Nguyen v The Queen

[2015] HCATrans 330

[2015] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S149 of 2015

B e t w e e n -

PHILIP NGUYEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 2015, AT 11.19 AM

Copyright in the High Court of Australia

MS P.M. WASS, SC:   If the Court pleases, I appear with my learned friend, MS G.E.L. HUXLEY, for the applicant.  (instructed by Legal Aid Commission of NSW)

MS N.J. ADAMS, SC:   I appear for the respondent with MS M.L. RABSCH.  (instructed by Director of Public Prosecutions (NSW))

KIEFEL J:   Yes, Ms Wass.

MS WASS:   Your Honours, we are out of time for the reasons set forward in the affidavit material at the application book at pages 58 and following and seek an extension.

KIEFEL J:   Is there any question?

MS ADAMS:   It is not opposed, your Honours.

KIEFEL J:   The extension is granted.

MS WASS:   Thank you, your Honours.  Moving first to what I can loosely call the De Simoni issue, it concerns the current scope and application of the principles enunciated in that case, that is whether or not it extends to prohibit the consideration of the presence or absence of any factor which is not an element of the offence and, secondly, whether it extends beyond principles protecting an accused person from being punished for an offence for which he was not convicted, both matters not considered in De Simoni.

The application then also raises for consideration the limits on a sentencing judge in considering all of the circumstances of offending.  The metes and bounds of the principle, or the extended principle, have far‑reaching implications for sentencing.  The more one attempts to limit the range of facts and circumstances available, the more one compromises the ability of a sentencing judge to take into account all matters that are relevant and known to the Court.

It also compromises the ability of that judge to perform the instinctive synthesis required in sentencing.  It runs the risk of injecting into sentencing the excessive subtlety and refinement to that task that is cautioned against and, particularly in respect of this case but in respect of perhaps almost all criminal matters, it compromises the judge’s ability to take into account the offender’s state of mind.

KIEFEL J:   Do you say that, in that regard, the Court of Appeal was in error at paragraph 52, special leave book, 42, in the sense that in holding that the state of mind of the offender was irrelevant, their Honours appeared to have regarded what the sentencing judge was discussing as a state of mind in the nature of an intention relevant to murder as distinct from a state of mind of knowing or believing that he was a police officer?

MS WASS:   That is where the controversy, in a sense, is because the only relevant state of mind can be that state of mind ‑ ‑ ‑

KIEFEL J:   Relevant to the offence of manslaughter.

MS WASS:   Yes, dealt with in the statute.

KIEFEL J:   But the question is, does the Court of Criminal Appeal there appear to be comprehending that the state of mind that the sentencing judge was having regard to was one relevant to the question of murder, or not?

MS WASS:   It is a little difficult to tell.  The only state of mind that was - the error was attacked was the state of mind as to whether or not the victim was a police officer. 

KIEFEL J:   Yes.

MS WASS:   Your Honours see that from the debate and the debate arose out of, it appears, dealing with the matters of aggravation and whether or not there was necessary knowledge that the victim was a police officer.

KIEFEL J:   Really, what I am trying to say is, at paragraph 52, is not the Court of Criminal Appeal saying it was erroneous to have regard to a factor which would have rendered the offender guilty of another charge?

MS WASS:   Yes. 

KIEFEL J:   But, what the sentencing judge, on your argument, was doing was simply having regard to a factor, in effect, which might have mitigated the lack of knowledge that he was a police officer.

MS WASS:   Yes.

KIEFEL J:   That is what it comes down to.

MS WASS:   It does.  So your Honours will see that the debate arose in response to the Crown submission in sentence that this was in the worst category of offending.  Your Honours see that at paragraphs 37 and 57 of the sentence, which is found in the application book at pages 16 and 23, respectively.

GAGELER J:   So this point is a point of principle concerning the scope of the principle enunciated in De Simoni?

MS WASS:   Yes, it is.  In a nutshell, what it is is has the Court of Criminal Appeal extended the principle beyond its proper limits ‑ ‑ ‑

GAGELER J:   Yes.

MS WASS:   ‑ ‑ ‑ in a number of ways such that it is not just in respect of factors.  It is in respect of the absence of factors which is a difficult proposition because one is talking about intent and it is really about state of mind so it is difficult to talk about that being an absence of a factor but leaving that difficulty with it aside, has it extended beyond these proper limits:  one, that De Simoni was directed to those factors which would render the accused person liable for the more serious offence and those only and gave very clearly reasons why that is so because it protects that fundamental protection that an accused person has not to be sentenced and punished for a matter not convicted.  So does it extend to the absence of factors is the first extension.

