York v The Queen

[2004] HCATrans 521

[2004] HCATrans 521

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B55 of 2004

B e t w e e n -

GLORIA JEANETTE YORK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 DECEMBER 2004, AT 11.17 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR A.J. KIMMINS, for the applicant.  (instructed by Ryan & Bosscher Lawyers

MRS L.J. CLARE:   If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J:   Yes, we would be assisted to hear first from you, Mrs Clare.

MRS CLARE:   May it please the Court.  The decision of the Court of Appeal majority really comes down to a conclusion that the original sentence was manifestly inadequate.  It held that the sentence was so serious, that notwithstanding the co‑operation, the plea of guilty ‑ ‑ ‑

CALLINAN J:   Notwithstanding that she might be killed in prison, is that what it amounts to, because was that not the finding at first instance?  Did not the trial judge find that there was a real risk that if this woman went to prison, unless very special arrangements were made for her, she might be killed in prison?

GUMMOW J:   Application book page 57, line 50.

MRS CLARE:   Yes.

CALLINAN J:   That finding having been made and having been made on evidence, why was it not within the trial judge’s sentencing discretion to make what was admittedly a very unusual, but nonetheless, perhaps not inappropriate, sentencing order?

MRS CLARE:   The conclusion that the ‑ ‑ ‑

CALLINAN J:   We do not have corporal or capital punishment in this country, Mrs Clare.

MRS CLARE:   No.

CALLINAN J:   We do not send people to prison in order to be murdered, and the response on the part of the Corrective Services was frankly a disgrace, and the Court of Appeal thought so and said as much.

MRS CLARE:   That is so, but, with respect, it is difficult to see on what basis that evidence was actually received into the Court of Appeal.

CALLINAN J:   Was it objected to?

MRS CLARE:   It was called for by the Court of Appeal.

CALLINAN J:   Why cannot the Court of Appeal hear fresh evidence?

MRS CLARE:   In relation to an application by the Attorney for an increase in sentence ‑ ‑ ‑

GUMMOW J:   I think at the end of the day that what the Court of Appeal may have said was that that finding by the primary judge could not be one of the other relevant considerations mentioned in section 9(2)(q) of the Penalties and Sentences Act 1992, and that may not be right. Is that not what it comes to, in terms of the Act?

MRS CLARE:   There is a very broad discretion in terms of relevance for sentencing, and section 9 is very broad.

GUMMOW J:   And we have to bear in mind too that the custodial authorities may themselves encounter some civil liability for what could take place in tort.  That could be so, could it not?

MRS CLARE:   Yes, but if I can just go back to the basis on which the applicant was sentenced originally.  Her counsel never challenged the capacity of Corrective Services to manage the risk in her case.  The proposition put by counsel was that it would be harder for her in prison because of the fact that she had been an informant, and because arrangements would have to be made for her safety.  That concession or that admission that it would be harder for her appears at page 32 of the record at the bottom of the page.  But there was no contention that the risk was such that it could not be managed and, in fact, reliance was placed upon information received from an intelligence officer of Corrective Services that the applicant would best be placed in Townsville.

If I could just take further the approach of counsel at first instance.  It is this.  He recognised that the applicant, in all of the circumstances of this case, acknowledging the substantial co‑operation that she had shown as an informant, and recognising the risks to her because of that fact, counsel acknowledged that it was a case where she would have to go to gaol.  Furthermore, his submission on sentence was something in the vicinity of the ultimate penalty imposed by the Court of Appeal.  At page 32, line 65 counsel said that:

She knows she must go to gaol –

He spoke about a sentence in the order of five years at page 33.

CALLINAN J:   Yes, but counsel does not impose a sentence. 

MRS CLARE:   No.

CALLINAN J:   I can remember a time, Mrs Clare, when counsel did not make any submissions descending to any period of time at all.  In fact, it is a reasonably recent development for the Crown to make submissions about the period of detention.

MRS CLARE:   But the approach of counsel in the circumstances where he is fully informed of all of the circumstances has to be relevant to an assessment of the risk.

CALLINAN J:   Yes, but it is a matter for the judge to decide the sentence, not for counsel and not for the Crown Prosecutor either.

