York v The Queen

Case [2005] HCA 60

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, HAYNE, CALLINAN AND HEYDON JJ

GLORIA JEANETTE YORK  APPELLANT

AND

THE QUEEN  RESPONDENT

York v The Queen
[2005] HCA 60
6 October 2005
B79/2004

ORDER

1.        Appeal allowed.

2.Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 8 October 2004 and in their place order that the appeal to that Court be dismissed.

On appeal from the Supreme Court of Queensland

Representation:

B W Walker SC with A J Kimmins for the appellant (instructed by Ryan & Bosscher Lawyers)

M J Copley for the respondent (instructed by Director of Public Prosecutions (Queensland))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

York v The Queen

Criminal law – Sentencing – Appellant pleaded guilty to serious drug offences – Appellant cooperated with prosecuting authorities to secure murder conviction – Evidence that the appellant's life would be endangered in prison – Appellant sentenced at first instance to a wholly suspended term of imprisonment because of that risk – Attorney-General's appeal alleging the sentence was manifestly inadequate – Court of Appeal re-sentenced the appellant to serve a term of actual imprisonment – Whether appropriate to wholly suspend sentence – Whether sentencing judge entitled to take into account risk to appellant's safety whilst serving a term of imprisonment.

Criminal Code (Q), ss 669A(1), 671B
Penalties and Sentences Act 1992 (Q), s 9
Criminal Code (WA), s 689(3)

Words and Phrases – "unfettered discretion".

  1. GLEESON CJ.   On a Crown appeal, the Court of Appeal of Queensland, by majority (Williams JA and Cullinane J, White J dissenting) and "[n]ot without serious hesitation", intervened in an exercise of sentencing discretion by Atkinson J.  The primary judge, in what she described as a "most unusual case" sentenced the appellant to imprisonment for five years and suspended the sentence.  She added:

    "You must know, Ms York, that if you offend at all during those five years you will come back before me for sentencing, and I will have no compunction in sentencing you to serve that five years' imprisonment."

  2. What made the case so unusual, in the opinion of Atkinson J, was the nature and extent of assistance to the authorities given by the appellant.  That assistance had resulted in the conviction of a man "for a very brutal execution style murder".  The conduct of the appellant was described as "very brave".  There had been resulting threats to kill the appellant, who was evidently in serious danger both inside and outside prison.  Atkinson J said that imprisonment involved "a very high risk of extreme retributive violence".  Even so, she also made it clear that, in the event of any further offending by the appellant, she would have "no compunction" in sending the appellant to prison.

  3. It is common sentencing practice to extend leniency, sometimes very substantial leniency, to an offender who has assisted the authorities, and, in so doing, to…

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AGLC
York v The Queen [2005] HCA 60
Case
[2005] HCA 60
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by the Attorney-General against a sentencing decision made by the Supreme Court of Queensland. The appellant had pleaded guilty to serious drug offences and was sentenced by the trial judge to a wholly suspended term of imprisonment. This decision was made despite the appellant's cooperation with authorities in securing a murder conviction, and in circumstances where evidence indicated her life would be endangered if she were imprisoned. The Attorney-General argued that the sentence imposed was manifestly inadequate.

The High Court was required to determine whether a sentencing judge is entitled to take into account the risk to an appellant's safety while serving a term of imprisonment when deciding whether to suspend a sentence. Specifically, the Court had to consider whether the Court of Appeal erred in interfering with the sentencing judge's discretion to wholly suspend the sentence due to this risk.

The High Court held that the safety of a prisoner is a relevant consideration in sentencing. The Court reasoned that the purposes of punishment, as understood at common law, include not only the protection of society from re-offending but also the rehabilitation of the prisoner to enable them to resume citizenship. This positive conception of liberty requires that all citizens, including convicted criminals, be safeguarded by the law against the predations of others. Therefore, a sentencing judge must endeavour to protect convicted criminals from the risk of other prisoners re-offending while they are incarcerated. The Court of Appeal erred in finding that the risk to the appellant's safety was not a relevant consideration for suspending an otherwise appropriate penalty of imprisonment.

The High Court allowed the appeal, setting aside the orders of the Court of Appeal of Queensland and reinstating the original sentence imposed by the trial judge.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 8 October 2004 and in their place order that the appeal to that Court be dismissed.

