Bailey v Director of Public Prosecutions [1988] HCA 19; (1988) 78 ALR 116; (1988) 62 ALJR 319; (1988) 34 A Crim R 154 (3 May 1988)

HIGH COURT OF AUSTRALIA

KENNETH WILLIAM BAILEY v. DIRECTOR OF PUBLIC PROSECUTIONS
F.C. 88/017

High Court of Australia
Mason C.J.(1), Wilson(2), Brennan(1), Dawson(1) and Toohey(1) JJ.

CATCHWORDS

HEARING

Canberra
3:5:1988

DECISION

MASON C.J., BRENNAN, DAWSON AND TOOHEY JJ. Under s.5(1)(c) of the Criminal Appeal Act 1912 (N.S.W.) a person convicted on indictment may appeal to the Court of Criminal Appeal with the leave of the Court against the sentence passed on his conviction. In contrast with special leave to appeal, which is attracted only by some special feature of the case, leave to appeal is ordinarily granted when the applicant makes out a sufficiently arguable case that the sentence imposed is inappropriate in all the circumstances.

2. The applicant before the Court of Criminal Appeal raised a case which arguably called for consideration of the principles which the Court of Criminal Appeal of South Australia had laid down in Reg. v. Smith (1987) 44 SASR 587. In the present case, it appeared for the first time before the New South Wales Court of Criminal Appeal that at the time when the applicant was sentenced he had been infected with the AIDS virus though he was virtually without symptoms. The consequence of the discovery of this infection was that the applicant would be detained, not among the general gaol population, but in a special unit which is said to be more stressful than the general gaol by reason of its isolation. There was evidence that stress has a potentially adverse effect on the development of AIDS symptoms.

3. After a full hearing, the Court of Criminal Appeal reserved its decision. The majority of the Court (Street C.J. and Slattery C.J. at C.L.) refused leave to appeal. Kirby P. dissented. The majority stated its reasons with elliptical brevity:

" In this application we are of opinion that a
case has not been made out on the merits
justifying the intervention of this Court in
relation to the sentence passed on the appellant.
If it be necessary to reconsider the principles
governing the respective roles of the Court of
Criminal Appeal and the Corrective Services
administration, for reasons which we need not
elaborate we do not consider that this is an
appropriate case in which to undertake that task.
In our view, leave to appeal should be refused;
the whole of the time served should count."

4. When the Court of Criminal Appeal is satisfied that an application for leave to appeal against sentence is without merits, it may rightly refuse leave to appeal rather than grant leave and dismiss the appeal. The grounds of refusal of leave should be stated, though they need not be elaborated. But where there is a sufficiently arguable case, the more appropriate course is to grant leave to appeal, deal with the merits of the argument and then reach a decision allowing or dismissing the appeal. The form of the order will ordinarily be a matter of indifference when the reasons given by the Court for disposing of an application show that the case which he has raised has been duly considered, but the form of the order and the statement of the Court's reasons for disposing of the application are both material to an understanding of the way in which the Court apprehended the questions for its determination and the way in which it approached the answering of those questions.

5. In this case the reasons of the majority state that the merits were considered, but their Honours go on to say that they do not need to reconsider the principles governing the respective roles of the Court of Criminal Appeal and the Corrective Services administration. The latter statement apparently refers to the administrative arrangements made within the gaol for confining AIDS-infected prisoners within a special unit. However, the fact that that was the gaol practice was itself relied on as an aspect of the merits of the appeal. The words used by their Honours suggest that, leave to appeal being refused, the merits of the appeal as the applicant's counsel had propounded them had not received due consideration, their Honours having abstained from considering the relevance and weight to be attached in the sentencing to the applicant's state of health and the effect of imprisonment thereon: see Smith, at p 589.

6. Though a busy Court may not always express fully each step in its reasoning and it is inappropriate for this Court to look too jealously at the words an intermediate appellate Court employs in disposing of applications for leave to appeal against sentence, nevertheless the circumstances of this case are such that it must go back to the Court of Criminal Appeal for further consideration. The Court may conclude that the application lacks merit and we see no necessary error in its doing so, but that will be a matter for the Court in the light of the arguments advanced to it.

