R v M

CRIMINAL LAW - OFFENCES AGAINST THE PERSON - ATTEMPTED MURDER - DECLARATION OF SERIOUS VIOLENT OFFENCE - where applicant convicted of attempted murder - where applicant declared to be convicted of a serious violent offence - Penalties and Sentences Act 1992, s 161B(3)(b)

CRIMINAL LAW - JUDGMENT AND PUNISHMENT - APPEAL AGAINST SENTENCE - applicant's past co-operation and promise of future cooperation - need for separate consideration - Penalties and Sentences Act 1992 s 9, s 13A, s 188(2)

PROCEDURE - COURTS - RULES OF COURT - PROCEEDINGS IN OPEN COURT OR IN CAMERA - JUDGMENTS AND ORDERS - STATEMENT OF REASONS FOR DECISION - OTHER MATTERS - where part of proceedings in camera - power of Court of Appeal to proceed in camera - whether protection of offenders from recrimination sufficient reason to justify proceeding in camera - court to act publicly as far as it safely can - whether court has power to alter both open sentence and indicative sentence under s 13A(7)(b)(ii) of Penalties and Sentences Act 1992 - suggested procedure in s 13A matters upon appeal

Penalties and Sentences Act 1992 (Qld), s 9(2)(g), s(9)(2)(i), s 9(2)(q) s 161B(3)(b), s 13A, s 188(2), s 188(4)

Supreme Court of Queensland Act 1991, s 128

The Queensland Law Society Inc, Ex parte [1984] 1 Qd R 166, considered

R v AC [2001] QCA 56, CA No 234 of 1999, 27 February 2001, considered

R v Gladkowski [2000] QCA 352, CA No 165 of 2000, 1 September 2000, considered

Director of Public Prosecutions (Queensland) for the respondent

[1] THE COURT: This is an application for leave to appeal against a sentence for attempted murder. The applicant was sentenced to seven years and six months imprisonment, and declared to be convicted of a serious violent offence. The ground of the appeal is that the sentence is manifestly excessive.

[2] The applicant is 30 years old and has only a minor criminal history, never previously having been imprisoned. The principal actor in the commission of the crime was one Reeves, who fell out with the complainant and conceived a plan to kill him. Reeves told the applicant of his plan to kill the complainant, who he alleged had been committing offences against young women. He also told the applicant that he had been offered $10,000 to kill the complainant. The applicant agreed to assist. He procured a gun for Reeves for which Reeves agreed to pay $100. On the night of the offence the applicant lured the complainant to his home intending that Reeves would there tie him up, take him away and kill him. Although it was not contemplated that the applicant would take part in the actual killing, the applicant, having lured the complainant to the house, induced him to go into a bedroom and restrained the complainant whilst Reeves beat the complainant and tried to tie him up. A third offender, a female named Huxley, was also involved. Reeves put the gun to the complainant's head and struck him several times. The complainant managed to break free and dive through a nearby window. As he did so he was shot by Reeves in the groin.

[3] Unlike his co-offenders, the applicant fully co-operated with investigating police officers and made full admissions on his part. His co-operation and attitude were relevant matters in mitigation under ss 9 and 13A of the Penalties and Sentences Act 1992. The proceedings below included a proceeding under the latter section. The applicant entered an early plea of guilty.

[4] In subsequent defended proceedings Reeves was convicted of attempted murder and sentenced to 14 years' imprisonment.[1] Reeves had an extremely lengthy criminal history including convictions for bodily harm, wounding, robbery and other offences involving the use of violence.

[5] The learned sentencing judge apparently found it difficult to understand the applicant's motive for committing the offence, or why he had so readily and virtually gratuitously became involved in such a matter. We share his Honour's difficulty particularly in the light of the applicant's good work history, minor criminal history and support of his family.

[6] The sentence includes a declaration, made under s 161B(3)(b) of the Penalties and Sentences Act 1992, that the conviction is a conviction of a serious violent offence. Initially the main submission of counsel for the applicant (Mr Rafter) was that the excessiveness of the sentence lay in the inclusion of that declaration. However Mr Rafter also argued in the alternative that the sentence of seven and a half years with such a declaration was manifestly excessive and that if it were considered that such a declaration should be made, the length of the head sentence should be reduced.

[7] The proceedings before his Honour included a procedure under s 13A of the Penalties and Sentences Act 1992. That section includes the following provisions:

(1) "This section applies for a sentence that is to be reduced by the sentencing court because the offender has undertaken to co-operate with law enforcement agencies in a proceeding about an offence ..."

(5) If oral submissions are to be made to, or evidence is to be brought before, the court relevant to the reduction of sentence, the court must be closed for that purpose.

(6) The penalty imposed on the offender must be stated in open court.

