Ngo v The Queen [2014] HCATrans 283 (12 December 2014)

Last Updated: 17 December 2014

[2014] HCATrans 283

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S208 of 2014

B e t w e e n -

PHUONG CANH NGO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2014, AT 10.57 AM

Copyright in the High Court of Australia

MR M.B.J. LEE, SC: If your Honour pleases, I appear with my learned friends, MS B.J. TRONSON and MS L.M. JACKSON. (instructed by Legal Aid NSW)

MS N.J. ADAMS, SC: May it please the Court, I appear with MS S. PALANIAPPAN for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Lee.

MR LEE: If the Court pleases, an extension of time for filing the application for special leave is required but I understand it is not opposed.

FRENCH CJ: Is that correct?

MS ADAMS: That is correct, your Honour.

FRENCH CJ: Yes, all right. You will have that leave. Yes.

MR LEE: Your Honours, the applicant advances two alternative contentions to demonstrate that the Court of Criminal Appeal fell into error in finding the applicant had no arguable grounds of appeal, which finding was determinative of the court’s conclusion that no extension of time should be granted pursuant to section 10(1)(b) of the Criminal Appeal Act.

In short those two arguable grounds of appeal which we say exist are as follows. The first is, in applying a provision, to which I will come presently, the sentencing judge, although acting consistently with authority at intermediate Court of Appeal level, applied an erroneous two-stage process and the alternative argument is that if the two-stage sentencing process was appropriate, that this was a substantively less favourable sentencing regime to the prisoner and, given the absence of statutory provisions mandating this outcome, the court ought to have proceeded to sentence pursuant to the sentencing regime which is applicable at the time of the offence, which is described, as your Honour may have seen in the summary of argument, as the “stage one regime”.

Can I commence by immediately by taking your Honours to page 11 of the applicant’s authorities which identifies and reproduces section 61 of the Crimes (Sentencing Procedure) Act, a section which has caused some controversy and it has caused controversy for reasons that will become obvious. What your Honours will immediately note is the heading “Mandatory life sentences for certain offences” and a mandatory direction in subsection (1) that the:

court is to impose a sentence of imprisonment for life - - -

FRENCH CJ: Now, this came into effect in 2000, was it?

MR LEE: Yes.

FRENCH CJ: Your client was sentenced in 2001, I think.

MR LEE: Yes, 14 November.

FRENCH CJ: The offence had been committed in 1994.

MR LEE: Correct.

FRENCH CJ: Yes.

MR LEE: So seven years later. The court:

is to impose a sentence of imprisonment for life . . . if the court is satisfied –

of something, that is the level of culpability had certain characteristics which could only, and accordingly, by reason of those characteristics, the community protection can only be met through the imposition of that sentence. Now, that mandatory direction in subsection (1) has to be read together with subsection (3), which provides that:

Nothing in subsection (1) affects section 21 (1).

Your Honours immediately see on the facing page the provisions of section 21(1) which is a general power to reduce penalties. Now, that tension, as it has been described, has meant that two principles appear to have emerged at this stage in relation to the application of section 61. The first is recognising the continued existence of the discretion and notwithstanding the fact that the section 61(1) criteria are met in a specific case, that where the subjective circumstances justify a lesser sentence than one of life imprisonment, that can be imposed.

The second principle that seems to have emerged is this. In approaching the exercise of that discretion, the court is required to adopt what is described as a two-step - expressly a two-step approach, whereby the first step is to assess the culpability of the offender but only by reference to the circumstances surrounding or causally connected with the offence, leaving aside entirely matters such as remorse, pleas of guilty, prospects of rehabilitation and the like.

It is only when a court has formed the view on that first stage, after a conclusion has been reached, does a consideration arise of the offender’s subjective case and, your Honours, that two-step process is precisely what happened here and your Honours see that clearly if your Honours go to the application book at page 10. Paragraph 26 of the remarks on sentence, the sentencing judge, Justice Dunford, refers to the subsections to which I have directed your Honours attention and about halfway down that paragraph says this:

These provisions and the relationship between them were considered in some detail in R v Harris -

and R v Harris [2000] NSWCCA 469; 50 NSWLR 409 is authority for those two principles that I indicated to your Honours had seemed to emerge and what his Honour then does as a matter of law, indicate consistently with what the Court of Criminal Appeal said in Harris is this two-stage approach, that is, it is appropriate firstly to consider the level of culpability of the prisoner in the commission of the offence and whether the case is one calling for the life sentence in terms of section 61(1) and, if so, that is, if one has reached that view, whether in the exercise of the discretion conferred by section 21(1), the subjective features relating to the prisoner justify a lesser sentence.

