Tran v Director of Public Prosecutions (Cth)

1. [1]

   HIS HONOUR: The plaintiff, Khanh Hoang Tran, appeals against the non-parole period fixed as part of the sentence imposed upon him by the presiding Magistrate pursuant to the terms of s 19AW(1)(f) of the Crimes Act 1914 (Cth). The appeal is taken pursuant to the terms of s 19AY of the Crimes Act (hereinafter the “Commonwealth Crimes Act”).

2. [2]

   The appellant, Mr Tran, relied initially upon two grounds of appeal. The second ground, which raised the question of whether the learned Magistrate had denied the appellant procedural fairness, was withdrawn, and there is now a single ground of appeal, namely, that the non-parole period fixed was “manifestly excessive”.

3. [3]

   The provisions of s 19AY of the Commonwealth Crimes Act grants to the appellant, who was arrested in this State, a right of appeal to this Court. The right of appeal arises under the provisions of s 19AY(1)(c) of the Commonwealth Crimes Act.

4. [4]

   The appeal, pursuant to the terms of s 19AY(3) of the Commonwealth Crimes Act, is by way of “rehearing” and the Court may have regard to any evidence given both before the prescribed authority, being the learned presiding Magistrate, and any additional evidence adduced on the appeal. It is necessary to deal briefly with the procedural history.

5. [5]

   In 2009, the appellant was sentenced to 18 years’ imprisonment, with a non-parole period of 11 years. That sentence was imposed by the District Court (Solomon DCJ) on 11 December 2009 for offences relating to drug importation. [1] The sentence commenced on 29 November 2006 and the non-parole period expired on 28 November 2017. The head sentence is set to expire on 16 December 2024.

6. [6]

   The appellant was released to parole on 28 November 2017. He was detained again on 27 October 2018 and was again released on parole on 26 May 2019.

7. [7]

   On 2 September 2019, 27 November 2020, 13 April 2021 and 1 July 2021, the Fairfield Community Corrections Office (hereinafter “FCCO”) reported breaches of parole to the Commonwealth Parole Office (hereinafter “CPO”).

8. [8]

   The Commonwealth Attorney General, through a delegate, issued communications to the appellant, being a Notice of Intent to Revoke Parole on 12 February 2019; a warning letter regarding compliance with parole conditions on 25 September 2019; a Notice of Intent to Revoke Parole on 10 December 2020; a further warning letter on 15 February 2021; and, on 13 May 2021, a Notice of Intent to Revoke Parole. The FCCO confirmed that the appellant had been provided with the last-mentioned Notice of Intent to Revoke Parole on 17 May 2021. The appellant did not provide a response within 14 days of the date of receipt, as is prescribed.

9. [9]

   On 8 June 2021, a Notice of Revocation of Parole was issued to the appellant, and, on the same date, the CPO received a letter from the appellant requesting an extension of time to reply to the Notice of 13 May 2021, received by him on 17 May 2021.

10. [10]

    Further detail of the foregoing needs to be provided. On 27 October 2018, the appellant was charged with several offences and was remanded in custody, bail refused. These offences were the subject of a sentence imposed upon the appellant on 24 May 2019. The sentence imposed upon him was 14 months’ imprisonment, with a non-parole period of 7 months. The appellant was released on parole on 26 May 2019, having served the non-parole period during his remand.

11. [11]

    On 16 November 2020, the appellant was charged with a drug possession offence and, on 18 January 2021, was convicted of the offence. He was fined for that offence.

12. [12]

    On 5 April 2021, the appellant was charged with two assault-related offences. When the sentence, which is the subject of this appeal, was being dealt with, the legal representative, then appearing for the appellant, informed the Court that the appellant was denying the assault-related offences and was defending the charges. It is unclear whether that attitude altered, but, on 9 June 2021, the appellant was convicted of the assault-related offences in his absence.

13. [13]

    On 6 April 2021, a Provisional Apprehended Violence Order issued against the appellant. As earlier stated, on 8 June 2021, the appellant’s parole was revoked by the CPO.

