New South Wales Court of Criminal Appeal CITATION : Regina (Commonwealth) v Hung [2001] NSWCCA 233 FILE NUMBER(S) : CCA 60557/99 HEARING DATE(S) : 14 June 2001 JUDGMENT DATE : 29 June 2001 PARTIES : Crown - Respondent Joseph Tung Kam Hung - Appellant JUDGMENT OF : Simpson J at 1; Badgery-Parker AJ at 24; Newman AJ at 25 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/3006 LOWER COURT JUDICIAL Job DCJ OFFICER : COUNSEL : J A Coombs - Applicant R F Sutherland - Crown Respondent SOLICITORS : R Storie - Applicant Commonwealth Director of Public Prosecutions - Respondent CATCHWORDS : Criminal law - sentence and procedure - appeal - whether manifestly excessive - parity - admission of fresh evidence. Financial Transaction Reports Act 1988 (Cth) LEGISLATION CITED : Crimes Act 1914 Crimes Act 1900 (NSW) Criminal Appeal Act 1912 R v Lowe (1984) 154 CLR 606 R v Postiglione (1997) 189 CLR 295 R v Goodwin (1990) 51 A Crim R 328 R v Munday (1981) 2 NSWLR 177 CASES CITED: R v Gallagher, NSWCCA, 27 August 1991, unreported R v Cartwright (1989) 17 NSWLR 243 R v Scullion, NSWCCA, 15 July 1992, unreported R v Willard [2001] NSWCCA 6, unreported 2 February 2001 R v Abbott [1985) 17 A Crim R 355 R v Munday (1981) 2 NSWLR 177 DECISION : Leave to appeal granted, appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60557/99 SIMPSON J BADGERY-PARKER AJ NEWMAN AJ 29 June 2001 REGINA (Commonwealth) v Joseph Tung Kam HUNG Judgment SIMPSON J : 1 The applicant seeks leave to appeal against the severity of sentences imposed upon him by Judge Job in the District Court on 10 September 1999, following his pleas of guilty to four charges brought under s 29(4)(b) of the Financial Transaction Reports Act 1988 (Cth). Each count alleged that the applicant had made a materially false statement capable of causing a cash dealer to make a false report of an international fund transfer instruction. The essence of the offences was that the applicant, in requesting an overseas telegraphic transfer of Advance Bank for $100,000 (in each case), falsely identified the sender of the funds as a film making company, Manifesto Film Limited. All offences were committed in March 1998. Each offence carries a maximum penalty of imprisonment for five years. 2 On each count Judge Job sentenced the applicant to a term of imprisonment for fifteen months, specifying that all sentences are to be served concurrently, commencing 10 September 1999. It will be necessary to refer below to the circumstances in which he imposed the sentences in the terms he did. 3 The application for leave to appeal came on for hearing on 14 June 2001. At the conclusion of the argument, the court announced that it was unanimously of the view that an appeal could not succeed, but deferred making formal orders to that effect, or giving reasons for its decision, until Friday 29 June. These are my reasons for coming to that view. 4 There was and is remarkably little detail about the circumstances of the offences. Besides the bare facts stated above, it was known that the applicant had told one bank officer that the purpose of the transfer was to enable Manifesto to make a film in Hong Kong. The applicant had in fact worked for Manifesto for a period ending in October 1997 and had thereafter had some discussions with Manifesto personnel about the prospect of developing a film making business in China, but nothing of significance eventuated. 5 The applicant was arrested on 16 October 1998. Acting on the advice of his then solicitor, he declined to participate in a recorded interview. He did not give evidence in the sentencing proceedings. He gave a modicum of information to an officer of the Probation and Parole Service who assessed him for the purpose of a pre-sentence report. The applicant acknowledged that the recipient of the funds was his brother, and appears to have attempted to maintain that the transactions were somehow connected with Manifesto's business. 6 There was an equivalent paucity of subjective material. The applicant had, previously, come in contact with the Probation and Parole Service as a result of a drink driving charge in 1986. He asked the officer not to contact his de facto wife in order to confirm or obtain additional information. What emerged about the applicant was limited to the following. He was raised in Malaysia but studied accountancy in New Zealand. He immigrated to Australia in 1980. He has been previously married, but has been in his current de facto relationship for seventeen years, and by that relationship has a sixteen year old son. He has no convictions other than the 1986 drink driving offence. 7 There was therefore very little information for the sentencing judge to work on. His Honour, correctly in my view, took the view that general deterrence was "of a special importance" in relation to sentencing under the Financial Transactions Reports Act, because that Act states as among its objects the enforcement of taxation and other laws of the Commonwealth of Australia. He concluded, again correctly in my view, that the offences called for a term of full time imprisonment. 