YF v Regina
[2016] NSWDC 175
•19 August 2016
|
New South Wales |
Case Name: | YF v Regina |
Medium Neutral Citation: | [2016] NSWDC 175 |
Hearing Date(s): | 16 June, 5 August 2016 |
Date of Orders: | 19 August 2016 |
Decision Date: | 19 August 2016 |
Jurisdiction: | Criminal |
Before: | Judge AC Scotting |
Decision: | 1. The time for filing the Notice of Motion is extended to 27 May 2016. |
Catchwords: | CRIMINAL LAW – deal with money suspected of being proceeds of crime – serious indictable offence |
Legislation Cited: | Crimes Act 1914 (Commonwealth) ss.16A(2),20C |
Cases Cited: | Maxwell v The Queen (1995) 184 CLR 501 |
Category: | Procedural and other rulings |
Parties: | Regina (Respondent) |
Representation: | Counsel: |
File Number(s): | 2015/00117482 |
JUDGMENT
YF (the applicant) seeks a stay of these proceedings.
On 23 October 2015 the applicant pleaded guilty before his Honour Judge Blackmore to the single count pleaded in the indictment being a charge of dealing with cash in excess of $100,000 being reasonably suspected of being the proceeds of crime, contrary to section 400.9(1) Criminal Code (Cth). The maximum penalty for the offence is imprisonment for 3 years and/or a fine of $30,600.
It is common ground that between 23 July 2014 and 8 December 2014 the applicant received cash amounting to the sum of $4,059,636 and deposited it into various bank accounts on 68 occasions in Perth, Brisbane and Sydney at the direction of a co-offender, Shiyu Cong. Up and until 30 August 2014 the applicant was a young person. He dealt with the sum of $2,823,336 in cash between 23 July 2014 and 26 August 2014, when he was aged 17. He dealt with the sum of $1,236,300 in cash between 9 September 2014 and 8 December 2014, when he was aged 18.
The basis of the application for the stay is that by proceeding on the single count covering a period before and after he reached the age of 18 that the proceedings are an abuse of process because the applicant is being denied the protections afforded to him by the provisions of the Children (Criminal Proceedings) Act 1987.
Factual and procedural background
The applicant was born in China on 30 August 1996. He came to Australia on 15 July 2014 on a student visa.
On 8 December 2014 the applicant was arrested and charged.
On 13 October 2015 the applicant pleaded guilty in the Local Court to different charges and was committed for sentence to the District Court. On 23 October the applicant pleaded guilty to the charge on the indictment and the matter was listed for sentence on 16 June 2016.
On 4 March 2016 the applicant’s bail was revoked on the Crown’s application.
On 24 March 2016 the applicant made an application to her Honour Judge Sweeney to remit the matter to the Children’s Court pursuant to section 44 Children (Criminal Proceedings) Act 1987. Her Honour found that the District Court did not have the power to require the splitting of the Indictment and that the matter could not be remitted to the Children’s Court because the Children’s Court had no jurisdiction to deal with the charge in so far as it related to the offending conduct after the applicant turned 18. The application was refused. The applicant was released on bail.
On 27 May 2016 the applicant filed a Notice of Motion seeking a stay of the prosecution. The motion was made returnable on 16 June 2016 when the matter was listed for sentence.
On 16 June 2016 the matter came before me in the sentence list. The matter was adjourned to 5 August 2016 to allow the parties to obtain Judge Sweeney’s judgment on the section 44 application.
On 5 August 2016 I heard the application for the stay.
The relevant law
Principles to be applied in determining an application for a stay of prosecution
The Court has inherent jurisdiction to stay proceedings that constitute an abuse of process: Walton v Gardiner (1993) 177 CLR 378, 392-3; Jago v District Court (NSW) (1989) 168 CLR 23; Barton v The Queen (1980) 147 CLR 75.
The power is discretionary and will only be used to stay criminal proceedings in the most exceptional circumstances: Barton at 116; Jago at 31 per Mason CJ, at 75 per Gaudron J.
The phrase ‘abuse of process’ encapsulates all cases in which the processes and procedures of the court may be used as instruments of injustice or unfairness: Walton at 393. The question the Court must answer is whether, in all the circumstances, the continuation of proceedings would involve unacceptable injustice or unfairness: Walton at 392.
