Im v The Queen - [2020] HCATrans 194

[2020] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S124 of 2020

B e t w e e n -
IM
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 NOVEMBER 2020, AT 12.26 PM

MR I.M. NEIL, SC: If the Court pleases, I appear with my learned friend, MR C. PARKIN, for the applicant. (instructed by Birchgrove Legal)

MR L.K. CROWLEY, QC: May it please the Court, I appear with my learned friend, MR B.J. POWER, on behalf of the respondent. (instructed by Director of Public Prosecutions (Cth))

NETTLE J: Yes, Mr Neil.

MR NEIL: Your Honours, may we begin by confronting two problems. The first is that our application was made substantially out of time and we apply for an extension of time. The respondent has been good enough to tell us this morning that it consents to that application.

NETTLE J: Time is extended.

MR NEIL: If the Court pleases. The second problem is that, as your Honours will have seen, two of the three points in respect of which the applicant seeks special leave are new points not raised below. Indeed, we accept that the applicant acquiesced in the way in which both of those matters were dealt with below. It follows, again, we accept, that we will need to demonstrate that in relation to those two points this is an exceptional case. In that regard we point first to the striking youth of the applicant, and to the marked heaviness of his sentence, a heavy sentence that, if either of the two points is sound, is vitiated by an error of law.

In addition, we make these three points. There is no new fact relevant to the disposition of either point that is now sought to be, or that could have been proven below. The proceedings below were conducted on agreed facts. Both proposed new grounds raise pure questions of law. Second, there was no forensic benefit to the applicant in not raising these points below, and no such benefit has accrued to him as a consequence of not doing so. Equally, the converse position is true. There is no forensic disadvantage to the Crown in raising them now.

Third, as we have submitted in writing and hope to develop this morning, both of the new points raise questions of general public importance. If it please, those are the four considerations that, in our submission, together make this an exceptional case so as to justify a grant of special leave in relation to what are avowedly new points and that…..what we had wished to say on that topic by way of supplementing what we have said in writing.

May we next turn to develop the proposed grounds. Can we say at once that we had not proposed to say anything this afternoon in relation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Im v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] HCATrans 194
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant sought to appeal against a decision of the Court of Criminal Appeal, which had dismissed his appeal against a sentence imposed upon him. The applicant's legal team sought an extension of time to file the application, which was consented to by the respondent and granted by the Court. Two of the three grounds for special leave were new points not raised in the courts below, and the applicant conceded that he had acquiesced in how these matters were dealt with previously. To succeed, the applicant needed to demonstrate that these new points raised exceptional circumstances justifying special leave, pointing to his youth, the severity of his sentence, and the fact that the new grounds raised pure questions of law with no forensic disadvantage to the Crown.

The primary legal issue before the High Court concerned the interpretation and operation of s 20C of the *Crimes Act 1914* (Cth) in the context of sentencing a federal offender for a terrorism offence. Specifically, the applicant argued that s 20C, a deeming provision, operated to transform a federal offender into a State offender for the purposes of punishment when its discretion was exercised. This, it was contended, would mean that provisions of the *Crimes Act* (Cth) that applied only to federal offenders, such as s 19AG concerning non-parole periods for terrorism offences, would not apply. The applicant argued that this interpretation would have resulted in a less onerous non-parole period under New South Wales law, thereby mitigating the severity of his sentence. The respondent, conversely, submitted that s 20C was merely an enabling provision allowing a sentencing court to apply sentencing options available under State or Territory law, but that the offender remained a federal offender subject to federal sentencing provisions, including s 19AG.

The applicant's counsel contended that the words "as if" in s 20C created a counterfactual state of affairs where the offender was treated as a State offender being sentenced for a State offence, thereby excluding the operation of federal provisions like s 19AG. This, it was argued, would mean the 75 per cent non-parole period under s 19AG(2) would not apply, and instead, the relevant New South Wales provisions, which allowed for a two-thirds non-parole period and consideration of special circumstances due to youth, would apply. The respondent argued that s 20C was a general provision and that s 19AG was a specific provision dealing with terrorism offences, which, by its terms and in context, applied exclusively to federal sentences of imprisonment. The respondent maintained that the offender remained a federal offender sentenced for a federal offence, and that s 20C's role was to permit the consideration of State sentencing options as alternatives to imprisonment, not to alter the fundamental nature of the sentence or the applicability of specific federal sentencing requirements like non-parole periods for terrorism offences.

The Court granted special leave to appeal on ground 2, which concerned the interpretation of s 20C of the *Crimes Act 1914* (Cth) and its interaction with s 19AG of the same Act. The Court indicated that it would hear submissions on this ground.

Orders