Adams v Navaratnam
[2021] ACTSC 256
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Adams v Navaratnam |
Citation: | [2021] ACTSC 256 |
Hearing Date: | 27 September 2021 |
DecisionDate: | 8 October 2021 |
Before: | Loukas-Karlsson J |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – prosecution appeal – role of the prosecution at sentence – denial of procedural fairness – residual discretion – appeal dismissed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 17 Director of Public Prosecutions Act 1990 (ACT) s 12 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 19 |
Cases Cited: | Barbaro v The Queen [2014] HCA 2; 254 CLR 58 Biddle v Gatherer [2021] ACTSC 236 Kioa v West [1985] HCA 81; 159 CLR 550 Kirby v Ali [2021] ACTSC 95 |
Texts Cited: | Judicial Commission of New South Wales, Sentencing Bench Book (Judicial Commission of New South Wales, September 2021) The prosecutor’s role in sentencing (2014) 26(6) JOB 47 |
Parties: | Bradley Lindsay Adams (Appellant) Rubaramesh Navaratnam (Respondent) |
Representation: | Counsel K Lee (Appellant) E Chen (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) | |
File Number: | SCA 25 of 2021 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 2 July 2021 Case Title: Adams v Navaratnam Court File Number: CAN 1657/2021 |
LOUKAS-KARLSSON J:
Introduction
On 2 July 2021, Rubaramesh Navaratnam (the respondent) was sentenced by Magistrate Cook (the Magistrate) for an offence of driving with a prescribed concentration of alcohol in breath, being level three, contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). The maximum penalty for this offence is imprisonment for 6 months and/or a fine of $1,600. Upon conviction, there is an automatic default licence disqualification period of 12 months, with a minimum disqualification period of 3 months.
The Magistrate dismissed the charge without conviction pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The informant in the proceedings before the Magistrate has appealed from the sentence imposed.
Grounds of Appeal
By way of Notice of Appeal dated 30 July 2021, the appellant relied upon the following grounds of appeal:
(a) The Magistrate erred in failing to consider each of the mandatory requirements of s 17(3) of the Sentencing Act in relation to the matter;
(b) The Magistrate erred in failing to afford procedural fairness to the prosecution by not providing any opportunity to make submissions against the imposition of a non-conviction order;
(c) The Magistrate did not provide adequate reasons for his decision;
(d) The sentence is manifestly inadequate.
The respondent has conceded that the appellant was denied procedural fairness. The appellant, consequently, did not press appeal grounds (a), (c), and (d) at the hearing. In my view, this concession was properly made for the following reasons.
The Proceedings Before the Magistrate
The respondent pleaded guilty to the offence on 20 May 2021.
The matter proceeded to sentence in a morning list on 2 July 2021 in the Magistrates Court.
On that date, the following exchange occurred:
DEFENCE: So what I would ultimately be asking your Honour, if your Honour is minded to impose the minimum disqualification period, the - - -
HIS HONOUR: It would be taken up by the immediate suspension notice.
DEFENCE: That’s correct.
HIS HONOUR: That’s my position. That’s what I’ve just tried to highlight to him. Unless I can be persuaded otherwise by – given that he’s a first offender with no history.
PROSECUTION: No, your Honour.
DEFENCE: Thank you for short circuiting the matter.
HIS HONOUR: It’s just the issues. It’s a high end PCA, and the fact that the person beforehand got a non-conviction order, they’re two different scenarios and the level of consumption is so significantly different.
DEFENCE: Certainly. So my submission ultimately would be that a non-conviction order is not being pressed.
HIS HONOUR: Okay. So it will be a conviction with the minimum disqualification period of three months. Do you want to be heard against that?
PROSECUTION: I don’t wish to be heard, your Honour.
DEFENCE: Thank you, your Honour.
(emphasis added)
In his ex tempore sentencing remarks, contrary to the indication above, the Magistrate made a non-conviction order, and dismissed the charge under s 17 of the Sentencing Act:
HIS HONOUR: … having found the offence proved, no conviction is recorded having regard to the requirements of section 17(3) … the charge is dismissed under s 17.
As the Magistrate had indicated that he would convict the respondent, the prosecutor was not provided an opportunity to be heard in relation to the imposition of a non-conviction order.
Duty of the prosecution at sentence
Before dealing with the question of procedural fairness, it is important to outline the duty of the prosecution at sentence.