Fairness or unfairness defies analytical judgment and involves a large content of intuitive judgment: Jago at 57. The onus is on the applicant to show that the disadvantage or prejudice that they will suffer is unacceptable to the extent that a trial would be unfair: Barron v Attorney-General (1987) 10 NSWLR 215.
The categories of factual situations in criminal proceedings which may warrant a consideration of the possibility of abuse of process are not closed: Walton at 393.
A permanent stay in criminal proceedings will only be justifiable where there is a fundamental defect going to the root of the trial of such a nature that there are no measures that a trial judge can take in the conduct of the trial to relieve against its unfair consequences: Barton at 111; Jago at 34 per Mason CJ, 49 per Brennan J, and 77-78 per Gaudron J.
The power to grant a stay must be exercised in accordance with two fundamental policy considerations that:
(a)the public administration of justice requires the Court to protect its functions by preventing abuse of process; and
(b)unless the court does so there will be an erosion of public confidence in the Court: Williams v Spautz (1992) 174 CLR 509, 520.
In determining the question of whether to grant a permanent stay the Court must balance the interests of the accused, the public interest of the community that those charged with serious criminal offences are bought to trial and those guilty are convicted, and the need to maintain public confidence in the administration of justice: Walton at 395-6; Jago at 33 per Mason CJ, and at 49-50 per Brennan J.
The power to stay a prosecution in the context of indictable offences that could have been dealt with by the Children’s Court was considered by the Court of Criminal Appeal in the case of R v Stanton (1991) 52 A Crim R 164. In Stanton the accused was charged with a number of offences over a period of years relating to the allegations of the same complainant. The first seven counts were indecent assaults committed when the accused was under 18 years of age. The last count was of sexual assault allegedly committed when the accused was over the age of 18 years. Committal proceedings were conducted at the Blacktown Local Court when the accused was aged 20. No reference was made to the accused’s age at the committal proceedings and the committal proceeded in the usual way. The matters came on for trial before his Honour Judge Urquhart QC when the accused was 22 years of age. Judge Urquhart refused to stay the proceedings. Gleeson CJ (Wood and Grove JJA agreeing) dismissed the appeal for the following reasons. First, there was a public interest in the prosecution of the accused for the indecent assaults. If the accused’s argument for a stay succeeded that could not occur because he was now too old to be dealt with by the Children’s Court. Second, whilst the accused was denied the opportunity to contend before a Children’s Court magistrate that the indecent assaults should be dealt with by the Children’s Court there were powerful reasons why it would have been inappropriate to do so, bearing in mind that he would have to stand trial in the District Court for the sexual assault offence, including that: the District Court judge could apply the sentencing principles in the CCP Act if required, the accused was at age 20 not a child being sent for trial and it would have been contrary to the due administration of justice to split the matter into two sets of proceedings in different courts when they had a common complainant and common witnesses. Third, the accused was represented at the committal proceedings and was bound by the actions of his lawyer, who did not take the point.
Clause 8 Criminal Procedure Regulation 2010 provides that unless the Court otherwise orders there is a 3 month time limit in which an accused person may make an application for a stay from the time a draft indictment is provided to the accused’s lawyer. It is common ground that the applicant’s motion was filed outside that time limitation. The applicant seeks an order extending the time to file the Notice of Motion.
The protections afforded by the Children (Criminal Proceedings) Act 1987
Section 20C Crimes Act 1914 is an enabling provision that allows a young person charged with a Commonwealth offence to be tried, punished or otherwise dealt with as if the offence were an offence against the law of the State or Territory. In New South Wales, the Children’s Court has jurisdiction to deal with offences committed by young persons pursuant to the provisions of the Children (Criminal Proceedings) Act 1987 (the CCP Act).
Section 21 CCP Act provides that the Children’s Court has jurisdiction to hear and determine proceedings for an indictable offence (other than a serious children’s indictable offence) if the offence is committed by a person under the age of 18 years and under the age of 21 years when charged before the Children’s Court. The section 400.9(1) offence is not a serious children’s indictable offence.
