Z v The Queen

[2007] HCATrans 409

[2007] HCATrans 409

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S422 of 2006

B e t w e e n -

Z

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 AUGUST 2007, AT 4.01 PM

Copyright in the High Court of Australia

MR G.P. SEGAL:  May it please the Court, I appear for the applicant.  (instructed by Messrs Baker Ryrie Rickards Titmarsh Sutherland)

MS W.J. ABRAHAM, QC:   If it please the Court, I appear with my learned friend, MR C.S. DOBRASZCZYK, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Segal.

MR SEGAL:   If your Honours please.  This is an application for leave to appeal against a decision of the New South Wales Court of Criminal Appeal who took a different view to Judge Graham on a sentencing matter in the District Court.  His Honour Judge Graham delivered himself a 48‑page discussion or remarks on sentencing in which, in my respectful submission, he very carefully analysed all of the issues involved.  The decision of the Court of Criminal Appeal, in my respectful submission, can cause some considerable concern in the administration of the law.  If I could take you to the first of those and that concerns the role of mental illness in the sentencing of defendants. 

There are really two aspects to it.  One of them has to do with the particular application in that case of the role of mental illness that his Honour the sentencing judge took in the context of the decision of this Court in Markarian and I will come to that secondly, if I may.  The first is generally the way in which mental illness is and ought to be dealt with.  The position here is that there was no dispute at the sentencing hearing that this applicant had suffered a significant mental illness.  That was not in dispute.  It was not in dispute that it was current at the relevant time.  The only issue that was in dispute was whether or not it had a causative relationship to the embarking upon by the applicant of the criminal activities. 

That matter was the subject of considerable evidence, cross‑examination and submission on both sides and his Honour in a carefully reasoned judgment concluded that the causal relationship had been established.  The Court of Criminal Appeal ultimately gave it no weight whatsoever.  It did not figure at all in the consideration that they gave to sentence.  It is, in my respectful submission, beyond doubt that the law has so far established that such a matter ought to be given weight and one might say, well, then what is still in doubt?  The reason there is a doubt is because what has happened now in this decision of the Court of Criminal Appeal is this, that they have adopted an approach of saying this, if there is a mental illness, it has got to be one which goes to the knowledge of the offence and its gravity and if it does not, then it will be given virtually little or no weight.  That is what has happened here.

KIRBY J:   It does not sound like a High Court point, really, with respect to you.  We are talking about 200,000 MDMA tablets, a very large amount, and the sentence that was imposed at trial was 5 years 2 months and it has been increased to 8 years 4 months.  How are we going to be able to get into that sort of territory?  It really is not the sort of thing we are doing all the time, whereas it is the sort of thing the Court of Criminal Appeal is doing all the time.

MR SEGAL:   Because it is not a matter of this Court, with great respect, your Honour, looking at the difference in one sentence to another sentence.

KIRBY J:   I do not think we had MDMA tablets when I was on the Court of Criminal Appeal.  Maybe they were there, but I do not remember doing any cases with that particular crime.  I do not know what its incidence is.  I do not know how frequent the cases are that come.  I do not know what the comparative sentencing figures are or the ranges are.  This Court has looked at issues of sentencing principle but this does not seem to be a case about sentencing principles.

MR SEGAL:   May I say the principle involved is – and it does not require any knowledge of the matters your Honour just recited – how does one understand the role of mental illness in sentencing?  That is the principle.  There are several cases referred to in the judgment of Justice Beazley, Israil, Henry and such, in which the role of mental illness as a concept and how it should be treated in the sentencing process is discussed.

GLEESON CJ:   It varies from case to case.  The fact that you are a dangerous psychopath may not be a mitigating factor.

MR SEGAL:   It may be a matter – and there is plenty of cases that say so – that may incur the need on the part of the Court to say, subject to what has been said in Veen’s Case about protective custody concepts, of a sentence that might be longer than otherwise, provided it is still an appropriate sentence, but that is not what we are talking about here.  What we are talking about here is an attempt or a step taken by the court in this State and one where it has followed a decision in South Australia to say that the way you analyse mental illness is to look at the knowledge of the offender.

