Act 1935 (SA) s 359. Queen v Nguyen [1992] SASC 3639 | Case summary

JUDGE2 OLSSON J. This is an application by the Attorney General for leave to appeal against sentences imposed upon the respondent on the ground that, having regard to certain events which occurred subsequent to sentencing, those sentences are manifestly inadequate. 2. It is fair to say that the making of the present application has, in part, been motivated by the fact that it is said that, in one form or another, situations akin to that which has given rise to it have recently arisen in a number of other cases. The Attorney General has thus been moved to attempt to obtain some statement of principle from this Court in relation to incidents of that type. 3. The circumstances in which the respondent was sentenced may simply be stated. He came before the Court charged with four specific offences of armed robbery. These each related to discrete incidents, which occurred between 13 March 1991 and 4 July 1991. 4. Two of the armed robberies were carried out at different branches of the Westpac Banking Corporation, whilst the others related to two separate branches of the Hindmarsh Building Society. 5. Upon his arraignment before Duggan J, the respondent pleaded guilty to all four counts. It was intimated that, subject to the appropriate documentation being raised, the learned sentencing judge would be asked to take six other separate offences of a similar type into consideration. The matter actually came before Duggan J. for submissions on several occasions. 6. On 28 February 1992, he was supplied with a written list of considerations, duly signed by the respondent and witnessed by his counsel. These adverted to six other quite separate armed robberies in which, as he conceded, the respondent had been involved between 27 March 1991 and 21 June 1991, all of them involving banks or building societies. 7. It was made clear to the learned sentencing judge that the ten armed robberies had been committed by the respondent in company with one or more of five other young men. In each case the robbery was premeditated and pre-planned. Cars were stolen and used for the purpose; and each armed robbery was effected by the use of either imitation or real firearms. In two instances real firearms were actually loaded. 8. In total the ten robberies involved approximately $75,000, only a small amount of which appears subsequently to have been recovered. A net sum of $68,431 ultimately remained unaccounted for. 9. It was made to appear to Duggan J. that, despite early denials on his part of complicity in relation to any of the offences, the respondent subsequently co-operated with the police and supplied them with full information concerning the offences. Specifically he gave full details of the other persons who were involved in the robberies in concert with him. 10. Quite properly the learned sentencing judge took a very serious view of the offences, notwithstanding the relatively young age of the respondent and a consideration of some information about his psychological background. It is clear that he took the view that the respondent was a naive person, lacking in judgment because of his immaturity. He did, however, note that the respondent had no prior record. 11. In the event, bearing in mind (inter alia) the totality principle, Duggan J. sentenced the respondent to six years imprisonment in respect of the first three counts charged and seven years imprisonment in respect of the fourth count. He directed that the sentences in respect of the first two counts be served concurrently, but that those in respect of the third and fourth counts be served cumulatively upon them. The effect of the sentencing package was that the aggregate head sentence was a period of nineteen years - in relation to which a non-parole period of thirteen years was fixed. 12. Both the total head sentences and the non-parole period were directed to run from 21 October 1991, when the respondent was first taken into custody. 13. It was made known to the learned sentencing judge, in the course of submissions, that the five other young men who had been identified by the respondent to the police as those who had been involved with him in the conduct of the various armed robberies had been arrested; and were before the Magistrates' Court in relation to appropriate charges of armed robbery brought against them. It is not disputed that the only link which the prosecution was able to establish between the relevant armed robberies and the four men was evidence which the respondent had undertaken to give against them. 14. In the course of various submissions made by counsel for the respondent to Duggan J, the following statements were made:- Submissions made 21 October 1991 "... There is no secret of the co-operation. It's now known to most of the other accused that this man has co-operated and is likely to give evidence - despite the fact that he's frightened about the consequences, he intends to maintain that stand." Submissions made 17 December 1991 "... He has implicated other persons in