Chen v The Queen

[2005] HCATrans 418

[2005] HCATrans 418

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S313 of 2004

B e t w e e n -

JACK CHIK CHEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 JUNE 2005, AT 10.15 AM

Copyright in the High Court of Australia

MR R. RICHTER, QC:   If the Court pleases, I appear with my learned friend, MR S.A. TORPEY, for the applicant.  (instructed by Watsons)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Do you need an extension of time, Mr Richter?

MR RICHTER:   I do, and it is not opposed.

GLEESON CJ:   By how much?

MR RICHTER:   According to the affidavit, which in fact is wrong in the sense that it has…..date, Mr Watson’s affidavit, which is to be ‑ ‑ ‑

McHUGH J:   About 15 months, is it not?

MR RICHTER:   Yes.  In fact, in paragraph 2 of Mr Watson’s affidavit where it says that the trial was between 3 June 2002 and 3 July 2003, it is in fact 2002.  The decision in the Court of Criminal Appeal was on 7 November 2003, so we do require quite a lengthy extension and we seek it.

GLEESON CJ:   I would just like to know how much.

MR RICHTER:   From the end of November 2003 till now would make it one year and seven months.

GLEESON CJ:   Thank you.  One other matter of detail:  after resentencing, is your client’s non‑parole period 23 years?

MR RICHTER:   Yes.  It was reduced from 26 to 23 on the resentencing.

GLEESON CJ:   It is now 31 and 23?

MR RICHTER:   Yes, your Honour.  I take it that I have leave to proceed?

GLEESON CJ:   We will deal with your application for extension of time in due course.

MR RICHTER:   Certainly, your Honour.  If the Court pleases, there is an underlying issue that taints what we submit is the whole of the judgment of the Court of Criminal Appeal.  Mr Chen’s appeal to the Court of Criminal Appeal succeeded on two bases and the resentencing occurred on two bases.  The first basis was that there had been an arithmetic error in the sense that the learned sentencing judge overstated the quantity of heroin by a fair bit, and that was an error that was demonstrated.  

The second basis upon which the Court of Criminal Appeal decided to carry out its pre‑sentencing exercise was that effectively the court found – and in the judgment of Justice Sully, with whom the other members of the court agreed – that the sentence imposed of 40 years with a minimum of 26 was a de facto life sentence in fact and that what the Court of Criminal Appeal effectively said was that if you are going to impose a life sentence, you should do so and then deal with the question of minimum in the appropriate way under the provisions of the Crimes Act rather than impose a de facto sentence and play around with the figures in terms of the head sentence.

That was the basis upon which the sentencing process was vitiated and it gave rise to the requirement to resentence.  The resentencing that took place, as your Honour has observed, was to fix a maximum for the one count of conspiracy to import, a maximum of 31 years, and a minimum of 23.  What is important in relation to the refixing of that sentence is this, that, in our respectful submission, the net effect of what happened was that, although the appeal to the Court of Criminal Appeal succeeded, it was a pyrrhic victory in some senses in terms of the minimum.  The minimum sentence was reduced from 26 to 23.  Whether that had anything to do with the notion that if it had been scaled up it would still have been seen as something akin to a de facto life sentence by way of a non‑parole or not, the scaled up 31, if one scales it up on the basis that the court discounted it, one comes to a situation in which on a maximum the applicant’s head sentence expires when he is about 87 or 88, depending on how you do the arithmetic, which we say, in our respectful submission, is still the imposition of the de facto life sentence by way of a maximum.

The pyrrhic victory that was achieved, in our respectful submission, resulted from the changing of the ground rules and resulted from the changing of the ground rules in a very significant way.  In front of the learned sentencing judge, it was accepted and acted upon that he would discount the sentence pursuant to section 16G as it then was, and no longer exists, by the full one third, which he proceeded to do.  He also discounted the head sentence by 10 per cent, which he proceeded to do, the result being a sentence of 40 years with a minimum of 26.

Having done that, if one looks at the sentencing of Phillip He – and the issue arises as to the extent to which parity – it is not really a parity argument, it is a quasi‑parity argument of substance rather than nomenclature.  Phillip He was sentenced on the basis of a full one third discounting of the head sentence by reason of section 16G and he received a greater discount for pleading because he pleaded earlier, and there is no quarrel with that at all.

The net effect of what the Court of Criminal Appeal did was to shift the ground rules effectively without notice because the Crown did not first of all lodge an appeal claiming that there should have been a life sentence by way of a head sentence, so that was not up for discussion, nor was it up for grabs.  The Court of Criminal Appeal took that in its stride obviously and acted on that basis that it was not appropriate to deal with it as a life sentence case.  It dealt with it as a serious case as it should, but what it did was this. 

