Nguyen v The Queen

[1993] HCATrans 328

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S86 of 1993

Be.tween -

LUAN NGUYEN

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
GAUDRON J

McHUGH J

Nguyen 1 27/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 27 OCTOBER 1993, AT 12.48 PM

Copyright in the High Court of Australia

MR T.A. GAME: If the Court pleases, I appear for the

applicant, together with my learned friend,

MR S.J. ODGERS. (instructed by C.R.M. Neave,

Managing Director, Legal Aid Commission (New South

Wales))

MR R. KELEMAN: If it please the Court, I appear for the

respondent in this matter. (instructed by

S.E. O'Connor, Solicitor for Public Prosecutions

(New South Wales))

DEANE J: Yes, Mr Game.

MR GAME:  In the Court of Criminal Appeal, this appeal went

forward upon the basis that it was agreed on all

sides that the sentencing judge had failed to have regard to the provisions of the Children (Criminal

Proceedings) Act. Upon that basis, evidence was

tendered before the court from which the clear

inference could be drawn that the applicant was

rehabilitating himself in the young offenders'

programme at Parklea Prison, and that material has

been attached to the documents in a separate yellow

book to which I will take the Court.

The Court of Criminal Appeal made no reference

to that material at any part in its judgment. The

only reference it made to rehabilitation was at the

top of page 21, to the effect that:

No evidence was before his Honour to suggest

that any period of rehabilitation had begun,

or that the possibility of it beginning in the

future was a realistic one.

Now, whether or not that is correct - and we do not

concede that that is correct - that passage, in our

submission, clearly indicates that the court failed

to have regard to the material which was tendered

before it on the appeal in relation to the

applicant's rehabilitation in circumstances where

the court was obliged to proceed to resentence.

Two other subjective features of the case

should be mentioned at the outset. Firstly, there

was evidence before the trial judge of specific

assistance to the police in catching a co-offender

by this applicant, for which the applicant was

entitled to some discount at least. Secondly, the

applicant stood to be sentenced on his record of

interview alone. There was no other evidence

against him and in that record of interview he had

himself as a person who was woken up during the
night and asked to come and participate in this armed robbery; so that he was certainly not the

instigator. The Court of Criminal Appeal at no

Nguyen 2 27/10/93

stage referred to any of those features of the case

which would be essential had it proceeded to

resentence as it was obliged to do in this case.

The way in which the court approached the case

of this applicant appears in a short passage at the

bottom of page 23 to about half-way down page 24 of

the application book. The submission was put to

the effect that His Honour had overlooked his age.

Well, the submission that was put was that the sentencing judge had failed to have regard to the provisions of the Children (Criminal Proceedings) Act and as I said to commence with that was

conceded. The court proceeded to say that:

the only proper exercise of his discretion

would have been to proceed at law - - -

DEANE J: Well, i.t was apparent that His Honour had not

overlooked his aged, was it not?	He mentioned it
three times.

MR GAME:  He did not overlook it. There is no question

about that. He failed to have regard to the Act,

and we would submit that the Court of Criminal

Appeal failed to have regard to the Act themselves.

DEANE J: Well, they had regard to it.

MR GAME: In a fleeting respect, because -

GAUDRON J:  You say that that error having occurred, it was

really up to the Court of Criminal Appeal to

resentence applying the Act -

MR GAME:  They had to resentence, yes, and there were

three - - -

GAUDRON J:  - - - and that they did not do.

MR GAME:  They did not even purport to do it. In effect,

there were three stages in the process that the
court would go through. Just looking at the
statutory material; firstly they would determine

whether to sentence according to law or under

Part 4, Division 3 of the Act. The discretion

there is a discretion at large, so that one has to

look at all the features of the case, including the

subjective material to which I have just referred,

and one would have to look at what had actually

happened to this applicant over the many months and

years in which he had been in custody to determine

that question, because he had been in a child

detention centre; he had been going to school; he

was taken out and put into Parramatta Gaol and then

Long Bay Gaol, and then by the time the appeal was

on he was at Parklea in the young offenders'

Nguyen 3 27/10/93

programme. So they would have to have regard to

all that had occurred in the past.

They would have to determine that question

having regard to not just the horrendous nature of

the crime, but the general features of the case.

There are many other cases where children have
committed numerous armed robberies where they have,
in fact, been sentences under the Children

(Criminal Proceedings) Act.

DEANE J: Yes, except here, where you had four who had been

seen as to be treated the same way, and one of them

was 17 years and nine months and another was
18 years, you can understand the approach.

Obviously, they should both be dealt with according

to law.

MR GAME: Well, Your Honour, if this appeal was solely about

the question whether or not you sentence under

Part 4, Division 3 and according to law, then we

would not be here, and the reason why I focus on it

is because it shows that at all stages in the

process the court only referred to the objective seriousness of the crime. They never had regard

either to the statutory provisions or to the

subjective features of the case, and they did not
resentence as they were obliged to do so.

It would be difficult to argue with the decision to sentence according to law, but that is

not the reason why I make that submission. Now, if

one then determines to sentence according to law,
one still sentences under the Children (Criminal

Proceedings) Act. The Act still applies. So, for

example, the provisions which appear in section 6

of the Act apply. I take the Court to section 6.

