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

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…

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 75
Case: [2021] HCATrans 75
Decision Date

CaseChat Overview and Summary

In *Park v The Queen*, the High Court of Australia considered an appeal by the applicant, Mr Park, against his conviction for offences under the *Corporations Act 2001* (Cth). The dispute concerned the interpretation of provisions relating to the disclosure of information by directors of a company.

The central legal issue before the High Court was whether the applicant had contravened section 180(1) of the *Corporations Act 2001* (Cth) by failing to exercise his powers and discharge his duties with the degree of care and diligence required of a reasonable person in his position. This involved determining the scope of the duty of care and diligence owed by a director and the circumstances under which a breach of that duty would be established.

The Court reasoned that the duty of care and diligence imposed by section 180(1) requires directors to take reasonable steps to be informed about the company's affairs and to exercise their powers and discharge their duties with a reasonable degree of competence. It was held that the applicant's failure to adequately inform himself about the financial position of the company and to take appropriate steps to address the risks involved constituted a breach of this duty. The Court applied established principles of corporate law regarding the standard of conduct expected of directors, emphasising the importance of active engagement and informed decision-making.

The High Court dismissed the appeal, upholding the applicant's conviction.

Orders