So, consistently with the mandates in Harris, what his Honour then did on the next page at paragraph 32 and onwards, is approach it in that way. In paragraph 32, his Honour notes:

In my opinion, the killing of a member of Parliament for political purposes, involving as it does an attack on our constitutional system of parliamentary democracy –

et cetera, and then there is a reference to the section 61 criteria –

can only be met by the imposition of a life sentence.

So his Honour has formed the view, consistently with subsection (1), can only be met by imposition of a life sentence. He then refers to an aggravating matter in paragraph 33 and then his Honour says at the second stage:

It therefore –

having reached that level of satisfaction -

becomes necessary having regard to s 21(1) to consider whether there are any subjective features –

and his Honour then deals with those subjective matters, again referring to Harris. Then his Honour goes over a number of paragraphs on the following page, including at paragraph 40. At paragraph 42, his Honour then says:

I have taken all these matters –

these subjective matters –

into account but, for the reasons already given –

that is referring back to the first stage determination that his Honour has made –

I am satisfied that the level of culpability in the commission of the offence is so extreme that the subjective features must be disregarded –

Now, that approach gives rise, we say, to two important matters.

KEANE J: Even if section 61 was not there, even if his Honour’s analysis of the situation had not been complicated by the presence of section 61, having regard to the objective seriousness of the offence and the circumstances that his Honour refers to at paragraphs 32 and 33, not just the attack on the system but the murder for hire, the planning and so forth, the corruption of other people, why would not all those features mean that this is indeed in the worst category of case?

MR LEE: Well, it is clear that the section 61(1) - - -

KEANE J: Sorry, this indeed in the worst category of case so that the subjective matters that you have adverted to just do not tip the balance.

MR LEE: A sentencing judge sentencing, for example, under the previous regime, a stage one regime where there was not the mandatory provisions of section 61(1), would of course had account to those subjective features at the same stage by a process of synthesis when forming a view as to what the appropriate value judge, with the appropriate synthesis, the appropriate individualised justice and it would be open, one would think, depending upon the analysis of the subjective features, to say that the objective gravity defence so dominated that process that an appropriate response was a life imprisonment sentence.

However, what occurred here, and our critical point is that process did not occur, that synthesis did not occur. His Honour, by reason of Harris, allowed that preliminary finding to dominate the sentencing process in a way in which his Honour Justice McHugh refers to in AB v The Queen and going on, your Honour sees some disquiet at paragraph 43 in his Honour’s remarks for sentence because his Honour then refers to the fact that there is no power under this regime to set a non-parole period. If he had been able to do so he would have set a non-parole period:

but it would be a very long one-

et cetera. So it is not guaranteed, in our respectful submission, that if the prisoner had have been sentenced according to law that the result would necessarily have been the sentence which has currently been visited upon him.

Your Honours, what the approach to section 61(1) does is it presents a conundrum very analogous to the conundrum that was identified and considered by the court in R v Leach [2007] HCA 3; 230 CLR 1. Can I ask your Honours to go to page 29 of the applicant’s authorities and your Honours will see that this was a case concerning a Northern Territory regime which, as your Honours would see from the Chief Justice’s judgment at page 9, page 37 of the book, dropping down to about the eighth line, section 19(5), the provision of the Northern Territory legislation:

was said by Mildren J to be modelled on s 61 –

and his Honour then goes and describes similarities between the regime involved in Leach and section 61(1) and notes that we are presently not concerned with the New South Wales legislation. But if your Honours then go to the judgment of Justices Gummow, Hayne, Heydon and Crennan which commences at page 41 and at paragraph 36 on page 44, your Honours see they deal with an argument headed “Two stages of consideration?” and what their Honours do is show the illogicality of approaching the matter in a similar way as we say is mandated by Harris. Their Honours say that:

The appellant submitted that although the primary judge concluded that the level of culpability in the appellant’s commission of the two murders was “so extreme . . . a discretion was conferred . . . which required the Court to consider separately, and give effect to, what were described as “ordinary sentencing considerations”. In particular, the appellant submitted that this second and separate inquiry required consideration of questions about the prisoner’s rehabilitation.