Section 6 has a number of general provisions, but the ones that would have particular application in

this case would be presumably (b) and (c), and what

different series of considerations apply in	those provisions do make clear is that a completely	relation to sentencing of children and, clearly,
matters such as general deterrents would have
substantially less weight than they do in relation to adults.

DEANE J: Are there decisions, Mr Game, to the effect that

6(b) and (c) refer to age at the time of the

offence, as distinct from age at the time of

sentencing?

MR GAME:  Your Honour, the Act applies in relation to people

who are under 18 at the time of the offence.

DEANE J:	What says that?
Nguyen	27/10/93

MR GAME:  The definition, section 3, "child". I should also

mention there are a number of decisions which say

that -

DEANE J: Well, my definition does not say that. My

definition says:

"child" means a person who is under the age of

18 years.

MR GAME:  It has been consistently interpreted upon the

basis that the reference to age is a reference to

age at the time of the offence.

DEANE J:  I follow that in other sections. There are things

in section 6 which might push one to think that

there you are looking at age at the time of

sentencing. I mean:

to allow the education or employment of a

child to proceed -

and:

it is desirable, wherever possible, to allow a

child to reside in his or her own home.

MR GAME:  Yes, in a sense, Your Honour, but if the courts

delay for weeks, months and years in sentencing

people, then - - -

DEANE J:  I think you are missing the point -

MR GAME: Yes, I understand.

DEANE J: That is that when you come to sentence you could

say that it is desirable that a child lives at his

or her own home, but this is not a child anymore.

MR GAME:  In our circumstances, if he is not living at home

anymore then (d) would have little impact upon the

case, but the point is still to be made that what

is intended is a different approach to sentencing

in relation to people who are under 18 at the time

of the offence.

DEANE J: Can I come back? Are there any decisions that

make clear that section 6 - the references to "a

child" in section 6 are to a person who was a child
at the time of the offence and not to a person who

was a child at the time of sentencing?

MR GAME:  I do not know that there are any decisions that

specifically determine that point, but in a case of

GDP, 53 A Crim R 112, section 6 was considered. It

does not really answer the question, but at pages

115 to 116, passages such as at point 7:

Nguyen 27/10/93

rehabilitation must be the primary aim in
relation to an offender as young as this

applicant.

But they do not really answer that question. But

this case is the closest case that comes to any

consideration of section 6.

GAUDRON J: Well, you have got section 16, in any event,

which is concerned with penalties, which says that

that division, Division 4 of Part 2, applies to a

person:

who was a child when the offence was

committed.

MR GAME:	Yes, that is correct, and under section - - -
GAUDRON J:	And then you come to, either in accordance with

law, or in accordance with Division 4, Part 3.

MR GAME:  Yes, and then, under section 19, the court may

direct imprisonment to be served in a detention

centre. He came from a detention centre; only

ended up in a prison by an administrative decision,
which sent him there when he was 18 years of age.

So that the court should have had regard to those provisions in sentencing him in any event.

I should say there are a number of decision of

the Court of Criminal Appeal which say that there
is no parity principle as between adults and

children and that necessarily, in my submission,

covers those who are covered by this Act and those

who are not covered by this Act.	I have those
cases if the Court requires them.

DEANE J: Very well. We will adjourn there, Mr Game, until

2 pm.

AT 1.02 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

DEANE J: Yes, Mr Game.

MR GAME: If the Court pleases, before lunch I agreed, or

appeared to agree, with a suggestion from

Your Honour Justice Deane that sentencing the other

offenders according to law would be a reason for

sentencing this offender according to law and, on

Nguyen 27/10/93

reflection, it is my submission that the fact that

other offenders are to be sentenced according to

law is entirely irrelevant in determining whether

to sentence under Part 4, Division 3.

Also, in addition, even though it must be conceded that a proper exercise of discretion,

taking into account all the circumstances, might be

a - - -

DEANE J: But if you have an extreme case; just say, for

example: two involved in this sort of gang
activity; one was 17 years and 364 days and the

other was 18 years and one day and their

criminality was identical, really, it would have

the appearance of injustice if you said, "Well, we

are going to send one to gaol for six years, but in

the context where six years is the appropriate
sentence for 18 years one day, we will approach the

division for the 17 years 364 days". That was the

sort of thing I had in mind.

MR GAME:  Your Honour, there are actually some more extreme

cases that go the other way. For example, where

principals have been children and accessories have

been adults and the adults have got far longer

sentences than children, and that application of

the principle which is entirely the converse of

what Your Honour is putting to me has been applied
and upheld by the Court of Criminal Appeal on a

number of occasions. But obviously it depends on

the circumstances.

DEANE J: Mr Game, can I ask you this: you have told us

about the material in relation to rehabilitation,

and so on, that was placed before the Court of

Criminal Appeal. Was your client's case presented

on the basis of that material?

MR GAME:  Yes, Your Honour. I have got the transcript of

the proceedings in the Court of Criminal Appeal

and, if it is required, I could hand - - -

DEANE J:  Can you just tell us briefly how the case was

put? I mean, was reference made to section 6 or

section 19?