It is fundamental to observe that “it is for the prosecution alone to determine the charge to be preferred; it is for the accused alone to determine the plea to enter; and it is for the sentencing judge, alone, to determine the sentence to be imposed”: GAS v The Queen [2004] HCA 22; 217 CLR 198; see also Tatur v R [2020] NSWCCA 255, and Matthews v The Queen [2014] VSCA 291 at [27]-[28].
The duty of the prosecution at sentence has been discussed by the High Court in Barbaro v The Queen [2014] HCA 2; 253 CLR 58 (Barbaro v The Queen) at [39]. It is “…to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases”. The court will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range: Barbaro v The Queen at [38]. Barbaro v The Queen is not the last word on this topic from the High Court.
In “The prosecutor’s role in sentencing” (2014) 26(6) JOB 47 at 48, Basten JA and Johnson J, writing extra-judicially, emphasised that the prosecution should provide more, not less, assistance to the Court:
The lesson [to be derived from Barbaro v The Queen] is that the prosecution should provide more, rather than less, assistance. As the High Court noted, the statement of a range is at least unhelpful and probably misleading if the underlying elements are not articulated.
Subsequent to Barbaro v The Queen, the High Court elaborated on this topic in CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 (CMB). Kiefel (as her Honour then was), Bell and Keane JJ underlined at [63]-[64]:
Everett affirmed Barwick CJ’s statement of the principle of appellate restraint in Griffiths v The Queen. The latter was an appeal from a decision of the Court of Criminal Appeal of New South Wales in an appeal under s 5D. The statements in Malvaso and Everett have been accepted as applying with equal force in those jurisdictions that do not impose a leave requirement on prosecution appeals. In Everett, the factor militating against the grant of leave was the failure of prosecuting counsel to submit that the sentence proposed by the sentencing judge was erroneously lenient. The joint reasons in Everett approved King CJ’s statement of principle in R v Wilton. That statement was made in the appeal after leave had been granted. Relevantly, King CJ said:
“[T]his Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing judge, only in exceptional circumstances which appear to justify that course … In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge’s discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General.”
The determination of the appropriate sentence is one that rests solely with the court. The public interest in the sentencing of offenders does not permit the parties to bind the court by their agreement. Nonetheless, the prosecutor is under a duty to assist the court to avoid appealable error. Where the sentencing judge indicates the form of proposed sentencing order and the prosecutor considers that such a penalty would be manifestly inadequate, the prosecutor discharges his or her duty to the court by so submitting. The failure to do so is a material consideration in the exercise by the Court of Criminal Appeal of the residual discretion. The weight of that consideration will depend upon all of the circumstances. A prosecution concession that a non-custodial sentence is an available disposition is a powerful consideration weighing against intervening to impose a sentence of imprisonment on appeal.
(emphasis added, citations omitted)
Additionally, in CMB, French CJ and Gaegler J stated at [38]:
The Crown (by whomever it is represented) has a duty to assist a sentencing court to avoid appealable error. That duty would be hollow were it not to remain rare that an “appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error” fn R v Tait (1979) 24 ALR 473 at 477.
In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (Commonwealth v Director, Fair Work Building Industry Inspectorate) French CJ, Kiefel, Bell, Nettle and Gordon JJ at [40] stated:
The reasoning in Barbaro was subsequently considered by this Court in CMB v Attorney-General (NSW). In that case, it was reaffirmed that in criminal proceedings the determination of the appropriate sentence rests solely with the court, but that the prosecutor remains under a duty to assist the court to avoid appealable error where a sentencing judge indicates the form (as opposed to the duration) of a proposed sentencing order and the prosecution considers it to be manifestly inadequate.
(citations omitted)
The duty to avoid appealable error is reflected in the Legal Profession Uniform Conduct (Barristers) Rules 2015, and the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015.[1]
[1] Judicial Commission of New South Wales, Sentencing Bench Book (Judicial Commission of New South Wales, September 2021)
The ACT Director of Public Prosecutions issues Prosecution Guidelines under s 12 of the Director of Public Prosecutions Act 1990 (ACT). The most recent Prosecution Policy outlines the obligations of the prosecution at sentence at 3.19-3.27. I note, in particular, 3.21:
If it appears there is a real possibility that the court may make a sentencing order that would be inappropriate and not within a proper exercise of the sentencing discretion, the prosecutor may make submissions on that issue. This will be particularly so if, where a custodial sentence is appropriate, the court is contemplating a non-custodial penalty, or where a conviction is appropriate, the court is contemplating a non-conviction order.
