R v Ngo [1999] VSCA 222

R v Ngo [1999] VSCA 222 - VSCA 1999 case summary — Zoe

[27]

As counsel conceded, the question whether the power under s.96 of the Sentencing Act could only be exercised personally by the Secretary or his delegate authorised in writing or could be exercised by him through the officers of his department depends on the nature of the power and all the other circumstances of the case: see O'Reilly v. State Bank of Victoria Commissioners [1983] HCA 47; (1983) 153 C.L.R. 1 at 11 per Gibbs, C.J. The applicant's case was that the function here performed by the Secretary was of such importance to an accused that it must be exercised personally or by a specifically authorised delegate. This flowed not only from the language of ss.32 and 96-99, but also, so it was said, from the fact that a report might, in effect, result in the accused's being deprived of his or her liberty or, at least in other ways, being significantly and adversely affected. Counsel contended, moreover, that there was no room to imply that it was a matter of mere administrative convenience how these reports were prepared, nor was it a practical necessity, for the Secretary had ample power by statute to assign his function or delegate his power to prepare reports. Nor was there any room for the application of what has come to be known as the Carltona principle (see Carltona Ltd. v. Commissioner of Works [1943] 2 All E.R. 560, applied by the High Court in O'Reilly and in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. [1986] HCA 40; (1986) 162 C.L.R. 24), whereby, broadly, it may be assumed that in a large government department powers will be devolved, as a matter of practical convenience, among those officers or employees of the department whom the Secretary (and his or her delegates) choose for administrative purposes, and to whom all necessary powers are allocated, in order that certain functions, powers or duties may be performed for or on behalf of the Secretary to the Department. Here the existence of the express powers in ss.10 and 8A, albeit each requiring assignment or delegation in writing, was said to make it clear that no other method should be permitted.

[29]

The issue of the power to delegate where statutory functions, duties or powers are concerned is frequently seen as a vexed question, having given rise to a large volume of authority, much of it unnecessarily reported since the cases throw light usually only on the meaning of particular insignificant statutes. However, genuine difficulties of greater consequence are sometimes thrown up which may be seen from the detailed examination of authority contained in two major works on the subject of administrative law, namely, De Smith, Woolf and Jowell: Judicial Review of Administrative Action (5th ed.) paras.6-103 - 6-118 and Aronson and Dyer: Judicial Review of Administrative Action (1996) pp.333-347. Each work starts with a reference to the Latin maxim delegatus non potest delegare which may be loosely translated as requiring that a person to whom a power has been delegated is not able to delegate its exercise to others, and thus must exercise it personally. Outside the fields of legislative and judicial (and quasi-judicial) powers the so-called rule may have little practical operation, such that Gibbs, C.J. in Dainford Ltd. v. Smith [1985] HCA 23; (1985) 155 C.L.R. 342 at 349 said that he was "not convinced that recourse to the maxim ... is of much assistance in deciding upon the validity of an exercise of statutory powers". It is at the other end of the spectrum, as the respondent sought to argue, where the rule has a greatly attenuated operation such that it would be unlikely to restrict the manner in which a departmental head or official might exercise powers given to him by statute or regulation. It is frequently said that it rarely has practical effect because the person designated more often than not has a specific power to delegate such that the exercise of that power may be organised to suit the administrative convenience of the relevant department. That, to my way of thinking, is an oversimplification, for at least in this jurisdiction the great majority of such powers of delegation appearing in statutes require the delegation to be in written form.