a series of offences which has led to a number of people being charged with other armed robberies with the likelihood that, were it not for Mr Joyce, there would be no case to answer for many of them. ... That is a very positive thing, particularly that were it not for Mr J. and despite the fact he is going to give evidence - he confirmed that with me yesterday when I spoke to him - your Honour, from the days both at the Crown and on the other side of the bar table, as a member of the bench (you) will realise the risks and the pressures placed on a person who is going to give evidence for the Crown on this sort of major offending. He has received threats. I don't know from whom. I am not in a position to say. Neither is he. He has had distasteful remarks made to him by prison officers ... Despite those pressures, he has, with one or two hiccups, because of the pressures in the Remand Centre, come back and said 'Yes, I was worried about what to do but I will give evidence and I maintain that standing'. For a young man of his limited background, and he is frightened, and understandably so, that is a very strong step to take. I urge your Honour to give the full credit that the law allows, not just for his plea or contrition but particularly for the fact he has put a lot of people in, solved a lot of offences and is going to give evidence to that effect." 15. In the course of his sentencing remarks, the learned sentencing judge, inter alia, commented:- "... It is also particularly relevant that you have supplied the police with information about other offenders and have undertaken to give evidence against them. You have heard me confirm that with Ms Hayes this morning. You have done this with an appreciation of some of the difficulties which this will cause in the serving of your own sentence. This is a most important consideration in your case and the sentence would have been significantly greater if it had not been for this factor." 16. There can be no doubt that, notwithstanding the need to give cognizance to the totality principle and to give a significant discount not only for the early pleas of guilty, youth and mitigating circumstances such as they were related to the respondent, and for his expressed contrition and co-operation with the authorities, the sentences imposed were nonetheless modest. This is particularly so bearing in mind that all ten armed robberies were separate and distinct offences, they were pre-planned and pre-meditated, they included the stealing of cars and, in some cases, the use of loaded firearms, very substantial amounts of money were involved (most of which were not recovered), and the offences were perpetrated upon banks and building societies. Having regard to the attitude expressed by this Court in The Queen v Pennack (Court of Criminal Appeal, 19 September 1991, unreported) and the other offences to be taken into consideration cumulative sentences of eight to ten years in respect of each of the four offences could well have been justified, leaving aside significant mitigating factors. 17. In this regard it must not be forgotten that the learned sentencing judge was required to take into consideration no less than six separate, additional, armed robberies not charged. In the ordinary course these must necessarily have had a profound impact on the four sentences actually imposed, notwithstanding a need to pay due regard to the totality principle. 18. In this regard, several comments need to be made. As was pointed out by the Court of Criminal Appeal in The Queen v Batchelor (1952) 36 Cr App R 64 at 67-8, the practice of the taking into account of admitted offences not charged did not originally arise by virtue of any statutory power, but by long established convention. As the court there said:- "It is simply a convention under which, if a court is informed that there are outstanding charges against a prisoner who is before it for a particular offence, the court can, if the prisoner admits the offences and asks that they be taken into account, take them into account, which means that the court can give a longer sentence than it would if it were dealing with him only on the charge mentioned in the indictment." 19. There have, of course, been held to be two general limitations on the court in doing so. The first is that it is beyond power to impose a sentence that is above the maximum prescribed by law for the offence or offences actually charged (The Queen v White (1981) 28 SASR 9). (In the instant case that aspect is somewhat academic as the maximum penalty for armed robbery is life imprisonment.) The second is that a court cannot take into account offences which it would have no jurisdiction to try. (The Queen v Hunt (1977) 15 SASR 476.) 