Chieu v The Queen S177/1999 [1999] HCATrans 622 (10 December 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S177 of 1999

B e t w e e n -

HAC SUOL CHIEU

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 1999, AT 12.55 PM

Copyright in the High Court of Australia

MR.S.J. ODGERS: May it please the Court, I appear for the applicant. (instructed by Trevor Nyman & Company)

MR A.M. BLACKMORE: May it please the Court, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

KIRBY J: Yes, Mr Odgers.

MR ODGERS: Your Honours, this application relates to the meaning and significance of section 6(3) of the Criminal Appeal Act which is the standard form provision dealing with appeals against sentence.

HAYNE J: Is there any doubt about its application, Mr Odgers, namely that if specific error is found, it is for the Court of Appeal to re-exercise the discretion afresh? There is a second question: whether the Court of Appeal is of the view that some other sentence should be passed?

MR ODGERS: Your Honour, I would endorse the formulation your Honour has adopted.

HAYNE J: But the question is whether these reasons reveal infidelity to those two principles.

MR ODGERS: Your Honour, to answer your question, I put it slightly differently, that it was accepted in the Court of Criminal Appeal that there was error in the sentencing judge.

HAYNE J: Followed inexorably that the sentencing discretion fell to be re-exercised by the Court of Criminal Appeal, does it not, unless of opinion no other sentence should be passed?

MR ODGERS: Yes, but in my submission - - -

KIRBY J: It is that second step that is your problem, is it not, that - - -

MR ODGERS: My problem is that it appears from - although Justice Sully is a little ambiguous, I have to concede, what exactly he is doing, but my submission is that a fair reading of what he is doing is that he is not applying that approach, that the reason he gave for not re-sentencing, for not imposing a different sentence was the reasons which were given at the top of page 69 primarily and it is those words which we submit reveal clear, if I might call it, manifest error in his Honour's approach. As your Honour Justice Hayne pointed out, may be, once a specific error is established you independently re-exercise the discretion. You do not look for a "manifestly excessive" sentence or a sentence which is outside the range and in my submission it is sufficiently clear that his Honour has interpreted section 6(3) mistakenly. There has some ambiguity in the authorities in respect to that provision in this State, your Honours.

The last I would say, your Honour, is that the very authority relied upon by the Crown in their argument, the judgment of Justice Jacobs in Griffiths, in my submission, reveals clear error. Justice Jacobs expressed it wrongly.

KIRBY J: Yes, but what Justice Hayne said in that recent case which is referred to in your submissions is not, I would have thought, in contest as a fundamental principle of House v The King. It really goes back - - -

MR ODGERS: Your Honour, we endorse it. We say that is exactly what you should do.

KIRBY J: - - - and therefore, if that is so, then are we not really just analysing what Justice Sully said at 69 and whether those words, "manifestly excessive", are not, as it were, his Honour's elliptical way of referring to whether some other sentence should be passed.

HAYNE J: In light of what his Honour said in paragraph 31 on the same page.

MR ODGERS: Your Honour, the difficulty with that is that - - -

KIRBY J: You cannot ignore that other sentence. It is not a completely unreined discretion, it is a discretion which is focused upon whether some other sentence, that is to say other than the primary judge.

MR ODGERS: Your Honour, in my submission, section 6(3) imposes no practical limitations whatsoever on appellate review of sentencing. Once error has been established, the Court looks at the matter afresh. If it believes that another sentence, applying that discretion, is warranted - and, of course, if they, through that exercise, come to a view that the appropriate sentence is X and just by chance that happens to be the same as what the original sentencing judge imposed, then they dismiss the appeal. But if they think, going through the process afresh, that a sentence should be Y, they think it obviously is warranted in law - otherwise they would not have thought that that was right, they think it should have been opposed because otherwise they would not have come up with that figure - then the provision says you go ahead and allow the appeal and impose that new sentence. What you do not do and what the danger of this kind of exercise is, you do not look at the original sentence and start asking questions like, was it within the range which is what Justice Sully asked? You do not ask, was it "manifestly excessive" and you do not do what he did on 69, which is look at the co-offender and say, "Well, what did he get?. Are there significant - - -"

HAYNE J: Surely, in re-exercising the discretion, you would have surely to take account considerations of parity?

MR ODGERS: In my submission, no.

HAYNE J: You disregard the principle of parity on re-sentence? Come, come, Mr Odgers.

MR ODGERS: No, your Honour, with respect. The problem is that the original sentence was the result of a miscarriage of discretion.

HAYNE J: Yes.

MR ODGERS: You now look at the appropriate sentence. I accept that you would take into account the sentence imposed on the co-offender, but there were significant subjective differences between them, as was conceded.

HAYNE J: As is inevitably and always the case?

MR ODGERS: Yes.

HAYNE J: Yes.

