Nguyen v R

The applicant seeks leave to file supplementary submissions with respect to Ground 3 27 On the day following the hearing of the appeal, the Court received an unsolicited document from counsel for the applicant containing supplementary written submissions with respect to Ground 3. As leave to file those submissions had not been sought during or at the conclusion of the hearing, such leave was sought in the document. 28 It is well established, at least in civil appeals, that supplementary written submissions filed after the conclusion of oral argument on the appeal, for which leave has been neither sought nor granted, should be ignored: Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 258 per Mason J; In the matter of an application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 79 ALJR 881 at 890 [53]-[54] per Kirby J; Dwyer v Commonwealth Bank of Australia (1995) 31 ATR 48; Kirwan v Cresvale Far East Ltd (In liq) [2002] NSWCA 395; (2002) 44 ACSR 21 at [340] per Young CJ in Eq; Chapman v Caska [2005] NSWCA 113 at [19] per Beazley, Giles and Tobias JJA. 29 As Mason J said in Carr and Kirby J in Commissioner of Police, the notion that supplementary submissions can be filed without leave is misconceived and this is so even if the other party to the proceedings consents. As I said in Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230 at 267 [147], with the agreement of Mason P and Hodgson JA, such conduct should not occur. 30 The time and place to present argument and, if necessary, to seek leave to file supplementary submissions, is during the hearing of the appeal. It is inappropriate to file such submissions after the conclusion of the hearing and to seek the Court's leave to do so at the same time. Such a practice is to be discouraged and should extend to appeals in criminal matters save in exceptional circumstances. 31 An example of such a circumstance would be where, after judgment was reserved, an authoritative decision of an appellate court directly on point is handed down. Obviously, it should be brought to the Court's attention and leave sought, which is likely to be granted, to file a supplementary submission explaining how the new decision might affect the outcome of the appeal. In the present case, what appears to be, with respect, an afterthought of counsel does not so qualify. 32 It follows that in my opinion the application by counsel for the applicant to file the supplementary submissions contained in the document provided to the Court should be refused.

Ground 2: The sentencing judge erred by applying a 5% discount to the applicant's plea because of the strength of the prosecution case 6 Under the heading "The Timing of the Pleas" and after noting that the parties had agreed that the applicant should be sentenced upon the basis that he had entered an early plea of guilty, the sentencing judge said: "As I understand the concession made by the Crown, this will allow him the twenty five percent discount for utility, however as will be made clear when I summarise the facts of this case, the chances of the offender being acquitted at trial are so remote as to be set to one side. The case the Crown had to present was very compelling and I would expect that his conviction would have been inevitable. Accordingly, to the extent that the plea is a reflection of his remorse and contrition the discount to be applied will be only five percent. I will only allow thirty percent overall for the pleas of guilty." 7 It was submitted that the above remarks demonstrated that when his Honour was considering the utilitarian value of the applicant's plea, he took into account the inevitability of his being convicted of the subject offences had he defended the charges. It was submitted that it was well established that the strength of the Crown case was an irrelevant factor in determining the utilitarian value of a plea of guilty, although it was relevant to the evaluation of the offender's remorse and contrition: R v Sutton [2004] NSWCCA 225 at [12]. 8 In the present case the sentencing judge made it clear that he proposed to allow the applicant a 25% discount with respect to the utilitarian value of his plea of guilty to each of the charges. His Honour also correctly recognised, that the applicant's plea was a demonstration of his remorse and contrition. That a plea is a manifestation of remorse or contrition is also well established: R v Thomson and Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at 386 [3]. 9 The issue before his Honour was whether there should have been a greater discount of 25% to reflect the applicant's expression of contrition for his involvement in the offences referred to in the pre-sentence report and as reflected in his plea of guilty. It is in that context that, in my view, his Honour referred to the strength of the Crown's case as militating against any substantial further discount over and above the 25% to reflect the applicant's remorse and contrition. He thus allowed only a further 5%. 10 His Honour was bound by s 22(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to take into account the fact that the applicant had pleaded guilty. He was further bound by s 21A(3)(i) to take into account as a mitigating factor the remorse shown by the applicant for an offence where he has provided evidence that he has accepted responsibility for his actions. However, as I have indicated, the weight to be placed upon this factor may well be reduced, as it was in the present case, by the strength of the Crown's case being one where, according to his Honour, the conviction of the applicant would have been inevitable. 11 In my view, it is clear that his Honour only took the strength of the Crown's case into account as reflecting the weight that he was prepared to attach to any question of remorse and contrition on the applicant's part. In so doing he allowed a further 5% discount over and above the 25% discount that he had allowed for the utilitarian value of his plea. In fact, his Honour ultimately allowed a discount of 33⅓% to take account of the utilitarian value of the applicant's plea and the mitigating effect of his expression of contrition. 12 In the foregoing circumstances I cannot detect any error in his Honour's approach. Ground 2 should therefore be rejected.

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