MR GAME:  The court was taken through all of these

provisions. The court was referred to the specific

objective features of the case to which I have
already referred, namely, that this applicant
provided assistance in catching one of his

co-offenders, to which he would be entitled to a

discount, and that he stood to be sentenced on the

basis of his record of interview alone, which meant

that he was not to be sentenced on the basis that

he was the instigator. The court was taken through

Nguyen 27/10/93

this material relating to rehabilitation, which

showed this: he had come to Australia as a

refugee. His parents had been left behind. He had

come here with an auntie who had looked after him.

Shortly before this offence he had fallen into bad

company. She had taken him to Melbourne. Things

had gone bad. They came back here. He had got

involved with older children, and the other

co offenders were between 18 and 23 - - -

DEANE J:  We have read that in the material before us, but

that was all developed and put to the - - -

MR GAME:  Yes, and then what happened was, he was at Cobham

School, and in a detention centre, and shortly after he had turned 18, by an administrative

decision, he was taken from there to Parramatta and

then to Long bay Gaol. Then he ended up at Parklea

Prison. Now, all of that was developed in argument

in the Court of Criminal Appeal, for the very

purpose of the court resentencing. A further
submission was both put before the sentencing judge

and the Court of Criminal Appeal concerning the

application of section 5(2) of the Sentencing Act,

to which I will come in a moment.

Just before I go on to that, the other thing I

was going to say in relation to some arguments that

arose before lunch: although it is to be

conceded that a proper exercise of discretion might

be to sentence according to law, likewise, a proper

exercise of discretion could not be questioned if

it were determined to sentence under Part 4,

Division 3, having regard to all of the features of the case. So, the point that I make at the commencement of the argument is that the Court

failed to exercise the various discretions that it

was required to exercise.

DEANE J: Can I ask you this: one can follow if the

argument before the Court of Criminal Appeal was

the sentencing judge did not address the question

posed by section 18; one can follow the Court of

Criminal Appeal saying, "True he did not address

the question posed by section 18, but if he had he

would inevitably have decided to sentence according

to law". That being so, that was am immaterial

omission and it does not call upon us to

resentence. His sentence can stand. But it is a

slightly different matter if the submission to the

Court of Criminal Appeal was, "He has not addressed

the material before him in the context of sections

of the Act which apply regardless of the discretion

under section 18 being exercised."	Now, was the
second put?

Nguyen 27/10/93

MR GAME: All of those arguments were developed, yes, quite

specifically, and if the Court requires

the transcript, I have it -

DEANE J:  No, if you tell us, unless it is challenged, that

is good enough.

MR GAME:  So the answer to that question is, yes, the

various submissions were developed. The other

matter that I was going to refer back to was in

relation to section 6. If a person commits an

offence as a child, but is over 18 at the time of sentence, maybe considerably over 18, some of the

principles in section 6 will continue to apply;

that is to say those which are concerned with the

assessment of criminality. Some which are

concerned with things that will happen in the

future, or things that happened at the time, for

example, living with their parents, and so forth,

will not apply. So, section 6 really, probably,

applies in different respects to people under 18

and over 18. But in any event, it is an

established principle that considerations of

general deterrence have significantly less weight

in relation to those who are sentenced as children,

that is to say, people who committed offences under

the age of 18. That case of GDP is such a case.

Now, the next step in the process is, if one

sentences according to law, then, as I have said

before, one still has regard to the provisions

under the Children (Criminal Proceedings) Act, but

one also has to have regard to the provisions under
the Sentencing Act, and the court was taken to the
provisions under the Sentencing Act, in particular,

section 5(2) of the Sentencing Act.

DEANE J: Well, if I can interrupt you again: putting aside

all these details, is your argument that in the

context of dealing with eight appeals in one

judgment, the Court of Criminal Appeal simply

failed to deal with the substance of your client's

attack on sentence?

MR GAME:	Yes, that is what it comes down to.
DEANE J:	We might come back to dealing with the details,

but I think we might hear Mr Keleman.

MR GAME:  Yes. Could I just say one thing: a question of

principle arises in relation to section 5(2), which

is an important question of principle because the

court has held in relation to section 5(2) that

Bugmy v Reg has no application until you can

find special - the Court of Criminal Appeal in a

number of cases - - -

Nguyen 9 27/10/93

DEANE J: Section 5(2) of what?

MR GAME:	The Sentencing Act.
DEANE J:	I seem to have everything else.

GAUDRON J: This does not seem to be a matter that is

referred to in the decision of the Court of

Criminal Appeal either.

MR GAME:  It is referred to in a general respect at the

bottom of page 22 and the top of page 23, and that

passage, in our submission, demonstrates error:

The learned sentencing judge was entitled to

take the view that general deterrence was a

most important consideration not only in

relation to the fixing of the total sentence

but also in relation to the fixing of the

minimum term -

and then reference is made to Power. But as this

Court made clear in Bugmy, questions of general
deterrence have different - one has a different
emphasis in relation to questions of deterrence

when fixing minimum terms or non-parole periods.

They tend to assume a different position.

Now, the Court of Criminal Appeal in New South

Wales has held, in a number of decisions, that

Bugmy has no application in relation to sentencing

unless one can first establish special

circumstances under section 5(2). So that if this

case was simply remitted and if it fell for

determination in relation to section 5(2), one

might fall into the problem that the court would

say, on section 5(2), erroneously, in our

submission, that Bugmy has no application.

GAUDRON J: But did you put that submission to the Court of

Criminal Appeal before?

