Nguyen v The Queen
[2003] HCATrans 504
[2003] HCATrans 504
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S504 of 2002
B e t w e e n -
VAN NAM NGUYEN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
McHUGH J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 11.28 AM
Copyright in the High Court of Australia
MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with my learned friend, MS S.E. PRITCHARD. (instructed by Jeffreys & Associates)
MR R.D. COGSWELL, SC: If the Court pleases, I appear for the respondent with my learned friend, MS J.A. QUILTER. (instructed by the Solicitor for Public Prosecutions (New South Wales))
MR GAME: If the Court pleases. In this case we submit that the court took an approach with respect to taking into account offences on a schedule which has been held by a subsequent decision which I will take your Honours to. Attorney‑General’s Application Under S 37 of the Crimes (Sentencing Procedure) Act 56 NSWLR 146 has been found to be incorrect and we would be content with a result that, as it were, would get us back to the Court of Criminal Appeal to argue the case in accordance with that decision.
If you look at that decision at page 151 you will see the relevant statutory provision, section 33. The relevant provisions for the moment are subsections (2) and (3). I will not read those to your Honours but if one looks at the judgment which follows, one sees relevantly at paragraph 23 the principle that:
no one should be punished for an offence of which he or she has not been convicted.
At paragraph 39 it is held that:
The sentencing court is sentencing only for the “principal offence”. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a “discount” for the use of the procedure.
At the time of this decision there were two lines of decision in New South Wales, but they both said you were sentencing for all of the offences.
The second line of authority said, in effect, that you would discount it, but the first line of authority said that you would not. At page 91 of the application book we set out what was said by Justice Hunt, or Chief Judge at Common Law as he was, in Morgan, which was the passage which was picked up and applied in this particular case and that is at paragraph 10 of our submissions where it is said that the only limitation upon the penalty is that it must not exceed the maximum penalty.
If you go to the decision in this case, and I take your Honours back to page 70 of the application book, you see at paragraph 43 of the judgment of the Court of Criminal Appeal at paragraph (2) the ground asserted is that:
his Honour erroneously failed to set the term of the sentence so as to properly reflect the totality of the criminality of the respondent for both the offence on indictment and the offence to be taken into account in the Form 1 –
Your Honours, that is the only ground that was upheld and the very framing of that ground perpetuates the error which was extant until the Attorney‑General reference clarified the position.
If you proceed to page 72, and it was on this ground that the application was upheld, I will not read it all out but at paragraphs 51, 52 and following, it is clear enough that the court thinks that they are taking into account the totality of the offending for both offences in sentencing, in effect, for both.
Then at paragraph 53 we see what we would submit is an inconsequential exchange elevated to the level of an error by the sentencing judge. Then at paragraph 56 it says:
When taking an offence into account on a Form 1, the sentencing judge is required to impose a sentence that appropriately reflects the totality of the criminality of the offender –
Then there is that reference to Morgan which I have already your Honours to.
McHUGH J: Yes, I know, but what do you say about paragraph 29 in the judgment of the Attorney‑General’s Application at page 157, where his Honour referred to Chief Justice Wood’s reference in Bavadra to the “totality of criminality”.
MR GAME: Yes, your Honour, I understand that but what he said was ‑ ‑ ‑
McHUGH J: He “should give due recognition to the gravity of those offences”.
MR GAME: Your Honour, yes, but what he is saying in effect is that if the Chief Judge meant to say that he was sentencing for both he is wrong, but he does not think that he meant that. If you look at this judgment it clear enough, in our submission ‑ ‑ ‑
McHUGH J: “His” judgment being?
MR GAME: The Chief Judge’s judgment in a case called Bavadra.
KIRBY J: In Bavadra.
McHUGH J: Yes.
MR GAME: We would submit, your Honour, you cannot translate that into, as it were, construing no error in this particular judgment when it is clear enough from the grounds in the way in which the judgment is framed that the court thought that they were sentencing for both and applied specifically that passage from Morgan to which I have referred your Honours.
The additional reference to Barton does not assist because in Barton Acting Justice Carruthers adopted Morgan. The Chief Justice adopted Justice Carruthers’ judgment and then said some of things which he adopted in Attorney‑General’s Application, so Barton is a quite unclear authority.
McHUGH J: What about paragraphs 31 and 32, “Another formulation is that of Simpson J”?
MR GAME: Your Honour, ultimately, the approach taken by the Chief Justice, whether he says it explicitly or not, it sweeps away all of those cases.
McHUGH J: I do not know about that.
MR GAME: We would submit that it does because what his Honour was saying in effect is ‑ ‑ ‑
McHUGH J: He refers to AEM, “This formulation was subsequently referred to in R v AEM Snr”. We refused leave in AEM, did we not?
MR GAME: I do not think that was about this. AEM was a case about a Crown appeal in a very serious series of rapes as I recall, your Honour, but I cannot remember what the particular formulation was in AEM. The issue in Attorney‑General’s Application was that there was a division between cases such as Morgan and some decisions of Justice Hulme in Perese and Dawson on the one hand and these cases of Lemene and Harris which said that, as I would read them, in effect, you are sentencing for both or “top down” as was put, but you are discounting the sentence substantially for the fact that it is availing the course of justice.
