DL v The Queen

• Jurisdiction: Australia Federal only
• Judge: Bell,Keane,Nettle,Gordon,Edelman JJ.
• Judgment Date: 08 August 2018
• Neutral Citation: [2018] HCA 32
• Docket Number: S309/2017
• Court: High Court
• Date: 08 August 2018

[2018] HCA 32

HIGH COURT OF AUSTRALIA

Bell, Keane, Nettle, Gordon AND Edelman JJ

S309/2017

DL

Appellant

and

The Queen

Respondent

Representation

G A Bashir SC with G E L Huxley for the appellant (instructed by Matouk Joyner Solicitors)

K N Shead SC with T L Smith for the respondent (instructed by Solicitor for Public Prosecutions (NSW))

Criminal Appeal Act 1912 (NSW), s 6(3).

Criminal law — Appeal against sentence — Where appellant convicted of murder — Where primary judge found it probable that appellant acting under influence of some psychosis at time of offence — Where primary judge not satisfied appellant possessed intention to kill — Where primary judge's discretion miscarried by giving primary significance to standard non-parole period — Where Court of Criminal Appeal excised power to re-sentence — Where prosecutor conceded there was no issue with primary judge's factual findings — Where Court of Criminal Appeal found primary judge's findings open — Where Court of Criminal Appeal rejected primary judge's finding that appellant had suffered temporary psychosis which precluded forming intention to kill — Where Court of Criminal Appeal took into account evidence of appellant's progress since sentence on the “usual basis” as discussed in Betts v The Queen (2016) 258 CLR 420 — Where Court of Criminal Appeal failed to put appellant on notice of inclination not to act on concession made by prosecution — Whether denial of procedural fairness — Whether miscarriage of justice.

Words and phrases — “circumstance of aggravation”, “concession”, “miscarriage of justice”, “new evidence”, “objective seriousness”, “procedural fairness”, “re-sentencing”, “unchallenged factual findings”, “usual basis”.

1 Bell, Keane, Nettle, Gordon AND Edelman JJ. On 27 March 2008, following a trial in the Supreme Court of New South Wales (Hulme J and a jury), the appellant was convicted of the murder of a 15-year-old school girl, TB. The appellant was aged 16 years at the date of the offence. The offence occurred shortly before 4.00 pm on 19 July 2005. The appellant attacked TB on her way home from school. He stabbed her repeatedly to the upper back, upper chest, face and head. In all, there were 48 stab wounds. One wound penetrated the heart and the resulting blood loss led to death within a short interval. The appellant only broke off the assault when he was confronted by a passer-by.

2 In the course of the attack, the appellant cut his hand. Later that afternoon, he gave three different accounts to witnesses of how he had sustained the cut: he had fallen over a rock, he had cut his hand on a rose bush, and he had cut his hand on barbed wire. He was arrested on the evening of the assault and has been in custody since. He declined to be interviewed by the police and did not give evidence at the trial or sentence hearing. In interviews with psychiatrists and the author of a pre-sentence report, the appellant either denied involvement in TB's death or claimed to have no memory of it. The appellant had no other convictions and was described by witnesses at the trial as a shy, quiet and family-oriented youth.

3 It appears that before the trial, consideration was given by the appellant's legal advisers to the availability of psychiatric defences. Dr Nielssen, a forensic psychiatrist, interviewed the appellant in April 2007 and described him as having “an underlying schizophrenic illness” and determined that he was “probably concealing symptoms of mental illness”. Dr Nielssen considered that there was doubt as to the appellant's fitness to plead. In a supplementary report prepared in October 2007, Dr Nielssen adhered to his opinion of the appellant's underlying mental condition but assessed that the appellant was fit to plead.

4 The appellant did not raise the defence of mental illness or the partial “defence” of substantial impairment by abnormality of mind 1 at the trial. At the sentence hearing, psychiatric opinion evidence as to the appellant's mental state was adduced by the prosecution and defence. It will be necessary to refer to this evidence in detail later in these reasons. For the present, it suffices to note that the primary judge found that it was probable that the appellant was acting “under the influence of some psychosis” at the time of the murder. His Honour was not satisfied beyond reasonable doubt that the offence was premeditated and, in light

of the appellant's mental state, his Honour was not satisfied that the appellant possessed an intention to kill.