14. [14]

    An arrest warrant issued on 22 June 2021 and the appellant was brought before the Liverpool Local Court on 25 June 2021. On 16 July 2021, Magistrate Mabbutt set a new non-parole period of 600 days (or 20 months), under the provisions of s 19AW(1)(f) of the Commonwealth Crimes Act.

15. [15]

    This was approximately half of the remaining balance of sentence, which was approximately 1,249 days (or 3 years and 5 months). On the foregoing basis, the appellant is eligible for release on 8 March 2023.

Nature of appeal

1. [16]

   Pursuant to the provisions of s 19AY(3) of the Commonwealth Crimes Act, and as already stated, the appeal is by way of rehearing. Ordinarily, an appeal by way of rehearing, involves the Court, on appeal, conducting a rehearing on the materials before the primary judge. The appeal court, on that material, is authorised to determine the appropriate order, after it has found that the first instance order is the result of a legal, factual or discretionary error.

2. [17]

   Depending upon the terms of the statute conferring the right to appeal, the appeal court will usually have the power to receive additional evidence. In Lacey v Attorney General (Qld), [2] the High Court dealt with that which was described, relevant to those proceedings, as three kinds of appeal and said:

3. [18]

   The foregoing taxonomy is sufficient for present purposes, although, as is clear from the recited extract, it is not exhaustive. Courts have identified as many as six varieties of appeal, but the three varieties to which the High Court refers in the above extract are the usual categories, albeit sometimes differently expressed. [4]

4. [19]

   In Coal & Allied, supra, the High Court referred to the nature of different appeals and it is instructive to recite the passage, which is in the following terms:

5. [20]

   Dealing then with the provisions of s 19AY of the Commonwealth Crimes Act, the matter is the subject of authority. The Queensland Court of Appeal dealt with the terms of s 19AY(3) and made the following comments:

6. [21]

   Unless the Court, as presently constituted, was of the view that the foregoing passage was “plainly wrong”, the Court should and possibly must follow it. [7] In my view, the foregoing passage is not “plainly wrong”. On the contrary, it is, in my view, plainly correct and has already been followed by a judge of this Court. [8]

7. [22]

   As is clear from the extract of Coal & Allied and of Lacey, in a rehearing, if there has been no further evidence adduced and no relevant change in the law, the appeal court can exercise its appellate powers only if it were satisfied that there was error on the part of the first instance decision-maker. [9]

8. [23]

   Ordinarily, all appeals, other than appeals that are de novo hearings, require the appeal court to find error in the decision below. Where, as here, additional evidence may be adduced and is admitted, a court will not allow the appeal unless satisfied that the further evidence would have produced a different result if it had been available at the trial; or, where the appeal court is entitled to make the orders itself, when the further evidence does produce a different result. In other words, the error is the determination of the wrong result, after considering the further evidence.

9. [24]

   In the present proceedings, in addition to the evidence at first instance, the appellant relied on the psychiatric report of Dr Richard Furst, Forensic Psychiatrist, dated 24 December 2021; the psychosocial assessment report by Mr Brian Bembrick, Client Assessment and Referral Consultant (Social Worker), Legal Aid, dated 18 October 2021; the Attorney General’s Department document released under Freedom of Information Proceedings number 21/99, being the Outcome of Breach Proceedings, 1 January 2016 to 12 October 2021; the Affidavit of Rebecca Lee Neil of 23 February 2022; the Affidavit of Mariah Maltezos of 3 February 2022; the Affidavit of Elizabeth Saad of 4 February 2022; and the Affidavit of the appellant of 20 April 2022. The Affidavits and reports are part of Exhibit A in the proceedings. The Affidavits were read formally and admitted and/or read without objection. [10]

10. [25]

    In those circumstances, it is unnecessary for the Court, as presently constituted, to determine that the learned magistrate has erred. It is necessary only for the Court to come to the view that the additional evidence would produce a different result if it had been available at the trial. [11]

Appellant’s submissions

1. [26]

   The appellant relies upon the nature of the appeal by way of rehearing, which the Court has already addressed. In the course of the appellant’s written submissions (and in oral submissions) the appellant departed from the ground of “manifest excess” and submitted that the Court was entitled to set a new non-parole period based upon the additional material provided on appeal. This material was not available to the learned Magistrate.