8 Four matters were raised on the application. The first emerged initially from correspondence with the office of the Attorney General that followed the applicant's sentencing. An officer of the Attorney General's Department drew to the attention of the Director of Public Prosecutions ("DPP") an anomaly in the sentence imposed. As noted above, each offence carries a maximum term of imprisonment of five years. Judge Job initially stated that the sentence he imposed on each count was a sentence of imprisonment for two years. He then purported to fix a non parole period of fifteen months. 9 S19AC(1) of the Crimes Act 1914 provides as follows: 19AC. When court must fix a recognizance release order (1) Subject to subsections (3) and (4), where: (a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and (b) the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and (c) at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence; the court must make a recognizance release order in respect of that sentence or those sentences and must not fix a non-parole period. 10 The three conditions of the sub section having been met, it was not open to the judge to fix a non parole period. He was obliged instead to make a recognizance release order. This was brought to his Honour's attention by counsel for the DPP. In the course of the discussion that followed his Honour made it plain that what he intended was to impose sentences consisting of a maximum term of two years of which the applicant would serve fifteen months in custody; for the balance of nine months the judge intended that he would be, or would be eligible to be, on conditional liberty. In order to achieve this it was necessary to impose sentences of two years, with a recognizance release order of fifteen months. 11 What his Honour finally did was stated in the following terms: "…the prisoner is sentenced to fifteen months imprisonment on each charge concurrent and I direct that he be released after that period on recognizance to be of good behaviour for a period of twelve months from that date." 12 Thus, the sentence imposed - that is, the total sentence - was a sentence of fifteen months. The direction for release on recognizance for a period of twelve months after service of that sentence was not authorised by any statutory provision and is invalid. 13 S 19AC(1) obliged the court to make a recognizance release order. Subs (4), to which subs (1) is subject, permits a court to decline to make a recognizance release order if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the offender, it is satisfied that such an order was inappropriate. By sub s (5) a court declining to make a recognizance release order is required to state its reasons for so deciding and to cause the reasons to be entered in the records of the court. 14 It is plain that the sentence imposed did not truly reflect the sentencing judge's intention. It reflected his intention with respect to the minimum term. As pronounced, however, the term the judge intended to be the minimum term was imposed as the total term, in respect to which, by subs (1) (unless the discretion conferred by subs (4) was exercised) a recognisance release order of a lesser term was obligatory. But the judge did not make such a recognisance release order and did not make a considered decision to decline to do so, nor did he state his reasons for so deciding, nor cause his reasons to be entered in the court records. There was, therefore, as the DPP concedes, an error in the sentencing procedure. 15 S 19AH empowers a court to correct any such error. That power is conferred upon the court in which the sentence was imposed. It does not empower this court to make the correction. The applicant would be entitled to approach the District Court for the purpose of having a recognizance release order made. 16 The second matter raised on behalf of the applicant was put in terms of a parity argument: R v Lowe (1984) 154 CLR 606; R v Postiglione (1997) 189 CLR 295. The substance of this argument is that the applicant is entitled to bear a legitimate sense of grievance by comparison of the sentences imposed upon him with those of a person he identified as a co-offender. 17 The only evidence as to the co-offender and his sentence was contained in an affidavit sworn by the applicant on 16 February 2001. In that affidavit the applicant mentioned an individual, whom he named as the person whom he (the applicant) assisted in transferring funds overseas. The applicant deposed that he was advised and believed that that individual was charged with "goods in custody", the goods being the sum of $1.3 million in cash, in respect of which he was sentenced to five months' imprisonment. 