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Veen v the Queen (No. 2)

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Cal Maher

on 29 May 2015

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Transcript of Veen v the Queen (No. 2)

Veen v the Queen (No. 2)
(1988) 164 CLR 465

Veen (an Indigenous an Australian) was brought up in foster care coming from a situation that was described as "
an extreme case of deprivation
Committed to "
a welfare institution
" for the "
natural instinct of going walkabout
He was molested by a teacher at the age of fourteen.
Veen started performing poorly academically
Veen began drinking alcohol excessively
susceptible to loss of contro
l" and "
fits of violent conduct"
Early Criminal Activity
Apprehended for prostitution in Sydney in 1971, at an age of 15.
Later that year in Albury, Veen stabbed his landlady four times,
convicted of malicious wounding and committed to an institution.
Veen v The Queen (No. 1) (1979)
Charged with murder.
Evidence presented before the court that his brain damage (due to alcohol)
Reacted violently to stressful situations
Veen convicted of manslaughter on the basis of s. 23a(1) of the
Crimes Act 1900
"such abnormality of the mind... substantially impaired his mental responsibility"
The trial judge sentenced him to life imprisonment for the protection of the community.
Veen appealed to the NSW Court of Criminal Appeal, and later, to the High Court on the basis that such a sentence constituted preventative sentencing and contradicted the concept of proportionately.
As a result, the majority of the Court quashed the conviction, and imposed a twelve year sentence with an eight year parole period.
The current case...
Veen met with the victim, Paul Hoson, at a Kings Cross hotel.
After sinking a couple of schooners, the victim propositioned Veen to go to his nearby apartment.
After rejecting the victim's request for "sado-machoistic acts", and whilst making coffee in a timeout, Veen's mind "
sort of went
" and he started "
thinking about the past
Grabbing a bread knife with one hand and his coffee in another, Veen spotted the victim standing naked in the doorway.
Channeling his inner Jason Bourne, Veen threw the coffee at him, and as the victim jumped back, charged him with the knife.
Veen stabbed Hoson four times through the same chest opening, first, twice through his heart and puncturing the upper lobe of his left lung, and secondly, twice downwards, lacerating his liver. All were inflicted in rapid succession.
He also managed to stab Edmund twice through his abdomen, both passing through his liver and into his stomach.
After, Veen showered, left the knife in the bathroom, stole some of the victim's clothes and his wallet, jimmied down some scaffolding and fled to Brisbane.
Veen v The Queen [No. 2]: Trial
Majority Judgement: Mason CJ, Brennan, Dawson and Toohey JJ
It is one thing to say that the principle of proportionately precludes the imposition of a sentence extended beyond what is appropriate to the crime
to protect society; it is another to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension
by way of preventative detention, which is impermissible, and an exercise of the sentencing discretion
having regard to the protection of society among other factors
, which is permissible.

"But consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality."
The case had a significant impact on Australian sentencing procedure. It clarified the HCA's position on the concept of proportionately, the consideration of antecedent criminal history, and the protection of the community as a sentencing factor.

It also raised the dilemma of balancing community protection and proportionality with respect to violent offenders who have a likelihood of recidivism due to mental illness or deprivation.
The Wards
The Sad Life of Mr. Veen
Dissenting Judgement: Wilson
The punishment must fit the crime

I find myself fundamentally opposed to the notion that, in the absence of express statutory authority, courts should find in the common law of Australia a power to impose sentences of preventative detention.

Protection of society should not be able to increase a sentence beyond which is the maximum the circumstances of the offence, which viewed objectively, will bear.
Dissenting Judgement: Deane
The power of a person in the exercise of judicial office to order the imprisonment of another person who has been convicted of a crime is limited to
what is justified as punishment for the crime itself
: it does not extend to imprisoning that other person
beyond that proportionate punishment
for the reason that the judge thinks that it is to the
benefit either of the other person himself or of the community generally
that he be further incarcerated.
Dissenting Judgement: Gaudron
In cases of homicide the former so derogates from the gravity of the offence to constitute it manslaughter and not murder. The latter

operates to

enable reduction
of the otherwise mandatory life sentence for murder by reason of
considerations which justify leniency in sentencing
It follows that the appropriate sentence for diminished responsibility manslaughter, when viewed objectively,
must be less than penal servitude for life
Emma Martin, Callum Maher, Nena Janssens, David Hemsworth
Veen v The Queen (No 1) (1979)
Veen was solicited by a male to engage in "homosexual activity".
The pair had been drinking heavily when Veen asked for payment...
no you black bastards are all the same, always looking for a handout
Veen took a knife and stabbed the man over 50 times to his death
Veen admitted to police that he intended to kill Hoson upon entering the apartment
Veen was charged with murder
pleaded guilty to manslaughter on the basis of diminished responsibility
Veen sentenced to life imprisonment:
Appealed to NSWCCA
Applying for leave to the HC
Appeal based on that the NSWCCA erred in upholding his life sentence.
Adopted a principle of preventative detention.
His sentence was not proportionate to the gravity of the crime.
Issues raised
The principle of proportionately
Prior criminal history
Mental abnormality

The punishment must fit the gravity of the crime committed

"likely to kill again or inflict serious injury when released by reason of his brain damage should he be under the influence of alcohol and find himself in a situation of stress".

