Bimson, Roads & Maritime Services v Damorange Pty Ltd

[2014] NSWSC 734

Supreme Court

New South Wales

Medium Neutral Citation:	Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
Hearing dates:	29 May 2014
Decision date:	30 May 2014
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	The appeal is dismissed.
Catchwords:	APPEAL - road safety offences - appeal to Supreme Court from sentence imposed by Local Court - appeal restricted to a ground that involves a question of law alone - scope of appeal - necessity to identify question of law in abstract terms - alleged manifest inadequacy in sentence does not raise question of law alone - use of transcript of exchanges between counsel and the Bench to contradict sentencing judgment - misapprehension of jurisdictional limit of Local Court immaterial to sentence imposed - error in relation to maximum sentence for some offences - raises question of law - scope of discretion conferred by s 59(b) of Crimes (Appeal and Review) Act 2001 - error solely caused by statement to the Court by prosecutor - whether Court should consider "merits" of sentence when exercising discretion not to intervene.
Legislation Cited:	- Crimes (Appeal and Review) Act 2001 (NSW), s 56, s 59 - Crimes (Sentencing Procedure) Act 1999 (NSW) - Criminal Appeal Act 1912 (NSW), s 5, s 5D - Road Transport (General) Act 2005 (NSW) s 6, s 178 - Road Transport (General) Amendment (Heavy Vehicle Driver Fatigue and Speeding Compliance) Regulation 2008 (NSW), reg 156 - Road Transport (General) Regulation 2005 (NSW), reg 156 - Road Transport Legislation Amendment Act 2008 (NSW), s 11C - Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 6, s 69A, s 69C, Div 2A - Road Transport (Safety and Traffic Management) Regulation 1999 (NSW), reg 139 - Supreme Court Act 1970 (NSW), 75A
Cases Cited:	- Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 - Barbaro v R [2014] HCA 2 - David Morse (Office of the State Revenue) v Chan [2010] NSWSC 1290 - DPP v Wunderwald [2004] NSWSC 182 - HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 - Hili v R [2010] HCA 45; 242 CLR 520 - House v R [1936] HCA 40; 55 CLR 499 - Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 - Markarian v R [2005] HCA 25; 228 CLR 357 - Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78, 51 NSWLR 673 - R v Allpass (1993) 72 A Crim R 561 - R v Jermyn (1985) 2 NSWLR 194 - R v Jessop [1974] Tas SR 64 - R v JW [2010] NSWCCA 49; 77 NSWLR 7 - R v PL [2009] NSWCCA 256 - R v PL [2012] NSWCCA 31 - Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Ltd [2008] NSWSC 936 - Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 - Williams v R [1986] HCA 88; 161 CLR 278
Texts Cited:	- Mark Aronson and Matthew Groves Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013)
Category:	Principal judgment
Parties:	Paul Bimson, Roads and Maritime Services (Plaintiff) Damorange Pty Ltd (First Defendant) Lawrence Shane Splatt (Second Defendant) Scott Splatt (Third Defendant)
Representation:	Counsel: M.G. Higgins (Plaintiff) B.D. Hodgkinson SC, T.D. Anderson (Defendants) Solicitors: Henry Davis York (Plaintiff) Holman Webb Lawyers (Defendants)
File Number(s):	2013/318029

ex tempore Judgment

1. This is an appeal pursuant to s 56(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) (the "Review Act") from sentences in the form of fines imposed by the Local Court on the three defendants. The fines were imposed as a consequence of the three defendants pleading guilty to a large number of offences under the Road Transport (General) Regulation 2005 (NSW) and the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (the "General Regulation 2005" and the "Safety Act 1999" respectively).

1. I will first outline the course of the proceedings in the Local Court that led to the sentences being imposed, including the reasons given by the presiding Magistrate for imposing sentence. I will then address the nature of the jurisdiction being exercised by this Court on the appeal. As I will explain, the limited nature of this jurisdiction represents a significant obstacle to the plaintiff's pursuit of the grounds of appeal identified in his amended summons.

1. After addressing those issues, I will then deal with each ground of appeal in turn, as well as certain matters that were debated concerning the discretion of this Court to grant relief.