In my respectful submission, it is that principle that requires none of the matters to which your Honour Justice Kirby just referred to be taken on board but this Court needs to lay down some principles given that there is tension between the cases referred to in my written submissions.  The fact of the matter is that when one considers ‑ ‑ ‑

GLEESON CJ:   There is no doubt, is there?  There is no disagreement between judges that the relevance of mental illness varies with the circumstances of the case?  It varies according to the nature of the mental illness and the nature of the offence.

MR SEGAL:   With great respect, there is, because if one accepts the law as put by Justice Beazley in the majority in the Court of Criminal Appeal in this State, one all but discards other functions of mental illness excepting those relating to the accused’s or the offender’s knowledge of the action that he does.  If this Court does not intervene, that is the way the law of New South Wales is and the way in which it will be seen through this country because Wiskich, the case relied upon by Justice Beazley, was to the same effect, whereas, there are other cases in New South Wales where Chief Justice Spigelman referred to, for example, the relevance of the ability of the offender to reason.

What we had in this case was a very clear finding – and this is by the sentencing judge – and it was accepted in the Court of Criminal Appeal, that this man’s ability to process reasoning, to process information was significantly limited.  That is a finding that we have in our favour.  The Court of Criminal Appeal has said, if that is so, and it may be so, that is not the issue.  What is put for this Court’s consideration is, should it be the issue only as described by the Court of Criminal Appeal or should all of the other matters, including the ability of somebody to process information, which was a finding we have in our favour, that is, he could not, be ignored?

We know in the result it was ignored, that is clear enough, and we know from what has been said by Justice Beazley and Justice Howie’s concurrence, that they regarded that question of the ability to process information as not a matter to be taken into account.  That is a matter of principle.  It is not a matter of knowing about the drug.  It may be that this Court, if it were to find favour of my submissions, would then turn around and say that the matter was to be remitted back to the Court of Criminal Appeal, which not uncommonly happens, to be determined in accordance with the views of this Court.

There is no getting out of the fact that that is a significant matter of principle and that the courts of each State are regularly faced with sentencing the mentally ill.  It is a matter that is referred to at some length in the paper which I included in the materials provided yesterday – that is a discussion paper from the Judicial Commission of New South Wales – this real problem of what to do and what should the law be about sentencing mentally ill.  It is now going to be the subject of debate by the Honourable Justice Gregory James who is now doing a report ‑ ‑ ‑

KIRBY J:   That is very sensible and that is where these debates should take place but in this case it all depends on the evidence that was adduced and the reaction to that evidence by the sentencing judge in the Court of Criminal Appeal.

MR SEGAL:   With great respect, that may or may not give rise to a legislative action at some time in the future, we do not know.  All through this country the judges are faced with this problem and it may be correct to say each one will turn on its own facts.  No doubt that is always right and you can take any sentencing issue and say it will turn on its own facts at the end of the day, but that still does not deprive this Court, in my respectful submission, of the need to say, is it right to say the only issue that is involved in these considerations is a question of knowledge or does one look at all of the processes, as Justice Adams points out in his significant dissenting judgment in this case, and say it may not be just knowledge?

He says Wiskich is wrong and my respectful submission is his Honour is right in saying that.  But that principle requires elucidation by this Court otherwise we are left with the state of the law which, in my respectful submission, sits a long, long way behind the reality of psychological and psychiatric development which tells us that this is a significant mental injury, which tells us that it operates in any number of ways and many of those ways impact upon the types of considerations that the courts have laid down in considering sentencing, that is, it impacts upon a person’s ability to process information and therefore culpability, general deterrence, specific deterrence are therefore impacted.

For this Court to leave the Court of Criminal Appeal’s decision standing has the effect, as I have indicated, of leaving the law in a state, in this State and other States, where the judges undertaking sentencing exercises will be constrained by that notion of the view of mental illness.  It is simply, in my respectful submission, inappropriate for the courts to be left in that state.  That does not put upon this Court the obligations that your Honour Justice Kirby put, so, in my respectful submission, that is a matter of significant principle.  It may also say this, that in respect of knowledge, what is it?  It is not that simple.  If I could give an example, two people go to a soccer match, one supports one team, one supports another team.