18 Although it is not at all clear, if that information is correct, it would appear that that individual was charged under s 527C of the Crimes Act 1900 (NSW) which carries a maximum term of imprisonment for six months. 19 Apart from the applicant's assertion, there is nothing before this court to confirm that that offence committed by that individual was in fact related to the four charges to which the applicant pleaded guilty. In any event, the offences with which the two were charged, and the maximum penalties provided by the relevant statutes were so disparate, that questions of parity are irrelevant. I would reject the ground of appeal based on parity considerations. 20 A third matter put in oral argument was that the sentence was, in any event, manifestly excessive, and that the offences warranted no more than a non custodial penalty. I would reject this argument. The amounts of money involved were large, the criminal activity was designed to defeat the objects of the Act under which the offences were charged, they constituted a course of criminal conduct, and the applicant provided no explanation for his involvement. Further, the argument sits very oddly indeed with the final matter raised. 21 The most substantial matter raised in the application was contained in two grounds of appeal framed as follows: "1. that 'special circumstances' exist that warrant the admission of new evidence in this appeal. 2. that in the light of this new evidence the sentence given to the appellant by the trial judge is excessive." 22 In support of these grounds of appeal the applicant filed a number of affidavits. It is from these affidavits that the "special circumstances" asserted in the first of these grounds of appeal to exist can be identified. The DPP filed affidavits in reply. This court accepted the affidavits provisionally for the purpose of determining whether they should be admitted. In my view, having considered the evidence, the affidavits should not be admitted. It is convenient to consider the merits of these grounds of appeal in separate reasons in a supplementary judgment, not to be made publicly available. For the reasons there given, I am satisfied that the "new evidence" tendered ought not be admitted. I am further satisfied that, even if it were admitted, it would not affect the outcome of an appeal. The legal principles relevant to the question of the admission of fresh evidence in this case are stated in the following paragraphs of the supplementary judgment which I reproduce below: 1 In support of the application to adduce fresh evidence, counsel for the applicant sought to rely upon the decision of this court in R v Goodwin (1990) 51 A Crim R 328. In that case Hunt J (as he then was), with whom Grove J agreed, stated the basic requirements for the admissibility of additional evidence in this court as: "(i) that it [the proposed evidence] must be of such significance that the sentencing judge may have regarded it as having a real bearing upon his decision; (ii) that, although its existence may have been known to the applicant, its significance was not realised by him at the time; and (iii) that its existence was not made known to the applicant's legal advisers at the time of those sentencing proceedings." Counsel argued that the evidence on which he wished to rely meets all three criteria. 5 S 6(3) of the Criminal Appeal Act 1912 provides : "(3) On an appeal under s5(1) against a sentence, the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed , shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." (emphasis added) 6 As the language of the section makes clear, an appeal to this court against sentence lies only to correct error in the sentencing process. Events that occur after sentencing cannot, in the ordinary case, establish such error: R v Munday (1981) 2 NSWLR 177; R v Gallagher, NSWCCA, 27 August 1991, unreported; R v Cartwright (1989) 17 NSWLR 243; R v Scullion, NSWCCA, 15 July 1992, unreported; R v Willard [2001] NSWCCA 6, unreported, 2 February 2001. 11 There is authority for the proposition, that where, as a result of incompetent legal representation at the sentencing proceedings, relevant material as to fundamental facts is not placed before the sentencing judge, this court may admit evidence to establish those facts, even though that evidence does not, strictly, qualify as "fresh evidence": R v Abbott (1985) 17 A Crim R 355. 