The construction that is put on it here by the Chief Justice in Attorney‑General’s Application is that you are not sentencing at all for the offence on the schedule, but it is relevant in the context of issues such as retribution of general deterrence and character and the like.
McHUGH J: But in this case did not the Court of Criminal Appeal find that the judge failed to properly take into account the Form 1 offence in sentencing, not that he failed to impose an appropriate sentence to the Form 1 offence?
MR GAME: Your Honour, what they say at 54 is that he increased it by a little bit, ie, giving it adequate weight but, in our submission, that does not avail the respondent because the full extent of the increase by the court was to double the sentence so that you may have some midway position between the two if you apply Attorney‑General’s Reference No 1. As we say, your Honour, this is a matter of quite significant importance in the administration of justice.
McHUGH J: A law is being laid down in Attorney‑General’s Application and the most, it seems to me, is that you have an argument that what happened here was not in accordance with that decision. It is only an argument; it does not seem to raise any point of general principle itself.
MR GAME: No, your Honour, but accepting Attorney‑General’s Reference is correctly stating the law, and we did have some arguments about aspects of it but they were really matters of emphasis, what we would submit is that that brings us into placitum (b) of section 35A, that in the circumstances of this case in particular we are entitled to have our case determined in accordance with Attorney‑General’s Reference No 1. We submit that it is appropriate to, if your Honours are of the view that the court did fall into error, it could in effect be dealt with under section 37 of the Judiciary Act remitting it to the court to deal with it in accordance with Attorney‑General’s Application No 1 and that is the course that ‑ ‑ ‑
KIRBY J: I did not understand that submission. Was that submission suggesting that we should do that now?
MR GAME: That is correct, your Honour.
KIRBY J: But, as I understand the respondent’s written submissions, they oppose the grant of special leave and that would be a very rare thing, if ever. It has not happened in my time here if it has been opposed. Sometimes, after a decision of this Court, parties come back and the Crown agrees that it has to go back for reconsideration, but that is not this case.
MR GAME: Your Honour, I do remember it happened in a case, that coincidentally was called Nguyen, in which your Honour as the presiding judge was sitting and which there was in effect an error.
KIRBY J: If the Crown, acting in the traditional way of the Crown, takes the view that it, for manifest fairness, ought to go back to be at least reconsidered by the Court of Criminal Appeal in the light of the Attorney‑General’s Reference, then that is one thing and I could understand that submission that you have just made – if the Crown, acting in the traditional way of the Crown, agreed to that course – but I do not understand that to be the respondent’s position. No doubt we will be told.
MR GAME: What I am saying is if, in the light of the decision in Attorney‑General’s Application Under s 37, we would submit that if special leave is granted it would be appropriate in the circumstances ‑ ‑ ‑
KIRBY J: I can understand the Crown taking that view because if the Crown’s submissions are right, the worst that could happen would be that Court of Criminal Appeal would confirm the sentence that it has already imposed, but if it does not take that view, then you have to leap the barrier of special leave.
MR GAME: I understand that, your Honour. I am not trying to avoid the barrier of special leave. What I am saying, in effect, if we have the success of special leave, a point may come in which instead of the case, as it were, going to Canberra, it may be expeditious for it to, as it were, go back to the Court of Criminal Appeal.
KIRBY J: Again, I say the Crown is a special litigant. The Crown does not just come here and fight every case. I have sat in many cases where the Crown has come to us and agreed that a course should be taken because that is the proper course for the Crown to take. The Crown is a special litigant, but I do not understand that that is the course they are taking in this application. It may be that we will be told otherwise.
MR GAME: I think that I have put my submissions.
McHUGH J: Yes, Mr Cogswell.
MR COGSWELL: Your Honours, our position is that the Court of Criminal Appeal’s judgment did not depart from the Attorney‑General’s Application in any way which demonstrated error, in other words, that the fundamental position of the applicant is that there is inconsistency between Attorney‑General’s Application and Justice Bergin’s judgment. In our submission, such inconsistency does not exist. Can I take your Honours to, at application book 76, paragraph 62 of her Honour’s judgment. Her Honour there refers to a Form 1 offence:
not considered appropriately in the circumstances . . . To refer to it simply as having occurred ‘merely four weeks or so before the offence on the indictment” does not assist in ascertaining the approach that was taken ‑ ‑ ‑
McHUGH J: That is what I put to Mr Game earlier.
MR COGSWELL: Yes, and that needs to be taken into account in this respect, your Honours. In the Attorney‑General’s Application 56 NSWLR 146 at page 159, at paragraph 42 of the Chief Justice’s judgment, his Honour articulates the rationale in using this particular provision:
although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate –
It does so by giving greater weight to two elements always material. The first is the need for personal deterrence. The second is the community’s entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed.