The proceedings in the Local Court

The offences

1. At all relevant times the first defendant, Damorange Pty Ltd ("Damorange"), operated a transport business which included the refrigerated transport of groceries and fresh produce. Apparently this involved the use of approximately 64 trucks. This business was effectively operated by members of the Splatt family. The second defendant, Lawrence Splatt, was a director of Damorange. He was said to be "active" in its day-to-day management. The third defendant, Scott Splatt, is Lawrence Splatt's son. He was employed in the position of "General Manager, Operations" for Damorange.

1. For reasons that are irrelevant to this case, at some point Roads and Maritime Services ("RMS") audited the activities of a number of trucking and transport businesses, including Damorange. As part of the audit it reviewed material obtained from speed cameras and material concerning the issue of traffic infringement notices in an endeavour to ascertain occasions in which trucks operated by Damorange had travelled at excessive speed. Apparently, RMS sought to find evidence of a systemic problem of excessive speed with Damorange's trucks. Ultimately 276 charges were filed.

1. Two categories of contravention were alleged. The first were alleged contraventions of s 69C of the Safety Act 1999. The second were contraventions of sub-regulation 156(3) of the General Regulation 2005.

1. This Court was advised that the relevant form of s 69C of the Safety Act 1999 was as follows:

"69C Vehicles to be speed limited

(1) The responsible person for a vehicle to which this Division applies is guilty of an offence unless the vehicle is speed limiter compliant when the vehicle is being driven on a road or road related area.

Maximum penalty: 30 penalty units (in the case of an individual) or 150 penalty units (in the case of a corporation).

(2) In proceedings for an offence under this section, proof that the vehicle concerned was driven on a road or road related area at a speed of more than 115 km/h is admissible and is prima facie evidence that the vehicle was not speed limiter compliant at the time that it was travelling at that speed.

(3) It is a defence to a prosecution for an offence under this section if the defendant proves:

(a) that the vehicle was, at the time of the alleged offence, a stolen vehicle or a vehicle illegally taken or used, or

(b) that the vehicle is speed limiter compliant and that, at the time it was travelling at a speed of more than 115 km/h, the gradient of the length of road or road related area along which the vehicle was being driven at or immediately before that time, combined with the speed at which the vehicle was travelling on that length of road or road related area, caused it to be driven at more than 100 km/h despite the vehicle being speed limiter compliant.

(4) In proceedings for an offence under this section, it is no defence that the defendant had a mistaken but reasonable belief as to the facts that constituted the offence.

1. Section 69A defined the phrase "speed limiter compliant" as meaning, in relation to a vehicle, the speed at which the vehicle is capable of being driven is limited in the manner prescribed in certain regulations "to not more than 100km/h". The phrase "responsible person" was defined in s 6 of the Road Transport (General) Act 2005 (NSW) (the "General Act"). It suffices to state that in relation to the vehicles in question, it included Damorange.

1. Lawrence Splatt and Scott Splatt were said to bear responsibility for the offences under s 69C by the operation of s 178 of the General Act, which operated to extend criminal responsibility in some circumstances to, inter alia, persons who were concerned in the management of the corporation in question.

1. This Court was advised that at the relevant times the maximum penalty for an offence under s 69C was $13,750 in the case of a corporation such as Damorange, and $3,330 in the case of individuals such as Lawrence Splatt and Scott Splatt.

1. This Court was also advised that the relevant form of reg 156 of the General Regulation 2005 was as follows:

"156 Duty to ensure offences are not committed

(1) In this clause:

speeding offence means an occurrence in which the driver of a vehicle drives the vehicle in excess of any speed limit that applies to the vehicle.

(2) This clause applies to:

(a) the employer of an employed driver of a vehicle, and

(b) the prime contractor of a self-employed driver of a vehicle, and

(c) the operator of a heavy vehicle if the driver of the vehicle is to make a journey in the vehicle for the operator.

(3) A person to whom this clause applies commits an offence if, at any time that a driver of a vehicle, or a vehicle, is subject to the person's control, the driver commits a speeding offence while driving the vehicle.