MRS CLARE:   Well then, there comes a second layer to this, and that is the ability of the Court of Appeal to reach the conclusion that the sentence in all of the circumstances was manifestly inadequate.  It is well settled that in an appropriate case, there should be substantial discount for an informant who co‑operates at such a level that there is a high public benefit, and who attracts a risk of real personal danger.  But there has to be a balance in giving that count of leniency so that the ultimate sentence, with reference to the other circumstances and the conduct of the offence itself, there has to be a balance so that the ultimate sentence is not an affront to the community, to community standards.

CALLINAN J:   If somebody is murdered in prison, I regard that as an affront to the community.

MRS CLARE:   Yes.  The evidence in this case was that there were threats.

GUMMOW J:   Can I take you to the Court of Appeal judgment, the majority judgment and we have to bear in mind Justice White dissented - the dissenting judgment – the majority judgment at page 110, paragraph [22]:

This case highlights the onerous responsibility placed on those persons responsible for administering our prison system.  Regrettably it would appear that the Department was not in a position to demonstrate to this court that it has the capacity to deal adequately with problems highlighted by this case.  But –

and this seems to me the problem –

as we have said, that cannot justify the court in refusing to send a criminal to jail where that is the only appropriate penalty available under our law.

Now, the appropriateness of the penalty involves all those matters as set out in the section, one of which are the relevant circumstances, and at the moment, and this seems to be the approach taken by Justice White, why could not these very alarming circumstances be taken into account?  Why was not the majority wrong in saying they could not?  That seems to me to tender the issue of ‑ ‑ ‑

MRS CLARE:   With respect, the judgment goes no further than simply saying that in the circumstances of this case, it was not such a risk that warranted her immediate release without serving a day in custody, but it is not, as my learned friend attempts to contend, a judgment which says there must always be – or that this fact, this issue is irrelevant.  The very great attention that was paid to it by the Court of Appeal shows just how serious the consideration given to it was ‑ ‑ ‑

GUMMOW J:   They seem to have thought their hands were tied by the law, and what I was suggesting to you is that their hands were not tied.  Now, I might be right or wrong in that, but that seems to me a question.

MRS CLARE:   That passage that your Honour has referred me to does on its face tend to raise that proposition, but other aspects of the majority judgment are to the contrary.  The appealable error that was identified in the approach to the calculation of the sentence in the court below, that is, in including this overarching issue of risk in custody in the quantification of the sentence was said to be an error, but rather that the question after discounts had been considered as to what would be an otherwise appropriate sentence, the question would then have to be considered, said the majority, as to whether or not the risk was so great as to warrant ‑ ‑ ‑

CALLINAN J:   But Mrs Clare, the Court of Appeal or the majority seem to have said that, and I am looking at the foot of page 109:

Once this court accepts that the risk to a criminal’s safety whilst in prison was such that the otherwise appropriate penalty, namely imprisonment, ought not be imposed then the whole of the criminal justice system . . . is undermined.

Now, I do not see that that is necessarily so at all, and that seems to be, with all due respect, a statement of an erroneous principle intended to be of general application, and it is also wrong in fact.  It is not going to undermine the system.

MRS CLARE:   My argument in response to that, your Honour, is that it is a statement made in the context of this particular case, and I will seek to take the Court to two issues related to that in a moment.  But when one considers, for example, what is said at page 108 in paragraph [11] about the question that needs to be asked at the end of the process:

Then as a separate issue the question should have been addressed as to whether there was proper ground for not imposing that sentence because of the risk to the respondent’s safety whilst in prison.

That, in my submission, is an acknowledgment that the proper approach to the sentence was such that the question should be asked at the conclusion of the calculation of an otherwise appropriate sentence.  If that is correct, then by implication it suggests that there must in each case be an examination of this question, that is, of the risk in the context of the facts of the case. 

In this case, there had been threats to this woman which were accepted as being legitimate and genuine, but the fact remained that there had been, despite opportunity, no attempt to physically harm her over the entire period.  Furthermore, in considering the position in relation to her co‑operation, the court had to consider the gravity of the offence itself.  It was accepted that the appropriate starting point was a term of 10 to 12 years which translated would mean an earliest release stage of 8 years, up to 9.6 years. 

