[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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EX TEMPORE Judgment
LEEMING JA: This is an out-of-time application for judicial review of the sentence imposed by the District Court for an offence of supplying an indictable quantity of a prohibited drug. The drug was 3,4-methylenedioxymethamphetamine, widely known as ecstasy. Ms Tracey Nguyen was searched at the "Defqon" music festival at Penrith on 15 September 2018 and found to have 114 capsules in a condom contained in her underwear. She was 20 years old with no criminal record. She pleaded guilty and on 26 March 2019 she was sentenced in the Penrith Local Court to 14 months' imprisonment with a non-parole period of 7 months. The maximum penalty available (the Crown having elected to proceed summarily) was 2 years imprisonment.
Ms Nguyen appealed to the District Court on the same day. The effect of s 63 of the Crimes (Appeal and Review) Act 2001 was that there was an automatic stay of execution of the sentence imposed by the Local Court.
Ms Nguyen's appeal was allowed in part. On 14 May 2019 the District Court indicated that a sentence of 14 months imprisonment to be served by way of an intensive correction order would be appropriate. The matter was adjourned so that a report could be obtained to determine whether a home detention condition was appropriate. When the matter resumed, on 14 June 2019, an intensive correction order was made. It expires on 13 August 2020. The Court also imposed a condition of home detention for the period from 14 June 2019 until 13 June 2020, and Ms Nguyen was ordered to perform 150 hours of community service.
That is an extremely abbreviated summary of the sentencing processes which occurred in the Local Court and the District Court, for offending which would often result in a full-time custodial sentence. However, it suffices for the purposes of this application, for reasons which may shortly be stated.
No further appeal lies from the District Court sentence imposed on 14 June 2019. By summons filed on 23 April 2020, more than 10 months after sentence was imposed, Ms Nguyen seeks judicial review of that sentence, alleging five grounds of jurisdictional error.
Ms Nguyen's summons is very considerably outside the three months fixed by UCPR r 59.10(1). No explanation for the delay accompanied the summons. This was pointed out in the Director's written submissions. On the day before the summons was listed for hearing, a very short solicitor's affidavit was filed on behalf of Ms Nguyen. It states that the solicitor took carriage of the matter in October 2019 after a previous solicitor with its carriage had left the firm. It stated that merits advice was obtained from junior and senior counsel by November 2019, and that there was a conference with senior counsel and the client on 2 December 2019. It stated that prior to that conference, Ms Nguyen was unaware that she could apply to the Supreme Court.
There is no explanation in the solicitor's affidavit for the delay from 2 December 2019 until the filing of the summons on 23 April 2020. That period of almost 5 months occupied much of the period of the intensive correction order, and much of the period of the home detention condition.
The consequence of delaying filing a summons for judicial review until late April 2020 has been that now, when the summons has come on for hearing, after an exchange of written submissions, some three months later, the entirety of the home detention condition, and all save nine days of the intensive correction order, has been served. Ms Nguyen has also performed all of the community service which was ordered.
In those circumstances, little need be said of the grounds sought to be raised. The first three are conveniently addressed together. It is said that the District Court failed to properly exercise its jurisdiction, by failing to conduct a rehearing de novo and limiting the appeal to identifying error on the part of the Magistrate. Assuming without deciding that this would amount to jurisdictional error, it is not what the judge did. His Honour allowed a 25 per cent discount for the plea of not guilty (instead of the Magistrate's 20 per cent) and said he saw "nothing wrong" with the term of imprisonment the Magistrate imposed of 14 months. Having taken as the starting point the 14 months imposed by the Local Court, the exercise of his sentencing discretion showed leniency by replacing the full-time custodial sentence with an intensive correction order. Mr Tedeschi, who appeared for Ms Nguyen, did not accept this, but his Honour's approach is indicative of a hearing de novo, rather than requiring Ms Nguyen to establish error. It is also said that the District Court "failed to have sufficient regard to the consequences of a custodial sentence", a matter to which his Honour expressly referred. In oral submissions, emphasis was given to the absence of evidence of the drug's weight, but this too was expressly considered by the District Court, and his Honour was not asked to proceed on the basis of the minimum weight constituting the offence to which Ms Nguyen had pleaded guilty. Having regard to the course of the hearings on 14 May and 14 June, none of these grounds appears to enjoy strong prospects of success.
It was also said that the District Court should have given a Parker warning. If that was made out, it would amount to jurisdictional error, but again it may be doubted that there is any merit in the ground, given that the sentence appeal in the District Court took place over two days, separated by a month, and it was plain following the first day what the judge had in mind. It was open to Ms Nguyen in that period to withdraw her appeal, go directly to gaol, and commence serving the sentence of full-time imprisonment imposed by the Local Court which had been stayed while her appeal was on foot.
There is a fifth ground claiming that the District Court failed to apply the relevant principles governing a sentence appeal; once again this is an unlikely formulation of a ground asserting jurisdictional error.
The submissions in support of those proposed grounds need not be elaborated in any detail for present purposes. There is nothing like a satisfactory explanation for substantial delay which has brought about the result that all save a few days of the intensive correction order have been served.
Against this, it is put that "the fact that the Applicant has now completed 150 hours of community service and has served the full period of her home detention, has absolutely no bearing on whether or not the Applicant's sentence was infected by jurisdictional error and should be quashed". That is so. However, the submission ignores the fact that Ms Nguyen seeks discretionary relief, and she does so substantially out of time and without a satisfactory explanation for her delay.
The real point of this summons appears to be the hope that the District Court might, if the appeal is remitted to it, impose a non-custodial sentence, and that that might have a favourable impact upon Ms Nguyen's future education and employment prospects. There is no evidence of her progress to date. The prospects of her obtaining, on a second appeal, a more lenient sentence than an intensive correction order following her guilty pleas to supplying an indictable quantity of a prohibited drug at a music festival would seem to be, at best, slim. The onus remains on Ms Nguyen who invokes this Court's supervisory jurisdiction to establish some utility in the relief she seeks. The want of utility in the present case is brought about in large measure by the considerable delay, for much of which Ms Nguyen has not advanced any explanation whatsoever. This is a clear case for refusing the substantial extension of time required by Ms Nguyen.
The defendant's name should be amended to read "Director of Public Prosecutions (NSW)". The summons should be dismissed with costs.
WHITE JA: I agree with the reasons of Leeming JA and with the orders his Honour proposes.
EMMETT AJA: I also agree with the orders proposed by Leeming JA for the reasons that his Honour proposes.
LEEMING JA: Accordingly, the orders of the Court are:
The defendant's name should be amended to read "Director of Public Prosecutions (NSW)".
The summons should be dismissed with costs.
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Decision last updated: 12 August 2020