2. [27]

   It is no criticism of the learned Magistrate that the additional material before the Court in this appeal is significantly different from that with which the learned Magistrate was required to deal. This issue was raised with counsel for each of the parties during the course of the oral hearing and each party accepts that the Court has the capacity to vary the non-parole period without determining that the non-parole period and/or the sentence is manifestly excessive.

3. [28]

   The Court, during the course of the proceedings, was concerned that, given the ground of appeal raised, the Crown may not have been in a position to deal with the matter. However, the Crown was in a position to deal with it and accepted that the subjective material before the Court, in these proceedings, is significantly different from that with which the learned Magistrate was dealing.

4. [29]

   The appellant emphasised the content of the reports by Dr Furst and Mr Bembrick, neither of which was before the Magistrate. It is unnecessary to extract significant portions of the reports. It is sufficient to note a number of conclusions from those reports.

5. [30]

   Dr Furst’s opinion was that the appellant meets the diagnostic criteria for Substance Use Disorder (Opiates), Anxiety Disorder, and Previous Gambling Disorder or Gambling Disorder (in Remission). Dr Furst recommends a treatment plan for the appellant’s disorders.

6. [31]

   Dr Furst noted the positive indicators regarding the appellant’s assimilation into the community and his positive prospects of rehabilitation. The appellant submits that the comprehensive treatment plan would address the appellant’s risk of further re-offending and is a significant factor in the determination of the non-parole period.

7. [32]

   Further, the appellant submits that Mr Bembrick’s observations were that the appellant would have stable accommodation with the appellant’s sister, if released, and that the appellant would then most likely resume self-employment, which was his status prior to arrest. Mr Bembrick’s report contains a history which gives context to the appellant’s background, his engagement with treatment services, experiences in custody since revocation of the parole; and a post-release plan.

8. [33]

   The appellant submits that, in comparison to sentences and/or non-parole periods imposed on other offenders when there has been a revocation of parole, the appellant’s non-parole period is so lengthy and out of range that it is manifestly excessive and there must have been error. The appellant analyses 40 other sentences imposed at a time when parole had been revoked.

9. [34]

   The appellant submits that the non-parole period greatly exceeded any other new non-parole period in the previous five years in sentences imposed throughout Australia. Further, it is two thirds of the year higher than the highest non-parole period imposed in the last five years and three times higher than the next highest non-parole period. Therefore, the appellant’s non-parole period, it is submitted, is unreasonable or plainly unjust by comparison with other non-parole periods imposed.

10. [35]

    As earlier stated, the appellant draws particular attention to the fact that the presiding Magistrate did not have the benefit of the subjective material tendered in this appeal.

11. [36]

    The submission of the appellant is that the presiding Magistrate did not have regard to certain important considerations, including: the comparatively low gravity of the offences committed on 5 April 2021; the circumstance that the appellant denied the charges; that the breaches of parole were a result of the understandable difficulty the appellant was facing in reintegrating into the community after 11 years in prison; and, that the breach report of 1 July 2021, contains a recommendation from the Corrections Officer that the appellant be “provided with the opportunity to address his offending behaviour in the community”, as he “has been able to demonstrate an acceptable level of engagement” with offices while on parole.

Respondent’s submissions

1. [37]

   The respondent submits that the sentence imposed by the learned Magistrate is appropriate and certainly not “unreasonable” or “plainly unjust”. The learned Magistrate considered that the appellant’s primary sentence was for an extremely serious offence; that the appellant had breached his parole despite several warnings; and, although his prospects of rehabilitation were high, the appellant needed to take his parole conditions more seriously.

