Chen v The Queen

[2003] HCATrans 693

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S239 of 2002

B e t w e e n -

WEI MING CHEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 MAY 2003, AT 11.16 AM

Copyright in the High Court of Australia

MR A.J. BELLANTO, QC:   May it please the Court, I appear with MR A.J. GOLDSWORTHY for the applicant.  (instructed by Raymond Lee & Co) 

MS E.L. FULLERTON, SC:   May it please the Court, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions) 

GLEESON CJ:   Yes, Mr Bellanto. 

MR BELLANTO:   If the Court pleases, we intend to confine our oral argument to the sentence and the failure to fix a non‑parole period, which we say exposes a serious and fundamental sentencing error.  It is firstly necessary to identify the error that occurred in the sentencing process, and that is that 19AB(4) of the Commonwealth Crimes Act was not complied with, in that reasons for not setting a non‑parole period were not given. 

GLEESON CJ:   Yes, let us get a hold of that. 

MR BELLANTO:   We have supplied the Court with some materials, and it is annexed to the bundle of material before your Honours that has been filed.  There is the case of Bugmy, which I will come to in a moment, there is the case of Wong, and then following that, there is the extract from the relevant legislation.  Your Honours will see that 19AB(4) states: 

Where the court decides that neither a non‑parole period nor a recognizance release order is appropriate, the court must: 

(a)  state its reasons for so deciding; and

(b)  cause the reasons to be entered in the records of the court. 

In this case, no reasons were given.  The effect of not fixing a non‑parole period in this case is ‑ ‑ ‑

GLEESON CJ:   Where is the matter dealt with, if at all, by the sentencing judge? 

MR BELLANTO:   It is referred to in the application book at 288.  The actual remarks on sentence ‑ ‑ ‑

CALLINAN J:   Just before you do that – I am sorry, Mr Bellanto – was this ground taken in the Court of Criminal Appeal? 

MR BELLANTO:   Yes, your Honour.  It is referred to at page 288. 

CALLINAN J:   Thank you. 

GLEESON CJ:   And where are the sentencing judge’s remarks? 

MR BELLANTO:   The sentence remarks commence at 129. 

GLEESON CJ:   Thank you. 

MR BELLANTO:   Of course, his Honour was passing sentence on three other co‑accused, but the reference to this particular applicant is at page 135 and following to page 138.  Then at page 140, his Honour deals generally with the gravity of the offence, describing it as a “massive” importation, and further over the page on 141 line 35, his Honour refers to the applicant again, as being: 

a person of prior good character and is married with one child.  He was a process worker in Hai Kou city in the Chinese province of Hainan. 

GLEESON CJ:   But he gives a reason at the bottom of 143, does he not, line 54 and 55? 

MR BELLANTO:   Yes, he does.  He describes the applicant as a “principal” and it would appear by reason of the objective circumstances of the case that his Honour identified ‑ ‑ ‑

GLEESON CJ:   The objective circumstances of the case, not mitigatedly found, relevantly.

MR BELLANTO:   Yes. 

GLEESON CJ:   So that is what the Court of Criminal Appeal said at page 288 line 30. 

MR BELLANTO:   They did.  It was the gravity of the offence that weighed heavily on his Honour’s mind, the fact that the applicant was a principal and that it was a sophisticated operation and, of course, the quantum of the drugs involved. 

GLEESON CJ:   He did set a parole period in relation to a couple of the co‑offenders. 

MR BELLANTO:   He did, but the co‑offenders Lau and this applicant did not get the benefit of a non‑parole period.  So the consequence for this applicant is he was ‑ ‑ ‑

GLEESON CJ:   Has Lau appealed? 

MR BELLANTO:   Yes.  Well, not to this Court as yet.  He will require leave, of course.  The applicant was 28 years of age at the time of his arrest, so effectively life without parole means if he lives his full term he will spend about 50 years in gaol.  Now, that requires, we say, in the absence of a non‑parole period, clear reasons by his Honour why he has departed from the mandate within the Act that sentencing judges are required to fix a non‑parole period unless there are circumstances justifying the non‑fixing of such a period. 

GLEESON CJ:   Well, what he said was this is the worst case by the worst offender. 

MR BELLANTO:   He did. 

GLEESON CJ:   “They are most seriously involved in the most serious of offences.” 

MR BELLANTO:   He did. 

GLEESON CJ:   So they should get the top. 

