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

Copyright in the High Court of Australia

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 statute that has been substantially amended.

MR ANDERSON:   With respect, yes.  The critical consideration that is arising in this matter – and which is still touched upon in the reformulated section 16A(2)(g) – is about the timing of the plea.  If I can just jump to, I think, it is paragraph ‑ ‑ ‑

GORDON J:   Does that not mean though, Mr Anderson, that, consistent with the questions asked of you by Justice Edelman, that this is probably not the appropriate vehicle even to test those propositions?

MR ANDERSON:   In my submission, it is, because, although this is an interesting factual scenario in terms of this particular offender going missing for three years, the question that is live here and will arise in every single Commonwealth prosecution where a person pleads guilty – even with the new legislation – is simply this:  when a sentencing court measures the time at which the utilitarian value of a plea is to be assessed, when does that time start?  Does it start at the point of the offence being committed?  Does it start at the point of arrest?  Does it start at the point of time when the person is before the court?  In my submission ‑ ‑ ‑

GORDON J:   Can I just take you, in relation to those three propositions – or three time periods ‑ ‑ ‑

MR ANDERSON:   Yes.

GORDON J:   Does it not depend upon the facts of the case?  In that context, I think you will need to address paragraph 166 of the reasons because it seemed to be that there was not so much any of those things but the fact that they could not have a joint trial.

MR ANDERSON:   Well, the point of principle will cover all matters where there is a plea of guilty because in all matters there is going to be an assessment required by the sentencing court of, well, has this been an early plea, and there is no authority that clearly establishes for the Commonwealth what an early plea is, as opposed to a late plea, and that is a matter of overarching significance for all matters dealing with the Crimes Act (Cth).

In terms of paragraph 166 of the CCA, there are some significant problems with the analysis that is set out in that, firstly, what her Honour has done is essentially set up a two‑tier process because her Honour has compared this person – this individual’s progress through the court – with his co‑accused.  That two‑tier system is unfair because not everyone has a co‑accused and what her Honour has done in this instance is to say, Mr Applicant, you were much slower than your co‑accused and for that reason you’re not entitled to the full value of what you might otherwise have received.  So that two‑tier system that her Honour refers to by comparing other offenders is quite unfair and it goes against the principle of individualised justice. 

Secondly, as a matter of fact what her Honour has put out there in paragraph 166 is factually wrong.  There were six co‑offenders in this matter.  Four of them had sentence days that were different to one another.  So, in other words, the efficiencies that her Honour speaks about as possibly occurring and being missed out by this applicant simply do not arise in this particular case.

EDELMAN J:   Mr Anderson, putting aside the very particular facts of the instant case, the matter of principle that you raise is whether or not a comparison could be drawn between co‑offenders in assessing earliness or utilitarian value.  Why is it unfair to compare two co‑offenders, particularly in circumstances in which if there were a radical difference between the two and they were given the same utilitarian benefit of a discount there may be parity concerns?

MR ANDERSON:   Those things can certainly be assessed as part of an instinctive synthesis that is applied.  But in terms of this discrete utilitarian value point, if there had been no co‑accused in this matter, if it was just Mr To that was proceeding through the courts, her Honour would not have been able to strap up the reasoning as to why he was not entitled to a greater discount by relying on what the co‑accused had done.

So, in other words, the fact that the co‑accused had done something different and Mr To had a co‑accused impacted negatively on him, and that goes against the grain of individualised justice where people are sentenced according to what they have done objectively and what their particular subjective circumstances are.  Whether one pleads on day one or day 10 makes no difference.

EDELMAN J:   Well, Mr Anderson, the very notion of social utility goes against individualised justice because social utility is, by definition, not looking at an individual’s personal circumstances; it is looking at the value to society.

MR ANDERSON:   In the sense of the utilitarian value, your Honour, what it comes down to is efficiencies.  When do those efficiencies get measured?  There are no particular efficiencies that would have come about here if this applicant had been sentenced with the other co-offenders, for the very simple reason that he still needed to have his case heard, and he had a different factual scenario to all of the others. 

So, while at a very broad analysis, one could say, yes, it must be more efficient if there are five people sentenced on the one day as opposed to five separate days, I accept that, but very single one of those co-offenders needed to have their particular offences assessed, their subjective circumstances assessed and, ultimately, a particular sentence given.

Any efficiencies would have been marginal in my submission but, more significantly – and this is really what the application is all about – is when does the point in time start that that utilitarian value begins to decrease?  Is it the day after the offence is committed?  Is it once the person is part of a judicial process?  That is our argument.  Once he is arrested, once he is before the Court, time runs – perfectly reasonable – but it goes against the utilitarian value assessment to use against that person the fact that they had not simply been arrested for three years.

Your Honours, the other point I wish to make about utilitarian discounts and why it is of significance to the High Court, is because the High Court very rarely actually considered this concept of the utilitarian discount.  In the case of Cameron, the case of Siganto, it has been discussed but, the particular principle we seek to raise here – which is when does time start – from our research, has never been considered.

Just to go back to a point which I think I made earlier about the new section 16A(2)(g), albeit it is a new section and not the one that the applicant was actually sentenced on, it is still highly important for practitioners around the country to understand for when does time run?  How does this section work?  As you would expect of such a new piece of legislation, at the moment there is very little authority relating to it.

Your Honours, unless there is anything further, these are my submissions.

GORDON J:   The Court will adjourn to consider its position.

AT 1.41 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.43 PM:

GORDON J:   We do not need to hear from you, thanks, Ms Callan.  The application for special leave to appeal does not identify a question of principle.  It concerns a provision which has since been repealed and it is otherwise not in the interest of justice for special leave to appeal to be granted.  Special leave to appeal is refused.

Adjourn the Court, please, to 10.00 am on Tuesday, 6 September.

AT 1.44 PM THE MATTER WAS CONCLUDED