(7) After the imposition of the penalty, the sentencing judge or magistrate must -

(i) that the sentence is being reduced under this section; and

(ii) the sentence it would otherwise have imposed; and

(c) cause the following to be sealed and placed on the court file with an order that it may be opened only by an order of the court, including on an application to reopen the sentencing proceedings under s 188(2) -

(ii) a record of evidence or submissions made relevant to the reduction of sentence and the sentencing remarks made under paragraph (b)."

We shall refer to the statement of the sentence that would otherwise be imposed as required by s 7(b)(ii) as "the indicative sentence". Other provisions of s 13A require the record of evidence, submissions, sentencing remarks and indicative sentence to be sealed. We shall refer to these as "the s 13A materials".

Whilst there is no statutory requirement that the Court of Appeal observe the restrictions prescribed by s 13A of the Act, trial procedures under that section would sometimes be rendered nugatory and an applicant could be exposed to danger unless this court observed similar restraints in relation to the publication of relevant material.

Further discussion of the submissions of Mr Rafter for the applicant and of Mr Martin for the Crown would involve the nature and extent of the applicant's co-operation from the time of his initial apprehension, and we do not think it desirable that such discussion be included in these reasons.

[8] This court is the Supreme Court of Queensland sitting in banc. It has the inherent powers that belong to that court.[2] Furthermore, the court has the express power under s 128 of the Supreme Court of Queensland Act to limit the extent to which the business of the court is open to the public provided that the public interest or the interests of justice require it. This is a confirmation and perhaps an extension of the common law power of the court to prohibit publication of proceedings where the court considers this necessary for the purpose of administering justice. The power includes the power to sit in camera if justice cannot otherwise be attained.[3] However the court has always regarded as fundamental the requirement that judicial proceedings be conducted in open court where members of the public may be present. The power of the court to exclude the public and limit publication of its proceedings is undoubted,[4] but as McPherson J (as he then was) observed in ex parte The Queensland Law Society Incorporated:

"... the power of the court under general law to prohibit publication of proceedings conducted in open court has been recognised and does exist as an aspect of the inherent power. That does not mean that it is an unlimited power. The only inherent power that a court possesses is power to regulate its own proceedings for the purpose of administering justice;..."[5]

[9] The types of case where this exceptional procedure might be invoked were described by Gibbs J as including cases where there is a need to maintain secrecy or confidentiality and where the interests of privacy or delicacy render it desirable for a matter to be held in closed court.[6] Other recognised examples are cases in which evidence is likely to identify police informers,[7] cases where it is desirable to protect the victim of blackmail,[8] and public interest cases such as those involving national security or where publicity might cause damage such as a public run on a financial institution.[9] There are now many statutes which regulate particular areas.[10] As indicated above, the need for protection of informers from criminal retribution has long been recognised by the common law, and in our view it may in some cases be necessary similarly to protect persons who would be endangered by the release of information that would reveal the nature of their co-operation with law enforcement authorities.

[10] Whether it is necessary to do so will of course depend upon the extent of the co-operation, the perceived level of danger and the circumstances of the case.

[11] In our view it is desirable that this power be exercised in favour of the applicant in the present case. Without purporting to lay down any necessary procedure we record that this will be achieved by -

(a) closing the court at the request of counsel when submissions are made and material disclosed concerning matters raised during the s 13A procedure below, but only while such submissions are made;

(b) publishing in the usual way reasons for judgment (and orders) which expose as far as they safely can the court's reasoning but omitting any reference to the s 13A materials;

(c) publishing separate sealed reasons for judgment which should be available only to the parties (or their legal representatives), and which may be made available to other persons only by further order of the court.

[12] There are some further observations which should be made in relation to the s 13A procedure that occurred in the present case. These may be made without disclosing the s 13A materials.

[13] It was submitted that the learned sentencing judge, in stating his indicative sentence under s 13A(7), took into account both past and expected future co-operation. It is difficult to tell whether or not this is so, particularly as the present case presents more than usual difficulty in separating past co-operation from future co-operation. It is desirable to repeat that s 13A requires the sentencing court to take into account only the future co-operation which at the time of trial has yet to be provided. As R v Gladkowski[11] indicates, with respect to similar sentencing provisions in the Crimes Act[12], the indicative sentence contains the additional period of imprisonment that the offender will have to serve if the promised co-operation is not forthcoming. The relevance of past co-operation as an ordinary relevant factor is recognised in s 9(2)(g), 9(2)(i) and 9(2)(q) of the Penalties and Sentences Act, and the offender should be given the benefit of this quite independently of any s 13A consideration. An indicative order that took into account both past and future co-operation would place the applicant at risk of losing the benefit of credit that he had already earned. The intent of s 13A and of ss 188(2) and 188(4) of the Penalties and Sentences Act is to give the offender a benefit for promised co-operation, and to ensure that he will lose that benefit if he fails to honour his promise.

