HT v The Queen

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Keane JJ.,Nettle,Edelman JJ.,Gordon J.
• Judgment Date: 13 November 2019
• Neutral Citation: [2019] HCA 40
• Court: High Court
• Docket Number: S123/2019
• Date: 13 November 2019

[2019] HCA 40

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ

S123/2019

HT

Appellant

and

The Queen & Anor

Respondents

Representation

T A Game SC with G E L Huxley for the appellant (instructed by Maria Walz Legal)

D T Kell SC with E S Jones for the first respondent (instructed by Solicitor for Public Prosecutions (NSW))

N L Sharp SC with T M Glover for the second respondent (instructed by Crown Solicitor's Office (NSW))

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8.

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23.

Criminal Appeal Act 1912 (NSW), ss 5D(1), 12.

Evidence Act 1995 (NSW), s 130.

Criminal practice — Appeal — Crown appeal against sentence — Procedural fairness — Where appellant provided assistance to law enforcement authorities — Where court required by statute to take assistance into account in sentencing — Where evidence of assistance kept confidential from appellant and appellant's legal representatives in sentencing proceedings — Where evidence contained highly sensitive criminal intelligence — Where appellant sought access to confidential evidence on appeal — Where Court of Criminal Appeal denied appellant access to confidential evidence on basis of public interest immunity — Where Court of Criminal Appeal exercised discretion under s 5D(1) of Criminal Appeal Act 1912 (NSW) to re-sentence — Whether appellant denied procedural fairness — Whether Court of Criminal Appeal had power to deny appellant access to the confidential evidence — Whether Court of Criminal Appeal should have declined to exercise discretion to re-sentence.

Words and phrases — “access to evidence”, “assistance to law enforcement authorities”, “confidential information”, “Crown appeal against sentence”, “discount in sentence”, “evidence of assistance”, “mitigating factor”, “non-disclosure”, “open justice”, “procedural fairness”, “public interest immunity”, “residual discretion”, “tailored order”.

ORDER

• 1. Appeal allowed.

• 2. Set aside the two sets of orders made by the Court of Criminal Appeal of the Supreme Court of New South Wales, when reserving its judgment and when disposing of the appeal, and in lieu thereof order that the Crown appeal be dismissed.

• 3. The contents of Exhibit C be suppressed until further order of this Court pursuant to section 77RE of the Judiciary Act 1903 (Cth) on the grounds set out in section 77RF(1)(a), being that the order is necessary to prevent prejudice to the proper administration of justice, and section 77RF(1)(c), being that the order is necessary to protect the safety of any person.

1 Kiefel CJ, Bell and Keane JJ. The appellant pleaded guilty in the District Court of New South Wales to five counts of obtaining money by deception contrary to s 178BA(1) of the Crimes Act 1900 (NSW) and six counts of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act. The maximum penalty respectively for such offences is imprisonment for five years and ten years.

2 The sentencing judge sentenced the appellant to an aggregate sentence of three years and six months imprisonment with a non-parole period of 18 months. The Crown lodged an appeal pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) (“the CA Act”), on the ground that the aggregate sentence was manifestly inadequate. The appeal was allowed by the Court of Criminal Appeal of New South Wales 1 and the appellant was re-sentenced to an aggregate sentence of six years and six months imprisonment with a non-parole period of three years and six months.

3 The sentencing judge found that the offences involved very serious criminal conduct and a high level of moral culpability. The offending occurred over a number of years and involved a substantial number of fraudulent transactions with a high total monetary value. The offending was described by his Honour as planned and sophisticated. The appellant's criminal record disentitled her to leniency. On the other hand the appellant's co-operation in repaying part of the money to the victims was accepted as evidence of her contrition.

4 A factor of significance to the appellant on sentencing in both the District Court and the Court of Criminal Appeal was the assistance, both past and anticipated, that she had rendered to a law enforcement authority. The appellant was a registered police informer.