Her conduct over the eight months of the offence of trafficking was really or could really be described as a cynical exercise in the trade of serious drugs, heroin, methylamphetamine and cannabis.  She was a woman who had a very substantial criminal history dating back to 1975, and she was a person who was in this particular offence, this particular business of making money.  It was purely a commercial enterprise.  She chose to take a commercial risk. 

That meant not only with the knowledge of the misery and harm that such a trade inflicts on others, but because of her own circumstances, she was a person who was well aware of the inherent dangerousness that the drug trade carried.  She was an associate of the person Lace, who was the man threatening her, she had been an associate of his.  He had actually described to her his murder the day after it happened, so that was back in July of 1999. 

Her offence of trafficking commenced five months later, four months later.  Her co‑operation with the authorities in respect of Lace was not initiated out of any noble motives, but rather because she wanted to get revenge against Lace.  Further to that, she carried on the business of trafficking or she commenced the business of trafficking after she ‑ ‑ ‑

CALLINAN J:   We understand all of the facts of it, we understand the seriousness of it.  That is really not the point with which you have to deal.  We understand all of that, Mrs Clare.  You know the point with which you have to deal.

MRS CLARE:   There were conflicting policy issues as there always are, in respect of informant discounts.  On the one hand, the court needs to encourage those offenders who have knowledge of serious crime to be co‑operative and provide evidence.

CALLINAN J:   Have a look at paragraph [18] in the Court of Appeal at page 109.  Even the Court of Appeal had a deep sense of unease about this.

MRS CLARE:   Paragraph [18] demonstrates, in my respectful submission, that the majority simply disregarded the evidence of the corrective services officer that was given on appeal.

CALLINAN J:   They said more than that.  It accepted that there had been murders in prisons.

MRS CLARE:   Yes.

CALLINAN J:   And it was very concerned about that and about Mr Taylor’s unsatisfactory attempt to dispel the court’s deep sense of unease about this matter.  That is the matter you have to address.  Everybody accepts it is a very serious offence, a very serious offence indeed which would normally result in a long period of incarceration.  But people are not sent to prison to be murdered or punished physically in this country.

MRS CLARE:   And the prosecution certainly would never seek that, but there is an issue with acting in circumstances where there are threats to say that a sentence that would normally be so substantial ‑ ‑ ‑

CALLINAN J:   It was more than threats, Mrs Clare.  The court was very concerned – the Court of Appeal said it was very concerned and as Justice Gummow has put to you, the courts seem to take the view in the end that this was a matter that was not relevant.  Is the relevant legislation, the Act to which Justice Gummow referred, mentioned anywhere in the submissions?

MRS CLARE:   No.

CALLINAN J:   Or, indeed, in the Court of Appeal’s judgment?

MRS CLARE:   No.

CALLINAN J:   It seems to me, and I have observed this on other occasions, that in Queensland nobody seems to pay any attention at all to the enactment governing sentencing and it lists a number of matters and nobody ever seems to refer to them.

MRS CLARE:   Those principles in section 9 are, if I can call without being disrespectful, largely motherhood statements, statements that everybody knows ‑ ‑ ‑

CALLINAN J:   No, they are not.  They are solemn enactments of the Queensland Parliament, and that response just bears out what I have been saying, that they are to be ignored.  You treat them as motherhood statements and nobody pays any attention to them.

MRS CLARE:   My meaning, with respect, was not ‑ ‑ ‑

CALLINAN J:   A very unattractive submission.

MRS CLARE:   I apologise for that, your Honour, but my meaning was simply to be that these are principles that are well known and very well entrenched in the criminal practice in Queensland.  They are statements, for example, that – section 9 contains statements that imprisonment is to be a last resort for first offenders, for young offenders.  It attempts to set out some of the things which might be relevant on sentencing with an overarching coverall conclusion that anything else might be taken into account which could be relevant.