[14] It follows that in determining the indicative sentence one has to give this applicant credit for his early plea of guilty, his past co-operation and attitude, his good work history, and the fact that he had only a minor criminal history. In particular the indicative sentence must reflect an appropriate discount for the early plea of guilty.

Variation of indicative sentence in Court of Appeal

[15] The further question arises as to what is to be done if this court considers that the indicative sentence below is incorrect. In R v AC[14] this court considered that it should correct that aspect of the sentence as well as the sentence actually imposed, and did so in open court. The statement that the sentencing court makes under s 13A(7)(b)(ii) is one that it is obliged to make after imposition of "the penalty" and it carries significant consequences for the offender. We have little doubt that it is comprehended by the wide definition of "sentence" in s 4 of the Penalties and Sentences Act which includes "any other order made by a court after an offender is convicted". It forms part of the judgment upon the offender's conviction, and in our view forms part of "the sentence passed on the person's conviction" against which an application may be made for leave to appeal under s 668D(1)(c) of the Code.[15]

[16] The procedure contemplated by s 13A precludes publication at that stage of the indicative sentence, other than to the parties in closed court. Generally speaking, and the present case is no exception, knowledge of the precise extent to which an offender has benefited by a promise of co-operation is the kind of knowledge that is likely to inflame persons who resent the giving of such co-operation. An indicative sentence would not be published in the trial court, and generally speaking we do not think that it should be published in the Court of Appeal if it decides to vary the indicative sentence. Accordingly, in the present matter it is sufficient to indicate that the indicative sentence has been altered and that the terms of the alteration and the reasons therefore are contained in the separate sealed reasons for judgment.

[17] We have reached the view that the sentence actually imposed was manifestly excessive and that it should be reduced to one of six years' imprisonment with a declaration that the conviction is one of a serious violent offence. However, because the reasoning process leading to that conclusion involves consideration of the nature and extent of the applicant's co-operation, those matters will be dealt with in the separate sealed reasons.

[18] The following orders should be made in this case:

1. Application for leave to appeal against sentence granted and appeal allowed;
2. Sentence below set aside and replaced with a sentence of six years imprisonment with a declaration that the conviction is a conviction of a serious violent offence pursuant to part 9A of the Penalties and Sentences Act;
3. Order that further reasons for judgment handed down to the parties today be not further published and that a copy thereof be placed in a sealed envelope together with a revised copy of the transcript of that part of the proceedings which were not conducted in open court, and that it be opened only by order of the court or upon an application under s 188(2) of the Penalties and Sentences Act.

[1] Confirmed on appeal in R v Reeves [2001] QCA 91, CA No 276 of 2000, 13 March 2001.

[2] Supreme Court of Queensland Act 1991 ss 7, 8, 9, 29; R v Pettigrew [1996] QCA 235; [1997] 1 Qd R 601.

[3] Scott v Scott [1913] UKHL 2; [1913] AC 417.

[4] Ex parte The Queensland Law Society Incorporated [1984] 1 Qd R 166; R v His Honour Judge Noud ex parte MacNamara [1991] 2 Qd R 86; J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10; R v Tait [1979] 46 FLR 386 at 407 per Brennan, Deane and Gallop JJ.

[6] Russell v Russell (1976) 134 CLR 495, 520.

[7] Cain v Lars (No 2) [1985] 3 NSWLR 230, 246.

[8] R v Socialist Worker Printers and Publishers Ltd ex parte Attorney-General [1975] QB 637.

[9] AG v Leveller Magazine Ltd [1979] AC 440; R v Chief Registrar of Friendly Societies ex parte New Cross Building Society [1984] QB 227; J v L & A Services Pty Ltd (No 2) above at 44-45 per Fitzgerald P and Lee J, and at 48 per Pincus JA.

[10] These include Child Protection Act 1999 ss 186-192; Juvenile Justice Act 1992 ss 6, 62; Penalties and Sentences Act 1992 s 13A; Evidence Act 1977 ss 21A-21K; Criminal Law (Sexual Offences) Act 1978 ss 3-12; Justices Act ss 70, 71, 71B; ; s30A; s 45; s 695A; 1995; 1974 s 43D; -;

[11] [2000] QCA 352, CA No 165 of 2000, 1 September 2000 paras 11 and 12; R v Ianculescu [1999] QCA 439; [2000] 2 Qd R 521, 522.

[12] ss 16A(2)(h) and 21E Crimes Act 1914 (Cwth).

[13] Gladkowski above para 12; Penalties and Sentences Act ss 188(2) and 188(4).

[14] [2001] QCA 56, CA No 234 of 1999, 27 February 2001.

[15] cf R v Foley ex parte Attorney-General (1988) 1 Qd R 570, 572, 576.