Park v The Queen

[2021] HCATrans 75

[2021] HCATrans 075

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S180 of 2020

B e t w e e n -

JONG HAN PARK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAGELER J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 APRIL 2021, AT 12.00 PM

Copyright in the High Court of Australia

MS B.J. RIGG, SC:   May it please the Court, I appear with my learned friend, MS J.S. PAINGAKULAM, for the applicant. (instructed by Legal Aid NSW)

MR L.A. BABB, SC:   May it please the Court, I appear with my learned friend, MS K.M. JEFFREYS, for the respondent.  (instructed by Director of Public Prosecutions (NSW))

GAGELER J:   Yes, Ms Rigg.

MS RIGG:   Your Honours, the applicant requires an extension of time in this matter.

MR BABB:   It is not opposed.  It is not opposed, your Honour.

GAGELER J:   Yes, that is granted, Ms Rigg.

MS RIGG: Your Honours, this application is concerned with the construction of section 22 of the Crimes (Sentencing Procedure)Act (NSW). In particular, subsection (1), requires a court to take into account an offender’s plea of guilty and its timing and circumstances. That subsection then provides that a sentencing court may apply a lesser penalty than it would otherwise have imposed as a consequence of that plea.

Although expressed as a discretion, since the 2000 guideline judgment of Thomson and Houlton, it has been explained that the reduction should usually be provided and should be in the order of 10 to 25 per cent, this mostly depending on the timing of the guilty plea.

This application arises from an offence being dealt with in the District Court of New South Wales as a related offence on the certificate under section 166 of the Criminal Procedure Act, as if it had been dealt with, summarily in the Local Court.  The relevant offence is an indictable offence capable of being dealt with summarily, either in the Local Court or, on such a certificate, in a higher court. 

The actual offence‑creating provision provides for a maximum penalty of five years imprisonment but there is a maximum of two years imprisonment when dealt with summarily as a jurisdictional limit.  There was no sentencing fact imposed for this offence as the sentencing judge imposed an aggregate sentence, as is permitted under New South Wales sentencing law. 

It is not, however, contentious in these proceedings that two years’ imprisonment was the maximum sentence to be indicated under that aggregate sentencing scheme.  Although it is not actually a sentence imposed, error in the indicative sentence – as was argued here – may point to error in the aggregate sentence.  So, for example, Justice Fullerton, finding error, then proposed a reduced indicative sentence and a reduced ‑ ‑ ‑

GAGELER J:   So where would that leave the orders to be made by this Court if you were successful in the appeal?  The matter would have to be remitted to the Court of Criminal Appeal.

MS RIGG:   Yes, that is correct, your Honour.  That is the order that is sought.

GAGELER J:   Am I right in understanding that in the decision of Hanna, to which I think reference is made in the written submissions, Justice Simpson would have taken a different view but for the decision in this Court?

MS RIGG:   Yes, that is right.  Precisely the same process had occurred in that case, although coming from a judge of the Drug Court who has Local Court jurisdiction in that court, and Justice Simpson in that judgment in Hanna described the process in that court as exposing a fundamental jurisdictional error in the sentencing process.

GAGELER J:    On one reading of the Chief Justice’s reasons in this case, he saw himself as bound by early authority to come to this view.

MS RIGG:   Yes.

GAGELER J:   You say that is not right.

MS RIGG:   That is correct.  There were two earlier decisions of the Court of Criminal Appeal where the same process had been looked at and found not to be erroneous, in 2008 in the case of Lapa and in 2017 in Mundine, but in neither of those cases was the key issue of the construction of section 22 of the Crimes (Sentencing Procedure) Act considered at all.

It is for that reason that Justice Fullerton in this case distinguished those two authorities and regarded herself as not bound by them.  It is submitted that alternatively they could simply be viewed as not providing a

clear series of cases where the principle has been worked out because they just did not consider in any way what the correct construction of section 22 is.

GAGELER J:   Yes, thank you.  Ms Rigg, we might be assisted by hearing from Mr Babb at this stage.

MS RIGG:   May it please the Court.

MR BABB:   The construction of the minority judge in the Court of Criminal Appeal and the construction argued for by my learned friend is arguable, your Honours, but in my submission ultimately does not have reasonable prospects of success.  The correct construction of the phrase “may accordingly impose a lesser penalty than may otherwise be imposed” does not, in my submission, require consideration of the jurisdictional limit.  Importantly, in my submission, the jurisdictional limit is not part of the process of reasoning towards sentence.