12 But the proposition the applicant seeks to advance goes even further. It is that where, by reason of incompetent legal advice, an offender opts for a course of action which is against his better interests, then a sentence imposed in the circumstances that then exist, and appropriate to those circumstances may be set aside on the basis that a less severe sentence "is warranted in law and should have been passed". This is a far-reaching proposition indeed, and a novel one. I find it difficult to envisage circumstances in which it could be accepted. Certainly they do not here exist. On the basis of the facts (not merely the evidence) as they existed at the time of sentencing, the sentences imposed were well within the discretion of the judge. 14 I am far from satisfied, on the evidence, that the advice given to the applicant was wrong, let alone incompetent. The applicant has been offered a number of opportunities to establish this fundamental fact, and has not availed himself of any of them. 15 The application has been before this court, differently constituted, on two previous occasions. On 18 May 2000 it was before a court constituted by Mason P, Heydon JA and Smart AJ. During the course of that proceeding, Mason P said: "The other point that is concerning me is that Mr Sutherland's submission raised an important point of principle and relies on a case called Munday's case [ R v Munday (1981) 2 NSWLR 177] which is authority for the proposition that, in effect, nothing that happens after sentence of this nature can be taken into account on appellate review. That raises a pretty important issue and perhaps an issue upon which the court would wish to have some assistance about what really does happen when people 'roll over' after they have been sentenced." 16 A little later his Honour, having been told that the applicant had relied on legal advice said: "We would need to see what advice he sought and what information he laid before his lawyer at that time." 17 As a consequence of the difficulties then experienced, the court adjourned the application. It next came before the court on 6 April 2001, the bench comprising Meagher JA, Wood CJ at CL and Studdert J. During the course of that hearing Wood CJ at CL observed that it would have been appropriate for the Crown to have called the applicant's former legal advisers to explain what had taken place. Counsel for the DPP observed that that would have required a waiver of privilege. That resulted in Wood CJ at CL saying: "I am sure that would be forthcoming. If it wasn't forthcoming, that might affect the appeal. We are being asked to deal with this matter on an incomplete basis and I would have thought, for myself for that matter, we are not in a position to hear it, in which case it must go over." 18 On 30 April 2001 Mr Moorhouse, the solicitor in the office of the DPP handling the matter, wrote to the applicant's present solicitor, Mr Storie, enclosing a draft "waiver of privilege" which he invited the solicitor to have the applicant sign. What Mr Moorhouse proposed was that the applicant consent to his former counsel and solicitor communicating with the office of the DPP and giving evidence in relation to the application. The applicant's solicitor did not reply. On 16 May Mr Moorhouse wrote again to Mr Storie. In this letter he referred to the earlier letter, and also asserted that he had telephoned Mr Storie's office on 14 May and twice on 16 May, leaving messages and requesting that Mr Storie return the calls. Contact had not been made. He again asked Mr Storie to telephone. 19 On 17 May Mr Storie telephoned Mr Moorhouse. Consent to the waiver was not forthcoming. Further correspondence ensued. By the commencement of the hearing of this application, on 14 June 2001, the applicant had still not waived privilege. During the course of the hearing of the application counsel for the applicant offered to provide to counsel for the DPP the file obtained from the former solicitors. This, of course, did not give counsel for the DPP any opportunity to confer with or obtain information from the applicant's previous legal representatives. 20 In my opinion, in these circumstances, it would be unfair to the DPP to allow the applicant to rely upon the affidavit material he tendered. 21 Further, even if that material were admitted, it would not have the effect for which the applicant contends. That is, it would not establish that he had been so incompetently represented as to warrant a conclusion that a miscarriage of justice had occurred. 22 I would reject this ground of appeal. 23 I would, accordingly, grant leave to appeal but dismiss the appeal. The confidential reasons will remain in a sealed envelope with the file. The envelope will be marked "Not to be opened except on the authority of the Court of Criminal Appeal". 24 BADGERY-PARKER AJ : I agree with the orders proposed by Simpson J, and with the reasons expressed by her in both the principal judgment and the supplementary judgment. 25 NEWMAN AJ : I have read the draft judgment of Simpson J and I agree with her reasons and the orders she proposes. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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