MR ODGERS: You determine what is an appropriate sentence for this person but you do not, in my respectful submission, do it by a process of saying, "Well, how insignificant were the differences? I do not persuade your Honour on that.

HAYNE J: Well, simply that when a Court of Criminal Appeal or any sentencer comes to exercise the discretion, surely it must have before it the principle of parity.

MR ODGERS: I do not dispute that, I do not dispute that.

HAYNE J: The question of the manner of its application by a Court of Criminal Appeal, does that inject some new element to it?

MR ODGERS: My submission is that his Honour really approached this matter with the prima facie assumption of the sentence that was originally imposed, notwithstanding that error had been established. He was really making a judgment about whether or not he should interfere with that, and he did that by looking at whether it was manifestly excessive, whether or not it was within the range, whether or not there were good reasons for differentiating between this applicant and the co-offender. All of those approaches, we say, suggest strongly that he misconceived the proper approach. The proper approach - - -

KIRBY J: Do they suggest that his Honour was exercising the discretion but by reference to whether some other sentence ought to be imposed? You see, it is not completely unreined. It is reined in by the statute and the statute does refer to other sentence, other than what? Other than that imposed by the primary judge, the sentencing judge.

HAYNE J: Not least, Mr Odgers, for this reason.

MR ODGERS: Yes.

HAYNE J: The practice, at least in some Court of Criminal Appeal, is undoubted that if the court is considering increasing the sentence, it will warn counsel and give counsel the opportunity to abandon, and if you exercise the re-sentencing task divorced from consideration of what has already gone before, entirely divorced, how do you give effect to that practice, and is the practice therefore ill-founded, that the - - -

MR ODGERS: That the practice that you give notice of the possibility that it might go up?

HAYNE J: Those awful words, "You realise, we have power to increase this."

MR ODGERS: With respect, I do not see any practical difficulty. You could make that clear at an appropriate time where it became a possibility that that might be the result, but - - -

KIRBY J: No, but the question is whether the theory behind your argument is that that is really not part of the proper practice because once you get through the barrier, you are a completely new proceeding.

MR ODGERS: Your Honour, it is my submission that this provision anticipates that the Court of Criminal Appeal will independently - as your Honour, I think I cannot put it better than the way that Justice Hayne put it:

sentence imposed.....must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed.

It is necessary to show that that process has been conducted. It is necessary for an appeal court to show that they are separately and independently exercising their discretion, that they are not applying a somewhat different test which is whether or not the original sentence was within the range, and the concern that any applicant would have if confronted by this situation is, "Well, we have shown error, we have shown that the original sentence was contaminated and the discretion miscarried." The appeal court now has to separately and independently exercise its discretion and when the judge purportedly does this, what does he do? He begins by saying, "In the end it was not manifestly excessive, in the end it was within the range".

Your Honours, whether or not it is manifestly excessive, in my submission, is irrelevant and it gives the clearest possible indication that his Honour has misconceived his function because showing patent error and showing manifest excess are completely different tasks. They are both independent ways of establishing error in the original sentence. If you have established error, then that is the end of it. You do not need to look at whether the sentence was manifestly excessive and if an appeal court starts using that language, once error has already been shown, then any applicant will feel and, rightly so, that the judge has not independently and separately reconsidered the discretion, has not gone through all the objective circumstances, has not referred to all the subjective matters which any sentencing judge must go through to determine an appropriate sentence.

None of that happened here, on the record. What was on the record was inconsistent with that task. Your Honours, I can only say this: it happens all the time in the Court of Criminal Appeal in this State that it is shown that there has been error and then appeals are, if I might call, it peremptorily dismissed on the basis that it was not, in this language here, was not manifestly excessive. An applicant would have, in my submission, a real cause for concern that the Appeal Court did not perform the task which it was required to perform.

KIRBY J: Yes, I think you have put the point. It is a short point. Yes, Mr Blackmore.

MR BLACKMORE: The difficulty for the applicant here is that there is no dispute about the principles to be applied, and this Court would not, with respect - - -

KIRBY J: Is it true that the Court of Criminal Appeal does not observe the principle that Justice Hayne expressed in AB v The Queen, because it is certainly a principle that I take as fundamental to the proper re-exercise of a discretion which is miscarried?

MR BLACKMORE: Yes, I cannot make that sweeping statement. I am not sure I can answer. I certainly would not say I could answer that question.

KIRBY J: It certainly was never done, I hope, when I was sitting in the Court of Criminal Appeal.

MR BLACKMORE: No, and it was not my experience that that was what was occurring, although I have not been in the Court of Criminal Appeal for a few years now, on a regular occasion, anyway. But - - -

KIRBY J: You are spending a lot of your time with us.

MR BLACKMORE: Unfortunately, in some respects, yes.

HAYNE J: You are talking about the Evidence Act.

KIRBY J: Very helpful, too.

