s Case, which is a recent decision of this Court, the Penalties and Sentences Act (Qld) was considered. It has a very similar provision to subsection (3), that is there has to be “cogent evidence”, a “high degree of probability”, et cetera. In Buckley’s Case the Court still did require ‑ ‑ ‑
GUMMOW J: What is the citation of Buckley?
MR SMITH: The citation is (2006) 80 ALJR 605. Even though those provisions are in that statute, the High Court at paragraph [44], the last page, page 613, said:
The Court of Appeal should have given leave to appeal, and reconsidered the exercise of sentencing discretion involved in the decision to apply Pt 10 of the Act . . . However, such an outcome was by no means inevitable. It is important to say once again, as Hayne JA said in Moffatt –
and I have referred to that –
This Court has repeatedly endorsed those remarks. From the reasons of the sentencing court it must be evident that they have given their full weight whenever a sentence of indefinite detention is imposed -.
which is the complaint my client has here.
My final point, your Honours, is that ultimately it seems the respondent’s position comes down to a distinction – I mean in a legal sense – between the sentencing cases and this Act but, in my submission, this Act in particular does require demonstrated attention to this principle because we are concerned with a man who has completed his sentence and he is going to be detained indefinitely after that when he has served his punishment out. So, in particular, the principle should apply in this case. Thank you, your Honours.
GUMMOW J: There will be a grant of special leave in this matter. It is to be listed as a one‑day appeal.
AT 11.40 AM THE MATTER WAS CONCLUDED