Consideration: Procedural Fairness
Legal Principles
It is a fundamental principle of the justice system that all courts, superior or inferior, are obliged to accord procedural fairness to parties to a proceeding: HT v The Queen [2019] HCA 40; 278 A Crim R 133 (HT v The Queen) at [17]. The prosecution is as much entitled to natural justice as any other litigant: R v Lewis [1988] HCA 24; 165 CLR 12 at 17.
The content of procedural fairness may vary according to the circumstances of particular cases, the “expression “procedural fairness”… conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”: Kioa v West [1985] HCA 81; 159 CLR 550 at 585.
While flexible, procedural fairness is not an abstract concept. It is practical, being concerned with the avoidance of practical injustice: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at 14 [37]; HT v The Queen.
Judicial officers should afford parties the opportunity to address the court in sentencing proceedings. Indeed, as discussed above, the prosecution has a duty to assist a sentencing court: CMB at [38].
To deny a party the opportunity to address the court is a breach of procedural fairness. In R v Tocknell (NSW Court of Criminal Appeal, 28 May 1998, unreported), citing R v Tait (1979) 24 ALR 473, Hulme J stated:
To deny a party that opportunity is also a fundamental breach of the requirements of procedural fairness. Of course, some latitude exists in the application of the principle … Sometime a judge, conscious that he is about to make a decision in accordance with that sought by a party will, particularly in a busy list, not invite address by that party. Not infrequently a party which has received an indication from a tribunal of an intention to make a decision in that party’s favour will see no need to address. For many years it was almost an invariable practice for the Crown not to address on penalty and, in those days, a judge could be pardoned for relying on any prosecutor who wished to depart from this practice to so indicate. However, for some years now it has been common for persons appearing for the Crown in the District and Supreme Court to address on penalty and, indeed, it has been made clear that there is an obligation on the Crown to assist the judge in the sentencing exercise – Tait v Bartley 24 ALR 473 at 476-7. If there is the remotest possibility that a decision will be adverse to a party’s interest, a judge must allow, and in my view should invite, that party or its legal representative to address the court.
(emphasis added)
In a similar vein, in Button v The Queen [2010] NSWCCA 264, Latham J stated at [14]:
At the heart of the denial of procedural fairness claimed in this appeal is the absence of an opportunity to be heard further in relation to a matter of penalty, where the applicant relied upon a representation by the Judge that a particular sentence was to be imposed, and the Judge departed from that representation without notice to the applicant.
More recently, in R v Dennis [2015] NSWCCA 297 at [45], Beech-Jones J cited with approval the decision of Dang v The Queen [2014] NSWCCA 47:
The question whether a party has been denied an opportunity to be heard, being a matter of substance, must be determined by reference to the circumstances during the proceedings. The real question is whether there has been actual unfairness, not whether there has been a disappointment because an expectation engendered by the decision-maker has not been fulfilled: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 … at [34] per Gleeson CJ. Commonly, unfairness will arise where someone has been deprived of the opportunity to make submissions or has failed to make submissions by reason of an indication, which ultimately proves to have been false, from the decision-maker.
(emphasis added)
The appellant submitted that the Magistrate did not provide the prosecutor an opportunity to address him on the appropriateness of a non-conviction order. This amounted to a denial of procedural fairness.
The respondent conceded that the appellant was denied procedural fairness.
Conclusion
The Magistrate clearly erred in denying procedural fairness to the prosecution in this case. The concession as to error was properly made by the respondent.
It is clear from the authorities outlined above that both the offender and the prosecution are entitled to procedural fairness.
Consideration: Residual Discretion or Remittal?
Section 219D of the Magistrates Court Act 1930 (ACT) provides:
The Supreme Court may review a decision of the Magistrates Court under this division on any 1 or more of the following grounds:
(a) that there was a prima facie case of error or mistake on the part of the Magistrates Court;
(b) that the Magistrates Court did not have jurisdiction or authority to make the decision;
(c) that the decision of the Magistrates Court should not in law have been made;
(d) for a decision mentioned in section 219B(1)(d) or (e) – that, in the circumstances of the case, the decision should not have been made;
(e) for a decision mentioned in section 219B(1)(f) – that the sentence or penalty was manifestly inadequate or otherwise in error.
The Supreme Court may, however, pursuant to s 219F(5):
…despite the ground or any of the grounds for review mentioned in section 219D being established, dismiss the appeal if the court considers that no substantial miscarriage of justice has happened.
