Park v The Queen - [2021] HCATrans 140

[2021] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S61 of 2021

B e t w e e n -
JONG HAN PARK
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
GAGELER J
KEANE J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON THURSDAY, 2 SEPTEMBER 2021, AT 10.00 AM

KIEFEL CJ: The record will show that Justices Keane, Edelman and I are sitting in Brisbane, and Justices Gageler and Gleeson in Sydney, and in accordance with the protocol for remote hearing, I will announce the appearances of the parties.

MS B.J. RIGG, SC appears with MS J.S. PAINGAKULAM for the appellant. (instructed by Legal Aid NSW)

MR H. BAKER, SC appears with MS B.K. BAKER and MS K.M. JEFFREYS for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ: Yes, Ms Rigg.

MS RIGG: May it please the Court. The construction of section 22(1) of the Crimes (Sentencing Procedure) Act preferred by Justice Fullerton in dissent in the court below adopts a plain and natural meaning of words which are unambiguous. The literal meaning, in our submission, serves the purpose of encouraging guilty pleas and the majority construction does not.

In our submission, there is no warrant for moving beyond the literal meaning of the words to ensure that sentences are not imposed which are unreasonably disproportionate to the nature and circumstances of offences because the provision of a discount of this kind is discretionary, although strongly encouraged and guided by the guideline judgment of Thomson and Houlton and because there is an express requirement in the section itself to not impose a lesser penalty because of the guilty plea if this would result in such a sentence.

There are submitted to be three bodies of sentencing principle which interact and/or have a contextual bearing on the correct construction of the phrase that it would otherwise have imposed in section 22(1). The first is the well‑established role of a maximum penalty as a yardstick in sentencing and our submissions at paragraph 37 have cited a number of the decisions of this Court since Markarian touching upon that issue.

Generally, factors that are relevant to sentencing and may be called mitigating, such as remorse or good prospects of rehabilitation or a background of disadvantage which has contributed to the commission of offence, are taken into account in an instinctively synthesised way with all other circumstances of the offence and offender to permit comparison with a maximum penalty.

Such factors enable consideration of the purposes of sentencing in individual case by reference to a figure which is used to determine the type of sentence to be imposed and, if it is to be custodial, to determine a measure of time that reflects those multifarious factors.

A reduction in sentence to reflect the objective utility of a guilty plea bears no useful direct relationship or comparison with the maximum…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Park v The Queen

Details

AGLC: Park v The Queen [2021] HCATrans 140
Case: [2021] HCATrans 140
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Park against his conviction for a criminal offence. The specific nature of the offence and the factual background giving rise to the dispute are not detailed in the provided text, but the case concerned a criminal matter heard by the High Court.

The central legal issue before the High Court was the interpretation and application of a specific provision within the criminal law. This involved determining the scope of that provision and whether the conduct of the appellant fell within its ambit, as well as considering the admissibility of certain evidence.

The Court's reasoning focused on the statutory language of the relevant criminal provision and its established legal interpretation. The judges analysed the elements of the offence and the evidence presented, applying principles of criminal law concerning intent and culpability. The admissibility of evidence was also a key consideration, with the Court examining the rules governing the admission of certain types of proof in criminal proceedings.

The provided text does not specify the final orders or outcome of the appeal.

Orders