Maximum penalty:

(a) in relation to a level 1 offence:

(i) in the case of an individual - 10 penalty units, or

(ii) in the case of a corporation - 50 penalty units, or

(b) in relation to a level 2 offence:

(i) in the case of an individual - 20 penalty units (in the case of a first offence) and 50 penalty units (in the case of a second or subsequent offence), or

(ii) in the case of a corporation - 75 penalty units (in the case of a first offence) and 125 penalty units (in the case of a second or subsequent offence), or

(c) in relation to a level 3 offence:

(i) in the case of an individual - 50 penalty units (in the case of a first offence) and 100 penalty units (in the case of a second or subsequent offence), or

(ii) in the case of a corporation - 125 penalty units (in the case of a first offence) and 250 penalty units (in the case of a second or subsequent offence).

(4) Despite subclause (3), a person is not liable under that subclause if the vehicle was a combination, and neither the driver nor the towing vehicle was subject to the person's control.

(5) The levels of offence referred to in subclause (3) are to be determined using the following table:

Penalty level

Speed limit at the place where the speeding offence occurred	Type of heavy vehicle	Recorded speed of <15 km/h above speed limit	Recorded speed >15 km/h above speed limit
50-60 km/h	All	Level 1	Level 1
70-80 km/h	All	Level 1	Level 2
90 km/h	Road trains (where speed limited to 90 km/h)	Level 2	Level 3

Penalty level

Speed limit at the place where the speeding offence occurred	Type of heavy vehicle	Recorded speed of <15 km/h above speed limit	Recorded speed >15 km/h above speed limit
90 km/h	Non-road trains	Level 1	Level 2
100 km/h	Non-road trains heavy combinations	Level 2	Level 3
>100 km/h	Non-combination heavy vehicles	Level 2	Level 3

(6) It is a defence to an offence under this clause if the accused person establishes that:

(a) the person did not know, and could not reasonably be expected to have known, of the conduct that constituted the offence, and

(b) either:

(i) the person took all reasonable steps to prevent that conduct from occurring, or

(ii) there were no steps that the person could reasonably have been expected to have taken to prevent that conduct from occurring.

(7) For the purposes of this clause:

(a) it is irrelevant whether the driver has been, or will be, charged with the speeding offence, or has been, or will be, convicted of the speeding offence, and

(b) evidence that the driver has been convicted of the speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the charge that resulted in the conviction, and

(c) evidence that the driver has paid the infringement penalty sought by an infringement notice for a speeding offence is evidence that the offence occurred at the time and place, and in the circumstances, specified in the infringement notice."

1. It can be seen that reg 156(3) identifies a different maximum alternative for companies and individuals in respect of Level 2 and Level 3 offences depending upon whether it was the first offence or a "second or subsequent offence".

1. This Court was advised that in the case of a corporate offender such as Damorange, the maximum penalty for an offence under reg 156(3) at Level 2 was $8,250 or $13,750, and at Level 3 was $13,750 or $27,500 depending upon whether it was a first offence or a second or subsequent offence (see subclauses 156(3)(b)(ii) and 156(3)(c)(ii)).

1. In the case of individuals such as Lawrence and Scott Splatt, this Court was advised that the maximum penalty for an offence under sub-regulation 156(3) at Level 2 was $2,200 or $5,500, and at Level 3 was $5,500 or $11,000, again depending upon whether it was a first offence or a second or subsequent offence (see subclauses 156(3)(b)(i) and 156(3)(c)(i)).

1. I will address the means of ascertaining what was a first offence on the one hand or a "second and subsequent" offence on the other when addressing ground three of the appeal.

1. Otherwise, if it is not already apparent, it should be noted that the legislative regime providing for these offences was complex. It has been amended significantly over time. The end result was that any judicial officer hearing a case under these provisions was entitled to expect a great deal of assistance from the parties, and especially the prosecution, in relation to the operation of the legislation in question. As I will explain, something went wrong in that process.

The hearing

1. The hearing of the charges against the three defendants was fixed for 23 September 2013. It was estimated that they would occupy two to three weeks of hearing time. At the commencement, counsel for the plaintiff opened and outlined the legislative structure in detail. At some point the proceedings were adjourned to the next day to allow the defendants to consider their position. When the proceedings resumed the next day the Local Court was advised that certain charges were to be withdrawn but that, in respect of 249 charges, the defendants would enter pleas of guilty.