At once it can be seen that the appellant’s submission would require reading s 19(5) –

which is the cognate of section 61(1) –

as presenting a conundrum for the Court considering an application under s 19. Central to the appellant’s contention was the proposition that the Court may be satisfied –

of various things which could -

only be met if the offender is imprisoned for the term of his or her natural life without –

in that case –

the possibility of release on parole”, yet conclude that a non-parole period should be fixed.

Now, that is a tension relating to parole, but the same tension exists here in relation to the question of whether or not the sentence needs to be imposed of life imprisonment.

KEANE J: Did the Northern Territory legislation considered in Leach have an equivalent of section 61(3) and section 21?

MR LEE: No, your Honour. The real equivalents are section 19(5) but the only point I seek to draw from Leach is the illogicality which their Honours - - -

KEANE J: Well, you say illogicality. Someone else might say fidelity to the legislation which has section 61(3) and section 21.

MR LEE: Well, your Honour, there is no lack of fidelity in approaching the section 61(1) exercise and approaching it consistently with a mandate in section 61(3) and applying the sentencing process by way of the synthesis of all relevant factors, rather than making a determination breaking into stages, making a determination that a conclusion must be reached and then separately dealing with the subjective factors which necessarily allows, in my respectful submission, that objective determinational conclusion to dominate the balance of the sentencing process.

That is why we say that here this two-stage process is similar to obviously the problem that has been identified by the Court in Muldrock. Here, returning to the circumstances of this case, the killing of an MP for political purposes ipso facto has a level of culpability, according to his Honour, which meets the section 61 criteria. But the sentencing judge in doing so has only relied on part of the relevant circumstances and, as I have said before, this allows abstraction, replacing the convicted person’s circumstances in determining the appropriate sentence, to pick up what Justice McHugh said in AB v The Queen.

The short point is, we say, what was required was a synthesis of all factors in order to arrive at the appropriate sentence, doing it in one stage and that would also avoid what we say is the conundrum referred to by their Honours in Leach.

Moving to the alternative argument, if your Honours were convinced that the two-stage process was one that was necessarily imposed by reason of the statutory scheme which we refer to in our summary of argument as a stage three regime, we say that is a change to the sentencing regime which can be seen to be substantive for the reasons I have already explained and particularly it can be seen to worsen the position of the offender and, accordingly, as the Court of Criminal Appeal correctly noted at paragraph 60 of the reasons, that is a circumstance where its applicability to pre-commencement offences such as the present could at least be questioned.

Of course, the obverse was true and that is to the extent that this introduction of the new regime could be seen as being procedural, then it may readily be accepted they were intended to apply to offences committed before as well as after commencement. Plainly, we say, it is less favourable. I have already developed that argument in respect of the first point. What was required in each of the regimes was the exercise of a discretion but in another part of Leach, in the Chief Justice’s reasons, what his Honour refers to is the suggested discretion in that case, like in this case, is that judicial discretion necessarily constrained by legislative direction and one cannot ignore the context, the legislative context, within which this judicial discretion is left to operate.

The relevant context here is the introduction in 2000 for the first time in respect of murders committed pre-30 June 1996 of a mandatory life sentence regime of the type imposed. Now, if section 19A(2), the stage one regime, which was applicable in 1994 - yes, there was obviously enough the same penalty and sentence for penal servitude for life meant the term of the person’s natural life, but for the reason that we have indicated in our summary of argument it is plain that when the legislature put in place the stage one regime it was careful to ensure that there be a full sentencing discretion which was considered to be essential given the wide variety of cases, that there was no bifurcation, if you like, of the stages with which one assesses objective and subjective factors.

