DPP (Cth) v Haunga [2001] VSCA 73

DPP (Cth) v Haunga [2001] VSCA 73 - VSCA 2001 case summary — Zoe

[13]

" 21E. (1) Where a federal sentence, or a federal non-parole period, is reduced by the court imposing the sentence or fixing the non-parole period because the offender has undertaken to co-operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must: (a) if the sentence imposed is reduced - specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction; and (b) if the non-parole period is reduced - specify that the non-parole period is being reduced for that reason and state what the period would have been but for that reduction. (2) Where: (a) a federal sentence is imposed or a federal non-parole period is fixed; and (b) the sentence or non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies as described in subsection (1); and (c) after sentence, the offender, without reasonable excuse, does not co-operate in accordance with the undertaking; the Director of Public Prosecutions may, at any time while the offender is under sentence, if the Director of Public Prosecutions is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or of the non-parole period. (3) Where an appeal is begun under this section against the inadequacy of a sentence, or of a non-parole period, that was reduced because of a person's undertaking to co-operate with law enforcement agencies, the court hearing the appeal: (a) if it is satisfied that the person has failed entirely to co-operate in accordance with the undertaking - must substitute for the reduced sentence or reduced non-parole period the sentence, or non-parole period, that would have been imposed on, or fixed in respect of, the person but for that reduction; and (b) if it is satisfied that the person has failed in part to co-operate in accordance with the undertaking - may substitute for the reduced sentence or reduced non-parole period such a sentence, or such a non-parole period, not exceeding in length the sentence that could be imposed, or the non-parole period that could be fixed, under paragraph (a), as it thinks appropriate. (4) In subsection (1): "confiscation proceedings" includes a reference to proceedings for forfeiture orders, pecuniary penalty orders and restraining orders under the Proceeds of Crime Act 1987 and to restraining orders and pecuniary penalty orders under Part XIII of the Customs Act 1901."

[19]

At O'Neill's trial the respondent, having been called into the witness box to give evidence on the voire dire, was asked to state his name preparatory to being sworn and responded simply by saying "I'm not answering any questions, sorry." For taking that course he gave no explanation. When brought before Judge Smith on 25 May last upon a charge of contempt of court he was represented by counsel who, on his behalf, admitted the contempt alleged. The respondent gave no evidence in that proceeding but his counsel tendered, and the judge received, a written statement by a Federal Agent of the Australian Federal Police which summarised two conversations she had had with the respondent in the County Court holding cells. The first was on the day before he had been called as a witness at O'Neill's trial. The gist of that conversation was that he told her he did not want to give evidence and that he had not felt well after giving evidence at O'Neill's committal proceedings. The second conversation was had the next day in the course of which the respondent reiterated his wish not to give evidence at the trial and stated that, after he had given evidence at O'Neill's committal, "he froze and the guards had to carry him on to the bus; and that he considered suicide later that night in his cell and had seen a doctor three or four times as a result." The respondent's counsel, save for conveying his client's instructions that he was "a nervous wreck" and stating that "...he was completely addled by the committal" and that "he cannot articulate why that affected him the way it did...can't provide a reason...", was not able to offer Judge Smith any explanation for the refusal to give evidence. The only fair inference to be drawn from such information as there was is that the respondent was frightened or apprehensive about the consequences to him (or perhaps others) of his giving evidence. That, however, cannot by itself be treated as a "reasonable excuse" in terms of s.21E: as was in effect pointed out in R v Parsons[2], the jeopardy in which the respondent would or could place himself by giving evidence was one of the factors that would have led the sentencing judge to reduce the sentence that he would otherwise have imposed. The inevitable conclusion must therefore be that the facts demonstrate an absence of reasonable excuse for the respondent's failure to co-operate in accordance with his sworn undertaking.

