Vu The Queen

[1994] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Melbourne     No M47 of 1994

B e t w e e n -

DANG CONG VU

Applicant

and

THE QUEEN

Respondent

Second Respondent
  Application for special leave to
  appeal

MASON CJ
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 6 DECEMBER 1994, AT 2.39 PM

Copyright in the High Court of Australia

MR D.A. PERKINS:   May it please the Court, I appear for the applicant.  (instructed by Kuek & Associates)

MR J.D. McARDLE:   If the Court pleases, I appear on behalf of the respondent.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

MASON CJ:   Mr Perkins.

MR PERKINS:   If the Court pleases, the matters which are said to attract the grant of special leave in relation to this application concern the construction of various parts of the Sentencing Act of Victoria and, in particular, of the power that arises under section 47 of the Sentencing Act in relation to the matter of resentencing upon a breach.

The form in which I would seek to put the argument is embodied in a document that I would seek leave to hand to the Court.  That document attempts to stay within the framework that is provided by the practice of this Court, and I think I have to apologise that the original document did not do that.  I propose to pass those to the Court if I may.  I accept, of course, that I need to have leave.

MASON CJ:   I do not know that you need leave.  We are receiving the document.

MR PERKINS:   If the Court pleases. 

MASON CJ:   Although the document you now hand up seems to be more offensive than the one that you filed.

MR PERKINS:   If that so, I would have to - - -

MASON CJ:   When I say “offensive”, in terms of length, but we will look at it all the same.

MR PERKINS:   It is 10 pages and, of course - - -

MASON CJ:   We do not really expect to find in an outline of argument the list of authorities.  That is supposed to be provided to the Court independently because it is the library and the Court staff that get the authorities.

MR PERKINS:   I can say that that was in fact done.  The questions arise in relation to the interpretation of a number of sections of the Sentencing Act.  The questions that arise is dealt with in Part I:  is there an unjustifiable discrepancy between the two sentences imposed, the initial sentence being a community-based order of 100 hours and the second one being an 18 month youth training centre order?  The next question is:  as to the appropriate manner for resentencing criminal courts, that is, criminal courts undertaking a resentencing exercise, to deal with the breach of contractual or quasi-contractual sentencing obligations. 

What is meant by that is that the community-based order provisions within the Sentencing Act are curious in some respects in that they require the consent of the prisoner prior to the order being entered into, and there are a number of things provided for by the Act and specifically by section 95 which ensure that the consent that is to be given is to be properly informed and that a number of important events that may occur within the framework of the community-based order are provided for.  One relevant event, in particular, is the event of variation of the community-based order should circumstances arise which call for it.

The next question is: what should be the appropriate legal consequences of a failure to obtain an informed consent or a breach of section 95 upon proceedings for breach of a community-based order? It has to be borne in mind that section 103 of the Sentencing Act provides for its own limits to what can or cannot be done as a result of a breach of section 95 but that is not to say, within the standards that must apply to a fair trial, that the things that are provided for by section 94 are not matters that are essential to the entire sentencing process and to the exercise that is being undertaken by the person who enters into the order.

TOOHEY J:   But, Mr Perkins, what is the essential argument here?  Is it that on resentencing that somehow the resentencing judge takes the original sentence as some sort of starting point or yardstick by which to assess the appropriate sentence to be imposed?

MR PERKINS:   It is put that the judge in the first instance has a range of sentencing options which he or she has to consider and that once the selection of an appropriate sentencing option has occurred, that that is an event of significance and it is an event against which any further proceeding in relation to precisely the same offence must be measured.

TOOHEY J:   But what do you mean by that?  Do you mean that that is the ceiling and that any resentencing must somehow be less than the original sentence?

MR PERKINS:   What is put is that there should be parity between the original sentence and the sentence which is imposed upon a resentencing.  That is not to say that the judge is prevented from taking into account other relevant matters that may arise upon the breach.  But the injustice of this case is that when the circumstances of a breach are examined there is simply no basis upon which any judge or, with respect, the Full Court could have taken the view that there was an increase in the sort of sentencing option to be called for or an increase in the sentence to be called for.

TOOHEY J:   That is a somewhat different matter.  That is going into the facts of the case.  My question was directed at what you say is the relevant principle which appeared to be that in some way the original sentence represented the ceiling.

MR PERKINS:   Yes.  In my submission, when one talks about a ceiling, all these things, in my submission, are relative and what is essential is that the sentence that subsequently imposed should be seen to bear comparison against the sentence which is imposed in the first instance and where a sentence has been selected as appropriate - and I say the community-based order was selected as appropriate - it is not open to the sentencer upon resentencing simply to depart from the procedure that led to the decision that a community‑based order was appropriate.  That is all the more so when one has regard to the provisions of section 39 of the Sentencing Act which make it plain that the community-based order is not some sort of alternative “rehabilitation” but it is punishment within the community.

So, the sentencing judge, when the original Sentencing Act is carried out, is not dealing with rehabilitation but with punishment.  It is not a matter of selecting some sort of alternative sentence, as it were, but it is a matter of selecting between the sentencing options and a decision has been made in this case that the 100-hour community-based order was an appropriate sentence.

Now, in my submission, the sentence which was subsequently imposed, firstly, does not appear to have any justification in terms of the discrepancy.  Eighteen months deprivation of liberty compared with a three-quarter served, in some respects, community-based order - - -

TOOHEY J:   What has happened to the sentence that was imposed?  How much of it, if any, has been served?

MR PERKINS:   The applicant served a substantial part of the sentence.  He is presently on parole.  There is a reference in the material to some other trial in which the applicant was going to be involved and in that trial there has been a nolle prosequi entered by the Crown.  The situation is that the parole ends on the 16th, I think it is, of April 1995.  At the present time the applicant is on parole.  I am instructed that the time served was approximately eight months in  relation to the sentence subsequently imposed by His Honour Judge Cullity.