KIRBY J:   You are getting into territory I do not know much about.

MR SEGAL:   Your Honour, I have had to learn very quickly from an offspring who now likes that game, so I will give you a quick lesson.  I have learnt it very quickly.  The point is, whatever the game may be, one will be happy about the result, one will see it as leading to a semi‑final or a grand final, the other person who back the losing side will see it differently.  This is what happens with this type of mental illness.  They both know there is a soccer match, they both know the score but they will perceive it emotionally and realistically differently and this is what happens with some mental illness.

It is not a question of a simplistic notion of knowledge.  He know it wrong.  If you read the transcript, which my learned friend has now put before you, of the Court of Criminal Appeal you will see how simplistic, with the greatest respect, the notion of knowledge is treated and it is just not real and it is for this Court, in my respectful submission, to say, when you are confronted with a case of mental illness you have to look at all of its perspectives on the medical evidence given to the court and see how that impacts upon the sentencing process and not confine yourself, well, he knew what he was doing.  That is to take us back almost to McNaughton days.

KIRBY J:   I understand the way you are put that but in the end we review all the judgments that are entered and when you actually look at the very serious nature that Parliament has assigned to this particular drug and the very large quantity that your client was involved in, one cannot really say, at least sitting where I do, that the substituted sentence in the Court of Criminal Appeal, even allowing for some factor of mental disability on the part of your client, that the final sentence imposed, which is 8 years 4 months with a non‑parole period, is excessive or is likely to be reduced by this Court.  What was the non‑parole period, on appeal?

MR SEGAL:   Effectively expiring in June 2009.

KIRBY J:   Yes.

GLEESON CJ:   Whereas the previous non‑parole period would have expired in January 2007.

MR SEGAL:   Correct.

GLEESON CJ:   So there is a two year difference.

MR SEGAL:   Your Honours, that is a significant amount of time for somebody in gaol.

GLEESON CJ:   Two days might be significant.

MR SEGAL:   It may be, particularly when we know the difficulty of incarceration this person is suffering and your Honours will have read that.  So, it is not, in my respectful submission, appropriate to minimise the impact upon anybody when it is a matter of criminal ‑ ‑ ‑

GLEESON CJ:   Nobody is attempting to do that.

KIRBY J:   No, I agree with that but it is not appropriate to minimise the seriousness of the offence to which Parliament has attached very severe punishments.  I mean, the amount of the drug that your client brought in was something like ‑ ‑ ‑

MR SEGAL:   He did not bring it in, your Honour.

KIRBY J:   I am sorry, the amount that he took delivery of, but it was some multiple of what was a commercial quantity.

MR SEGAL:   Thirty‑three times your Honour is looking for.

KIRBY J:   Thirty‑three times?

MR SEGAL:   Yes.  But, your Honour is saying maybe even if the Court of Criminal Appeal is wrong the result may be right, but, your Honour, that is to overlook an important issue.

KIRBY J:   No, but we sit here ultimately to review judgments, orders and dispositions and therefore you look at that and ask yourself, is the net result an apparent miscarriage of justice, and it does not call out to me to be one.

MR SEGAL:   May I just say this in passing, perhaps in Pearce’s Case your Honour Justice Kirby in the minority, as it were, took the opposite position, if I recall, because what happened there was ‑ ‑ ‑

KIRBY J:   Is this the Mule Case?

MR SEGAL:   No, it was a break, enter and damage case and assault.  In that case the majority took the view that it should go back because it was a mistake of reasoning whereas your Honour Justice Kirby took the view, well, maybe there is or maybe there is not, but the result of it was that the result would be the same, anyway, and it should not go back.  The majority took the view that there was a mistake and it had to go back and be fixed by the Court of Criminal Appeal and that is the case here.  It is not for this Court, with great respect, to worry too much as to whether or not the Court of Criminal Appeal sentence was right or wrong, ultimately, in terms of whether it was in discretion, because what is to happen in the assessment of the Court of Criminal Appeal’s decision is to determine whether it acted appropriately in its task.