2. [38]

   The respondent reiterates the well-known principle that, in setting a non-parole period, a sentencing court must not convert a punishment into an opportunity for rehabilitation.

3. [39]

   As earlier stated, the respondent referred to the principles associated with a finding of manifest excess and submitted that the learned Magistrate, in sentencing the appellant, had a broad discretion to impose a sentence, which included the sentence at the level imposed in this case.

4. [40]

   As earlier indicated, the respondent accepts that the opinions tendered on appeal, particularly Dr Furst’s opinion, presents the appellant and his subjective case in a substantially more favourable way than was presented to the Local Court. This acceptance is a most appropriate and commendable submission, particularly given the duty of the Crown to put to the Court fairly all of the factors on sentence.

5. [41]

   Notwithstanding the foregoing, the respondent submits that reliance on the outcome of comparative cases should not be accepted and cited the well-established principles regarding warnings against the use of sentencing statistics.

Consideration

1. [42]

   Given the nature of the appeal and the additional material that has been adduced, the Court can be briefer in its consideration than might otherwise be the case. It is necessary first to deal with the purposes of sentencing and the nature of the non-parole period.

2. [43]

   A sentence fixed for a particular offender in relation to offences must marry the objective seriousness of the offence and the subjective circumstances of the offender to reach a result that achieves the purposes of sentencing.

3. [44]

   In so doing, a judicial officer is required to take into account the guideposts of the maximum sentence prescribed by the legislature or any other legislative guidepost. One of the fundamental difficulties associated with the task of sentencing is that the purposes of sentencing often point in different directions.

4. [45]

   As the High Court said, in Veen (No 2): [12]

5. [46]

   It is necessary to emphasise that there is no one single correct sentence. Because of the broad discretion associated with sentencing, there is a range of sentences that will be correct and appropriate to impose; a sentence that is correct for the offence and the offender. The process involves intuitively synthesising the factors relevant to the objective seriousness of the offence, and the role played in it by the offender, with the subjective circumstances of the offender. The range of sentences that is available is not the same as the pattern of sentencing that has occurred in the past.

6. [47]

   In Hili & Jones, [14] the High Court, citing with approval the judgment of Simpson J, said:

7. [48]

   Manifest excess is a conclusion based upon the facts determined to exist, and is derived from an examination of the objective circumstances pertaining to the offence and the subjective circumstances of the offender. Because of the manner in which the appeal has been conducted and the attitude of the Crown to the implicit variation on the ground of appeal, whether the sentence imposed by the learned Magistrate was manifestly excessive is relatively easy to resolve. The circumstances now facing this Court, on appeal, are vastly different from those which the learned Magistrate was required to consider.

8. [49]

   The issue now before the Court is the determination of an appropriate sentence, given the subjective elements of the offender, which we now know are significantly different from that which was assessed by the learned magistrate. Manifest excess is a conclusion.

9. [50]

   Whether a sentence is or is not unreasonable or plainly unjust should be plainly apparent and does not depend upon identifying specific error in the reasoning of the sentencing judge. It depends, rather, on the facts that are determined to exist. [16]

10. [51]

    Given that the facts are now significantly different, the Court, on appeal, can say — without any criticism of the learned Magistrate and the matters with which the Magistrate was dealing — that the facts, as we now know them to be, render the sentence imposed manifestly excessive.

11. [52]

    In other words, given the different facts that are now necessary to consider in the process of sentencing, the sentence that was imposed, and particularly the non-parole period, was outside the range that was available and appropriate.

12. [53]

    Part of the reason that the Court can come to the view expressed in the preceding paragraph is that the Court is now aware that the appellant is suffering from a mental illness or disorder.

13. [54]

    In De La Rosa [17] McClellan CJ at CL summarised, by way of a taxonomy (which was not intended to be exhaustive), the way mental illness or disorder is relevant to sentencing. The passages are in the following terms:

14. [55]

    In the current circumstances, the nature of the appellant’s mental issues: reduces his moral culpability; reduces the need for denunciation of the offence; renders him less of an appropriate vehicle for general deterrence; discloses that the custodial sentence imposed upon him has weighed more heavily on him; and, generally, would ameliorate the severity of the sentence that would need to be imposed.