Despite the fact that the Crown did not lodge any complaint about the notion that his Honour Judge Kinchington discounted the head sentence by the normal one third for non‑remissions under 16G, in its effort to re‑create the sentence – and I call it a re‑creation of the sentence because in effect it is a re‑creation; it is not an appropriate resentencing, in my respectful submission – what Justice Sully did was to pluck a figure of 20 per cent out of the air basically, in our submission, for the 16G discounting and he also then out of thin air, because there had been no contention by the Crown or anyone else that the proportionality of the minimum sentence or the non‑parole period was up for grabs or was in issue, the Crown never having complained about it.  The original proportionality that the learned sentencing judge imposed was within the normal range of relationships between the two, the head sentence and the non‑parole period, ie, on a calculation it was in fact 65 per cent.

So far as Phillip He was concerned, his proportionality between head sentence and non-parole period was 65 per cent.  I say that because for relevant purposes Mr He was sentenced to 20 years for the offence of being knowingly concerned in the importation, and there was a minimum of 13 years fixed for that.  The relevant calculations in terms of proportionality relate to that offence because it was for that offence that a minimum was fixed.  So that in the end his minimum term was fixed at 65 per cent.  No one quarrelled with that.

What happened in the Court of Criminal Appeal in this instance therefore is that out of left field, if we can use an expression from our American colleagues, there was a changing of the ground rules which had not really been debated, had not been the subject of the Crown complaint and had not been the subject of the then appellant’s and now applicant’s complaint.  That produces a situation in which, in our respectful submission, one ends up with a sentence, the sole benefit of which in terms of reality that inures to the applicant is that there is three years taken off the non‑parole period.

In our respectful submission, the effect of the appeal should have been far greater in terms of results.  What that does is to raise essentially three issues – I am sorry, before I go to these three issues, if one, as I say, scales up the 31 years in terms of what his Honour Justice Sully in fact did, one arrives at a scaled up figure of about 43 or 44 years as the notional head sentence, depending on the way one does one’s calculations.  If that is so, then that imposed on a 43‑year‑old man, as he was at the time of the offence, simply means that the head sentence takes him to the age of 86 or 87, as the case may be, which of course is way past retirement age even for this Court, but it just happens to be the average life expectancy for adult males, as I understand it.  Effectively, one would look at that and say this head sentence is in fact another way of saying this is a de facto life sentence. 

But the Court of Criminal Appeal does not then proceed to do what it ought to do in accordance with what Justice Sully himself did.  If you are going to do that, you really ought to do it properly and then fix a minimum, a non‑parole period.  No, what is then carried out is on what we submit is a de facto life sentence, an exercise that the Court of Criminal Appeal itself said was impermissible, in other words arguing it down or bringing it down from effectively a de facto life sentence by way of a section 16G discounting and by way of discounting for the plea of guilty, late though it be, but there was no argument about the 10 per cent and its adequacy.

In one sense the 16G point is not a point of special leave simply because at its bare presentation 16G has gone, although there may still be cases in the pipeline in relation to how one deals with it, but the special leave point arising out of the 16G issue has more to do with the methodology by which the resentencing occurred.  The error in principle ‑ ‑ ‑

McHUGH J:   This argument does not seem to have much in common with the written application, does it?

MR RICHTER:   It sort of distils it, your Honour.

McHUGH J:   It distils it.  The written submissions claim that the applicant was aggrieved by the disparity between his and He’s sentence.

MR RICHTER:   Yes, and a number of other things.  I take what your Honour says.  I was merely introducing the three aspects that are taken up as what we say are special leave points by giving the Court the overall impression of what, our submission is, was the effect of the judgment.  The three actual points which are in fact taken up in the submissions and in the grounds are:  first of all, we say that there is a special leave point because the manner in which the applicant was sentenced provided for a punishment beyond the scope of the indictment.  That is the first issue and we say that is a special leave point.  The key to that and we say the error in relation to that appears between pages 56 and 57 of the application book, in particular commencing at page 56, paragraph 38 of Justice Sully’s judgment, where he commences:

The second alleged error concerns what is submitted to have been an erroneous emphasis placed by his Honour on the aspect of contemplated future importations of heroin.

The error that we say exists is this.  True it is that the essence of the crime of conspiracy is the agreement, but the agreement alleged is still bounded by the period specified in the indictment.  What his Honour said was that, although the learned trial judge placed considerable emphasis on the fact that this was a continuing conspiracy, one needs to look at it in the context that it is continuing, but within the period of the indictment, any further sub‑agreements that might occur later are not to be the subject of punishment.

McHUGH J:   But, Mr Richter, none of these points are in your written submissions in the application that is filed.

MR RICHTER:   With respect, the written submissions deal with ‑ ‑ ‑

McHUGH J:   Can you take me to the paragraph where you can find the point you have just mentioned.  From beginning to end it is a comparative exercise.