20. The case of White also stands as authority for the proposition that, viewed broadly, offences to be taken into account should normally be of about the same order of gravity as those for which convictions have actually been recorded. In the course of his reasons for decision in that case, Wells J. commented:- "The learned sentencing Judge seems to have taken the view that the five offences did not entitle him to impose a heavier sentence, thus attributing to them no more significance or weight than previous convictions. But previous convictions exhibit one striking difference from previous offences that have not been the subject of a charge; sentences imposed for convictions previously recorded have, presumably, been served, and thereupon take their place amidst the antecedents of the prisoner, which thereafter may or may not induce a judge who is about to sentence him on a subsequent occasion to refrain, more or less, from extending leniency, but cannot be used to justify his imposing a heavier sentence than would otherwise have been imposed in the circumstances. If, however, the expression 'take into

consideration' is to be given a sensible meaning and to lead to a workable practice in our criminal courts, it must, I apprehend, mean that, subject to the limitations expressed earlier in this judgment, the sentencing judge is entitled, as part of the sentencing process, to treat the other offences as having the same bearing on the sentence as if they had been actually charged on the same occasion and been made the subject of convictions. In general, therefore, they would make the same contribution to the sentence as if the sentencing judge decided, in respect of all offences, to impose concurrent sentences, or to impose cumulative sentences within the maximum limits allowed by law. No rules should be laid down circumscribing the sentencing judge's discretion in such circumstances, but it is, in my opinion, within his power to give to the offences taken into consideration an operation in the sentencing process that leads to the imposition of a heavier sentence for an offence with which a prisoner was formally charged and upon which he has been convicted and stands to be sentenced than would otherwise have been the case. I pause here to observe that a sentencing judge who takes other offences into consideration pursuant to the foregoing principles, should leave no doubt, in his remarks on sentence, about what those offences are; because, although offences taken into consideration cannot found a plea of autrefois convict if the conviction to which the other offences are thus annexed is subsequently quashed (R v Nicholson (1947) 32 Cr App R 127), if that conviction stands, it would, in my opinion, be an abuse of process for the Crown to charge a person with an offence that had clearly been taken into consideration after the prisoner had been sentenced on the previous conviction. (I would derive that proposition by parity of reasoning from the principles discussed in Reg v O'Loughlin (1971) 1 SASR 219 at 281-2.)" 21. In more recent times the long established convention has now received express statutory recognition. Section 10 of the Criminal Law (Sentencing) Act, 1988 inter alia, stipulates that:- "A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court: (a) ... (b) other offences (if any) that are to be taken into account; ... " 22. As the learned author of Lunn, "Criminal Law South Australia" points out, the section does not render it clear as to whether the pre-existing convention is merely being recognised, or whether the intendment is that the taking into account is to have some more formal effect. In my view the requirement "to have regard to" other admitted offences does no more than formalise and recognise the validity of the pre-existing convention. 23. I do not perceive any valid basis for concluding that the section confers power on a court actually to sentence the offender for the additional offences being taken into account, as Lunn D.C.J. appears to consider it might. On the other hand, as I have earlier said, it does amount to a clear recognition of the propriety, in a case such as that now under review, of imposing very substantial sentences in relation to offences actually charged beyond those which would otherwise be justified. If it were otherwise, the taking into account of six additional very serious offences would have constituted an exercise in futility and failed to achieve that level of punishment appropriate to the true totality of the offending. The section may, however, raise the question of whether The Queen v Hunt continues to enunciate good law. 24. On the hearing of the application for leave and the submissions as to merit, in the event that leave should be granted, evidence was admitted before this Court to establish the fact that, after he had been sentenced, the respondent was called by the Crown as a witness against the five other persons charged at their committal hearing and, having been sworn, refused to give evidence and persisted in that refusal. 25. The practical result of his refusal was that the Crown was unable to make out a case to answer against any of the other five persons. The charges against them were thereupon dismissed. 26. A copy of the transcript of the proceedings in the Magistrates' Court was placed before this Court. It reveals that, in declining to give evidence, the respondent said that he was unable to fulfil his undertaking because of threats made on his life and against his family. 