MR BLACKMORE: Yes. With respect to the submission by the applicant, the approach that he seeks to take to this particular judgment is truncated. He wants to say that the words "manifestly excessive" are the whole of the judgment.

HAYNE J: Where do you say we find in this judgment the court considering for itself the question whether, or what sentence should be passed?

MR BLACKMORE: I am prepared to accept that it is somewhat ambiguous which was my friend's term, but the Court would not take up a case on that basis alone. Where I say it appears is on page 69. Why would the court go on to consider the matters that it does after it says "manifestly excessive". He goes on and says:

first, that both applicants were admittedly associated in an extensive, and extensively planned, operation involving the trafficking of stolen motor vehicles -

these considerations are all considerations relevant to that exercise. Now, with respect, it could simply be a misuse in the sense of the language, but it cannot be irrelevant to look at the sentence that was passed and whether or not it fell within a range, and if appropriate sentences. In coming to the opinion that it is required under the Act, that is some other sentence. That is what the Act says, "some other sentence". You have to form an opinion that "some other sentence" - - -

KIRBY J: That would seem to me is the strength of the Crown's Case here, that the Act does not seem to contemplate that you put the original sentence completely out of mind, forget about it completely. "Other sentence" seems to focus on some sentence other than that which the sentencing judge imposes.

MR BLACKMORE: You must therefore keep that sentence in mind and it cannot be irrelevant. It cannot be just irrelevant to look at the sentence and say, "Well, was it, in fact, outside the range?" Of course, if it was outside the range, if it was manifestly excessive, there would be no question the court would re-sentence, no question whatsoever. It would be manifestly unfair if it did not.

But it must look at the language of the Act as well and it must form itself a positive opinion and the onus is on the applicant to show it, to form that opinion, to have the court form that opinion that some other sentence is appropriate. In fact, it is quite consistently what Justice Hayne said, with respect, in AB and AB was a case which followed - - -

KIRBY J: It is not as well expressed with respect to Justice Sully who is a very experienced judge - - -

MR BLACKMORE: I accept that, I accept that.

KIRBY J: - - - as what Justice Hayne said in AB because then his Honour would have expressed it in different words, I think. The question is whether the substance of it is different.

MR BLACKMORE: We submit, at least, it is arguable that it is and the Court would not take up a sentencing case on that basis. You would perhaps be interested in a case where it is obvious that they had not done it, and, with respect, this is not such a case. In any case, the principles, even though they were not clear, are now clear from AB which was a case obviously after this case in which Justice Sully pronounced these words. I also point out that this was a two Bench decision. That does not necessarily detract from its authoritative status, but there are other statements in the court itself, Astill, Allpass, which have been adopted by the High Court.

HAYNE J: The difficulty with that submission, if I may say so, Mr Blackmore, is that the press of business on Courts of Criminal Appeal in sentencing cases is very large. Because the press of business is so great, it is all the more important the proper principle be applied and be seen to be applied.

MR BLACKMORE: Yes, I accept that, I accept that. But, again, this is a sentencing case and this is the High Court, and the Court generally will not take up matters unless there is a definite principle attached to it. There is no principle here. The principles are already clear. This is simply, if it is anything, an aberration in this particular matter.

HAYNE J: The reason for my intervention is that it is to be hoped that counsel appearing for the respondent in Courts of Criminal Appeal will, if needs be, bring quite plainly to the mind of the judges the principles that are to be applied. The press of business on these courts is so large and the volume of authority that they have to digest and the volume of facts they have to digest is so large that, really, the obligation on the Crown in such cases is, I think, perhaps larger than once it was.

KIRBY J: That is the only point that leads me to pause, and whether there would be utility, given the large number of cases that are affected by this principle. Every case of specific error in a Court of Criminal Appeal in Australia warrants, as it were, having the endorsement of the entire Court behind what Justice Hayne said, if that is necessary. I certainly agree entirely with what his Honour said in AB in this respect.

MR BLACKMORE: With respect, again, it is not different to what the Court has already said in the past in House v The King and other decisions, Skinner - - -

HAYNE J: I did not think I was establishing any principle in AB, perhaps I was, but I did not think so.

MR BLACKMORE: No, perhaps more clearly stated and more recent, obviously, but the courts - this provision has been around for a very long time and the courts - we have looked at a number of decisions. Skinner was one back in 1913. The same principles proceed right through. Perhaps it needs re-emphasis in a sense, but this is the re-emphasis it needs. It is just a simple clear statement of principle. It is not in any dispute.

KIRBY J: Yes, very well. Thank you very much.

MR ODGERS: Your Honours, it is in dispute because the problem is 6(3). Your Honour referred to the words:

that some other sentence, whether more or less severe is warranted in law -

Now, my first submission is that those words do not impose any additional obligation over and above the normal exercise of sentencing discretion. Of course, you would not interfere if the sentence you come up with at the end of the day happens to be the same. That is all those words are saying. They are not imposing any requirement that in exercising your discretion independently you really are constrained in any way by what the original sentence was. That is the first point.