The second extension is does it extend to those matters that are not elements?  Thirdly, does it reverse its operations so that it no longer operates for the protection of an accused person but now appears to operate in a way that would render further punishment rather than to limit it?  It is a matter which I should say has been dealt with at least once in the Court of Criminal Appeal in this State in respect of money‑laundering offences but it is not difficult to see how the De Simoni principle is quite a broad one and would respond almost to all crimes in respect of which there is a graduation of offending, some of which are elements, some of which are not and whether or not, if it does not offend the fundamental principle in De Simoni, one can, indeed, even look at the absence of factors that might lead to an element of a more serious charge.  So that, in a nutshell, is the first issue.

The second matter is the question of totality and we must accept that this is a fairly well‑worn path in this Court.  The very significant problem with it and one which potentially renders great injustice is that the facts of this case are likely to have an effect that it will almost be always an error to impose an entirely concurrent sentence because it is very difficult to imagine a set of facts - and it is what makes this case a particularly good vehicle - where one piece of criminal conduct had two very different outcomes and where wholly concurrent sentences, one might think, was a most appropriate course and certainly not one that is an error in the discretion of the sentencing judge.  So if you are going to remove that discretion in facts like these, it is very difficult to imagine wherever that discretion can remain.

The final issue is the issue in respect of 5D of the Criminal Appeal Act.  We had not proposed in dealing with that in any way other than in our written submissions.  Obviously enough it is now a relevant matter that the Court would need to have regard to if it is otherwise minded to grant leave.  Unless there is anything further, we have dealt with this in some detail in our written submissions.

KIEFEL J:   Yes, thank you, Ms Wass.

MS WASS:   Thank you, your Honours.

KIEFEL J:   Yes, Ms Adams.

MS ADAMS:   Your Honours, the finding of the Court of Criminal Appeal on ground 1 is, as your Honours have pointed out, set out at paragraph 52 of the decision of the Court of Criminal Appeal.  But, your Honours, what we would submit is that finding is that it is irrelevant for a sentencing judge to have regard to a factor which, if established, would render the respondent guilty of murder.  If I could just take the Court – and this is application book 42 ‑ ‑ ‑

KIEFEL J:   In the nature of a kind of reverse De Simoni with twist.

MS ADAMS:   Well, no.  In our respectful submission, it is not necessary.  The decision did not turn solely on a consideration of this Court’s decision in De Simoni and to establish that point, I would take your Honours to the judgment. 

KIEFEL J:   I follow that, yes.

MS ADAMS:   So, at paragraph 49, the principle is set out and an observation is made that it could be breached in the reverse and that is at paragraph 50.  Then at paragraph 51, the Court compares that there is a “hierarchy of offences”, for example, in public justice offences, in Part 7 of the Crimes Act.  But your Honours will see, commencing with the words “This Court” on line 3 of paragraph 51, the court points out that “This Court” – the CCA, has held in previous cases – well, in that previous case of Burton – that it is just:

wrong to have regard to the absence of a feature which . . . which, if it were present, would constitute a different . . . offence –

You will see that was the decision of Burton.  Your Honours, in the decision of Burton there is absolutely no reference at all to the principle of De Simoni.  In that decision, the Court simply found House v The King error.  It is just irrelevant.  It is irrelevant to say, well, it could have been worse.  At least this offence – the offence cannot be mitigated because it is not a more serious offence. 

So, in our respectful submission, if you have careful regard to the reasoning of the court – yes, by way of analogy they point out the principles in De Simoni, but then in paragraph 51 they give an example of a case where this principle has applied, completely removed from the principles in De Simoni.  Then, when the court goes on at 52 to make its ultimate finding the court notes:

We are satisfied that error of this type –

such as that that was found in the decision of R v Burton by the Court of Criminal Appeal has been made out.  You will see there there is express reference to House v The King error.  What we say is the determination of ground 1 was that it was simply an irrelevant consideration to say – sorry, before I ‑ ‑ ‑

GAGELER J:   I am just not understanding this.  You are saying that the court did not find De Simoni error.  Is that what you are saying?

MS ADAMS:   I am saying that the error found was not confined solely to De Simoni error because in the decision of Burton, which your Honour will see at paragraph 51, there is no reference to the decision of De Simoni in that case.  

