Kwon v The Queen

[2012] HCATrans 121

[2012] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S152 of 2011

B e t w e e n -

JOSEPH KWON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MAY 2012, AT 1.09 PM

Copyright in the High Court of Australia

MR G.M. THOMAS:   May it please the Court, I appear for the applicant.  (instructed by Lawyers Corp Pty Limited)

MR L.A. BABB, SC:   May it please the Court, I appear the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J:   Yes, Mr Thomas.

MR THOMAS:   Can I start by addressing your Honours in relation to the parity issue first.  The troubling part of this case is that we are dealing with two individuals who had virtually identical subjective circumstances or deceptively similar subjective circumstances and put forward very significant subjective cases.  The offences that are referred to in the judgment of the Court of Criminal Appeal, although characterised as being, in a sense, different and also characterised as being lesser in the case of Choi to the extent that he was charged with take part in the supply, it needs to be noted that both the offence of supply and take part in supply arise pursuant to the very same statutory provision, that is section 25(2) of the Drug (Misuse and Trafficking) Act and one needs to be guarded, in my respectful submission, when characterising these as different offences.  I have fallen foul to that characterisation myself in the written submissions because I accepted that they were different offences, but they are, in fact, in my respectful submission, the same offence because they arise pursuant to the very same statutory provision that creates the offence.

KIEFEL J:   That may be, but there are different degrees of culpability involved, are there not?

MR THOMAS:   We accept that.  What arises here, in my respectful submission, is the judgment of his Honour Justice Harrison in the Court of Criminal Appeal drew as an extract a set of facts and those same set of facts were relied upon in the case of the applicant as demonstrating sufficient likeness objectively.  Those same set of facts were relied upon by the Court in coming to the conclusion that there was insufficient likeness to invoke the application of the parity principles and therein lies the problem, that different people, judicial officers and others, are able to look at the same set of factual material and draw different conclusions about what that material means objectively.

The reason why this matter should come before this Court and have leave granted is that we need on the ground in sentence proceedings, day in, day out, where there are related offenders that need to be dealt with by courts, there needs to be a test stated by this Court, as the highest authority, to aid one in determining with precision how facts are to be interpreted relative to the application of parity principles, otherwise we end up, or this applicant ends up in the position where he is looking at a comparative position in relation to someone who is charged pursuant to the very same statutory provision.  He is presenting a virtually identical subjective case.  The comparative position and the one under inquiry here both carry statutory non‑parole periods and there is some difference, as there always is with related offenders, there is always some difference.  It is very rare for two individuals to do the very same thing when committing offences within a criminal enterprise.

KIEFEL J:   They had different roles.

MR THOMAS:   They had different roles, but there was a very substantial overlap in what they were doing as well.  My client entered an agreement with Choi.  They presumably negotiated, they agreed upon terms, they agreed upon the amount, the 30,000 pills, they agreed upon a price.  Certainly the reality was that my client dealt with the undercover operative who was subjecting him to inducements, but the flipside was that Choi, who was never asserted as being a manufacturer of the drug, he too would have been dealing as part of the enterprise with some other individual or individuals in order to obtain the supply that was the subject of the agreement.

There were many similarities in relation to their conduct such that, in my respectful submission, with all due respect to the Court of Criminal Appeal, they got it wrong when they came to the conclusion that the objective facts here were so dissimilar as not to invoke the parity principles.  Which leads to a different problem that needs to be addressed by this Court and that is, what is the process, the procedural process in the sentencing exercise in the application of parity principles?  Do we start by reference to an analysis of the facts, dishing it out in teaspoons, looking for points in this pedantic way, I think as was referred to in the judgment of the Court in Kerr, for differences to then disqualify one in the application of parity or do we look at the criminal enterprise that people are participating in and apply parity, then look at the facts, determine whether there are differences and those differences can make their way into the assessment as to what the appropriate sentence should be? 

So we were never asserting to the Court of Criminal Appeal that we should receive precisely the same sentence as Choi.  We were alive to the fact that our position was able to be characterised and accepted that our offending, objectively viewed, was different and higher than that of Choi, but that, in my respectful submission, does not disqualify us from the application of parity.  Our difference should be embraced and reflect itself in the sentence, which should necessarily have been greater than Choi, we accept, but the enormous disparity here, adding back the discounts as was the process of reasoning of Justice Hulme who is the minority judgment, adding back the discounts, we are dealing with related offenders, as I say, charged pursuant to the very same statutory provision, yes, some differences in role, but other similarities, significant similarities in role, both had standard non‑parole periods, both had deceptively similar subjective cases and yet my client is subjected to a starting point of 16 years and after the Crown appeal in relation to Choi, he has a starting point of nine years.

It beggars belief, in my respectful submission.  Objectively viewed, that outcome on the facts of this case, even allowing for the differences, even allowing the objective differences, even allowing for the fact that my client played a more significant role, it did not warrant the Court of Criminal Appeal coming to the conclusion that this was not a case of like versus like.  With respect, there has been movement in relation to this whole parity position, from Lowe and Postiglione, Jimmy and more recently this Court in Green and Quinn.  Looking at it from the point of view a Crown appeal and in reverse, so to speak, in the case of Quinn and Green, each of whom had been charged with large commercial quantity cultivation attracting a standard non‑parole, and Taylor, who had a completely disparate charge of supply commercial quantity cannabis with no standard non‑parole at all, completely relative to this case, completely different charges. 

Not as here, both charges, Choi and my client, arising from the very same statutory provision.  In that case this Court was alive in reverse, as it were, on the Crown appeal, that what the Court of Criminal Appeal had done was to create a disparity and there the disparity was between unrelated charges.  Here, like I said from the outset, there is a very strong argument for the proposition that the charge of take part in supply and supply are, in fact, the same charge because they both appear in the very same statutory provision. 