7. Accordingly, special leave to appeal should be granted. The appeal is allowed and the matter remitted to the Court of Criminal Appeal.

WILSON J. It is desirable to sketch the relevant history leading up to this application for special leave to appeal. On 8 April 1986 the applicant pleaded guilty to six counts contained within an indictment. Shortly described, there was one count of detaining a person with intent to carnally know her, three counts of sexual intercourse without consent, one count of escaping from lawful custody and one count of breaking, entering and stealing. The applicant was remanded for sentence. On a date during that month, while receiving treatment in the prison hospital, he requested a blood test as a precautionary measure to make sure that he was not suffering from the AIDS virus. His then legal advisers were not informed. On 2 May 1986 he was sentenced to an effective term of 7 1/2 years with a non-parole period of 4 1/2 years to date from 26 August 1985. On 7 May 1986 the applicant was informed that the test for AIDS antibodies was positive. He was thereupon transferred to the Malabar Assessment Unit. On 22 May 1986 he applied to the Court of Criminal Appeal of New South Wales for leave to appeal against the sentences imposed on him on 2 May 1986.

2. A full hearing of the application as if it was an appeal was undertaken by the Court of Criminal Appeal on 15 May 1987. At the conclusion of the argument, the Court reserved its decision. On 11 September 1987, the Court, by majority, refused leave. The reasons for judgment of the majority (Street C.J. and Slattery C.J. at C.L.) were expressed as follows:

"In this application we are of opinion that a
case has not been made out on the merits justifying
the intervention of this Court in relation to the
sentence passed on the appellant. If it be
necessary to reconsider the principles governing
the respective roles of the Court of Criminal
Appeal and the Corrective Services administration,
for reasons which we need not elaborate we do not
consider that this is an appropriate case in which
to undertake that task. In our view, leave to
appeal should be refused; the whole of the time
served should count."

The third member of the Court, Kirby P., dissented. For reasons identical to those given by the Court of Criminal Appeal of South Australia in Reg. v. Smith (1987) 44 SASR 587, his Honour would have granted leave to appeal and reduced the applicant's non-parole period to 2 1/2 years.

3. In the course of the hearing of the application by the Court of Criminal Appeal, the Court received without objection fresh evidence detailing the taking of the blood test and its result and explaining the additional stress imposed upon a prisoner by reason of his detention in the Malabar Assessment Unit. Indeed, it appears that the fresh evidence was the sole ground upon which the argument against the sentence was developed by counsel for the applicant. The evidence was not contradicted and there is no reason to suppose that it was not accepted by the whole Court.

4. The argument advanced in this Court for the applicant is that the fresh evidence clearly raised a matter deserving of consideration and that therefore the Court erred in refusing leave to allow that matter to be considered. Strictly speaking, the submission is well founded in part. The fresh evidence did raise a question deserving of consideration and therefore leave should have been given. But the matter does not rest there. As I have said, the application for leave was argued on the merits of the case as if it were an appeal as of right. The hearing being concluded and the matter reserved for decision, the parties clearly did not expect a further hearing in the event that leave was granted. The reasons of the majority are to be interpreted against this background. Their Honours, dealing with the merits, were of the view that no case for interfering with the sentence had been made out. It is not suggested by counsel for the applicant that the relevant principles as outlined in Smith were the subject of any contest at the hearing. In my view it is impossible to interpret the finding of their Honours as reflecting a failure to consider the only question in the case, namely, the effect if any that the fresh evidence should have on the sentence. There were no other "merits" to be considered.