KIEFEL J:   The way in which the Court of Criminal Appeal used De Simoni was to extrapolate from it that you could not have regard to a more serious offence in sentencing to mitigate.

MS ADAMS:   In our respectful submission, that is correct.

KIEFEL J:   That is the first step.  But then the second step is to identify that that was what the sentencing judge was doing, whereas there is a question, is there not, about whether or not the sentencing judge was talking about intention to murder at all.  Her Honour was talking about whether there was a question of knowledge that the person was a police officer.

MS ADAMS:   But that would have made him guilty of murder.  Your Honour, in our respectful submission, the applicant ‑ ‑ ‑

KIEFEL J:   How?  Where was the intent?

MS ADAMS:   If the applicant knew that the deceased was a police officer and shot at him with intention to inflict, at the very least, grievous bodily harm, that is clearly an offence of murder.

KIEFEL J:   They are conjunctive, though – knowledge or belief he is a police officer and an intention.

MS ADAMS:   Yes. 

KIEFEL J:   But what her Honour appears to have been saying was that the lack of knowledge or belief that he was a police officer was a matter in mitigation in the sense that it took it from the most serious aspect of manslaughter.   

MS ADAMS:   Our submission is no.  It took it from murder to manslaughter because, in our respectful submission, the applicant has not identified how, on a sentence for manslaughter, it would be relevant that the applicant thought he was a police officer, shot at him with intention to inflict grievous bodily harm, yet could still make out the offence of manslaughter.  That is our respectful submission.  It has not been identified.  It is true that at paragraph 57 of the initial remarks on sentence, that is where her Honour was having regard to it.  But what her Honour found was, this is not the worst case of manslaughter but it might have been if he had known he was a police officer.  If he had shot at this person, knowing he was a police officer with intent to inflict grievous bodily harm, that might be the worst case of manslaughter. 

KIEFEL J:   Would not knowledge that a person was a police officer put it right at the top end of manslaughter?

MS ADAMS:   No, it would make it murder.  In our respectful submission, it would not be an appropriate plea to take a plea of guilty to manslaughter when someone knows that they are a police officer acting in the exercise of their lawful duty and you shoot at them with intent to inflict grievous bodily harm which is the mental element for murder.  There is not, in our respectful submission, a way that that could be a good plea at law for manslaughter.  That is what, in our respectful submission, is what the Court of Criminal Appeal identified as being the error in the sentencing judge’s rationale that once you take that extra absence into account, you are out of the ballpark of manslaughter.  You are squarely in murder.  That is the error identified by the Court of Criminal Appeal.  It just simply was not relevant to the consideration of this case.

The Court of Criminal Appeal on resentence did not find it was worst case either, but the relevant factor is – although they found it was very serious - but, in our respectful submission, it is important to have regard to the fact that Justice Fullerton said this is not worst case but it might have been if he shot at a police officer with intent to inflict grievous bodily harm.  That is, in our submission, just not a sound submission as correctly identified by the Court of Criminal Appeal.  Does your Honour wish me address on the totality and residual discretion grounds?

KIEFEL J:   Yes.

MS ADAMS:   Yes.  In relation to the totality point - clearly, your Honours, the proper application of the totality principle requires the sentencing judge to fix appropriate sentences and then stand back and have regard to issues such as concurrence and accumulation.  One of the difficulties is that the Court of Criminal Appeal found that the initial sentences were not appropriate.  So there has been a breach of the totality principle by the sentencing judge in a number of ways:  firstly, that the first fixed sentences were not held to be appropriate - they were found to be unjust and plainly wrong; and, secondly – and this is at the applicant’s written submissions at paragraph 37 – they rely on the principles of this Court in Mill v The Queen and Johnson v The Queen in support of a proposition that the question is whether the total effect of sentence is just and appropriate and that is the language of those decisions.

So very much tied in with the findings of the Court of Criminal Appeal is the starting points were not appropriate and, standing back, the total effect of sentence was not just and appropriate.  But nowhere in the judgment does the court say that it is never open to a judge to impose concurrent sentences when the offences rely upon the same act and state of mind.  The court simply held it was an error on the facts and circumstances in this case to do so.  So, in our respectful submission, the ground relating to totality is somewhat tied in with the ground relying upon manifest inadequacy.  

As for the residual discretion, your Honours, the fact remains that the submission of the Crown at first instance was that this was a case where there simply were no elements readily identifiable from the record which would militate against the exercise of the residual discretion.  So, for example, there was no delay.  The appeal was brought on in less than two weeks.  There was no conduct of the Crown that led the court into error.  There was not a question of imprisoning someone for the first time, having first been sentenced to a non‑custodial sentence.  It was not a case of tinkering.