MR BELLANTO:   The top penalty, as provided in section 235, is life.  The procedural requirements in relation to a non‑parole period are referred to in 19AB, a different section of a different Act.  We say that if you are going to depart from the mandate, you have to provide reasons, and that is linked to the fundamental philosophy behind a non‑parole period.  Non‑parole periods are designed to provide for rehabilitation at some point. 

Now, in a case such as this, being a very serious offence, obviously it will be a lengthy period, but nevertheless the court, we say, should have regard to a number of basic sentencing principles.  One of those is:  are there prospects of rehabilitation?  That is not the same as saying, “Well, this is the worst type of offence.  The applicant must get the worst possible penalty.”  This indeterminate sentence requires considerations of rehabilitation. 

GLEESON CJ:   Mr Bellanto, what, as a practical matter, happens when somebody with this background – I mean, geographically, et cetera – is released on parole?  Does that mean that Australia has the benefit of his company for the remainder of his life ‑ ‑ ‑

MR BELLANTO:   I would expect so. 

GLEESON CJ:   ‑ ‑ ‑ rather than having him sent back home? 

MR BELLANTO:   Yes, as I understand it, unless there are some other considerations that may attract clemency or personal circumstances overseas – I do not know.  My friend may be able to enlighten me more in this particular case – they are Commonwealth matters – but it is my understanding that he will stay here and remain here. 

GLEESON CJ:   And serve out the rest of his sentence in the Australian community. 

MR BELLANTO:   As I understand it, yes.  Subject to any agreement between countries as to the exchange of prisoners on parole.  To emphasise the point we make, can I refer your Honours to section 19AB again.  I refer your Honours to subsection (3): 

Where, but for this subsection, a court would be required by this section to fix a non‑parole period, or make a recognizance release order, in respect of a person, the court may decline to do either if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that neither is appropriate. 

So there again there is a requirement that the sentencing judge at least assess the antecedents of the person, with a view to, no doubt, considering the question of rehabilitation.

GLEESON CJ:   What does a sentencing judge know about the antecedents of somebody who arrives here under these circumstances? 

MR BELLANTO:   Not a lot, but that does not mean necessarily that the applicant be denied the benefit of a consideration as to his rehabilitation.  He came before the court as a first offender and a person who presumably had no anti‑social behaviour in his past ‑ ‑ ‑

GLEESON CJ:   Why is that presumed? 

MR BELLANTO:   Well, there is no evidence to the contrary. 

GLEESON CJ:   This, I presume, was his first visit to Australia. 

MR BELLANTO:   I would think so, yes.  There was certainly no evidence to the contrary. 

GLEESON CJ:   But he was only here for the purpose of dropping off some drugs. 

MR BELLANTO:   Correct.  That has changed significantly now, of course.  That leads me to a consideration of the case of Bugmy, which is a case we rely on.  It is in the material that your Honours have – I think it is the first case in the bundle.  That is a case that came before this Court in 1990.  The relevant passage appears at page 532 in the first paragraph at the top of that page, commencing with the words “A prisoner’s prospects of rehabilitation”.  If I can take your Honours down from that sentence to the beginning of the final paragraph on that page, the comments therein of the former Chief Justice and Justice McHugh we say support our argument that in this type of case rehabilitation should be considered and unless there is some evidence to suggest that the offender in question will be a threat to the community, that is, committing violent offences, uncontrollable, has shown no prospects for rehabilitation ‑ ‑ ‑

GLEESON CJ:   If an offender is a foreign national whose contact with Australia simply consists in delivering a huge quantity of drugs here under circumstances where it is presumably intended he will go away again as quickly as possible, how, as a practical matter, does a judge go about assessing that person’s prospects of rehabilitation? 

MR BELLANTO:   He can only go on what is before him.  He does not embark upon an inquisition as to the person’s personal antecedents, obviously, but there are some fundamental facts before his Honour:  no convictions, married man with children, and it appears that his Honour at least regarded them to some extent, but put them aside when his Honour looked at the overall objective criminality. 

Now, that is not what the comments in Bugmy at 532 address.  It raises another question for this Court, we say, and that is this, that under a sentencing regime like the Commonwealth Crimes Act where the great bulk of offenders are white‑collar offenders and drug offenders, as opposed to people that could be described as violent, in a physical sense, offenders, who come for sentence under the State legislation, such as murderers and those people, do the same considerations apply in relation to a non‑parole period under the Commonwealth law as they do under the State law? 