MR GAME:  Your Honour, I put the submission that general

deterrence carries less weight when fixing the
non-parole period, and I cited to the court the

case of Reg v Power. This is the response to that

submission, so - - -

GAUDRON J: But it is not specifically directed to the

applicant in this case?

MR GAME:  No, it is put as a general response but I,

specifically, at the close of submissions, put to

the court that it would be in error if it held that

general deterrence had great weight or the most

weight in relation to fixing of the non-parole

period.

Nguyen 10 27/10/93

GAUDRON J: For - - -?

MR GAME: For the people who I appeared for, and for

this - - -

GAUDRON J: Well, what about for this applicant?

MR GAME:  Yes, Your Honour.

GAUDRON J: But, is his position different?

MR GAME:  Yes, Your Honour, because of the principles that

apply in relation the fine relation to sentencing

of people who are under the age of 18 and because

he had a better subjective case than the others,

having regard to the matters to which I have

already - - -

GAUDRON J: But that does not alter the fact, on your

submission, Mr Nguyen's - or the applicant's case -

simply was not dealt with.

MR GAME:	Yes, that is correct.
GAUDRON J:	And if it went back it would be for the court to

deal with it.

MR GAME:  Yes. As I say, this question about the

application of Bugmy to section 5(2) is the only

outstanding difficulty that I could foresee if it

was simply remitted to -

GAUDRON J:  I do not see why that would be a difficulty. It

would be open to you to make submissions at that

stage?

MR GAME:  Yes, and to be met with decisions of the court

which have held that Bugmy has no application.

GAUDRON J: That may be so, but that is not its decision

in relation to this applicant.

MR GAME:  Yes, I understand. I am sorry, I did not mean to

press on. If the Court pleases.

DEANE J:	Mr Keleman, what do you say?
MR KELEMAN:	May I first start off with the error that the

Court of Criminal Appeal found in the sentencing

judge's remarks on sentence. If I can refer the

Court to page 23 of the application book, at line

23, the court states:

A submission was put on behalf of Luan

Nguyen to the effect that his Honour

overlooked his age. He was in fact seventeen

and three quarter years, just a few months

Nguyen 11 27/10/93

short of his eighteenth birthday. But he was

therefore technically a "child" in the meaning

of the Children (Criminal Proceedings) Act

1987, which applied to his case. His Honour

did not mention either his age or the

applicability of the Act; the Crown conceded

as much. This Court has already held that not

to - - -

DEANE J: Did the Crown concede that, that His Honour did

not mention his age?

MR KELEMAN:  I can only rely on what is recorded in the

judgment, but my friend has referred me to that.

MR GAME:  It is conceded that he failed to have regard to

the Act. There was no mention of failure to refer

to his age. The concession was, and the argument

was, that he failed to have regard to provisions of

the Act.

GAUDRON J:  And you concede also that that was an error? If

he failed to have regard to the Act, that was an

error?

MR KELEMAN:  No, in fact, I am referring this Court to that

passage because I would contend that, in actual

fact, His Honour did, in fact, refer to the Act,

and I would seek to take the Court, if it is

convenient, to some - - -

GAUDRON J:	Do you accept at this stage that if he did not apply the Act he was in error?
MR KELEMAN:	If he did not have regard to the Act?

GAUDRON J: Yes.

MR KELEMAN:  Yes, that concession is made.

GAUDRON J:  If he did not apply the Act, yes. Do you accept

that if he did not apply the Act then it was for

the Court of Criminal Appeal itself to resentence?

MR KELEMAN:  Yes, and reconsider all the relevant matters

itself, if that was the case.

GAUDRON J:	And you concede that it did not do that?
MR KELEMAN:	No, I do not make that concession.
GAUDRON J:	No, but you concede that the Court of Criminal

Appeal did not - well, obviously the Court of

Criminal Appeal did not itself resentence.

Nguyen 12 27/10/93

MR KELEMAN: With respect, it did. If you follow on in the

same paragraph that I was reading from, if I may

continue:

This Court has already held that not to do so

is an error of law. However, although we are

compelled to find that his Honour erred in

this respect, we do not think the appeal

should be upheld. In our view, if his Honour

had alluded to the existence of the Act, the only proper exercise of his discretion would

have been to proceed at law rather than under

the Act, because of the horrendous nature of

the crimes.

GAUDRON J: That is hardly the Court of Criminal Appeal

itself exercising the sentencing power afresh.

MR KELEMAN:  In our shorthand way, with respect, the

submission is that it is. This is clearly a busy

appellate court; it had a number of appellants

before it, and this Court has said, on at least one

occasion, in the case of Bailey v DPP that an

intermediate appellate court, such as the supreme

court, cannot be expected to go into detailed

reasons. Perhaps it might be convenient if I

referred the Court now to that decision.

GAUDRON J: It is expected to do its duty.

MR KELEMAN:  There is no question about that, but at the

same time the -

GAUDRON J: The question must surely be whether it had a

duty to resentence, itself, and whether one could

possibly say a busy appellate court can be taken to

have resentenced in that shorthand way.