The Court of Criminal Appeal held that substantially different sentences were required.  Unlike the decision of this Court in CMB, it could not be said that the determination of the appeal would not assist with future principles given, for example, in that case, the Cedar Cottage Program had closed down. 

So, in our respectful submission - our primary submission is the court did not identify any onus.  But, on the facts of this case, in circumstances where there are no factors that could have been taken into the count, then certainly no error could be identified. 

Can I just address one point further, your Honours?  In the written submissions for the applicant, they suggest that one factor that might be relevant to the exercise of the residual discretion is the conduct of the Crown at first instance.  In our written submissions we have addressed this, but in addition to those factors there is a further matter, which is this.  At the judgment of the Court of Criminal Appeal at 18, which is in application book 37, the oral submissions of the Senior Crown Prosecutor, at first instance, are extracted, in part, there. 

It is quite clear that the Crown did submit that his state of mind was not a relevant mitigating feature because that is the reason why it was a manslaughter charge.  So, in our respectful submission, it is just simply not correct to say that that was not brought to the sentencing judge’s attention and the point I put on the basis of manslaughter murder which really goes into ground 1 as well, is extracted at paragraph 19.  Those are our submissions.

KIEFEL J:   Thank you, Ms Adams.  Is there anything in reply, Ms Wass?

MS WASS:   …..firstly, in respect of whether or not the court was dealing with a De Simoni error, if your Honours, at application book 42, read through paragraphs 50 to 54, in our submission it clearly was.  Your Honours see the seminal statement of principle.  One then sees a reference to cases in the hierarchy.  Just pausing there, Burton was, of course, a case about where elements were taken into account.  Then, one has at 52:  

We are satisfied that error of this type has been demonstrated –

But, if there is any doubt about what kind of error was being spoken about, it is quite clear from the bottom of paragraph 53.

GAGELER J:   In a context that beings with paragraph 45.

MS WASS:   Indeed it does, yes.  There your Honours see at paragraph 53:

This aspect is secondary to the Crown’s principal complaint that a breach of the De Simoni principle has occurred in this case.

But, and perhaps more importantly, even if this is not a De Simoni principle and, perhaps, what one calls it is not really to the point, if there is some

other principle that extends notions that arise out of De Simoni and limit the discretion of the sentencing judge in a very significant way it is, in any event, a matter that is appropriate for leave to determine its scope.  

In respect of the submissions made about whether or not shooting the police officer, or knowing that it was a police officer, is a matter that automatically renders one liable for murder, we submit that it does not.  We submit that it depends and one needs to go back to section 421 and identify that state of mind and that state of mind either exists or it does not.  The rest of it is facts around whether or not it exists. 

To test it this way, one would never accept a plea to manslaughter if the facts were “I didn’t know it was a police officer, but I also didn’t think it was reasonably necessary to do what I did to defend myself”.  That is simply just a fact around it.  It is worth noting the basis upon which the plea was entered, and that was he acted in a way that was reasonably necessary to defend himself and that is the only relevant state of mind, we say. 

The only other thing that we wanted to draw attention to was paragraph 83 of the decision in respect of the totality.  Your Honours find that at application book 47.

GAGELER J:   Paragraph 83, did you say?

MS ADAMS:   Paragraph 83, yes, at application book 47 – two things to be observed about that paragraph:  firstly, that the court finds that, in these circumstances, it was a sentence where:

the sentence for manslaughter could not sufficiently comprehend the criminality –

and that the -

accumulation was necessary.

So having that occurred before the sentencing process took place enforces our submission that if one finds it could not occur in the circumstances of this case – and her Honour was in error in exercising her Honour’s discretion in the way that she did – we put the point that it could almost never occur.  Unless there is anything further, thank you.

KIEFEL J:   Thank you.  There will be a grant of special leave in this matter limited to grounds 1 and 2.  What is your time estimate, Ms Wass?

MS WASS:   Half a day.

KIEFEL J:   Do you agree?

MS ADAMS:   I agree with that, your Honour.

KIEFEL J:   Half a day, thank you.  Could you make sure that your instructing solicitors obtain the list of directions from the Deputy Registrar before you leave, the timetable for steps towards the appeal?

The Court will now adjourn to reconstitute.

AT 11.44 AM THE MATTER WAS CONCLUDED