Hunt J
Veen v The Queen [No. 2]: Arguments
Antecedent criminal history
"...the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law."

Mason CJ and Brennan, Dawson and Toohey JJ
Even after
, the Court still lacked specific processes for determining severity of crime. Deane J considered the crime to be far less heinous than did Wilson J, for instance.
How to determine the severity of a violent offence?
Weighing protection of the community against the moral culpability of the offender
“Mental disorder, as exemplified by Veen’s case, is a particularly paradoxical factor in sentencing because it is relevant … to the offender’s level of culpability … (suggesting, on desert grounds, a reduction in penalty), yet also bears … upon his or her likely future conduct (suggesting, on social defence grounds, an increase in penalty).”
R G Fox,
The Killings of Bobby Veen: The High Court on proportion in sentencing
(1988) 12 Criminal Law Journal 339 [352]
Refuting adoption of the English law in R v Hodgson
"When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: ... (2) where it appears from the nature of the offences or from the defendant's history that he is a person of unstable character likely to commit such offences in the future; ... The Home Secretary has of course the power to release the appellant on licence when it is thought safe to release him, if that time comes."

Lord Denning MR, Widgery and MacKenna JJ
"It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."

Mason CJ and Brennan, Dawson and Toohey JJ
Refuting adoption of the English law in R v Hodgson
Wilson J discussed the irrelevance of the rule in Australia. Unlike in England, a verdict of manslaughter did not serve to protect a deranged offender from the death penalty and a system of parole was already available for most Australian prisoners whether sentenced to fixed terms or life imprisonment.

Deane J found the rule unsatisfactory in that it left responsibility for the imprisonment to a Minister of the government-of-the-day.
Community protection
"[A] sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism..."


"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate ... merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence."

Mason CJ and Brennan, Dawson and Toohey JJ.
“In my view, it should not have the effect of increasing a sentence beyond the longest sentence that the actual offence … would justify. In the case of a mentally deranged offender whose release would represent a potential danger to the community, the necessity to protect that community would be likely to outweigh any other considerations personal to the offender which may have led to a reduction in the sentence …”

Wilson J
"… a mental abnormality which makes an offender a danger to society when he is at large but
which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial
sentence, the other towards a shorter."

Mason CJ and Brennan, Dawson and Toohey JJ
“The courts will impede … the introduction of … an acceptable system if, by disregarding the limits of conventional notions of punishment, they assume a power to impose preventative indeterminate gaol sentences in a context which lacks the proper safeguards which an adequate statutory system must provide…”

Deane J
" The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public."

Gleeson CJ
, R v Engert
Nothing in the majority judgments suggesting that the English development should be adopted
The CCA was mistaken in the importance they gave this minor point.
Evidence as to the matter should have been dismissed as irrelevant.
The Effect of Criminal History
Dismissed counsel for applicant's claim that it was relevant only to a question of leniency.

However, it cannot be given such weight as to lead to the imposition of a penalty disproportionate to the crime that was committed.
A "worst" case?
Simply because a worse case can be thought of doesn't necessitate the imposition of a lesser sentence.

The concept serves as an excluder; a sentence imposing the maximum penalty offends the principle if it is recognisably outside the worst case category.
The killing was devoid of mitigating factors
Veen's mental abnormality renders him a danger to society, the doubt that surrounding this in
Veen (No.1)
having been dramatically dispelled.
Given the proceeding reasons, there was no error of principle affecting the sentence nor was it manifestly excessive.
Dissent View: Hodgson
Jacobs J judgment was misunderstood by the CCA.
The absence of medical services in NSW gaols was not of decisive significance.
It was rejected because "the protection of the public does not alone justify an increase in the length of a sentence".
Deane advocated for a statutory system of preventative restraint for the dangerous mentally ill.
Dissent View: Criminal History
A rejection of the view that previous convictions are aggravating factors justifying any extension of a sentence above the maximum.

Antecedent criminal history, like the need to protect society, is only relevant insofar as it may reduce leniency. It cannot increase a sentence beyond the maximum it would objectively bear.
Dissent View: "Worst" Case?
The "worst case" may comprehend a substantial category of cases.
Wilson felt that the crime was unmitigated by extenuating circumstances, fitting the description given in
Veen (No.1)
of manslaughter by diminished responsibility resulting in a life sentence.
Deane disagreed, arguing that a life sentence would essentially be punishing Veen for his abnormality of mind, and not the crime he committed.
Gaudron disagreed on her own special grounds.
Dissent: Summary
All agreed that neither criminal history or the need to protect society could increase a sentence beyond the maximum sentence of the crime committed.
These factors could merely militate against mitigating factors.
Deane disagreed with Wilson and Gaudron's belief that the circumstances could well be one of a diminished responsibility manslaughter serving life.
He argued that the case did not even approach the "worst case" category.
Gaudron argued that the 1982 amendment to s.19 allowing for the reduction to a life sentence for murder on the basis of diminished culpability encompassed s.23 for manslaughter by diminished responsibility, and as such a life sentence was inappropriate.
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