MR KELEMAN:  With respect, it is submitted that in fact it

has. The court has considered the question of

whether or not the person should have been dealt

with according to law or in accordance with

Division 4, Part 3, of the Children (Criminal

Proceedings) Act. That is quite clear when the

court says that "His Honour had alluded to the

existence of the Act". So, the court has, in fact,

gone through that process, admittedly in the - - -

GAUDRON J: Yes, but then the court went on to say:

to proceed at law rather than under the Act -

which may itself - well, at first blush, that

itself involves another error, because that was not

the issue, whether it was according to law or under
the Act, it was whether it was according to law or

under Division 4, Part 3.

Nguyen 13 27/10/93

MR KELEMAN:  Which was under the Act, with respect.

GAUDRON J: Well, that is only part of the Act.

MR KELEMAN:  With respect, it is submitted that the only

portion of the Act that applies in circumstances

such as these is Division 4, Part 3.

GAUDRON J: What about section 19, which is in the other

division.

DEANE J: And section 6.

MR KELEMAN: Perhaps I am making a submission at

cross-purposes. If, in fact, the decision is made

to sentence in accordance with law, then section 19

applies.

DEANE J:  The point Justice Gaudron was making was that it

is never a question of whether you sentence under

the Act or in accordance with law. When you are

dealing with an infant or a child, you always

sentence under the Act. Now, it seems that Their

Honours have approached the matter on the basis

that if they answered the question under section 18

in the way they thought His Honour had to 'answer

it, they did not have to worry about the obligation

to sentence under the Act in terms of the other

applicable sections.	Now, what do you say about
that?

MR KELEMAN:  The submission that is made in relation to that

is this: that when Their Honours refer to

"sentencing under the Act", they are clearly

referring to the mechanism by which sentencing can

occur by way of Division 4, Part 3. It is an

inaccurate way of referring to that and it is easy

to see, how, if you look at the relevant sections,

that that shorthand term was used. They are

clearly referring to simply sentencing pursuant to

GAUDRON J: They may be, except that they make no reference	Division 4, Part 3, when they refer to "sentencing under the Act" .	to the material or the submissions. They make no
reference to the material as to
rehabilitation -

MR KELEMAN:	No, that was
GAUDRON J:	that was presented to them.

MR KELEMAN: That is so, but that was additional material.

GAUDRON J: Yes, but if the court were itself, resentencing;

it the court were imposing its own sentence, you

Nguyen 14 27/10/93

would expect them to have had some regard to that

material.

MR KELEMAN:	They would certainly be entitled to refer to that material and take it into account on
resentencing, if they so chose. Can I perhaps take
the Court to passages - and it will be very brief -
in the sentence proceedings and the remarks on sentence which, in the respondent's submission,
indicates that His Honour did, in fact, have regard
to the applicability of the Act.  May I do that?
DEANE J:	Of course.

MR KELEMAN:  Thank you. Now, the first relevant passage

occurs at page 18 and then a subsequent reference

occurs at page 19. Do Your Honours have the

proceedings on the sentence, because I have made
photocopies, if you have not, of the relevant

passages?

DEANE J:  We have what is in these two books.

MR KELEMAN: All right. Well then, Your Honours do not have

the proceedings on sentence. I will hand up, if I

may, firstly page 18 of the proceedings on sentence

of 26 November, and also I will hand up the

following page, page 19. At page 18, at point 3,

His Honour - - -

GAUDRON J: This is some four or five months before the

sentence, in fact, was imposed?

MR KELEMAN:  Yes. At page 18, at point 3:

HIS HONOUR: That's exhibit - is your client a

juvenile or a child?

The representative for the applicant:

At the time of the offence he was, but he's

not now.
HIS HONOUR:	No, but he's got to be dealt with
as a child.	So he's over eighteen now?

So that, with respect, shows a specific advertence

by His Honour to the need to deal with the

applicant as a child. In my submission, that can

only mean in accordance with the Act.

On the following page, at point 5, there was

an exchange between His Honour and a counsel for

another offender who, at that stage, was believed

to be a young offender - as it turned out he was

not - but His Honour says:

Nguyen 15 27/10/93

Is that the report that has to be tendered

before he can be dealt with? -

referring to the other offender.

Under the Act there is a report that has to be

tendered before me before I can deal with him.

And the same as with Mr Nguyen.

And the representative says:

Yes. Your Honour it's a background report.

But the reason why I refer the Court to that is

because His Honour again is conscious of the

applicability of the Act to this.

GAUDRON J:  The real difficulty is, is it not though,

Mr Keleman, everybody seems to approach this

question on the basis that it was "sentenced

according to law" or "sentenced under the Act",

without appreciating that "sentenced according to law" involves having regard to so much of the Act that applied in any event, that is to say, the

whole of the Act, except Division 4, Part 3, or

Part 3, Division 4?

MR KELEMAN:  And for practical purposes, with respect, if I

understand what Your Honour is saying, and I accept

what Your Honour says is accurate, that would

include section 19, would it not?

GAUDRON J: Yes. So the difficulty is, nobody, at any

stage, either in the Court of Criminal Appeal, or

His Honour Judge Gibson, has adverted to the

application of the rest of the Act.

MR KELEMAN:  But that may well have been because at the

relevant time when the applicant was first

sentenced by the learned sentencing judge, the

applicant, by then, had already spent eight months	in an adult gaol, and it was not as if the purpose
of section 19 would have had much effect. The
purpose of section 19 is clearly to remove children
at risk, or young persons at risk, from the adult
environment and ensure a far more effective
atmosphere for rehabilitation, when they are at
risk.