27. Mr Brebner, of counsel for the Director of Public Prosecutions, whilst not denying that such threats may have been received by the respondent, nevertheless stressed that this had not been a new development, and that counsel for the respondent, in making submissions to the learned sentencing judge, had specifically referred to the existence of such threats at the time at which sentencing submissions had been made. 28. There is no doubt that it was entirely proper for the learned sentencing judge to make very substantial discounts on the sentencing tariff otherwise applicable to the respondent - in light of the situation as it stood at the time of sentencing. If authority be required in justification of such an approach it is to be found in authorities such as The Queen v Golding (1980) 24 SASR 161, The Queen v Nguyen [1989] SASC 1688; (1989) 50 SASR 361 and The Queen v Malvaso [1989] HCA 58; (1989) 168 CLR 227. 29. As King C.J. pointed out in Nguyen's Case, quite apart from the need to recognise other mitigating factors such as timely pleas of guilty, it is the policy and practice of the courts to make a reduction in the sentence which would otherwise be imposed on an offender who has co-operated with the authorities, to the extent of incriminating co-offenders or others who have committed crimes. This practice is firmly rooted in policy considerations. It does not depend upon the personal merits of the offender. 30. It may be, of course, (as the learned Chief Justice pointed out) that the offender's co-operation with the authorities is evidence of a change of heart and a determination to reform his life. Where that is so, the offender will ordinarily receive credit for his change of heart. But, as was said in Nguyen, a change of heart aside, an offender who is prepared to assist in the enforcement of the law by incriminating others receives a reduction in sentence as a reward for that conduct, with the object of encouraging others to assist in law enforcement by implicating co-offenders and others who have committed crimes. That reduction will usually be liberal. 31. It is stating the obvious to say that, normally, the court will proceed to sentence an informer, who is prepared to give evidence against other persons, prior to the actual giving of that evidence, so as to minimise the potential for any argument, when the evidence is actually given, that it is likely to be coloured by any hope or expectation related to the witness ingratiating himself with the sentencing court. (R v Bailey (1956) SASR 153 at 154 and The Queen v McLean and Funk (1990) 47 A Crim R 240.) 32. As was said by this Court in its recent decision in The Queen v Harris (Court of Criminal Appeal, 17 September 1992, unreported) it is a highly desirable practice for a sentencing judge, in the course of sentencing remarks, to indicate what sentence would have been imposed if a special discount in tariff had not been allowed (and thus the actual extent of the discount awarded) - so that it is thereafter clear as to how an actual sentence has been arrived at. That was not done in this case; and it follows that there is some difficulty in perceiving the precise manner in which the sentence awarded was actually arrived at. In so saying I do not imply any criticism of the learned sentencing judge, because it has not been the general practice, in the past, in this Court to make such a dissection. Having regard to what has fallen from the Court of Criminal Appeal in Harris, it is to be hoped that the practice may well change in the future. 33. In the course of debate in the case at bar, attention was drawn to the provisions of section 359 of the Criminal Law Consolidation Act, 1935 and, in particular, the proviso at the end of that section. 34. Inter alia, section 359 authorises the Full Court, in its discretion, to receive what is tantamount to fresh evidence on an appeal. However, the section concludes by stipulating that:- "... but in no case shall any sentence be increased by reason of, or in consideration of, any evidence that was not given at the trial." 35. The question at once arises as to whether the receipt of the evidence, as to the conduct of the respondent in failing to honour his undertaking given to Duggan J, constitutes evidence which falls within the last-mentioned proviso. 36. In my opinion it does not. In this regard the case of The Queen v Beldan (1986) 21 A Crim R 159 at 167 is of some assistance. 37. That case related to an appeal by the Crown against sentence to the Queensland Court of Criminal Appeal. It arose in circumstances in which the Crown placed evidence before the Court to establish the fact that the sentencing judge had deliberately been deceived by incorrect material being fraudulently presented in mitigation on behalf of an offender. 38. An issue was raised as to whether the Court was empowered to make an appropriate adjustment to the sentence, in circumstances in which the relevant legislation contained a proviso in terms similar to that found in section 359 of the South Australian statute. 