We would say for people who come before the courts for sentence under the Commonwealth regime there is an even greater need to look at the question of rehabilitation, because they are normally people who will be rehabilitated or can be rehabilitated and if released will not be a threat in a violent way, such as murderers and pathological killers and those sorts of people.  They will not be a threat to the community.  In those circumstances, it is even a stronger reason why concepts of rehabilitation should be assessed and non‑parole period be granted.  Of course, that point was addressed by the Court at 533 in Bugmy about point 4 in the paragraph commencing “We would reject the suggestion” and then a few lines further

on “It is simply wrong to suggest”.  We rely on that passage in that case.  They are our submissions, if your Honour pleases. 

GLEESON CJ:   Thank you.  Yes, Ms Fullerton. 

MS FULLERTON:   If the Court please, it is uncontroversial, if I may put it that way, your Honours, that Parliament has provided for the means by which the maximum penalty of life imprisonment can be imposed for an offence against section 233B of the Customs Act where a commercial quantity of drug is imported, and that is by operation of section 19AB, which permits a judge to refuse to fix a non‑parole period. 

Section 19AB(1), which provides that where a court imposes a federal life sentence it must fix a non‑parole period, is to be read subject to subsection (3), which is important to take account of in the context of this application, given that the substance of the argument – presented orally, at least – is that there has been serious error in both the refusal to state reasons for not imposing a non‑parole period and the corollary, namely, that a non‑parole period should have been imposed.  Section 19AB(3) provides that:

the court may decline to [fix a non‑parole period] if having regard to –

and I emphasise these words –

the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that neither is appropriate –

to attract a non‑parole period.  True it is that Parliament has required a court in those circumstances to state its reasons and true it is the learned sentencing judge did not, as the Court of Criminal Appeal described it, catalogue his reasons. 

What the learned sentencing judge did was to direct his findings to the objective nature of the offence, it being of the “most serious kind” and the role of the offender, namely, one of those most responsible.  Then, taking into account, as he did, what subjective considerations were available to him as a matter of the evidence before him in the sentence proceedings, he in effect did what, in my submission, he was entitled to do and that is to deprive those subjective circumstances, or, putting it another way, the applicant’s antecedents, of any weight in the circumstances and in effect deprived the applicant of what might otherwise be said to be the benefit of a determinate sentence to be served before consideration of a release on parole. 

GLEESON CJ:   What, as a matter of practice, happens when somebody of this person’s background is released on parole? 

MS FULLERTON:   Your Honour, the situation, as I understand it, is this – and may I put it in the context of who this particular applicant is, or might be.  As your Honours would perhaps be aware from the very lengthy facts recited in the application book by way of judgment, this particular offender accompanied a speedboat laden with the drug to Australian shores, the speedboat having been offloaded from a mother ship.  He was carrying a passport with his photograph in it but bearing another name.  The passport was a false passport in every material sense.  On arrest, he gave his name as Wei Ming Chen, or Chen Ming Wei, as he is known in these proceedings, otherwise than by his generic name.  He gave a date of birth. 

All practical inquiries made at trial and, indeed, leading up to sentence, to confirm that the man in flesh was the man he claimed to be by name were largely unsuccessful, in the sense that we no longer can accept him to be the person he says he is.  So in those circumstances, and against that background, your Honour, he was, as every foreign national is when arrested in this land, given the status of a person subject to a criminal justice visa.  He is permitted – because he is not otherwise permitted to be here, because he landed in irregular circumstances – to remain within the jurisdiction for the purposes of his criminality being determined in an appropriate way. 

GLEESON CJ:   But does it follow from what you say that the trial judge knew almost absolutely nothing about his antecedents?

MS FULLERTON:   That is so, your Honour, yes.  Once his sentence is determined by its expiration, the person, subject to a criminal justice visa, becomes – and I think the modern terminology under the current immigration law is a “prohibited non‑citizen”.  He is taken into custody and taken to an immigration detention centre, whereupon his exit from this country is governed by immigration law.  My learned friend, with every respect to him, is wrong in saying that this man would spend any time within the Australian community, namely, the community of its free citizens. 

In my respectful submission, your Honour, rehabilitation, in the sense in which Bugmy recognises its operation as a fundamental feature of the imposition of a non‑parole period, in any practical sense does not apply in this case. 

GLEESON CJ:   Do you mean that if he were granted parole, he would be on his way out? 