5. It may be said that the refusal of their Honours to reconsider the principles governing the respective roles of the Court of Criminal Appeal and the Corrective Services administration on the ground that it was not an appropriate case in which to undertake that task shows a refusal on the part of their Honours to consider the merits of the attack on the sentence imposed by the trial judge. However, I am unable to read the reasons of the majority in that way. In the absence of a transcript of the hearing we do not know precisely how the question of the respective roles of the Court and the department arose, but in my opinion their Honours' statement on that matter is understandable only in the light of a conclusion that the "merits" did not warrant any interference with the sentence. At the very least, that means that the power of the Court to interfere on the basis of the principles in Smith was accepted by the Court but that it was not a proper case for the power to be exercised. It was therefore an inappropriate case in which to consider the respective responsibilities of the Court and the department. It was inappropriate in the sense that, however great might be the responsibility resting on the Court, the circumstances did not warrant any interference with the sentence.

6. There is nothing in the facts of the case that causes me to doubt the construction of their Honours' reasons that I have outlined. In Smith the principles were applied to reduce the non-parole period from 3 years to 9 months. However, in that case the offender "had no relevant convictions prior to the subject offending and ought to be a good candidate for parole" (p 589). On the other hand, the present applicant has a bad criminal record. He was released from prison only two days before the commission of the sexual offences. It was not unreasonable for their Honours to have concluded that the threat to his health if his incarceration continued did not warrant a reduction in the non-parole term of 4 1/2 years. The fact that I myself may have come to a different conclusion and effected some reduction in the term is not a consideration that would warrant the grant by this Court of special leave.

7. The Smith principle was expressed by King C.J. (at p 589) in the following terms:

"Generally speaking ill health will be a factor
tending to mitigate punishment only when it appears
that imprisonment will be a greater burden on the
offender by reason of his state of health or when
there is a serious risk of imprisonment having a
gravely adverse effect on the offender's health."

The tragic circumstance in the present case is that it would seem to be true that the isolation of the applicant in the Malabar Assessment Unit will promote stress which in turn will probably have an adverse effect on the development of the disease. This consequence would ordinarily give rise to an expectation that, there being no appeal by the Crown on the ground that the fixing of a non-parole period of 4 1/2 years was manifestly too lenient, there is no alternative but to recognize the presence of the mitigating factor of ill-health by some reduction in the non-parole period. But such an expectation must yield to the circumstances of a particular case. The applicant was entitled to expect no more than that the Court of Criminal Appeal would fairly consider the fresh evidence. As I have sought to explain, my reading of the admittedly brief reasons of the majority yields the conclusion that their Honours did give it consideration but concluded in the circumstances that the 4 1/2 years non-parole period should stand. If it were the case that their Honours had taken the view that they did not accept the Smith principle then it is inconceivable that they would not then have embarked on the very question that they found it inappropriate to consider. Furthermore, the Smith principle has already received recognition in earlier decisions of the Court. In Reg. v. Vachalec 1981 1 NSWLR 351, at p 353, the Court said:

"It is obvious that imprisonment will always
impose physical and emotional hardships and
deprivation upon the person imprisoned. But there
can be cases where that hardship and deprivation
would be particularly aggravated by matters
subjective to the prisoner and this is a proper
consideration to be taken into account by a
sentencing judge."

See also Reg. v. Perez-Vargas (1986) 8 NSWLR 559.

8. The fact that their Honours concluded their brief judgment by refusing leave has led the applicant to misunderstand their reasons. Strictly speaking, it may have been a more appropriate reflection of the course of their reasoning to have granted leave but dismiss the appeal. But in my opinion, that is a matter of form which supplies no reason for rejecting the clear tenor of the reasons. The question of leave received no specific mention in the course of the hearing and the case was heard, and in my view determined, in accordance with the usual practice, as an appeal against sentence.

9. Despite the sympathy that one feels for a person in the position of the applicant, I am unable to uphold the proposition upon which the success of the application depends, namely, that the Court of Criminal Appeal failed to consider the merits of the appeal.

10. I would grant the application for an extension of time but refuse the application for special leave to appeal.

ORDER

Application for extension of time in which to apply for special leave to appeal granted.

Application for special leave to appeal granted.

Appeal allowed.

Order that the order of the Court of Criminal Appeal of the Supreme Court of New South Wales be set aside and that the matter be remitted to that court.