There is no discretion.  The consideration of a discount for a guilty plea is the final step in the process of reasoning towards sentence and is a discretion.  The discount is applied after the instinctive synthesis of all other relevant factors, at which point the reasoning process is complete, save for the discount itself, whereas ensuring compliance with the jurisdictional limit is essentially an administrative function that does not involve reasoning.

The context and purpose of section 22 support the majority construction and, in my submission, paragraph 33, where the Chief Justice notes that Justice Fullerton’s position is arguable, it is clear that he does not take the same view and was not bound by authority, but in fact favours the interpretation of the majority.

GAGELER J:   Mr Babb, looking at paragraph 32.

MR BABB:   Yes, your Honour.

GAGELER J:   Would the adoption of the construction contended against you involve overturning previous decisions of the Court of Criminal Appeal?  Would Doan be overturned?

MR BABB:   No.

GAGELER J:   Would the outcome be different?  No.

MR BABB:   No, Doan would not be overturned.  But, in my submission, the subsequent decisions that have looked at the discount, although they do not take up this point of the construction of the wording, would be overturned.  They have provided that the discount gets applied before considering the jurisdictional ‑ ‑ ‑ 

GAGELER J:   The difficulty there is the point really was not argued in those cases, was it?

MR BABB:   No, it was not, your Honours.

GAGELER J:   The difficulty I have with paragraph 33 is that his Honour appears to be using the existence of these earlier decisions as a reason for not engaging, perhaps to the same degree, with the argument, as if it were a blank slate and yet, Doan, the most important and earliest of the decisions would not be overturned, and the subsequent decisions really did not, themselves, engage with the argument.

MR BABB:   No.  In my submission, what his Honour – even if my reasoning is wrong, then in relation to principles of comity I would follow these earlier decisions, but I do not - in my submission it was not - it did not impact on his Honour’s fulsome consideration of the issue in the court below.

GAGELER J:   Yes.

MR BABB:   In terms of context, your Honours, Doan, which is not sought to be overturned, is an established part of New South Wales sentencing law that the starting point for sentencing for indictable offences, dealt with summarily, commences with consideration of the maximum penalty, not the jurisdictional limit.  That not being challenged has, in my submission, implications. 

If the jurisdictional limit is not treated as the maximum penalty, then the sentencing court, in relation to the discount, must also be able to contemplate a sentence that falls above the jurisdictional limit as long as it does not ultimately impose such a sentence, that being the more administrative consideration at the end.  In terms of purpose, the Chief Judge at paragraph 21, application book 63, correctly, in my view, describes the dual purposes:

providing an incentive to a person to plead guilty, whilst not resulting in a sentence which is unreasonably disproportionate to the offence.

To consider whether a sentence is unreasonably disproportionate you need to engage in the consideration of what would be the appropriate sentence regarding the maximum penalty, taking into account the discount for the

plea and then, if the penalty is below the jurisdictional limit, impose that penalty.  That is the reasonable sentence that the judicial officer has come to. 

The applicant’s interpretation would have an impact not consistent with that purpose.  It would mean, for example, that the same offending, where it was dealt with in the District Court following a plea, could attract a two‑year sentence while the same offence dealt with summarily could not attract a sentence of more than 18 months even though the two‑year jurisdictional limit would not have been exceeded. 

Rather than encourage the efficient disposition of matters, which is part of the purpose of the section, it would be likely to result in more elections being made for matters to be committed to the District Court in order to allow sentences to be imposed that should have been within the jurisdiction of the Local Court, including that category of matters where the appropriate sentence would fall somewhere above 18 months but not necessarily above two years.  So, those matters would be dealt with inefficiently rather than efficiently.

GAGELER J:   You accept, of course, that there is an arguable view to the contrary, that expressed by Justice Fullerton as to the policy of the provision?

MR BABB:   I do accept there is an arguable view.  In my submission, ultimately there are not sufficient prospects of that alternative view, but it is arguable, your Honour.  They are my submissions.

GAGELER J:   Thank you, Mr Babb.  There will be a grant of special leave to appeal in this matter.  How long do you think it would take, Ms Rigg?

MS RIGG:   Two hours – half a day, your Honour.

GAGELER J:   Mr Babb?

MR BABB:   Half a day, your Honour.

GAGELER J:   All right.  Thank you very much. 

The Court will adjourn.

AT 12.13 PM THE MATTER WAS CONCLUDED