To v The Queen - [2022] HCATrans 140

[2022] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S211 of 2021

B e t w e e n -
DIEN TO
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 19 AUGUST 2022, AT 1.30 PM

GORDON J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearance for the parties.

MR T.D. ANDERSON, SC appears with MS S.M. TALBERT for the applicant. (instructed by Legal Aid NSW)

MS S.G. CALLAN, SC appears with MS J.S. CALDWELL for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

GORDON J: Yes, Mr Anderson. I noticed that actually you need an extension of time. I might just check with Ms Callan whether that is opposed.

MS CALLAN: Your Honour, it is only opposed in the sense that the ultimate submission of the Director is that lead to extend would be futile if the grant of special leave is refused, but there is no other basis put forward on that application.

GORDON J: Thank you, Ms Callan. Yes, Mr Anderson.

MR ANDERSON: Your Honour, the point of principle the applicant seeks to raise in this matter is one of very narrow compass. It is essentially the simple question of whether the utilitarian value of a plea of guilty should be reduced by an offender’s post‑offence and pre‑arrest conduct. The applicant’s very simple position is that it should not.

To be clear, this is not an application where the applicant seeks to complain about the fact that he did not receive a 25 per cent discount for his plea. It is accepted that in Commonwealth matters there is no such entitlement that an offender should have. Secondly, to be clear, the issue is not that the Court cannot take into account the fact that in this case the offender was not arrested for three years. Any consideration of that issue is a subjective consideration and would be considered by the sentencing court separately to the utilitarian discount, and what would normally be considered in that respect. The issue before the Court is one ‑ ‑ ‑

EDELMAN J: Mr Anderson, does that mean that, even if special leave were granted and the appeal were heard and the appeal were allowed and this matter were remitted back for resentence, that the ultimate sentence that was imposed – even if all of your submissions were accepted – might be exactly the same?

MR ANDERSON: That is exactly right, your Honour. We accept that. That is why, in many ways, particular factual circumstances before the Court, in this case, of less significance than the point of principle that we seek to raise ‑ ‑ ‑

EDELMAN J: Mr Anderson, on that point – the point of principle is in relation to a statute that has been substantially – the provision of a…

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.

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Details

Case: [2022] HCATrans 140
Decision Date

CaseChat Overview and Summary

The applicant, To, sought special leave to appeal to the High Court of Australia against a decision of the Supreme Court of New South Wales (Court of Criminal Appeal). The core of the dispute concerned the assessment of the utilitarian value of a guilty plea for sentencing purposes, specifically whether an offender's post-offence and pre-arrest conduct should reduce this value. The applicant contended that such conduct should not diminish the discount afforded by a guilty plea.

The legal issue before the High Court was whether the utilitarian value of a guilty plea should be reduced by an offender's conduct after the commission of the offence but before their arrest. The applicant argued that the timing of the plea, in relation to the offence, arrest, or appearance before the court, was a critical factor in assessing this utilitarian value, and that there was no clear authority for the Commonwealth on what constitutes an "early" versus a "late" plea. Furthermore, the applicant challenged the sentencing judge's approach of comparing his progress through the court system with that of co-offenders, arguing this was unfair and contrary to the principle of individualised justice.

The High Court refused special leave to appeal. Their Honours determined that the application did not identify a question of principle suitable for the High Court's consideration. The Court noted that the relevant provision of the *Crimes Act 1914* (Cth) had since been repealed. Additionally, the Court concluded that, in the interests of justice, special leave to appeal should not be granted.

Orders