Now, in this situation, he had been removed

already from a child detention centre when he

was 18; he had already spent some eight to nine

months in an adult gaol. The reports before the

court, at that stage - that is the Court of

Criminal Appeal - indicated that, in actual fact,

he had thrived in the adult environment. He had,

according to the reports, been an outstanding

Nguyen 16 27/10/93

inmate; he had fitted in well with the prison

environment; he had participated in various

educational and vocational courses, to his

advantage.

So, it may well be that, for those practical

reasons, that option - and I am not accepting that

it was not considered, but if we assume for the

moment that it had not been considered, that it

would have been, in fact, pursued. Because here we

had a demonstration of what appears to be

significant rehabilitation within the gaol, in

circumstances where this applicant was not at risk

or suffering as a consequence of being in an adult

gaol at all. So, it may have been for that

practical reason.

Now, by the time the applicant came before the

Court of Criminal Appeal he was 20, and he is now

21 and a half, and that is a practical reality,

too, that has to be considered in the context of

this case. I mean, what option is available in

circumstances such as these where, in effect, being

required to serve a sentence in a detention centre

would have little effect. He is already 21 and a

half, so that option is really not available and,
realistically, it was not available when the Court

of Criminal of Appeal, with respect, were

considering the question of resentence. In effect,

then, he had something like six months to go before

he turned 21. I am just making a suggestion that

may well have been the reason why section 19 would

not have been applied.

GAUDRON J: Well, if we were against you on that, if the

Court were of the view that having regard to these

judgments and what was said that there was simply a

failure to understand the sentencing task involved,

would this not be a matter that should be remitted

to the Court of Criminal Appeal instantly, as it

were, to be dealt with in accordance with the Act?

MR KELEMAN:  If, in fact, that this Court concluded that

those matters were not adverted to by the court and they should have been, then that would be so. But,

can I take Your Honours just to one more passage in

the remarks on sentence?

DEANE J:	You mean the trial judge's?
MR KELEMAN:	Yes, the remarks on sentence of the trial judge

where he specifically refers to the age, and the

fact that the - - -

DEANE J: Yes, I follow that, but conceding the force of

everything you say about a busy Court of Criminal

Appeal, can I just trace back the steps to see if I

Nguyen 17 27/10/93

am misunderstanding how far you go. You concede

that the Court of Criminal Appeal, having reached

the conclusion it did about the trial judge failing

to advert to the Children (Criminal Proceedings)

Act, it was then incumbent on the Court of Criminal

Appeal to resentence, itself. That is so, is it

not?

MR KELEMAN:  Yes.

DEANE J: Well then, the first question for the Court of

Criminal Appeal was the section 18 question, and

one can see that they - while Their Honours did not
put it quite this way, they addressed the

section 18 question and they answerered it

according to law. The consequence of that was that

Their Honours then had to determine what was the

appropriate sentence according to law.	Do you
agree with that?

MR KELEMAN:  Yes.

DEANE J: Well then, that being so, in the context where

they had all this information and where they were required to advert to section 6 and section 19 of the Act, if they did advert to it, did they not

have to say something about it?

MR KELEMAN: Well, with respect - - -

DEANE J:  I mean, assume the appeal had been heard on its

own and this argument had all preceded, would you

not expect the court, if it were adverting to the

material and the sections of the Act, to say so?

MR KELEMAN:  Not necessarily. In effect, section 19 was a

sentencing option available to the court on the

resentencing exercise but, in the same way, so was

a community service order and an order for periodic

detention.	Now, there is nothing in the judgment
to indicate that they, in fact, specifically

considered a community service order or periodic
detention. There is no suggestion that there is

error in that regard because of that failure to so

advert and, in the same way, particularly having
regard to the age of the applicant at the time that

the court was dealing with him, the failure to

refer to section 19, in my respect, does not
necessarily mean that the court failed to take that

section into account in determining what sentence

they imposed and how it was to be imposed.

DEANE J: Yes. The matter I am trying to direct your

attention to is that the thing that concerns me

mainly is, as I read what Their Honours said, it is

open to the construction that they thought the

relevance of the Act related only to the section 18

Nguyen 18 27/10/93

question and, in the context of dealing with eight appeals in one judgment, they did not direct their

attention to the fact that even though the

section 18 question was answered adversely to the

applicant, there were other questions which they
had to address arising from the fact that the

applicant was a child and other sections of the Act

were applicable to him. Now, what do you say about

that?

MR KELEMAN: Well, as Your Honour has pointed out, the

judgment is silent, and I cannot elaborate on the

submissions any further than I have. I could not

exclude as a possibility the matter that

Your Honour has adverted to.

McHUGH J:  Do you accept that section 6 applies in this

case?

MR KELEMAN:	No, I do not.	I do not make that concession.
McHUGH J:	No.	I must say I would have thought that

section 6 does not apply.

MR KELEMAN:  I do not make that concession. Can I say this

perhaps: in the decision of GDP, to which the

Court has already been referred, the leading

judgment was delivered by Justice Mathews.	Does
the Court have that judgment?

MCHUGH J: Yes.