KIRBY J:   I am not sure that is right, Mr Segal, because we sit here often and we see things in the reasoning of intermediate courts which we do not agree with but then you ask yourself, is the result wrong?  If it is not, we are not here to correct reasons, we are here to correct orders.

MR SEGAL:   Indeed, that is exactly what your Honour said in Pearce but the majority took a different view.

KIRBY J:   I am nothing if not consistent.

MR SEGAL:   Who am I to be inconsistent with that, your Honour.  The point of the matter that remains, however, that his Honour Judge Graham who sentenced my client is a very experienced judge and who examined all of these issues in great detail and although the matter is one which calls for a maximum sentence of some great significance and is a very serious matter, your Honour has to consider whether or not that sentence which his Honour imposed was indeed appropriate because of all the circumstances he took into account and appropriately took into account, of which the mental illness is but one.

His Honour also took into account the very considerable assistance that he gave to the police.  The Court of Criminal Appeal reduced the amount of discount for assistance and for the plea of guilty from 60 per cent to 50 per cent.  In my respectful submission – and I am moving into another area now – there was absolutely no principle that established that proposition.  It was purely, as it is said in the cases, a particular discretionary discretion.  They are the words of Justice Samuels and  adopted by Justice Giles.

KIRBY J:   What was the final sentence that Justice Adams would have upheld because he agreed with some aspects of the majority in the Court of Appeal.

MR SEGAL:   Justice Adams would have only varied the Court of Criminal Appeal’s decision.  The only aspects he agreed with was on the issue of the accumulation or the partial accumulation of sentencing, otherwise he took the view that the sentence ultimately should not have been disturbed.

GLEESON CJ:   Yes, but bearing in mind the difference in the non‑parole period between the majority in the Court of Appeal and Judge Graham was about 18 months, what was the difference between Justice Adams and the majority?

MR SEGAL:   18 months is the answer to that.

KIRBY J:   It is not entirely clear, with respect, in his Honour’s reasons.

MR SEGAL:   No, I do accept what your Honour says.

KIRBY J:   Normally, a judge who disagrees ends by saying “I therefore propose” and then sharpens the point of difference.

MR SEGAL:   Yes, your Honour is correct, with all due respect to Justice Adams, in that regard.  It is clear enough, when you analyse it, that is the difference.  It could have been said more clearly, no doubt.  But the point remains that although your Honour might say this a very serious case and there is a very significant maximum penalty, that does not really take into account all of the other factors that made the sentence of his Honour Judge Graham correct.  He did not deal with it lightly at all.  So that in addition to the issue of the role of mental illness – and I will not repeat what I said there about its importance in the sentencing process and as a matter of principle – there is also the issue of the role of the Court of Criminal Appeal in, if I may say, with great respect, without any principle being espoused, just simply changing the discount in circumstances where we know this man, the applicant, is in a position of having to be in protective custody, partly for that reason, where we know the people by whom he had been engaged are people who would think nothing of putting him in danger ‑ ‑ ‑

GLEESON CJ:   You cannot extend your time indefinitely by avoiding punctuation, Mr Segal.

MR SEGAL:   No.  Thank you, your Honour, those are my submissions.

GLEESON CJ:   We do not need to hear you, Ms Abraham.

We are not convinced that the applicant has propounded a point of general principle concerning sentencing in cases where the prisoner standing for sentence has some proved mental infirmity.  Obviously the weight to be given to such a consideration depends on all the evidence and circumstances and the nature of the mental infirmity established.

We are not convinced that error has been shown in the approach adopted by the majority of the Court of Criminal Appeal nor do we consider that a miscarriage of justice has occurred in this case. 

Having regard to the actual orders of the Court of Criminal Appeal and to the very large quantity of the drug in question proved by the evidence the application for special leave to appeal is dismissed.

We will adjourn for a short time to reconstitute.

AT 4.23 PM THE MATTER WAS CONCLUDED