Section 219F(5) is an express application of the court’s residual discretion: Hall v CL [2015] ACTSC 286 at [15] per Refshauge J, referring to CMB.
Residual discretion
It is important to underline that the primary purpose of a prosecution appeal is to lay down principles for the governing and guidance of courts with the duty of sentencing convicted persons: CMB at [55]; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green and Quinn) at [1].
Consequently, even where the prosecution has established an appealable error, the Court may, in its discretion, decline to interfere and dismiss an appeal: see CMB at [34], [55]. Indeed, it is an error for the Court to fail to consider the exercise of residual discretion to dismiss a prosecution appeal despite finding error: Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
In this case, the appellant has established, and the respondent has correctly conceded, that there was an appealable error.
It is well established that the onus is on the prosecution to persuade an appeal court to decline to exercise its residual discretion in favour of the offender: see CMB at [34], [54].
At the hearing, both the appellant and the respondent submitted that, despite the successful establishment of a ground of review under s 219D of the Magistrates Court, the Court should exercise its residual discretion, pursuant to s 219F(5), and dismiss the appeal.
Exercising residual discretion in Magistrates Court appeals
In Hall v CL at [118], Refshauge J stated that the principles applicable to “Crown appeals against a sentence” apply to prosecution appeals against sentence from the Magistrates Court. His Honour referred to the residual discretion at [129]-[130], and the Director of Public Prosecutions (Vic) v Karazisis [2010] VSCA 350; 31 VR 634 and CMB. I note there is a contrary decision of Kirby v Ali [2021] ACTSC 95 (Kirby v Ali) where Robinson AJ doubted that this Court had a residual discretion to dismiss a prosecution sentence appeal from the Magistrates Court. There is, it must be said, a variance between these two decisions. Robinson AJ considered that “no substantial miscarriage of justice” is not “congruent” with the residual discretion as explained in CMB and that a “gloss” on the “statutory criterion” was inappropriate. Burns J referred, in Bennett v Daley [2021] ACTSC 159 at [36], to Robinson AJ’s decision in the context of repeating counsel’s submission concerning the “problematic” nature of the decision in Kirby v Ali. Burns J did not, it appears, adopt the decision of Kirby v Ali.
In my view, it is clear that Refshauge J’s approach is consistent with longstanding High Court authority regarding prosecution appeals. There is, in my view, no reason in principle to deal with a prosecution appeal from the Magistrates Court to the Supreme Court in a different manner from a Supreme Court appeal to the Court of Appeal. The statute does not mandate such a course. In this context, the residual discretion is analogous to “no substantial miscarriage of justice”. The relevant discretionary matters may therefore be considered under the rubric of s 219F(5). Indeed, both the appellant and the respondent, in my view correctly, posited that s 219F(5) incorporated the residual discretion contemplated by CMB.
Conclusion
In my view, this is not an appropriate case for remittal to the Magistrates Court: see Middleton v The Queen [2020] ACTCA 6, see also Biddle v Gatherer [2021] ACTSC 236.
In oral submissions, the prosecution who was the appellant in this case, submitted that it was appropriate that the court note the error and decline to intervene, exercising the Court’s residual discretion in accordance with the primary purpose of prosecution appeals. The respondent agreed.
In my view, it is appropriate to deal with this matter by way of the residual discretion to dismiss the appeal. This is for the reason that the primary purpose of a prosecution appeal is to lay down principles for the governance and guidance of the courts with the duty of sentencing convicted persons: Green and Quinn and Griffiths v The Queen [1977] HCA 44; 137 CLR 293. Further, as affirmed in Green and Quinn and CMB, this is a limiting purpose and does not extend to the general correction of errors made by sentencing judges. The limiting purpose is the framework within which to assess the significance of factors relevant to the discretion. In this case, the court has the discretion to refuse to intervene, even where error is established. That is the appropriate course in this case. In my view, relevant guidance can be established concerning procedural fairness without proceeding to re-sentence.
It is not necessary, at this time, to engage in a lengthy treatise on s 219F(5), “no substantial miscarriage of justice”, and the prosecution appeal residual discretion. Suffice it to say, s 219F(5) incorporates a discretion not to intervene. In this case, it is appropriate to exercise that discretion not to intervene. It is therefore proper to dismiss the appeal.
Orders
The appeal is dismissed.
| I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Madeline Lehmann Date: 8 October 2021 |
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