[31]

Of course, the argument in the present case is that the Secretary's functions are of such significance and importance to the accused that they cannot be equated with mere administrative powers customarily given to some departmental functionary. In truth, so it is said, the Secretary has been chosen because it is his opinion which is sought and, if it is not obtained directly, then those functions ought only to be carried out by a person specifically chosen by the Secretary, on one view and in accordance with s.10(2) of the Community Services Act, also with the approval of the Minister. To my way of thinking, however, the contention does not answer the present question for the purpose of sections such as s.10(2), as well as s.8A of the Health Act, is rather different and more narrow. The object of each of those sections is to permit the assignment, or giving away, or delegation, or passing down of functions or powers, to a person other than the Secretary. Once an assignment or delegation takes place, then in my opinion each time a relevant function or power is exercised it is exercised in the name of the assignee or delegate and the Secretary is no longer responsible for the decision, except to the extent that he or she chose to delegate the particular power to the named individual. That may be the reason why in s.10(2) such a high flown expression using in combination the words "assign" and "functions" has been used, terms which do not appear together in more than two or three other Victorian statutes, to my knowledge, and which are more redolent of constitutional vesting of powers of a fundamental kind. Indeed, the words appear in combination in both s.2 and s.126 of the Constitution, referring respectively to functions assigned by the Queen to the Governor-General and by the Governor-General to any deputy: cf. Commonwealth v. Colonial Combing Spinning and Weaving Co. Ltd. (the "Wooltops Case") [1922] HCA 62; (1922) 31 C.L.R. 421 at 453-454 per Higgins, J. "Delegate" is the word most frequently used in Victorian legislation.

[63]

Moreover s.97 shows clearly the width of the inquiries which an author may consider to be relevant to the sentencing of an offender. Thus, without setting out the whole of that section in full, sub-s.(1) states that reports of this kind may set out matters "which, on investigation, appear to the author of the report to be relevant ... and are readily ascertainable by him or her", as to the offender's: age; social history and background; medical and psychiatric history; educational background; employment history; other offences of which he or she has been found guilty and their circumstances; compliance with other sentences currently in force; financial circumstances; special needs; and any courses, programmes, treatment therapy or other assistance that could be available to the offender from which he or she may benefit. Sub-section (2) requires further matters to be set out by the author which the court has directed to be included in the report. The width of these inquiries cannot be said to be surprising, nor indeed unfamiliar to those who have the duty of reading these reports, but the task of making them is neither simple nor capable of being done in a short time, and they are thus the very matters which one would expect the author of the report to go to some pains to find out and which would require detailed inquiries from a number of other sources. To my way of thinking it is clearly not the task which might be expected to be carried out by the head of a department as part of his or her everyday functions, although one might expect the head of a department, with appropriate advice from those experienced in the area, to set up systems and methods to enable all the relevant information to be obtained quickly and efficiently. It would also follow that the person chosen to be the author of such a report ought to be a person selected upon appropriate advice from within the Department and who may be a person employed by the Department or possibly, in certain circumstances which not need here be examined, on behalf of the Department, assuming that they have the necessary qualifications and experience to be the author of a report of this kind. A delegate might well be capable of putting together a report but would not have the capacity or authority to set up all systems for the necessary information gathering, which is thus left under the responsibility of the Secretary, but without requiring him to be the "author" of any report, obliging him only to set up the necessary system for "preparation" of reports.

[70]

There is only one other aspect of the applicant's argument which it is necessary to deal with, namely, that the task of writing pre-sentence reports is so important that it should only be exercised by the head of department or by a specifically authorised delegate, because the recommendations in the report may well result in the accused being deprived of his or her liberty or being otherwise adversely affected. One would not wish in any way to treat reports of this kind as insignificant in the sentencing process. Far from it, but two things should be noted in this regard. In the first place these reports are not given a role which makes the statements of opinion contained in them unchallengeable: I have already pointed to the specific provision which enables the author to be cross-examined as to its contents. Nor is there anything in the statutory provisions which would deny the sentencing judge full power to disregard what was said in the report if he or she thinks fit. As with any other report or opinion obtained in the course of a plea it should only be given the weight to which it is entitled. Even as to the availability of places in specific institutions and of any necessary facilities, about which it might be more difficult for a judge to have specific knowledge, the judge is still not obliged to accept that advice, although disregarding it might prove embarrassing, but this very material would come best, to my way of thinking, from the general information resources which are available to the Department and from the ad hoc enquiries of particular individuals to whom the task was informally given. In other words one would assume that for the purpose of preparing this aspect of these reports, there would be well recognised lines of communication which would be employed by those responsible on a day to day basis for putting together and writing reports of this kind. Moreover, it would seem preferable to have a consistent standard of report preparation, achieved by appropriate supervision of the Department and its head, than by leaving it to the opinion of a person chosen as a delegate for a specific report. In the end, although it may be said to be a matter of opinion, the standards of reports are likely to be higher when prepared as part of an organised system and the accused is likely to be better protected if their authors form part of that system than if the decision were left merely to the opinion of an individual chosen by formal delegation in the manner suggested.