KIRBY J: That must be correct but it does seem to me to be focusing at the starting point of the reasoning of the Court of Criminal Appeal in re-exercising the discretion upon the mandate which it has, namely - - -

MR ODGERS: I just submit to the contrary, your Honour. I submit that that is not right. Secondly - - -

KIRBY J: You want to read that phrase entirely out of the.....the Criminal Appeal Act?

MR ODGERS: No, no, your Honour. I step back from the section 6(3) and I simply say, looking at it stepping back, on an appeal, if you think a different sentence should be imposed, then you may do so and in any other case dismiss the appeal. Your Honours, that does not impose any limitations at all, it does not, there is nothing in there. It just simply says. "If you think a different sentence should be imposed, do it." The limitations do not come from that provision, they come from statutory review of discretion. That is the first point I am making.

The second point I am making is the words "warranted in law", those were the words that Justice Sully referred to at the end of his judgment and the words put against me, but he specifically said that those words - he read those words, in the sense, discussed by the authorities. The difficulty is that I am submitting that those words impose no limitation at all and the difficulty is that there is a confusion between whether the original sentence was warranted in law and whether the new sentence, a different sentence, would be warranted in law. That is the problem, with respect, the error that Justice Jacobs made in that case relied on by the Crown. They say the law is clear but, your Honours, can I take you to the top of 86 of the application book, and this is the quotation from Justice Jacobs in Griffiths:

In this respect s5D, which is a different provision, gives a wider discretion than s6(3) where the Court is bound to interfere once it reaches the conclusion that the sentence -

that is the original sentence -

was not both warranted in law and one that should have been passed.

So his Honour is saying a Court of Criminal Appeal cannot interfere unless it is satisfied the original sentence was one that was not warranted in law. Your Honours that is the source of a view that it has to be one which is outside the range and it is the source of the view that it has to be something which was not excessive. That was the language that was used in some of these other New South Wales authorities.

KIRBY J: What was the position of the other Justices in Griffiths?

MR ODGERS: They said nothing about it.

KIRBY J: So this is simply - - -

MR ODGERS: This is just dicta.

KIRBY J: Dicta of Justice Jacobs - - -

MR ODGERS: Yes.

KIRBY J: - - - stacked against (a) the fundamental principle in House v The King, (b) judgments going back to the beginning of the century, and (c) Justice Hayne recent statement.

MR ODGERS: Your Honour, I accept that Justice Hayne, with respect adopts the view which I am advancing here but the problem that sometimes judges might differentiate between appellate review of discretion and the task under section 6(3), and what I am fundamentally putting to this Court is that there is a real problem in New South Wales at least that some judges, at least, believe that section 6(3) imposes limitations on their powers quite separate from those that operate under House v The King; and that essentially even if House v The King principles have been satisfied, that it is necessary that more needs to be done to justify intervention, other than a simple view that a different sentence is appropriate and that by using the language of whether or not something is warranted in law, it is clear that Justice Sully thought that there was some additional burden that had to be met, and what did he think it was? Well, we can only rely on what he said and what he seemed to be saying is this burden which had to be met was to show that the original sentence was essentially manifestly excessive, which is clearly wrong.

KIRBY J: Yes.

MR ODGERS: Your Honours, Oastler and Astill require an appellate court to be satisfied that the original sentence was not excessive. That is an ambiguous term and it reeks, with respect, of this idea of not being manifestly excessive. If all it means is - - -

KIRBY J: I think your time is up, Mr Odgers.

MR ODGERS: I am sorry, your Honour.

KIRBY J: You are trying to extend it to the - - -

MR ODGERS: I am sorry, your Honour. Thank you.

KIRBY J: You put your argument very well.

The Court is of the opinion that this application should be refused. Justice Hayne will give the reasons of the Court.

HAYNE J: This application requires consideration of well-established principles: that a Court of Criminal Appeal finding specific error in the exercise of the sentencing discretion must itself exercise the discretion afresh, and that a Court of Criminal Appeal may nonetheless conclude in a particular case that no other sentence is warranted in law, see AB v The Queen (1999) HCA 46 at 128 to 130.

Taken from their context, the reference in the reasons of the Court of Criminal Appeal to the sentence imposed by the primary judge not being "manifestly excessive", may be apt to mislead. Read as a whole, however, there is no reason to think that the Court of Criminal Appeal was abdicating its duty to determine the sentence for itself. That being so, no miscarriage is shown. I would dismiss the application for special leave.

KIRBY J: So would I. The application is dismissed.

The Court will adjourn until 2 o'clock.

AT 1.22 PM THE MATTER WAS CONCLUDED