Perhaps if I could refer to page 4 of what I handed up under the heading “Parity”.  On page 5 is a reference which contains a footnote to the:

conventional wisdom that any person being sentence to any disposition, as an ‘alternative to an alternative’ necessarily constitutes net‑widening.

That is from an Australian Institute of Criminology publication.  Perhaps if I could hand to the Court a folder containing that reference and some other - it is my submission that where, on page 5, there is a quoted portion that talks about sentencing guidelines directing:

judges to use intermediate punishments in appropriate cases, and to select among them and between them and jail or prison terms -

and then a comment is made -

these sanctions will continue to be underused, little respected adjuncts of probation.

Now, in a sense, in my submission, that is part of the public interest in what is being put in this case.

TOOHEY J:   I am just having difficulty, Mr Perkins, in identifying any special leave point.  At some stages you appear to be saying that the argument was excessive, and I understand that argument, but are you saying that the court somehow, in sentencing the way that it did, acted against - in contravention of the provisions of the Sentencing Act?

MR PERKINS:   Yes, I am saying that.  I am saying that there is a scheme that is required by the Sentencing Act which the sentencing judge simply ignored, and that that scheme was something which - it is required that any person carrying out resentencing functions should have regard to, and it is put that there were a number of important features about this case, in respect of which there was, what I will put, like a logical pregnancy.  There were some facts which were so ripe for investigation that they called out for investigation by the learned sentencing judge, but he simply did not carry the investigation out and he did not give consideration to a number of matters that, in my submission, he should have.  That omission on his part was something which the Full Court seems to have completely overlooked.

Perhaps it might be appropriate if I can go to page 2 of my submissions - set out section 47(4) in full there.  I have referred already to section 39 of the Sentencing Act as to the purpose of the community‑based order being punishment not mere rehabilitation.  Where the Act provides that the sentencer, “must take into account the extent to which the offender had complied with the order”, in my submission, that is something that the sentencer must do as a matter of fairness and as a matter of statutory injunction, and taking something into account where it is necessarily something of an arithmetical nature is, in my submission, not merely giving consideration to it.

His Honour certainly gave consideration in the general sense to the fact that there had been some community work done by the applicant, but he did not, on the other hand, take into account the thing that he should have and that is how the work done married up with the obligations and the question whether the applicant had fulfilled his obligations under the terms of the order that had been imposed.

TOOHEY J:   What was the breach of the community-based order that led to his resentencing?

MR PERKINS:   The breach of the order was, in my submission, not adequately defined.  I have referred to that at the top of page 8 under the heading “Failure to identify operative breach”.  Now, the three allegations that I refer to are the ones at page 27, lines 16 to 23 of the application book.  They are perhaps in common enough form.  It would appear that there are in fact probably seven or eight or perhaps more breaches that have been charged or alleged pursuant to what is set out on page 27.

Now, that is as things appear on the face of it and, in my submission, the manner of the allegation has its own difficulties and should not have been allowed to proceed as it did.

TOOHEY J:   But there has to be a charge file, does there not?  Presumably that particularises the breaches complained of.

MR PERKINS:   With respect that is what I say should happen, and whether there - - -

TOOHEY J:   It is what the section says should happen.

MR PERKINS:   What I was going to say was whether there was or whether there was not, the judge really has to think about what it is that he is resentencing the prisoner for.  The existence of the charge is one thing, the particularisation of it is another, but when the judge comes to say, “This is conduct which I must take a particular view of”, that is where he must give proper consideration to what has occurred.  I want to refer to some of the things that are within the charge because there is a question as to whether there was a direction at all.  The applicant was not aware of that because he was a person whose first language was Vietnamese and he was reliant on his counsel.

The case of Kirby v Valerio, which is on page 8 at 4.1.3, is a case which is an example of the difference being well stated of directions and contract.  I am putting all this in the context that the explanation given by the Crown, and this appears at page 28 line 18 of the application book, of the failure to report as directed, was in fact that Vu was contracted to perform unpaid community work.

Now, the question whether we are simply dealing with a euphemistic way of saying he was directed, required, ordered, perhaps arises.  But it is quite another thing if in fact what occurred was that there was no direction as such and His Honour, in the course of sentencing, had to decide how serious he thought the occurrence that lead to the applicant being back before him was.  But he had to, in my submission, go into those matters to form some sort of characterisation of the matter himself.

Now, I put it that the case, simply as it stands, was in a sense pregnant with what I am now putting explicitly.  The applicant has sworn an affidavit, and I would seek to have leave to rely on that.  It is an affidavit which does not really do very much more than confirm what might have been expected to be the case in any event.  I see that my time is - - -

MASON CJ:   But in any event we have held that we have no jurisdiction to receive fresh evidence.

MR PERKINS:   There was a - if I can trespass on the red light - - -

MASON CJ:   For a very limited period of time only.

MR PERKINS:   Yes.  I had in mind what was said in Veen v The Queen [No 2] in which it was said at page 465 - I am afraid I am going to have to leave this without saying all that I would want to, but there is a passage that says:

I should add that I agree with His Honour Mr Justice Wilson that the rules governing the admission of fresh evidence do not apply to limit the receipt of additional evidence relevant to the exercise by an appellate court of its discretion in relation to appeals as to sentence.

If the Court pleases.

MASON CJ:   The Court need not trouble counsel for the respondent.

In the ultimate analysis, the case that is sought to be presented in the proposed appeal is one that the sentence imposed was excessive.  As such, in the view of the Court, it does not raise a question of principle and, accordingly, the application for special leave is refused.

AT 3.02 PM THE MATTER WAS ADJOURNED SINE DIE