The applicant relies on the principles relating to the exercise of the functions under the CCP Act set out in section 6 as follows.
Proceedings in the Children’s Court are generally closed to the general public and the publication of the names of young persons is not permitted: sections 10 and 15A CCP Act.
The Children’s Court can deal with an indictable offence (other than a serious children’s indictable offence) either, in accordance with law or under Division 4 of Part 3 of the CCP Act: section 18 CCP Act. In determining that question the Court must have regard to must have regard to:
(a)the seriousness of the indictable offence concerned,
(b)the nature of the indictable offence concerned,
(c)the age and maturity of the person at the time of the offence and at the time of sentencing,
(d)the seriousness, nature and number of any prior offences committed by the person,
(e)such other matters as the court considers relevant.
Section 20 CCP Act provides that the District Court can remit proceedings for an indictable offence (other than a serious children’s indictable offence) so as to enable the Children’s Court to impose a penalty, if the young person is under the age of 21 years. Section 44 CCP Act provides that a Court may remit a matter to the Children’s Court if it does not have jurisdiction to deal with the matter because of a provision of the CCP Act.
The applicant also relies on the penalties provided for by section 33 CCP Act and in particular the maximum penalty provided for in the Children’s Court jurisdiction to make a control order for a period not exceeding 2 years.
The applicant’s argument
The applicant’s argument requires that the Crown charge the applicant with two counts of the section 400.9(1) offence. One count relating to the period 23 July 2014 to 26 August 2014 (the first count) and the other relating to the period 9 September 2014 to 8 December 2014 (the second count).
It is common ground that the Children’s Court would have jurisdiction to deal with the first count, and may do so subject to the exercise of its discretion pursuant to section 18 CCP Act.
The unfairness in this respect was framed as either:
(a)the denial of the applicant to contend before the Children’s Court that the first count should be dealt with under Division 4 of Part 3 CCP Act other than in accordance with law; and/or
(b)the denial to the applicant to contend before this Court that the first count should be remitted to the Children’s Court pursuant to section 20 CCP Act.
Once in the Children’s Court, the applicant would be afforded the protections provided for in the Children’s Court in respect of the bulk of the offending conduct contained in the first count: see Director of Public Prosecutions v PM [2006] NSWCCA 297 at [27] per Basten JA.
Consideration
The following matters favour the granting of a stay.
First, the prosecution’s decision to charge the applicant with the single count has had the effect of bypassing the procedures of the CCP Act. The prosecution has acted deliberately in this regard and refused to charge the applicant with 2 counts to represent the 2 relevant periods. This is in contrast to the position in Stanton.
Second, the applicant has been denied the opportunity to argue that the first count should be dealt with by the Children’s Court. It is inappropriate for the District Court to speculate on the outcome of the application of section 18 CCP Act by the Children’s Court. The District Court does not have jurisdiction to apply section 18 CCP Act. It is sufficient to note that the applicant has lost the right to argue that point. Further, the applicant has lost the right to argue before the District Court that the first count should be remitted to the Children’s Court to impose a penalty, pursuant to section 20 CCP Act.
Third, the effect of granting a stay would not amount to preventing the applicant from being dealt with for the offence committed whilst he was a young person. The stay would operate for only so long as the prosecution laid separate charges against the applicant to reflect the relevant periods of offending. This is also in contrast to the position in Stanton.
Fourth, the CCP Act is “important legislation which establishes distinctive procedures and principles relevant to criminal proceedings against persons whose conduct falls within its purview, and confers protections and benefits upon such persons which the court should safeguard”: Stanton at 168 per Gleeson CJ.
Fifth, the fact that the applicant has pleaded guilty and has accepted responsibility for the offending conduct will mean that the effect on the due administration of justice will not be as significant as it was in Stanton. The anticipated effect would be that there are 2 pleas in mitigation in separate courts and that the court sentencing last will have to have regard to the decision of the court sentencing first. This is not a case where the witnesses will be inconvenienced or where hearing time will be substantially increased, although it may increase from 1 day to 2 days.
I have considered the following matters that favour the refusal of the application for a stay.