MS FULLERTON:   Essentially that, your Honour.  He would not hit the runway, as I think your Honour said. 

GLEESON CJ:   That does not sound like a bad reason for giving him parole. 

MS FULLERTON:   I beg your pardon? 

GLEESON CJ:   That sounds like not a bad reason for giving him parole. 

MS FULLERTON:   Well, it is equally no proper reason, in the operation of the Act, for refusing, in this case, the imposition of a maximum sentence where otherwise the maximum sentence is called for. 

CALLINAN J:   Assuming his own country or some other country would take him back, too. 

GLEESON CJ:   Yes, whatever it might be. 

MS FULLERTON:   Yes.  In my submission, your Honour, given the extraordinary factual complex of this case, this applicant was a person warranting consideration of the imposition of the maximum penalty and there is no error demonstrated in the approach his Honour took, save only for the textual error, in that his Honour’s statement of reasons were, in the strict sense, very, very limited reasons.  He spoke it in the negative, in effect, “I can see no reason why, given what I have found to be the facts established, the imposition of the maximum penalty ought not be imposed”. 

CALLINAN J:   Ms Fullerton, can you tell me whether, independently of everything you have said, there is a discretion in the Minister for Immigration to deport him anyway, regardless of whether he is in prison or not? 

MS FULLERTON:   Your Honour, regardless of ‑ ‑ ‑

CALLINAN J:   No, whether he is in prison or not. 

MS FULLERTON:   If he is in prison, he is not subject to the reach of the Minister.  Once he is out of prison and becomes – and again I confess not to having perfect recollection of the Migration Act, but I am almost certain he becomes a “prohibited non‑citizen” – then he is within the reach. 

CALLINAN J:   It is a pity, really, is it not, as the Chief Justice implied, that if he is beyond the reach of the Minister for deportation purposes whilst he is in prison.  It is hardly in the interests of the Australian community to support him and ‑ ‑ ‑

MS FULLERTON:   Well, the Australian community regards, I suppose, properly those who offend against its laws, whether nationals or foreign nationals ‑ ‑ ‑

CALLINAN J:   The deterrent effect, I suppose, yes.

MS FULLERTON:   Quite so, and in a case of this kind, as the authorities recognise up and down the land, deterrence is a dominant consideration.  It does not enter strictly into this debate, but certainly it would well justify foreign nationals serving their time within a local gaol.

CALLINAN J:   Yes.

GLEESON CJ:   I suppose that in some other jurisdictions he would be subject to the death penalty.

MS FULLERTON:   He certainly would be, your Honour, yes, in jurisdictions not so far from here.

CALLINAN J:   You would not want to send him back so he could do it again.

MS FULLERTON:   No, but the imposition of a very lengthy non-parole period would almost certainly have guaranteed that outcome in any event and, with all respect, that I think is not to the point.  The point is whether or not the primary judge erred in refusing to impose a non-parole period and to the point and perhaps to the direct point, as the argument arises in this Court, whether the Court of Criminal Appeal in confirming the propriety of that sentence in these circumstances has erred as a matter of fact, law or overarching principle.  In my submission, it has not.

GLEESON CJ:   I should have thought as a matter of practical justice what you would ask yourself is whether by expressing himself in this form he might have overlooked some consideration relevant to the question of parole.

MS FULLERTON:   Your Honour, may I say this.  When one has regard to the primary judge’s reasons for sentence, his Honour did not refer to section 19AB(1), (3) or (4) in terms.  That being said, it might be thought that his Honour did not give consideration to the legislation.  Would this Court permit me to say I appeared both as the trial counsel throughout the series of trials and, indeed, on each sentence proceeding, his Honour was

well aware of the way in which his discretion was statutorily confined and the way it ought operate as a matter of discretion in the sentencing process. 

In my submission, when one reads his Honour’s reasons for sentence in globo, it cannot be made good that his Honour has overlooked the operation of section 19AB(3) which is essentially the principal section, namely, whether:

having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that –

a non‑parole period is not appropriately applied.  They are my submissions, if your Honours please.

GLEESON CJ:   Thank you.  Yes, Mr Bellanto.

MR BELLANTO:   I have nothing further to add, if your Honour pleases.

GLEESON CJ:   We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave.  The application is refused.

We will adjourn for a moment to reconstitute.

AT 11.44 AM THE MATTER WAS CONCLUDED