In our submission, it is evident from her Honour’s judgment at paragraph 62 that her Honour is taking into account those factors of personal deterrence and retribution. Not expressly so, your Honours, but her Honour is saying that it is significant to her that merely four weeks or so beforehand, or at least four weeks beforehand, the applicant had engaged in the supply of 700 grams of heroin. That clearly indicates a need for personal deterrence in the sentencing approach to this particular offender and one might infer as well ‑ ‑ ‑
KIRBY J: But she does rely on Morgan and Barton.
MR COGSWELL: She does rely on Morgan and Barton.
KIRBY J: Have they survived the Attorney‑General’s Reference?
MR COGSWELL: Your Honours, Justice McHugh referred to paragraph 29 of Attorney‑General’s Reference and indicated what the Chief Justice’s understanding of what the Chief Judge’s reference was to “totality of criminality”. In my submission, there is a similar reference in Morgan – I apologise, your Honours, I had not anticipated until this morning or late last night that I might take your Honours to Morgan.
McHUGH J: We did not refuse leave in AEM, did we?
MR COGSWELL: Yes.
McHUGH J: Yes, and in AEM they refer to total criminality.
MR COGSWELL: My submission is going to be that when we look at Morgan, the remarks of the then Chief Judge at Common Law, Justice Hunt, can be seen in the same context as the Chief Justice classified Justice Wood’s. At the foot of page 371, the last paragraph:
But, such an offence having been taken into account on this occasion, the whole situation had to be considered – both the murder and the armed robbery . . . The only limitation –
is the penalty cannot exceed. That remark, in our submission, “the whole situation had to be considered”, in the same way as the Chief Justice regarded Chief Judge Wood’s remarks, that the sentencing judge should give due recognition to the gravity of those offences. In Barton, the other case to which her Honour referred, there was in fact a reference to Morgan as well. So, in our submission, her Honour’s judgment, representing the court’s judgment, does not indicate any inconsistency with Attorney‑General’s Reference.
Another indicator is at application book page 73, paragraph 56 of her Honour’s judgment. Her Honour again refers to Morgan and Barton and then her Honour says, in the last two lines, “It is submitted”, and it seems that the word “submission” may be an error on her Honour’s part:
It is submitted that it is incumbent upon the sentencing judge to appropriately increase the sentence for the offence of supply heroin on the indictment to reflect that the offence of knowingly take part –
So that indicates, in our submission, that her Honour’s approach is consistent with the approach later confirmed by the Court of Criminal Appeal in Attorney‑General’s Application, that one takes the primary offence and increases the penalty.
Secondly, your Honours, we say that in any event, if the matter was remitted, the Court of Criminal Appeal is most unlikely to reduce the sentence. In that regard, once again Attorney‑General’s Application, the Chief Justice at paragraph 18, refers to:
A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are
uncontroversial. First, the entire point of the process is to impose a longer sentence . . . than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small.
They are, as the Chief Justice said, uncontroversial and well established.
If one looks at her Honour Justice Bergin’s judgment at application book page 78, paragraph 71, it is apparent, in our submission, that the seriousness of the offence in this case is such that it is most unlikely that the Court of Criminal Appeal, even if it regarded the case as departing from Attorney‑General’s Application, would vary the sentence. Her Honour says:
This was a very serious offence of the supply of a commercial quantity of heroin. The offence on Form 1 was also very serious. The seriousness of the offence and the totality of the respondent’s involvement were not reflected in the sentence –
And then her Honour allowed the appeal. They are, if it please the Court, our submissions.
McHUGH J: Yes, thank you. Yes, Mr Game.
MR GAME: In our submission, your Honours, Morgan, particularly the passage relied upon by Justice Bergin with Chief Judge at Common Law, Justice Hunt, said “The only limitation upon the penalty” and then it continues. That passage cannot survive, in our submission, Attorney‑General’s Reference, so that when one couples that with the framing of the ground, it is clear that the court did think that it was sentencing for the totality of the offending. The proposition that is put, that it is sentencing for the totality, is a submission that the Attorney actually put to the court in Attorney‑General’s Reference that it was the appropriate approach, so it is not as if it is not a view that was held that this was the effect of these cases.
Your Honours, as to the question of the Court not interfering, if it went back to the Court of Criminal Appeal, as I say, the non‑parole period was effectively doubled and it may be that the court upholds the appeal but not by the same amount that was upheld. That is all I wanted to say in reply.
McHUGH J: Yes, thank you.
The relevant issues of general principle in a case like the present have recently been dealt with by the Court of Criminal Appeal in Attorney‑General’s Application Under S 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146. Insofar as the applicant suggests that the Court of Criminal Appeal in this case acted in a way inconsistent with that decision, which was a decision given after the decision in the present case, we are not convinced that the applicant enjoys sufficient prospects of success in this Court to warrant the grant of special leave to appeal. In addition, we think that, even if the matter were remitted to the Court of Criminal Appeal, it is far from clear that that court would interfere with the sentence which has been imposed by the Court of Criminal Appeal. As at present advised, we would think that the sentence of the Court of Criminal Appeal was appropriate having regard to the facts and circumstances of the case. Accordingly, special leave to appeal is refused.
AT 11.51 AM THE MATTER WAS CONCLUDED