But in this case, even the dissenting judgment, that of Justice White, never went so far as to conclude that Corrective Services did not have the capacity to take care of this woman.  Justice White said that ‑ ‑ ‑

GUMMOW J:   Yes, go on, Mrs Clare.

MRS CLARE:   Justice White at page 118 in paragraph [62] of the court - her reasons essentially, for not falling in with the majority, she says at about the fourth line:

This, it cannot be emphasised too strongly, is far from concluding that the Department is unable to keep the respondent safe from the harm to which the material clearly shows she is exposed.  The Department has chosen not to be responsive to the uncontested detailed evidence of risk . . . Had I been satisfied on the further evidence . . . of an appropriate plan for the respondent I may well have allowed the appeal and ordered –

the sentence of the majority.  The complaint of the entire Court of Appeal was that Corrective Services was not prepared to give a detailed plan for the management of the prisoner prior to having her come into custody for an assessment, but there is no conclusion by the Court of Appeal that Corrective Services could not manage the risk involved in her safekeeping. 

GUMMOW J:   Yes, Mrs Clare, I see the red light is on.

MRS CLARE:    Thank you.

GUMMOW J:   Mr Walker, if we were minded to grant special leave, what would happen to the interlocutory regime which presently operates as indicated at page 128, namely, that under order of President McMurdo, I think, the bench warrant is lying in the Registry of the Queensland court until the outcome of today’s application?

MR WALKER:   Your Honour, it occurs to us that the proper course, recognising this Court’s usual practice, is for us to make application presumably to the President, certainly in the Court of Appeal, for that interlocutory regime to be extended.

GUMMOW J:   Yes, well I think ‑ ‑ ‑

MR WALKER:   That is, this Court should not ‑ ‑ ‑

GUMMOW J:   We could grant special leave, suspend the operation of the order of the grant until such time as you had approached and got an order extending until termination of our appeal.  Otherwise, what you have at the moment will explode immediately we grant leave.

MR WALKER:   Yes, thank you.

GUMMOW J:   You understand what I am saying.

MR WALKER:   I do.  A favourable determination of the application will bring the regime to an end.

GUMMOW J:   Yes, unless in the meantime you can go back to Justice McMurdo.

MR WALKER:   Yes.

GUMMOW J:   Yes, let us ask Mrs Clare if there is another way of doing it.  Would there be any opposition on your side, Mrs Clare, if we were to grant special leave, to us ourselves directly making an order?

MRS CLARE:   No.

GUMMOW J:   That might be the most direct way of doing it.

MR WALKER:   Your Honour, there is one other matter.  Some, with respect, proper strictures were taken in the written submissions about an argument being advanced that it was wrong for policy to be taken into account.  Could we have leave if ‑ ‑ ‑

GUMMOW J:   I am looking at your draft notice at page 133.  You would need to amend that, I suspect.

MR WALKER:   Yes.  May we have leave to do so, so as – for example, ground 2(b), I would not wish to argue that it was wrong to take into account a policy consideration rather than to take into account an inappropriate policy consideration.

GUMMOW J:   Yes, it seems to me also that the notice of appeal as Justice Callinan pointed out, is another manifestation of the idea that you never look at the statute.

MR WALKER:   Yes, yes.  Justice White ‑ ‑ ‑

GUMMOW J:   And that buried in here is an issue of law, under the statute.

MR WALKER:   Yes.  Justice White, to be fair I should record at page 112 of the application book, paragraph [40] does specifically refer to the Act.

GUMMOW J:   Yes.

MR WALKER:   However, there is a more precise reference even than her Honour’s that we would wish to put in our notice of appeal.

GUMMOW J:   Very well.

MR WALKER:   May it please your Honour.

GUMMOW J:   The registry spoken of at page 128 is the registry of the Court of Appeal of the Supreme Court of Queensland, is it not?

MR WALKER:   Yes, your Honour. 

GUMMOW J:   There will be a grant of leave in this matter until determination of the appeal to this Court or further order of this Court.  The bench warrant for the arrest of the appellant will continue to lie in the registry of the Court of Appeal of the Supreme Court of Queensland.  Is that the order?

MR WALKER:   May it please the Court.

AT 11.44 AM THE MATTER WAS CONCLUDED