First, there is a public interest in the applicant being punished for the offence that he has pleaded guilty to. The fact that the applicant has pleaded guilty is a distinguishing feature from Stanton.
Second, the District Court can take into account the provisions of the CCP Act, including section 6, in determining the appropriate penalty. The Court has the power to do so by reference to the opening words of section 16A(2) Crimes Act 1914 that allows “any other matters” to be considered. The Court is also required to take into account a number of specific matters provided for in section 16A(2) that are relevant to the present case, including the applicant’s age, antecedents and prospects of rehabilitation. The Court would also have to have regard to the general principles applicable to the sentencing of young persons namely that general deterrence and retribution should be afforded less weight and that rehabilitation should be the primary aim of the sentencing process: R v GDP (1991) 53 A Crim R 112.
Third, the choice of the charges to be laid is in the absolute discretion of the prosecution and that decision must be made fairly: Elias v The Queen (2013) 87 ALJR 895. However, if I was satisfied that there was an abuse of process by reason of the charges laid this would not prevent the Court from staying the proceedings: R v Maxwell (1996) 184 CLR 501 at 512.
Fourth, there are good reasons why the Children’s Court could decide pursuant to section 18 CCP to order that the matter be determined in accordance with the law. The section 400.9(1) offence is a serious one and is designed to eliminate money laundering and thereby hamper other large scale illegal activity. The sums involved in the offending conduct were significant and there were a large number of transactions. The applicant became involved in the offending conduct within days of arriving in Australia. He was required to travel interstate to undertake some of the transactions. He was clearly involved in a money laundering operation of some size and significance. I have not come to a concluded view as to his participation in the operation because it is not necessary for me to do so in the determination of the application for a stay.
Fifth, the Children’s Court has no jurisdiction to deal with the second count and the applicant will have to face sentence in the District Court for at least the offending conduct after he turned 18 at some time.
Sixth, the applicant was legally represented at the time of entry of his plea of guilty and did not take the point. I would not consider this point as conclusively as Gleeson CJ did in Stanton. In this case, the solicitor who appeared for the applicant in the Local Court and in this Court has done so under difficult circumstances. He was not properly instructed, did not have direct contact with the applicant’s family in China and often appeared amicus or pro bono. He did not have firm instructions as to the applicant’s age until the matter had progressed significantly in the Local Court. Clearly he was mindful of trying to assist the applicant by entering a plea of guilty at the earliest available opportunity in the Local Court based on his instructions that the applicant had committed the offence. The evidence does not disclose the charges that the applicant was committed for sentence on. However, it is clear that he pleaded guilty to the single count on the indictment on 23 October 2015.
Seventh, if a stay was granted the proceedings would be further delayed. The applicant has proceeded on the basis that the prosecution would amend the indictment to provide for the first and second count to have the stay lifted. Of itself that would potentially expose the applicant to a higher maximum penalty for the offending conduct. However, the prosecution could choose to lay more than 2 charges in response to the stay that could lead to further dispute over the terms of the indictment or expose the applicant to an ever higher maximum penalty. On balance it appears that there are good reasons to hold the parties to the terms of their agreement, even though it is not ideal.
The decision whether or not to grant a stay in this matter is finely balanced. There is potential unfairness to the applicant. Taking into account the background of the matter outlined in the affidavits of Mr Newton, solicitor for the applicant, it is appropriate to extend the time to file the application for the stay.
Having considered all of the relevant matters I have decided that the application for the stay should be refused. The applicant has pleaded guilty to the offence and the District Court is in a position to consider the circumstances of the offending conduct, including his age, in passing the appropriate sentence. For the reasons I have given it is open to the District Court and the District Court should have reference to the matters set out section 6 of the CCP Act and the principles set out in R v GDP when passing sentence. The District Court is thereby able to alleviate the unfairness that has arisen by the prosecution’s decision to charge the applicant with a single count incorporating periods before and after he turned 18. Accordingly the unfairness does not go the root of the matter and the applicant has not established that a stay should be granted.
The orders of the Court are:
(1)The time for filing the Notice of Motion is extended to 27 May 2016.
(2)The application for a stay of the indictment is refused.
**********
0
9
4