What this case offers is the opportunity for this Court to come at the parity issue from the point of view of an offender appellate as opposed to what happened in Green and Quinn where the applicant in this Court was coming at it from the point of view of a Crown appeal.  What this case offers also is the ability for this Court to come at the problem relative to offences that are so similar, in fact, arguably, the same offence because they both arise from the same statutory provision, which was quite a different position to that in relation to Green and Quinn.

So, your Honours, what Justice Harrison, with great respect to him, did was to erroneously undertake the task of determining whether parity should apply.  It is a much broader concept than simply looking at the charge, looking at the facts and then deciding whether to apply it or not.  It is a principle borne of the rule of law as it is, and it is fairness and due process and so forth.  It is a much broader and more flexible principle than simply looking at the facts, making an objective assessment about then, in a vacuum as it were, arbitrary.  “My opinion is that these facts” – I am summarising now Justice Harrison’s position, “No, my opinion is that these facts are not sufficiently similar as to warrant the application of parity.”

That is arbitrary, that is an opinion and offenders who are being sentenced day in, day out, and related offenders, because we are often confronted with individuals who are joint participants in crime, are entitled to something better than some arbitrary and potentially capricious assessment as to whether or not facts are sufficiently alike to warrant the application of parity.  The principle is far too important.  As far as the other aspect of the appeal, bearing in mind that – my client was sentenced in the District Court, incidentally, by a different District Court judge who sentenced Choi. 

Muldrock was not around, Muldrock was not around when the CCA dealt with his appeal.  Green and Quinn was not around.  So there have been two important statements of principle by this Court since that time when the applicant was sentenced initially and dealt with in the Court of Criminal Appeal.  As far as Muldrock is concerned, we say that a fair reading of the original District Court judge’s remarks make it clear that there was an undue emphasis, a determinative significance, within the meaning of Muldrock, placed upon the standard non‑parole period at the expense of the powerful subjective case that had been put before the Court by the accused himself. 

He is a 21 year old offender.  He is still in gaol and will be there for another five and a half years, I think it is, short episode of offending.  We are talking about weeks by reference to the indictments.  No criminal history.  By all accounts, of good character.  Early plea warranting the 25 per cent discount.  Good prospects of rehabilitation, including evidence of rehabilitation that had taken place during the time he was in custody after charge before he was sentenced.  Family support, drug use problem relating directly to the commission of the offences.

This was an enormously powerful subjective case which, with respect, it is difficult to determine what is in the mind of a sentencing judge, it always is, but to the extent that there were a number of references, I would not say replete during the remarks on sentence, but there were a number of reference to the standard non‑parole period and this is pre‑Muldrock days of course.  This is the days where Way ran supreme in the mind of sentencing judges.  It is difficult to avoid the conclusion, in my respectful submission, that there was a determinative emphasis placed upon Way and the standard non‑parole period when this applicant was sentenced.  That would apply to both counts that are before the Court.

In terms of parity, if we are successful in relation to our parity argument, then there is also a question of a comparative analysis being undertaken as between that count, being count 2 that relates to parity with Choi, and the other count because if we are successful in reducing through the application of parity the count 2 sentence, accepting that our conduct, objectively viewed, was more significant than Choi, but that does not defeat the application of the parity principle.  If there is a reduction in the sentence for count 2, there must necessarily then be an evaluation of the sentence in relation to count 1 because there needs to be some proportion between each of those sentences.

In addition to that, when one embraces the fact that there was a finding of special circumstances as well as the strong subjective case for both Choi and my client, Choi ended up with a discount of 55 per cent and my client ended up with a discount, I think I have expressed it incorrectly in the written submissions, the original discount, 12 years, eight years for one count represents 66.6, but as a result of the accumulation of the very same sentence of 12 and eight by one year with a total sentence therefore of 13 and nine, that variation for special circumstances made its way up from 66.6 to 69.2.

Either way my client has a finding of special circumstances in the context of a virtually identical subjective case but winds up with an extra 10 or 12 percentage points of non‑parole period that he must serve, notwithstanding that he and Choi both enjoyed the benefit of the discretion that there be a finding of special circumstances.  So, objectively viewed, anyone looking at this position as to what happened to Kwon and what happened to Choi, even accepting some differences, even accepting that my client was more criminally responsible, objectively viewed, in relation to that particular offence that they were both embroiled in, it is unacceptable.  Given that the rule of law is there, and inherent within it are concepts of fairness and parity, it is impossible to accept, in my respectful submission, that the rule of law has been applied to Kwon in the circumstances of this case. 

Finally, we say that there is a real need for this Court to set out with precision what the principles are that need to be applied and the procedure to apply parity, to avoid the cart going before the horse.  What has happened here is parity has not been applied because there is a perception, arbitrarily determined we say, that the facts are too different for it to be applied.  As we say, the criminal enterprise that both were involved in, even with different charges, as in Green and Quinn, should be the starting point and then one applies parity principles.  Then one can look at the facts and circumstances of the case and make determinations about objective criminal responsibility and role and so forth and then determine with finality what the sentence in respect of these people should be.

HAYNE J:   Yes, thank you, Mr Thomas.  I see your time is up.  We will not trouble you, Mr Babb.

We are not persuaded that any disputed point of principle would fall for consideration by this Court if special leave to appeal were to be granted.  It is not shown to be in the interests of justice generally or in the interests of justice in this particular case that there be a grant of special leave.  Special leave is refused.

Adjourn the Court to 10.15 am on Tuesday, 29 May 2012 in Canberra.

AT 1.30 PM THE MATTER WAS CONCLUDED