Kirk Group Holdings Pty Limited v WorkCover Authority of NSW

Crimes Act 1900 Crimes (Appeal and Review) Act 2001 LEGISLATION CITED : Customs Act 1901 (Cth) Crimes Act 1914 (Cth) Criminal Appeal Act 1912

Application of Rendell (1987) 32 A Crim R 243 Application of Shepherd (Supreme Court of NSW, 13 September 1996, unreported) Application of Pearson (1999) 46 NSWLR 148 Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 154 IR 310 Varley v Attorney General (NSW) (1987) 8 NSWLR 30 Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 R v El Hani [2004] NSWCCA 162 CASES CITED : R v Vo and Tran [2006] NSWCCA 165 El Hani v The Queen [2005] HCA Trans 146 Segal v Waverley Council (2005) 64 NSWLR 177 Scullion v R (Court of Criminal Appeal, 15 July 1992, unreported, BC9203142) R v Munday (1981) 2 NSWLR 177 Douar v The Queen (2005) 159 A Crim R 154 R v Cartwright (1989) 17 NSWLR 243 R v Willard (2001) 120 A Crim R 450

Applicant (in person) COUNSEL : Mr C Lonergan (NSW Attorney-General) Mr C Dennis, Attorney-General's Department (Commonwealth Attorney-General)

SOLICITORS : Mr W Abadee, Crown Solicitor's Office (NSW Attorney-General)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 JOHNSON J: The Applicant, Antoun El Hani, has made application under s.474D Crimes Act 1900 for an inquiry or referral to the Court of Criminal Appeal with respect to a sentence imposed upon him following his plea of guilty to one count of being knowingly concerned in the importation of a commercial quantity of ecstasy.

Applicable Statutory Provisions 2 On 23 February 2007, the provisions contained in Part 13A (ss.474B-474N) Crimes Act 1900 were repealed and re-enacted as Part 7 (ss.76-88) Crimes (Appeal and Review) Act 2001. An application made under Part 13A before the repeal and transfer of that Part on 23 February 2007, that had not been finally determined under that Part immediately before its repeal, is taken to be an application under the corresponding provision of Part 7 Crimes (Appeal and Review) Act 2001: cl.13, Schedule 1, Crimes (Appeal and Review) Act 2001. 3 Accordingly, the present application falls to be determined under ss.78-79 Crimes (Appeal and Review) Act 2001. These provisions correspond to repealed ss.474D-474E Crimes Act 1900. There is no material difference between the provisions in the two statutes. 4 Sections 78-79 Crimes (Appeal and Review) Act 2001 are in the following terms: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister. 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii) has previously been dealt with under this Part or under the previous review provisions, or

(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) The Supreme Court may defer consideration of an application under section 78 if: (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or

(b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or

(c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered. (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."

An Administrative Process 5 Part 7 Crimes (Appeal and Review) Act 2001 has its origins in a legislative scheme which was an innovation in New South Wales: Kirk Group Holdings Pty Limited v WorkCover Authority of NSW (2006) 154 IR 310; [2006] NSWCA 172 at [5]. An application under s.78 does not involve a judicial proceeding: s.79(4). In determining such an application, the Court exercises administrative power: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 at 362 [124]. 6 The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). This view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley, above, at 48; Application of Rendell (1987) 32 A Crim R 243 at 245.

History of Proceedings 7 The Applicant pleaded guilty in the Local Court to one charge of being knowingly concerned in the importation of a commercial quantity of ecstasy, contrary to s.233B(1)(d) Customs Act 1901 (Cth). On 3 March 2003, the Applicant was sentenced by Shadbolt DCJ in the Sydney District Court to a term of imprisonment of 15 years with a non-parole period of 10 years, both periods to commence on 5 December 2001. The Applicant is eligible for release on parole on 4 December 2011. 8 The Applicant sought leave to appeal to the Court of Criminal Appeal with respect to sentence. On 21 May 2004, the Court granted leave to appeal, but dismissed the appeal: R v El Hani [2004] NSWCCA 162. The grounds of appeal included the extent of the discount given to the Applicant for his plea and assistance to authorities, the impact of assistance on the Applicant's family and parity of sentence with a co-offender. The Court of Criminal Appeal observed at [65], that no discount for future assistance was appropriate as no undertaking to give evidence under s.21E Crimes Act 1914 (Cth) (cf R v Vo and Tran [2006] NSWCCA 165) had been given by the Applicant. 9 On 11 March 2005, the High Court of Australia refused the Applicant special leave to appeal from the decision of the Court of Criminal Appeal: El Hani v The Queen [2005] HCA Trans 146. 10 On 17 March 2005, Wood CJ at CL refused an application under s.474D Crimes Act 1900 upon the basis that no relevant doubt or question had been identified which would justify such a direction. His Honour recited the appellate history of the matter to the Court of Criminal Appeal and to the High Court of Australia and observed at [3]-[5]: "3. The application is based upon the proposition that insufficient weight was given, in fixing his sentence, to the fact of his plea, his assistance to authorities, his expectation of receiving a discount for those two considerations of as much as 50%, the risk of harm to himself and his family from his co-accused or their associates, his remorse and contrition, his claim to disparity in sentencing, and his concern that he was prejudiced, in the fixing of a discount by reason of the time that was occupied in the sentencing proceedings.