15. [56]

    There is still a need for general deterrence and there is still a need for specific deterrence, given the appellant’s criminal record. Nevertheless, the appellant has shown extremely positive attitudes, which inform the prospects of rehabilitation and confirm the views expressed by Dr Furst and Mr Bembrick and summarised above.

16. [57]

    The Crown, correctly, submits that in setting a non-parole period, even where the prospects of an offender’s rehabilitation are higher, the judicial officer does not convert the punishment into merely an opportunity for rehabilitation.

17. [58]

    The purpose of a non-parole period is the fixing of the minimum term necessary for the achievement of the purposes of sentencing, giving greater weight to rehabilitation through conditional freedom, when appropriate, but only after the offender has served the minimum term determined by the judge to be that which justice requires, having regard to all the circumstances of the offence. [19] It is certainly not for the purpose of solely assisting the prospects of rehabilitation. [20]

18. [59]

    The joint judgment of Mason CJ and McHugh J in Bugmy (No 1), which, while in dissent, states the principles applicable to the fixing of a non-parole period in a manner that has been universally accepted, bears full repeating:

19. [60]

    In the current circumstances, the learned sentencing judge in 2009 fixed a sentence, including a non-parole period, for the principal offences, being the drug importation offences. The appellant has served all of that non-parole period. It seems that the learned Magistrate has applied a similar ratio (regarding the non-parole period vis-à-vis the head sentence) to the remainder of the sentence as that which was applied by the learned District Court judge in fixing the original sentence.

20. [61]

    However, the information we now have relating to the appellant’s diagnoses and the difficulties they would create in assimilating into the community upon release after such a long period explain, more readily, the appellant’s relapse and, in my view, give rise to a need for the Court to emphasise the purposes of rehabilitation and grant the opportunity for implementation of the treatment plans that have been proposed.

21. [62]

    In the circumstances of the psychiatric opinions that are now before the Court, the Court takes the view that the sentence imposed is manifestly excessive, whether or not it could be so categorised in the absence of that additional subjective material. Having made that determination, the Court is of the view that some non-parole period is appropriate, given the seriousness of the original offence and the necessity to ensure specific deterrence to breaching parole.

22. [63]

    The Court takes into account the period of time spent by the appellant on parole before the parole order was revoked, pursuant to the terms of s 19AW(4) of the Commonwealth Crimes Act, and bearing in mind that the appellant had, at the time that the warrant was first issued, 1,249 days (or 3 years and 5 months) remaining in the sentence to be imposed.

23. [64]

    The Court is required, as a consequence of the foregoing, to set a different non-parole period. The Court takes into account the risk to the community of releasing the person on parole; the appellant’s conduct during his prison sentence; the programs undertaken; the comments by the original sentencing court; the appellant’s criminal history; the reports to which reference have already been made; the breach of the parole already provided and its effect on the other factors to which reference has been and is being made; the better prospects that the appellant will comply with the conditions of parole on this occasion; the necessity and desirability of the appellant’s release so as to assist him in adjusting to lawful community life; and, the psychiatric conditions to which reference has ready been made.

24. [65]

    In fixing the parole period, I bear in mind the purposes of parole being the protection of the community; the rehabilitation of the offender; and, the reintegration of the offender into the community. Those purposes are optimally achieved by supervision in the community of 2 years and 6 months.

25. [66]

    As a result of the foregoing, the Court makes the following orders:

    1. (1)

       Appeal allowed.

    2. (2)

       Pursuant to the provisions of s 19AY(5)(c) of the Crimes Act 1914 (Cth), the Court varies the warrant issued by his Honour Magistrate Mabbutt on 16 July 2021 in relation to the appellant, Khanh Hoang Tran, by deleting the expression “600 days” and inserting in lieu thereof “11 months”.

    3. (3)

       The appellant is first eligible for release on 16 June 2022.