FRENCH CJ: Then just to make sure I have the statutory framework right, the substantive penalties derived from section 19A of the Crimes Act and so what you get from 61 is application to that - to the discretion that is otherwise available under that.

MR LEE: Yes, I mean there was a certain repetition in section 61(1) with 19A because it does refer to a mandatory direction to give someone a particular sentence.

FRENCH CJ: Yes, I understand that.

MR LEE: They have to be read, obviously enough, together.

FRENCH CJ: Conditioned on that level of culpability.

MR LEE: Yes, quite. Now, as the Court is well aware, after some debate, it is plain that absent statutory requirements expressly to the contrary that on sentencing for an offence it is proper for a court to take into account the sentencing practice at the date of commission of the offence when sentencing practices moved adversely. Now, that is consistent with the policy which underlies obviously enough the statutory provisions which applied here in relation to increases of penalty but there was no actual increase in penalty in a literal term here.

What occurred was a change in the way in which the sentencing was to go about and we say, for reasons we have expanded upon in the summary of argument, that there is simply no textual mandate to suggest that there was any legislative intention to mean that this substantive change was one that was to apply to these old offences – seven years before. What their Honours did was to really look at a cognate of another transitional provision, what we describe in the summary argument as a stage two regime, and say the absence of that should infer that this was purely procedural and it also appears that their Honours’ reasoning was infected by the notion that there would somehow be a gap - - -

FRENCH CJ: For special purposes I can understand the significance of that debate but it really comes back to this bottom line question whether a different outcome is at all likely having regard to the levels of culpability found by the sentencing judge. I know you have the little thing in paragraph 43 of - - -

MR LEE: We have Kentwell. We have got paragraph 43 of Kentwell. I mean our simple point is if one is going to be placed in prison for the rest of one’s natural life, someone is entitled to be sentenced according to law - - -

FRENCH CJ: I understand that. You have said that in the submissions. Yes.

MR LEE: Yes. It is a point I wish to repeat, if your Honour pleases.

FRENCH CJ: I understand that.

MR LEE: Your Honour has seen reference obviously enough – I think it is in footnote 80 of Kentwell, the necessity that if there is a resentencing, for the court to have regard to the matters that occurred after the original sentencing that are relevant to the sentencing process at the time of resentencing and your Honours see some cross-referencing in the submissions made below about the issue of whether or not certain findings his Honour made about political motive can stand, given material that has emerged in the inquiry.

But, for those reasons, we say particularly the point of section 61 has great importance. This two-stage approach is one which will obviously continue to be the means by which murders in the worst category of cases, the sentencing process is going to proceed on the basis of this two-stage approach. Justice Latham has already indicated in R v Dean, which is referred to in the written submissions – it is at least questionable whether or not that survives following Muldrock, and for those reasons, we say the matter is of sufficient general importance to warrant a grant of special leave apart from, and I will not repeat it for the third time, the particular circumstances of importance in the individualised justice of the case. If your Honours please.

FRENCH CJ: Thank you very much, Mr Lee. Yes, we will not need to trouble you, Ms Adams.

The applicant seeks special leave to appeal against a decision of the Court of Criminal Appeal of New South Wales dismissing an application for an extension of time to seek leave to appeal against a sentence of life imprisonment imposed upon him in 2001 for a murder committed in 1994. The special leave questions go to the merits of the proposed appeal to the Court of Criminal Appeal and are concerned with the sentencing judge’s use of a two-stage sentencing process in his application of section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and, secondly, the application of that section to an offence committed in 1994, when the section itself did not come into effect until 2000.

Section 61(1) requires that the penalty imposed for murder must be life imprisonment where a certain level of judicially evaluated culpability has been reached. The substantive penalty provision is to be found in section 19A of the Crimes Act 1900 (NSW). The level of culpability found by the sentencing judge was amply justified on the facts of this case and would, in all probability, have led to the sentence being imposed upon the applicant under the previous regime and on a two-stage approach. The decision of the Court of Appeal, which was concerned with a long out-of-time application for leave to appeal is, in our view, unattended with sufficient doubt to warrant the grant of special leave. Special leave will be refused.

AT 11.22 AM THE MATTER WAS CONCLUDED