[21]

The permissive but indefinite words "may substitute...such a sentence...as it thinks appropriate" suggest the question whether they confer on an appeal court merely a simple discretion or whether they authorise and require, if stipulated conditions be fulfilled, the exercise of a power. In R. v YZ[3] Beazley, J.A. treated sub-s.3(b) as conferring "...a discretion as to the sentence to be imposed, not exceeding the sentence which the sentencing judge would have imposed but for the undertaking." It is true that, when paragraph (b) of sub-s.(3) is compared with paragraph (a), the former evidently confers on the appeal court an option of a kind that the latter does not. Section 33(2A) of the Acts Interpretation Act 1901 of the Commonwealth[4] (for a reference to which I am obliged to Callaway, J.A.) is, if it falls to be applied unaffected by the context of s.21E(3), also apt to support the exercise of a simple discretion. That is not necessarily to say however, as it seems to me, that "may" is apt to confer a mere discretion, without an influence upon it of its collocation with "as it thinks appropriate". The latter might very well indicate a requirement of "the striking of a balance between relevant considerations so as to provide the outcome which is fit and proper". Indications tending to such an interpretation are discussed in Mitchell v. The Queen,[5] from which the phrase just quoted is taken. Be all that as it may, a decision defining and classifying to a nicety the jurisdiction conferred by s.21E(3)(b) is another that I have no need to make. On any view the proper exercise of the jurisdiction in this case requires the making of a value judgment, and the striking of a balance, in order to determine what sentence (up to four-and-a-half years' imprisonment) is appropriate in the light of the relevant events that have happened since the imposition of the original sentence. Counsel for the appellant fairly submitted that this Court is not empowered by s.21E to re-consider the appropriateness of the original sentence, but only to substitute a sentence that properly reflects all relevant circumstances surrounding the respondent's failure to co-operate in accordance with the undertaking that led to the reduced sentence. That submission is clearly correct; and there was no submission contrary to it for the respondent.

[27]

Neither the oral nor the written submissions for the respondent considered the manner in which the direction made by Judge Smith should be interpreted. Rather, in their written submission, counsel for the respondent contended that, if this Court were to set aside the sentence imposed by Judge Keon-Cohen, the sentence imposed by Judge Smith would be "unworkable" because the latter is expressed to "attach to" the former. The purpose of the submission was not entirely clear. I take it, however, to have been designed to dissuade this Court from interfering with the former sentence rather than to induce us to set it aside and thus to nullify the latter. Whatever the aim of the submission, I am unable to accept it. The "non-parole period of 24 months which was fixed by Judge Keon-Cohen" mentioned in Judge Smith's direction does not, of course, refer to or describe any actual and discrete period of 24 months identifiable in a calendar: the actual time covered by the period specified was in fact attenuated, to commence on 22 July 1999 but to end 24 months less 108 days later. The reference to the "...period of 24 months" was, therefore, on any view a kind of shorthand. It should in my opinion be taken to refer to the pre-release period specified by Judge Keon-Cohen, the intention of Judge Smith having been, as I discern it, to provide that the sentence for contempt should be served cumulatively upon such part as the respondent was obliged to serve of the sentence for the Commonwealth offence for which he had been sentenced on 10 June 1999. Such an intention can be inferred from, among other things, the knowledge that Judge Smith had that an appeal by the Crown was in prospect: it is not lightly to be supposed that his Honour was casting his direction in terms such as would render the sentence he was imposing nugatory if the sentence for the Commonwealth offence and directions ancillary to it were to be set aside on appeal. Nor is it appropriate that Judge Smith's direction be read with the strictness that the submission for the respondent would require, as if it were in a statute or a will. It is entirely reasonable, notwithstanding that its pronouncement was ancillary to the imposition of a term of imprisonment,[9] that the direction be understood to have been made in order to give it a workable operation rather than that the learned judge be taken to have selected a meaning for his words which would or might render the direction a nullity: ut res magis valeat quam pereat, "a rule of common law and common sense"[10]. The same conclusion may be reached by treating the words used by Judge Smith in his direction as descriptive rather than prescriptive ¯ adjectival rather than substantive ¯ that is to say, as incorporating by reference the whole of the period necessarily to be served of the sentence in respect of the Commonwealth offence to which he had pleaded guilty, thereby intending that the sentence for contempt should not begin until the respondent had served all that he was obliged to serve of the sentence for the Commonwealth offence that he had committed.

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Judgment (49 paragraphs)

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