1. The Local Court was provided with various schedules reflecting that position. A statement of facts was tendered, the relevant parts of which read as follows

"2 Conduct

2.1 At all material times, Damorange Pty Limited was the registered operator of heavy vehicles (the Heavy Vehicles) prescribed by clause 139 of the Road Transport (Safety and Traffic Management) Regulation 1999 as vehicles to which Division 2A of the Road Transport (Safety and Traffic Management) Act 1999 applies. Damorange Pty Limited was therefore the Responsible Person for those Heavy Vehicles.

2.2 At all material times, Damorange Pty Limited was also the corporation responsible for controlling or directing the operations of the Heavy Vehicles and was therefore the Operator of those Heavy Vehicles.

2.3 In the period 11 February 2011 to 20 March 2012 the Heavy Vehicles were, on 179 separate occasions, driven on the road at a speed which exceeded the speed limit applicable to the Heavy Vehicles.

2.4 On each of those 179 occasions the Heavy Vehicles were driven by a driver making a journey for Damorange Pty Limited and those drivers were subject to the control of Damorange Pty Limited.

2.5 On those 179 occasions, the speed recorded for the Heavy Vehicles ranged from 108.7km/h to 137km/h. On 40 of those 179 occasions, the speed recorded for the Heavy Vehicles exceeded 115k/h.

2.6 The 179 speeding incidents were detected at only 22 different locations.

2.7 The measurement of the speed of the Heavy Vehicles was obtained:

(a) on more than 150 occasions by the use of the approved speed measuring device known as a Transportable Infra Red Traffic Logger (TIRTL) at Safe-T-Cam sites;

(b) on 21 occasions by the use of the approved speed measuring device known as a TIRTLE at Point to Point sites; and

(c) on 19 occasions by the use by the NSW Police Force of a Lidar or Radar approved speed measuring device

2.8 On the 40 occasions when the speed of the Heavy Vehicles exceeded 115km/h, the Heavy Vehicles were not speed limited compliant.

2.9 Each of the defendants knew or could be expected to have known of the conduct referred to above because, at least:

(a) on the 19 occasions when the speed of the vehicles was obtained by the use of the NSW Police Force Lidar or Radar, a penalty notice was issued by the NSW Police Force to the driver of the relevant Heavy Vehicle. 7 such notices were issued before any of the balance of the speeding incidents occurred. The remaining 12 were issued in May 2011 (3), August 2011 (1), January 2012 (2), and February 2012 (6);

(b) Heavy Vehicles of Damorange are fitted with GPS tracking devices;

(c) Damorange Pty Limited had been sent notices pursuant to the Roads and Maritime Services 'Three Strikes Warning Notice Scheme' informing it that its Heavy Vehicles had been detected exceeding the speed limit by 15km/h or more; no truck was deregistered as a consequence;

(d) Damorange Pty Limited kept a register of non-conformance reports in relation to conduct by its drivers; and

(e) 13 speeding incidents occurred in February and March 2012 following a widely reported incident which occurred on 24 January 2012, involving a vehicle of a unrelated company, in which a speeding heavy vehicle was involved in a collision that resulted in the deaths of three people at Menangle.

2.10 Damorange has produced to Roads and Maritime Services some manuals and other policies and procedures in place to govern the speed management of drivers under the control of Damorange.

2.11 Those policies and procedures were either inadequate to prevent drivers controlled by Damorange Pty Limited exceeding the applicable speed limit for the Heavy Vehicles or the defendants ignored them.

2.12 The defendants did not take reasonable steps to prevent the conduct referred to above from occurring.

3 The offences

3.1 The offences committed by the defendants are as follows:

(a) 170 offences by Damorange Pty Limited under clause 156(3) of the Road Transport (General) Regulation 2005 in that Heavy Vehicles subject to the control of Damorange were driven in excess of the speed limit applicable to the Heavy Vehicles.

(b) 10 offences by Damorange Pty Limited under section 69C of Road Transport (Safety and Traffic Management) Act 1999 in that the Heavy Vehicles, for which Damorange Pty Limited was responsible, were driven on a road and were not speed limiter compliant.