4. Each of these matters was expressly taken into account by the Court of Criminal Appeal, which also noted that the time occupied by the sentencing proceedings largely related to the Applicant's attempts to minimise his own role, which were not accepted by the sentencing judge or by it. 5. Nothing has been advanced by way of additional evidence that would throw any doubt on the findings of the sentencing judge or the Court of Criminal Appeal. In particular no new evidence has been advanced and the application amounts to nothing more than a repetition of submissions which have already been taken into account in particular by the Court of Criminal Appeal in dismissing the appeal, and by the High Court in refusing leave to appeal." 11 The history of appeals, and a prior application under s.474D, raises for consideration the question whether the Court ought refuse to consider or otherwise deal with the present application under s.79(3) Crimes (Appeal and Review) Act 2001. I will return to that issue later in this judgment.

Matters Raised on the Present Application 12 A number of letters and written submissions have been received from the Applicant in support of the present application. It is apparent that the Applicant has received legal advice, given the form and content of submissions on matters of fact and law which have been made on his behalf. The Applicant was given an opportunity to respond to submissions made on behalf of the Attorneys-General of the Commonwealth and New South Wales, and further submissions were made by him. 13 In my view, nearly all the matters advanced on behalf of the Applicant, in support of the present application, are of the same type as those considered by Wood CJ at CL in his reasons of 17 March 2005 for refusing the earlier s.474D application. The Court of Criminal Appeal considered grounds of appeal advanced by the Applicant with respect to the level of discount extended to him on sentence for assistance to law enforcement authorities and his plea of guilty. 14 The only additional matter relied upon by the Applicant on this application is his post-sentence (and post-appeal) assistance to Dutch authorities in February 2005. 15 The subject of the Applicant's assistance to Dutch authorities was touched upon in the judgment of the Court of Criminal Appeal of 21 May 2004, where Howie J (Simpson and Bell JJ agreeing) said at [77]: "At the hearing of the appeal Mr Byrne tendered an affidavit as to further assistance offered by the applicant to Dutch investigators who are considering prosecution of the principals of the importation. Initially the document was tendered for the purpose of it being taken into account if this Court came to resentence the applicant. Later, Mr Byrne sought to have it received as evidence on the hearing of the appeal itself, being by way of amplification of the evidence of assistance proffered by the applicant prior to his being sentenced. On whatever basis it is received, it does not, in my opinion, avail the applicant. Again the assistance is of limited value because the applicant has not been truthful as to his own involvement. A letter from the Public Prosecutor in the Netherlands, which is part of the material now relied upon, contains the following paragraph: 'With the knowledge of the situation I have at this moment, I have the impression that [the applicant] has not spoken the whole truth - apparently to conceal his own role. In all I had expected more from [the applicant's] statements. But because of his repetition, to a large extent, of what he had stated earlier his statements were nevertheless of some significance for the criminal trial in the Netherlands'." 16 Thus, the Applicant's level of assistance to the Dutch authorities was referred to in the context of his appeal to the Court of Criminal Appeal. The Applicant now relies upon related steps taken by him since his appeal was determined in support of the present application. In particular, the Applicant relies upon assistance given by him in February 2005. 17 The written submissions of the Applicant and the Commonwealth Attorney-General reveal a dispute concerning the value and frankness of the Applicant's assistance in February 2005. 18 In an early letter (dated 2 June 2006) in support of the application, the Applicant raised the possibility that material might be available from a Dutch accomplice, Josef "Jeff" Faas, concerning the Applicant's role in the importation. 19 No statement of Mr Faas has been provided by the Applicant in support of this application. In correspondence to the Applicant dated 12 September 2006 and 31 October 2006, the Applicant was requested to provide all material upon which he sought to rely in support of the application. The written submissions of the Applicant dated 13 October 2006, 28 October 2006 and 15 November 2006 focussed upon the Applicant's co-operation with Dutch authorities in February 2005, and associated issues, and no material from Mr Faas was furnished.