5 Evidence relating to this assistance was placed before the sentencing judge, who specified a combined discount of 35 per cent for the appellant's assistance and guilty pleas, with 15 per cent identified for her guilty plea. His Honour considered that this acknowledgement of the level of assistance paid due regard to s 23(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the C(SP) Act”). When re-sentencing the appellant on the Crown appeal, the Court of

Criminal Appeal, whilst increasing the aggregate sentence, also increased the combined discount for her assistance and guilty pleas to 40 per cent

The C(SP) Act

6 Section 21A of the C(SP) Act requires a court, in determining the appropriate sentence for an offence, to take into account certain factors. They include mitigating factors that are relevant and known to the court 2. Section 21A(3) lists the mitigating factors that are to be taken into account. They include assistance by the offender to law enforcement authorities, as provided by s 23.

7 Section 23(1) provides that a court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which that person has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence. Section 23(2) provides that in deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty to be imposed, the court must consider certain matters. Included amongst these matters are: the significance and usefulness of the offender's assistance to the authorities, taking into consideration any evaluation by the authorities of the assistance rendered or undertaken to be rendered 3; the truthfulness, completeness and reliability of any information provided by the offender 4; the nature and extent of the offender's assistance or promised assistance 5; the timeliness of the assistance or undertaking to assist 6; any danger or risk of injury to the offender resulting from the assistance 7; and whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence 8. Section 23(3) requires that a lesser penalty that is imposed under s 23

must not be unreasonably disproportionate to the nature and circumstances of the offence

8 Section 23(4) requires a court that imposes a lesser penalty, because the offender has assisted or undertaken to assist the authorities, to: (a) indicate to the offender and record the fact that the lesser penalty is being imposed for either or both of those reasons; (b) state the penalty that it would otherwise have imposed; and (c) where the lesser penalty is being imposed for both reasons, state the amount by which the penalty has been reduced for each reason. None of the information required to be given by s 23(4) was provided by the sentencing judge in this case. These omissions may have resulted from the procedure which was followed at sentencing.

The confidential information

9 A portion of the sentencing proceedings were held in closed court. An affidavit by a police officer, to which was annexed details of the assistance provided by the appellant to the police, was admitted into evidence and marked “Exhibit C”. It contained observations as to the truthfulness, reliability and usefulness of information supplied; the risk to which the appellant had put herself on occasions in supplying information; the timeliness of the assistance; and the value to current and future police investigations. It also contained information which may be described as criminal intelligence of a highly sensitive nature. The Crown Prosecutor had seen Exhibit C but the appellant's counsel had not and did not at any point see its contents.

10 Counsel for the appellant advised the sentencing judge that he had been contacted by a representative of the Office of the Crown Solicitor and presented with two options: if he wished to be privy to the information to be provided to the Court it would have to be highly redacted and consequently would be a lot shorter; if he were not to be privy to the information, it would be a lengthy document, inferentially one more favourable to the appellant. Unsurprisingly the appellant's counsel chose the latter course – but the consequence was that he could not see Exhibit C. He was assured that the information which would be provided to the sentencing judge would be of a “high order”, which, it is to be inferred, would be advantageous to the appellant's case.

11 The Crown Prosecutor accepted that the amount of co-operation disclosed was significant. The sentencing judge agreed, but indicated that the level of discount was open to argument and that his task in determining the discount was difficult given that defence counsel had no knowledge to enable him to make submissions on that issue.

12 On the hearing of the Crown appeal, counsel for the appellant (the respondent to that appeal) sought access to Exhibit C. This had been foreshadowed prior to the hearing. Counsel submitted that recourse to Exhibit C was necessary not only in the event that the Court of Criminal Appeal found error and proceeded to re-sentence the appellant, but also as relevant to the sole ground of appeal, namely whether the sentence was inadequate.

13 The Commissioner of Police opposed making the information in Exhibit C...