5 At the time, a standard non-parole period of 25 years' imprisonment applied to the offence 2. The primary judge applied the law as it was then understood 3, giving primary significance to the standard non-parole period in the determination of the appropriate sentence. The standard non-parole period, as it stood, represented the non-parole period for an offence in the middle range of objective seriousness for such an offence 4. The primary judge assessed that the offence was “a little below the mid-range” of objective seriousness. On 14 November 2008, the primary judge sentenced the appellant to a term of imprisonment for 22 years with a non-parole period of 17 years. The sentence was expressed to commence on 19 July 2005. The appellant will not be eligible for consideration of release on parole until 19 July 2022. The sentence will expire on 18 July 2027.

6 By notice filed on 14 April 2016, the appellant sought leave to appeal against the sentence on the grounds that the primary judge erred in his application of the standard non-parole period legislation in light of this Court's decision in Muldrock v The Queen5, and that the sentence was manifestly excessive. The prosecution conceded what was described as a “ Muldrock error”. This was a concession that it was an error to give primary significance to the standard non-parole period in determining the appropriate sentence. The Court of Criminal Appeal (Leeming JA, Rothman and Wilson JJ) was unanimous in

upholding this ground, a conclusion which enlivened the Court of Criminal Appeal's power to re-sentence the appellant 6.

7 On the hearing of the appeal before the Court of Criminal Appeal, neither party challenged the primary judge's factual findings. The prosecution acknowledged that the sentence needed to be adjusted in light of Muldrock, but submitted that the adjustment should be minimal. The Court of Criminal Appeal majority, Leeming JA and Wilson J, rejected the primary judge's finding of the appellant's mental state at the time of the offence. That rejection took into account evidence that had been tendered to show the appellant's progress in custody in the period since the sentence hearing. Their Honours found that the appellant intended to kill TB. Wilson J also found that the offence involved “some degree of premeditation”. Given these findings, Leeming JA and Wilson J concluded that no lesser sentence was warranted in law and the appellant's appeal was dismissed. Rothman J, in dissent, would not have departed from the primary judge's unchallenged findings. His Honour would have allowed the appeal and re-sentenced the appellant to a non-parole period of 12 years' imprisonment with a remainder of term of six years' imprisonment.

8 On 15 December 2017, Kiefel CJ, Bell and Keane JJ granted the appellant special leave to appeal. The appeal is brought on two grounds. The first ground complains that the appellant was denied procedural fairness. The second ground complains that the Court of Criminal Appeal erred in substituting aggravated factual findings, in the absence of challenge to the findings of the primary judge and in circumstances in which their Honours accepted that the findings of the primary judge were open. For the reasons to be given, the appeal must be allowed on the first ground and the matter remitted to the Court of Criminal Appeal.

The re-sentencing discretion

9 In a case in which the Court of Criminal Appeal finds that the sentencing judge's discretion has miscarried, its power to re-sentence is enlivened unless, in the exercise of its discretion, the Court of Criminal Appeal is satisfied that no other (generally lesser) sentence is warranted in law. As explained in Kentwell v The Queen, the Court of Criminal Appeal exercises an independent sentencing discretion in that it is required to form its own view of the appropriate sentence, rather than confining itself to the determination of whether the identified error

infected the sentence imposed below 7. Exceptional cases apart, the Court of Criminal Appeal's determination of the appropriate sentence is determined on the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post-sentence conduct 8.

The primary judge's reasons

10 At the sentence hearing, it was the prosecution's case that the offence was “‘at the very high end of objective seriousness’, ‘frenzied … full of hate and rage’, involving a specific intention to kill and ‘a very clear element of premeditation’”. The primary judge accepted that the attack was frenzied but he considered the further findings sought by the prosecution were “much more doubtful”. The submission that the offence was premeditated depended upon the inferences to be drawn from the timing and location of the attack, the appellant's possession of a knife, and the appellant's conduct in truanting from school that day. The attack took place shortly after TB got off the school bus, as she was taking a shortcut to her home through the car park of the Forresters Beach Resort. It was the first day at school following the school holidays. The appellant did not attend school that day. He returned home in the middle of the day, telling his mother, untruthfully, that he had left school early because he had...