DEANE J: But does not that raise another problem though in

that on what Mr Game has told us, he expressly

addressed section 6 and relied on it in relation to

this material. Well now, I do not think you would

suggest that if they were ruling that section 6 had

no application and that, therefore, they did not

have to bother about those submissions, that

Their Honours owed it to the applicant to say so?

MR KELEMAN:	I do not make that submission.
DEANE J:	No.
MR KELEMAN:	I cannot.
DEANE J: Yes.
MR KELEMAN:	Can I just this briefly though: in relation to

the	considerations referred to in section 6,
His	Honour Justice Mathews referred at page 116 of
GDP	to section 6 and at point one, he stated:

Some of these guidelines consist of

sentiments and admonitions which are so

Nguyen 19 27/10/93

general as to be of little assistance in the

sentencing of young offenders.

I would simply add to that this: that the sorts of

principles referred to in section 6 are the very

sorts of considerations one utilizes and has

recourse to when sentencing young offenders

generally, whether they be children under the

Children (Criminal Proceedings) Act or young

adults. There is really nothing new raised in the

sentencing exercise that section 6 brings into

play. In fact, if you go through them

individually, they are all, essentially, common

sense sentencing principles. I cannot really add

further, unless Your Honours wish to deal with any

specific matter.

DEANE J:  Now, Mr Keleman, taking up something that was

raised with you by Justice Gaudron. If we were

disposed to grant leave there would be two courses

open: one would be for the matter to go on in the

ordinary course so there could be full argument

which, if the applicant succeeded, would lead to

the matter being remitted to the Court of Criminal

Appeal so it could deal with it. The other

alternative would be for us to deal with it on the

spot and either allow or dismiss the appeal.	If
allowing it, to send it back.	What course would

you think is appropriate in the circumstance of

this case?

MR KELEMAN:  It would be my submission that the latter

course would be appropriate and the most sensible.

DEANE J: If we decided to follow that course, is there

anything additional you would like to put on the

substance of the appeal, as distinct from whether

or not we should grant leave?

MR KELEMAN:	No.
DEANE J: Yes, thank you. Yes, Mr Game.
McHUGH J:	Mr Game, can I put to you what troubles me.

Assuming section 6 does not apply, would not it be

futile to send this matter back to the Court of

Criminal Appeal? The only section that could apply

would be 19, would it not?

MR GAME:  No, Your Honour, because first there is the

question under section 5(2), which has to be

resolved, that is to say, whether or not there are special circumstances in this case. Secondly, the court still has to deal with all the subjective

material which was both before it and before the

sentencing judge. To take just one instance: both

the sentencing judge and the Court of Criminal

Nguyen 20 27/10/93

Appeal failed to have regard to the assistance

which the applicant gave. Now, that, in itself,

would leave to an inevitable conclusion that he
would receive a lesser sentence than his

co-offenders. Likewise, having regard to the

evidence concerning his involvement in the crime.

McHUGH J: But by relying on these matters, you are really getting away from your special leave grounds, are

you not?

MR GAME:  Your Honour, what you asked me though was not a

question relating to special leave. What you were

asking me was whether or not, in effect, the

sentence would be the same and, in my submission,

the sentence would inevitably be a lesser sentence.

McHUGH J:  What I was putting to you really was that

assuming that the Court of Criminal Appeal went

wrong in its consideration of the Children

(Criminal Proceedings) Act, ought it to be sent
back when the only issue they could deal with under

that Act would be the section 19 point, which would

no longer apply because of the applicant's age?

MR GAME: But, Your Honour, the assumption behind that is

that the section 6 point has been resolved

unfavourably to my - - -

McHUGH J:  I must say, speaking for myself, that it just

seems to me plain that section 6 only applies at

the time of sentence and not at the time - - -

MR GAME: But, Your Honour, there are specific provisions

relating to sentencing up to the age of 21, which

rather assumes that these principles - - -

McHUGH J: But not in section 6, and they tell against you,

sections like section 16, because it specifically

refers both to a person:

who was a child when the offence was

committed -

and -

who was under the age of 21 years when charged

before the court.

MR GAME: But, Your Honour, if a person under the age of 21 is a person who can receive an order, for example,

a control order under section 33 or one of the
other options under that Act, then it is hardly

likely that the legislature would intend to exclude

from operation those provisions which it makes in

general terms, relating to the sentencing of

children, and - - -

Nguyen 21 27/10/93

McHUGH J:  It is not for me to be arguing with you, but I

would have thought that it really made

sections 16(b) and (c), particularly (c),

irrelevant or superfluous.

MR GAME:  Your Honour, I do say the Court of Criminal Appeal

has consistently regarded section 6 as applying to

people who committed offences when they were

children, and if the case comes down to the

application of section 6 then, in my submission,

the Court should grant special leave for the
determination of that question. But, as I say, in

any event, there are subjective features of this

case which would inevitably result in a lesser

sentence for this applicant.

The Court of Criminal Appeal in this case reserved their decision for some six months. It is

perfectly clear that they did not have regard to

the material that was put before them at all and it

is perfectly clear, when one goes through each

stage, that all they did, at every step of the way,

was look to the considerations of general

deterrence; that they neither considered the

provisions of the Act other than that first step in

the way, which, in my submission, was an erroneous

submission.