Background

Background to the litigation

The question in this case is whether the Court of Appeal of Queensland should have interfered with the exercise of a sentencing judge's discretion to suspend wholly a serious offender's term of imprisonment because of a grave risk of harm to the offender were she to be imprisoned.Facts On 11 April 2003, the appellant pleaded guilty to one count of trafficking in a dangerous drug, two counts of unlawful possession, and one count of unlawful possession of a dangerous drug in excess of 500 grams. The pleas were accepted in satisfaction of these and some other offences with which she had been charged. She came before the Supreme Court of Queensland (Atkinson J) for sentencing on 18 June 2004. At the sentencing hearing, the respondent adduced evidence of the assistance she had given to the respondent in the ultimately successful prosecution of a murderer. The killing had been effected as if it were an execution. An Acting Detective Inspector deposed to the appellant's unwavering assistance during the course of the committal, the trial and a re-trial of the offender in the face of serious and alarming threats to her own and her family's safety. The detail of the evidence of the threats is summarized later in this judgment. There was other, uncontradicted evidence on behalf of the appellant. Mr Bosscher, her solicitor, swore that he was informed by an officer in the Intelligence Unit within the Department of Corrective Services, Mr Wildin, that the appellant's life would be endangered if she were to be imprisoned in the Brisbane Women's Correctional Centre. The solicitor had also been informed by Mr Wildin that the latter had reported to his superiors that the appellant had been, and would continue to be subject to threats assessed as genuine by the Department, including that the convicted murderer had contacted the appellant, and would again try to arrange with female associates at the prison for the appellant to be harmed. Mr Wildin had added that any person who associated with the appellant at the prison would also be at risk from inmates there. Finally, Mr Wildin had informed Mr Bosscher that he should suggest to counsel for the appellant that he ask the sentencing judge to make the strongest possible recommendation that the appellant serve any term of imprisonment that might be imposed upon her in a northern correctional institution, preferably in Townsville. Not only did the respondent make no effort to contradict any of this evidence, but also it offered no argument that it was irrelevant or exaggerated. The sentencing judge (Atkinson J) accepted that the offences would ordinarily attract a long sentence of imprisonment. Her Honour referred to the appellant's serious criminal history. The offences, she noted, were committed in the course of the conduct of a well-organized criminal business. There was an additional aggravating factor to which she had regard, that the appellant was convicted while she was on bail on another charge. The sentencing judge was of the view that a head sentence of 10 to 12 years was appropriate, a view that came to be approved by all of the judges on appeal.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ (dissent) HUGH J (dissent) HAYNE J CALLINAN AND HEYDON JJ (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HAYNE J,

The Court of Appeal upheld the Attorney's appeal on the ground that the sentence imposed at first instance was manifestly inadequate. It set aside the sentence that Atkinson J imposed and sentenced Mrs York to five years imprisonment to be suspended after serving two years with an operational period of five years.The safety of the prisoner is a relevant sentencing consideration With great respect, the Court of Appeal erred in finding that "the risk to a criminal's safety whilst in prison" was not a consideration that was relevant to whether "the otherwise appropriate penalty, namely imprisonment, ought not be imposed". In fixing an "appropriate penalty", a sentencing judge is entitled to take into account any matter that ensures that, to some extent, the fixing of the sentence "discharge[s] the true function of the criminal law and the purposes of punishment"[8] in the instant case. The common law's conception of the "purposes of punishment" is settled. Sentences are imposed to further "the public interest"[9] – which may include the rehabilitation of the prisoner – and to enhance the liberty of society by ensuring "the protection of society"[10] from the risk of a convicted criminal re-offending[11] or others engaging in similar criminal activity[12]. [8]Leach (1979) 1 A Crim R 320 at 327.[9]Ball (1951) 35 Cr App R 164 at 165.[10]Veen v The Queen [No 2] (1988) 164 CLR 465; Leach (1979) 1 A Crim R 320 at 327; R v Jackway; Ex parte Attorney‑General [1997] 2 Qd R 277.[11]R v Morris (1958) 76 WN (NSW) 40; R v Radich [1954] NZLR 86.[12]R v McCowan [1931] St R Qd 149; R v Skeates [1978] Qd R 85; R v McGlynn [1981] Qd R 526; R v Radich [1954] NZLR 86. The common law's conception of liberty is not limited to "liberty in a negative sense", that is, "the absence of interference by others"[13]. It extends to a conception of liberty in a "positive" sense, which is "exemplified by the condition of citizenship in a free society, a condition under which each is properly safeguarded by the law against the predations of others."[14] Thus, sentencing judges must impose sentences that are apt, not merely to prevent a convicted criminal from interfering with others, but also to enable the prisoner's rehabilitation so as to resume citizenship in the free society[15]. They must seek to ensure that each and every citizen, including a convicted criminal, "is properly safeguarded by the law against the predations of others."[16] That means that a sentencing judge must endeavour not only to protect society from the risk of a convicted criminal re-offending but also to protect the convicted criminal from the risk of other prisoners re-offending while in jail. [13]Braithwaite and Pettit, Not Just Deserts: A Republican Theory of Criminal Justice, (1990) at 55.[14]Braithwaite and Pettit, Not Just Deserts: A Republican Theory of Criminal Justice, (1990) at 57.[15]Duncan v The Queen (1983) 47 ALR 746; Bell (1981) 5 A Crim R 347 at 351-352.[16]Braithwaite and Pettit, Not Just Deserts: A Republican Theory of Criminal Justice, (1990) at 57.