Application Concerning Sentence for a Federal Offence 20 In Application of Shepherd (Supreme Court of NSW, 13 September 1996, unreported), Barr J held, at 3-6, that Part 13A Crimes Act 1900, as it then stood, did not permit a direction to be given under s.474E Crimes Act 1900 with respect to sentence only. 21 Thereafter, amendments were made to Part 13A by the Crimes Amendment (Review of Convictions and Sentences) Act 1996 to provide expressly for a s.474E Crimes Act 1900 direction to be given concerning sentence only: Application of Pearson (1999) 46 NSWLR 148 at 159 [45]. Sections 78 and 79 Crimes (Appeal and Review) Act 2001 now contain the provisions previously located in ss.474D and 474E. Accordingly, Part 7 Crimes (Appeal and Review) Act 2001 makes express provision for a s.79 direction to be given concerning sentence only. 22 The Applicant was sentenced following his plea of guilty with respect to a federal offence under the Customs Act 1901 (Cth). I sought and received written submissions from the Applicant, the Commonwealth Attorney-General and the Attorney-General for New South Wales concerning a number of legal questions raised by the application. Having considered the submissions made, I approach the application in the following way. 23 Firstly, the powers of the Court under s.79(1) Crimes (Appeal and Review) Act 2001 with respect to a federal offence are confined to a referral of the case to the Court of Criminal Appeal to be dealt with under the Criminal Appeal Act 1912, and do not permit the direction of any inquiry under s.79(1)(a) of the Act: Application of Pearson at 164 [70]. The submissions made on behalf of the Commonwealth and New South Wales Attorneys-General contended that I should follow the decision of Wood CJ at CL in Application of Pearson in this respect. As a matter of comity, I should follow the decision of a single Judge of the Court, unless I am convinced that the judgment was wrong: Segal v Waverley Council (2005) 64 NSWLR 177 at 193 [57]. To the contrary, I am convinced that the decision of Wood CJ at CL in Application of Pearson is correct. I agree entirely with it and will follow it in this case. 24 Secondly, in determining whether the Applicant's case ought be referred to the Court of Criminal Appeal, it is necessary to bear in mind the limits of the functions of that Court under the Criminal Appeal Act 1912 upon an application for leave to appeal against sentence. If a matter is referred under s.79(1)(b), the Court of Criminal Appeal is to deal with the case so referred in the same way as if the convicted person has appealed against the conviction or sentence under the Criminal Appeal Act 1912, and that Act applies accordingly: s.86. 25 The jurisdiction of the Court of Criminal Appeal is statutory: Scullion v R (Court of Criminal Appeal, 15 July 1992, unreported, BC9203142, at page 11). The review of a sentence, in the light of post-sentence conduct, has been said to be the proper province of the Executive Government and not the Court of Criminal Appeal: R v Munday (1981) 2 NSWLR 177 at 178; Douar v The Queen (2005) 159 A Crim R 154 at 163 [56]. This statement has been made expressly where reliance is sought to be placed upon post-sentence assistance to authorities on the part of an applicant: R v Cartwright (1989) 17 NSWLR 243 at 257; Scullion v R at pages 1-5, 11-18; Douar v The Queen at 174 [109]. 26 Post-sentence assistance to authorities is not available to be taken into account by the Court of Criminal Appeal on the question of whether there was error in the sentencing process. Establishment of error is fundamental to the Court's jurisdiction to resentence. Such assistance is available to be taken into account by the Court for resentencing purposes if, but only if, error is otherwise established: Scullion v R; R v Willard (2001) 120 A Crim R 450 at 455 [31]. 27 Post-sentence co-operation with authorities by a federal offender is appropriately dealt with by the Commonwealth Executive, for example, by way of an application for release on licence under s.19AP Crimes Act 1914 (Cth). 28 Section 79(2) directs attention to the issue whether a doubt or question appears "as to any mitigating circumstances in the case or as to any part of the evidence in the case". This provision directs attention to the Applicant's case as it stood at the time of sentence in the District Court on 3 March 2003. It is difficult to see how co-operation by the Applicant with law enforcement authorities in February 2005 can satisfy the statutory test. 29 Accordingly, on an application under s.78 based upon post-sentence co-operation with authorities, it is appropriate to take into account the limits of the function of the Court of Criminal Appeal in determining whether to refer the Applicant's case to that Court. In broad terms, this conclusion reflects submissions made on behalf of the Commonwealth and New South Wales Attorneys-General, which I accept as correct.

Conclusion 30 Given the appellate history of the matter, and the fact that an earlier s.474D application has been declined, I have given consideration to refusing to consider or otherwise deal with the present application under s.79(3) Crimes (Appeal and Review) Act 2001. As the Applicant was advancing a further basis (his assistance in February 2005) and certain legal issues were raised by the application, I formed the view that I should consider the application. Having done so, I am entirely unpersuaded that the material and issues raised by the Applicant ought lead to any direction in his favour under s.79(1) Crimes (Appeal and Review) Act 2001. 31 It does not appear, on the materials provided by the Applicant in support of this application, that there is a doubt or question as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). 32 I should observe that, even if it was open on the present application to direct an inquiry into sentence under s.79(1)(a), no basis has been demonstrated under s.79(2) for such a direction to be given. No doubt or question as to any mitigating circumstances in the case or as to any part of the evidence in the case appears on the material relied upon in support of the application. 33 To the extent that the Applicant wishes to contend that his post-sentence conduct ought be taken into account, that is a matter for the Commonwealth Executive to consider on an application for release on licence under s.19AP Crimes Act 1914 (Cth). 34 The application under s.78 Crimes (Appeal and Review) Act 2001 is refused. **********

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