McHUGH J:  I understood that the Crown's submission was,

though, that the trial judge had not made a mistake

in relation to this Act.

MR GAME:  Your Honour, he referred to the Act once, some

four months before sentence - - -

McHUGH J: But he had the report itself. The section 25 report itself refers to it being under the Act,

does it not, or under the regulations?

MR GAME:  Your Honour, if he had regard to the Act he did

not say so and that amounts to a failure to give

reasons.

McHUGH J: Well, does it? I mean, really, criminal trial

judges, dealing with scores of sentences each week

and practitioners in front of them who are familiar

with the applicable legislation, do not spell out

the details. I mean, it is just taken as given.

Just as down on the Workers' Compensation

Commission, they do not refer to the precise terms

of every section that applies.

MR GAME:  Your Honour, if there were nothing else in this

case other than the fact that this applicant

provides some assistance to the authorities; if

there were no other feature of the case that were

relevant, you would - - -

Nguyen 22 27/10/93

McHUGH J: This trial judge would be one of the most

experienced trial judges in the country in dealing

with criminal matter, and long experience as a

prosecutor and at the bar and as a judge and I

really could not believe that he would have

overlooked these matters, particularly having

regard to what was said on the sentencing

application and the heading of the report.

MR GAME: But, Your Honour, he neither mentioned this fact,

nor did he mention section 5(2) in respect of which

a specific submission was made, nor did he mention

the assistance to the authorities, nor did he
mention the basis upon which he had to sentence
this applicant. Leaving aside the Children
(Criminal Proceedings) Act, this sentence
miscarried for those reasons alone. This is a

sentence which does not stand scrutiny, even if

there were no Act called the Children (Criminal

Proceedings) Act.

McHUGH J:  The law is getting to a stage where a trial judge

in sentencing has got to have a tick sheet in front

of him and tick of every section that be relevant,

otherwise, unless he refers to everything, it is

said in an appellate court that he has overlooked

this, and he has overlooked no such thing.

MR GAME:  With respect, Your Honour, not only has he not

done those things, then when one comes to the Court of Criminal Appeal, after very detailed submissions are put on, a whole series of issues - - -

McHUGH J:  I think you are on stronger ground in relation to the Court of Criminal Appeal. I think if the trial

judge erred it seems to me the Court of Criminal

Appeal did not apply the provisions of the Act.

MR GAME:  As I say, the last point is that in respect of

section 5(2) there is an important question of

Appeal, having held in a number of cases that Bugmy	principle which concerns the Court of Criminal	has no application to sentencing unless you can
first establish special circumstances. So that, of
course, would be a remaining matter of importance
that arises in relation to the case. Those are my
submissions in reply.

DEANE J:  The Court will take a short adjournment to

determine what course it will follow in this case.

Yes, Mr Keleman?

MR KELEMAN:  I am sorry, I do apologize. There is just a

sentence in the remarks on sentence that I had

hoped to refer the Court to but, in argument, I

neglected to do so. It is at page 8 of the

Nguyen 23 27/10/93

application book, and it is lines 3 and 4. His

Honour says in his remarks:

He was what is called a child in law at the

time by some four months.

DEANE J: Well, I counted three references to age in the

trial judge's - - -

MR KELEMAN:  I had hoped to rely on that to sustain an

argument that His Honour clearly had advertence to

the Act.

AT 2.45 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.11 PM:

DEANE J:  The Court of Criminal Appeal held that, in this

case, the sentencing judge erred in law in that he

failed to have regard to the Children (Criminal

Proceedings) Act 1987 ( "the Act") . It is common

ground that, that being so, it was incumbent upon

the Court of Criminal Appeal itself to resentence
the applicant. That required the Court of Criminal

Appeal itself to address the question posed by

section 18 of the Act and to determine whether, in

the words of that section, the applicant should be

dealt with "according to law", or "in accordance

with Division 4 of Part 3" of the Act. The Court

of Criminal Appeal effectively answered that
question, contrary to the applicant's submission,

by saying, that he should be sentenced "according

to law".

It was then necessary for the Court of

Criminal Appeal to consider the substantive

submissions made on the applicant's behalf in

respect of sentence. Those submissions were

largely based on material relating to the applicant

which had been placed before the trial judge and
which was supplemented by additional material

placed before the Court of Criminal Appeal. The

submissions included reference to provisions of the

Act which were said to be applicable to the

applicant. Notwithstanding the ruling that he was

not to be dealt with in accordance with Div. 4 of

Pt. 3. They also included an argument based on the

provision of s. 5(2) of the Sentencing Act 1989

(NSW).

Nguyen 24 27/10/93

It is submitted on behalf of the applicant

that the Court of Criminal Appeal, in the context of a single judgment dealing with eight different appeals, simply failed to advert to the substance

of the applicant's submissions when it came to

determine the appropriate sentence to be imposed on

resentencing. The judgment of the Court of

Criminal Appeal indicates that that is so.

It follows that special leave to appeal should

be granted. In accordance with the concession by

Mr Keleman for the Director of Public Prosecutions,

the matter should be disposed of on the basis that
the appeal is allowed forthwith and the matter is
remitted to the Court of Criminal Appeal for

reconsideration of the question of sentence.

AT 3.13 PM THE MATTER WAS ADJOURNED SINE DIE

Nguyen 25 27/10/93