39. As to this McPherson J, with the apparent concurrence of the other two Judges constituting the Court of Criminal Appeal, said:- "The proviso to s671B must therefore be taken as extending as much to the present appeal as to any other. Nevertheless, the prohibition it contains is confined to evidence 'not given at the trial'. Whatever may be the limits of the prohibition in the proviso, the evidence now sought to be adduced by the Crown does not fall within them. The material sought to be placed before us is directed at evidence, particularly the contents of the letter dated 14 August 1985 and other statements received from the Bar table under s650, that was in fact given at the trial and which is said to have involved a deliberate misleading of the court in an influential respect. In cases of that nature courts have shown a strong disposition to interfere on appeal: see, for example, Meek v Fleming (1961) 2 QB 366; Bills v Roe (1968) 1 WLR 925; Skone v Skone (1970) 1 WLR 812. It would be surprising if the prohibition contained in the proviso was designed to cover evidence of that kind." 40. Whilst the situation now before the Court is not, factually, precisely on all fours with that in Beldan, it seems to me that, as in that case, evidence of the type now in question is not that which the legislature had in contemplation in enacting the proviso to section 359. 41. There is no doubt that the clear intention of the Parliament was to ensure that, so far as possible, an offender was not unfairly placed in double jeopardy; and that, where further evidence not given at trial is admitted on appeal, that ought not, in the normal course, to lead to an increase in the sentence imposed. 42. The sole evidence which was tendered in the instant case focuses upon establishing that, as a matter of objective fact, the undertaking given by the offender, as part and parcel of the basis upon which he was sentenced, has not been honoured and that, accordingly, the sentencing process proceeded on a false premise. 43. When the proviso to section 359 speaks of evidence that was not given at the trial it is, in my opinion, directing its attention to matters going to either the commission of the offence or the personal circumstances of the accused. It is not concerning itself with a situation in which the Crown is merely informing the Court that the person sentenced has failed to honour a specific undertaking given to the Court as an express basis upon which sentence is imposed. 44. It follows that this Court is entitled to review the sentences imposed upon the footing that, due to the conduct of the respondent, the essential rationale for the sentencing package decided upon by Duggan J. has disappeared. 45. It does not appear from his sentencing remarks precisely what empirical allowance he made for the undertaking which was given, bearing in mind that, at the same time, he was also making appropriate allowance for such mitigating factors as existed (principally the young age of the respondent, his lack of antecedents, and such information of a psychological nature as was set out in Mr Fugler's report), as well as the respondent's timely pleas, expressed contrition and general co-operation with the police. Whilst it is true that the sentences imposed, when aggregated, amounted to a substantial total head sentence, it must be reiterated that the learned sentencing judge had to take into account the four offences actually charged, against the background of the six equally serious offences separately committed. Even allowing for the totality principle, the sentences imposed would have been significantly longer and normally ordered to be served cumulatively, had it not been for the undertaking given. 46. In my opinion the aggregate head sentences ought now to be increased by a total of three years, with a corresponding increase of two years in the non-parole period. 47. To achieve such an end result I would grant an extension of time within which to apply for leave to appeal, and to appeal, to the date of the application, namely 12 August 1992. I would further grant leave to appeal, allow the appeal, and set aside the sentences imposed to the extent necessary to vary the head sentence in respect of counts one, two and three, by substituting for them imprisonment for seven years and to vary the sentence imposed in respect of count four by increasing it to a sentence of imprisonment of eight years. I would further vary the non-parole period by increasing the length of it from thirteen to fifteen years.

Act 1935 (SA) s 359. Queen v Nguyen

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Before

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Judgment (9 paragraphs)

R v. J File No. SCCRM 92/600 Judgment No. 3639 Number of pages - 10 Criminal law and procedure - jurisdiction, practice and procedure (1992) 59 SASR 145 [1992] SASC 3639 (16 October 1992)

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Cases Cited (8)