[76]

Again, although the nature of a youth training order is described in the judge's sentencing remarks, I do not believe thereby the judge wrongly "had regard to" the possibility that the time actually spent in custody in the centre would be affected by executive action. No doubt he referred to the fact that the Board would decide when it was appropriate for her to be released on parole but that I believe was again an attempt to explain to the prisoner the nature of the custody she would be undergoing, different from that which would be experienced in an adult gaol where one might expect the term imposed in most cases to be qualified, if that be the right expression, by a direction as to release on parole. Again, the judge said that it was "to be anticipated" that the prisoner would not have "too lengthy a time to wait" before he was released on parole. Nevertheless that comment was not made, in my opinion, because he was fixing a different sentence because of that possibility or likelihood. He was merely informing the prisoner that the nature of detention in a youth training centre was different from that of incarceration in an adult gaol and that it had different incidents. It would be unfortunate if the "codification" of the common law principle now contained in s.5(2AA) were to be rigidly interpreted so as to prevent a judge from explaining the nature of the kind of penalty that was being imposed to a young offender, who was and is precisely the kind of offender for which such explanation is desirable. If the meaning advanced on behalf of the applicant were the proper interpretation it would again prevent, in a case other than this, where other accused are being ordered to be imprisoned in adult gaols, the judge from describing the difference between the two kinds of detention so as to prevent any perception of injustice by reason of the failure to impose a specific non-parole period in the case of any youth training centre order, where by reason of the provisions of the Sentencing Act no such minimum period can be directed.

[84]

Although I would be very cautious in accepting any view of these authorities which would permit the calling of evidence as to the rehabilitation of offenders after sentence was passed, for that might let in evidence in 50% or more of applications to this Court, it is not necessary to reach any conclusion upon the matter. Although comprehensively expressed and clearly indicative of the applicant's continued success in rehabilitating herself, the affidavit and report presently relied upon in effect says nothing new about what was already known at the time of sentencing and which was put before the sentencing judge. Those matters I have already briefly described in paragraphs 8, 10 and 12. From that it appeared that the applicant had already demonstrated remorse and a sense of guilt which had led her to participate successfully both in rehabilitation and other programmes at the youth training centre in which she was already detained. So even at the time the judge passed sentence it was known that she was "maximising" her opportunities to overcome her problems, was participating successfully in the programmes and was making steps in rehabilitating herself so as "not be likely to offend again". Her success had already been described as a "remarkable transformation" in her life. She had already been involved in a TAFE programme and was thereby seeking to "link herself" into the fashion and design course, which, according to the proposed new evidence, she successfully concluded in May this year. In my opinion, the evidence sought to be adduced merely shows that she had gone down that line of rehabilitation, the evidence providing support only for the conclusion that she is successfully continuing to put in practice that which she had already embarked upon when the judge passed sentence. Likewise, it merely emphasised that she had continued to remain drug-free. All these matters were recognised by the learned sentencing judge who had found that she had been making "very positive steps towards rehabilitating" herself and had been receiving strong support in those endeavours. In the light of those findings and in the light of the clear and undisputed evidence available before the learned judge, I would conclude that there is nothing in the additional material, which the applicant would seek to lead, which would add to or have any material bearing upon the decision which the judge made in ordering her to be detained in a youth training centre for a period of two years. In those circumstances I would refuse leave to adduce the evidence and hold that the ground had not been made out.

At a glance

Court

Decision date

Before

Source

Judgment (88 paragraphs)

Parties

Cases Cited (1)