MR RICHTER:   At page 83, if the Court pleases, we deal with the notion of the open‑ended conspiracy and how you sentence for what might be described as an open‑ended conspiracy.  That is the point that we are seeking to make because what we say is this, that so far as the open‑ended nature of the conspiracy is concerned, the error is contained in paragraph 42 of Justice Sully’s judgment on page 57 of the application book, where his Honour says this – having already said that the answer to the applicant’s submission that one was sentenced excessively for the ongoing nature of the conspiracy and for future importation and importation that was contemplated for 28 April, what his Honour says is this:

In my opinion the short answer to the applicant’s submission is stated correctly and as follows in the Crown’s written submissions:

“The essence of conspiracy is inchoate and the criminality is not to be judged merely by reference to those objectives which are actually achieved.”

With that we respectfully agree.  What his Honour then goes on to say is this:

The sentencing Judge was well entitled, in my opinion, to assess the applicant’s objective criminality upon a basis that took realistic account of the undoubted facts that the applicant when arrested was actively negotiating a further importation –

If what is meant by that is that he had agreed to a further importation, and that falls within the ambit of the indictment, but the learned Justice of Appeal continues and says:

and that the applicant, had he not been arrested, would, beyond any reasonable doubt, have gone on negotiating further and regular importations.

It is that aspect of it that takes it beyond the scope of the indictment.

GLEESON CJ:   Can I take you back to the matter of your extension of time.  Your affidavit in support of an extension of time is on page 71.  Paragraph 3, which needs correction – I think 7 November 2004 should be 7 November 2003 – says the decision of the Court of Criminal Appeal was on 7 November 2004 and there was an application made to the Legal Aid Commission and the Legal Aid Commission made a decision on 5 July 2004.  What the affidavit does not say is why it took until 5 July 2004 for a decision to be made as to whether there would be support for the appeal.

MR RICHTER:   In that respect it is deficient and ‑ ‑ ‑

GLEESON CJ:   It is deficient in a particular respect, Mr Richter.  It is not only deficient in the respect that it does not explain the reason.  This Court has rules and if it can be treated as ordinary practice that does not even warrant a whisper of explanation that an appeal against a decision of 7 November 2004 is not the subject of a decision as to whether it will proceed, let alone an application be made, until 5 July 2004, then we ought to be told why.  Is that ordinary practice?

MR RICHTER:   It is not, your Honour, and we apologise because that does make it clear that the Court is treated with discourtesy except that, as I understand it – and it is not in the affidavit, so if I am permitted to say it from the Bar table – there had been regular contact with the staff of the Court, which is not satisfactory of course, on the basis that it was really impossible to deal with the matter at the time.  There is a sort of elusive reference to the fact that I have been engaged in a lengthy trial.  Someone else should have been retained to ‑ ‑ ‑

McHUGH J:   But that is not really the point, is it?  The point is – well, it is difficult to know what the true dates are, but the difficulty is that paragraph 3 is 7 November 2003 and then you have to go to July 2004.  It is not your part in it but it is that gap.

GLEESON CJ:   For a sentencing appeal.  Whether your argument is right or wrong, it is not rocket science.

MR RICHTER:   That is right.  I agree with that, with respect, and for that we need to apologise.  That is all I can do, is apologise, other than to say that perhaps the view was taken erroneously that Mr Chen was in for such a lengthy period ‑ ‑ ‑

GLEESON CJ:   Yes, it is obvious Mr Chen is not going anywhere for a long time whether you win or lose.

MR RICHTER:   He is not going anywhere, and this Court requires a fulsome apology and, if necessary, if the Court so requires, I will cause a fuller affidavit to be sworn.  Having said that, in my respectful submission, this appeal calls for intervention by this Court and the application for extension is not opposed, which does not determine it.  This Court is perfectly entitled to say to me, “Go away, we won’t do it”, but it has not been the practice of this Court to do so where there has been demonstrable error and a demonstrable injustice.  I notice my time is up, so I could not outline the last two points of special leave.

GLEESON CJ:   We have read your written submissions which we assume give us reasonable notice of your arguments.

MR RICHTER:   Yes, your Honour, they do.  If the Court pleases.

GLEESON CJ:   The applicant requires a substantial extension of time to be permitted to bring this application for special leave to appeal.  In support of that application there has been filed an affidavit of 20 August 2004 which does not provide a sufficient explanation of the circumstances of the delay in lodging the application.  Nevertheless, we have heard argument on the merits of the proposed application because a consideration of those merits is essential to a decision on whether or not the extension of time ought to be granted.

Having listened to the argument for the applicant, we are of the view that the extension of time should not be granted because there is insufficient merit in the proposed appeal to warrant a grant of special leave to appeal.  The application for an extension of time is dismissed with costs.

AT 10.37 AM THE MATTER WAS CONCLUDED