(c) 33 offences by Lawrence Shane Splatt (Director) constituted by:

(i) 23 offences contrary to clause 156(3) of the Road Transport (General) Regulation 2005 in his capacity as a director of Damorange Pty Limited pursuant to section 178 of the Road Transport (General) Act 2005; and

(ii) 10 offences contrary to section 69C of the Road Transport (Safety and Traffic Management) Act 1999 in his capacity as a director of Damorange Pty Limited pursuant to section 178 of the Road Transport (General) Act 2005.

(d) 35 offences by Scott Lawrence Splatt (Manager) constituted by:

(i) 25 offences contrary to clause 156(3) of the Road Transport (General) Regulation 2005 n his capacity as a manager for Damorange Pty Limited pursuant to section 178 of the Road Transport (General) Act 2005; and

(ii) 10 offences contrary to section 69C of Road Transport (Safety and Traffic Management) Act 1999 in his capacity as a manager for Damorange Pty Limited pursuant to section 178 of the Road Transport (General) Act 2005."

It was common ground before this Court that the reference to "170 offences" in subparagraph 3.1(a) of this extract was erroneous. It should have referred to 171 offences. His Honour dealt with all the charges to which pleas were entered.

1. The parties then tendered further material. This included a schedule of professional costs of the plaintiff and affidavits from Lawrence Splatt and Scott Splatt. In his affidavit Lawrence Splatt explained the operations of Damorange and the involvement of the Splatt family in its business. He also explained the efforts undertaken to comply with the speed limiting requirements in the road safety legislation. He stated that Damorange had suffered significant harm to its business as a result of certain publicity which had falsely suggested that had it been "raided by RMS", whereas the charges had only arisen out of an audit of its affairs. Both he and Scott Splatt expressed regret at the commission of the offences.

1. As I will further explain, as part of the process of making submissions reference was made to the applicable maximum penalties for the offences and the jurisdictional limit on the penalties that could be imposed by the Local Court.

The Sentencing Judgment

1. After submissions concluded, the presiding Magistrate gave ex tempore reasons imposing sentence. In those reasons his Honour briefly described the background to the proceedings and identified the legislative provisions that had been contravened. His Honour then adverted to the maximum penalty and the relative seriousness of the offences, stating as follows:

"There are many matters before me in terms of breaches. The maximum penalty which the Court looks to determine the seriousness of the offences is set by [P]arliament of course and it indicates the nature of the offence and, as I have said, the seriousness of it. Each of these offences involves fines of well over $1,000. Some are $11,000, some are less, but they are in their thousands for each of offence. It needs little for the Court to record but I will; that speeding heavy vehicles contribute to danger on the highways, not only to the driver of the heavy vehicles but to other innocent people who use our highways. That is fairly axiomatic and there is little doubt that this is the reason for the chain of command, if I may use that expression, that has been placed in the legislation, to not only stop the original speeding driver, but to place responsibility upon those who own or operate these heavy vehicles."

Consistent with the tenor of those observations, his Honour later referred to these offences as "serious matters" and referred to the "seriousness of the offences".

1. The presiding Magistrate then described the procedural history of the charges. His Honour noted that there had been a dispute as to whether the plaintiff was required to provide, or at least should have provided, a prosecution brief of evidence in advance of the hearing. The relevance of this was to his Honour's assessment of the appropriate discount for the utilitarian value of the defendant's plea of guilty. The defendants contended that they could not have been expected to enter a plea until they had been apprised of the material relied on by the prosecution, especially the expert evidence. In his judgment his Honour acknowledged the "difficulties faced by the defence" and concluded that "some discount should be afforded to the defendants to give credit to the fact that there [was] now only going to be two days as opposed to fourteen days allocated to the hearing of the case". His Honour quantified that discount at 20 per cent.

1. Next his Honour adverted to the deterrent and denunciatory effects of sentences that should be imposed stating:

"There has to be consideration not only of denunciatory-type penalties and in a specific way but also as a general message to those persons involved in the industry of heavy vehicles transport, given what I said in terms of the maximum penalty and the need for public safety."

1. His Honour then referred to the affidavits read on behalf of the defendants. His Honour found that the defendants "well appreciate the seriousness of the offences" and they had "taken appropriate steps in the Court's view to address the obvious problems that existed when these offences occurred". His Honour noted that the defendants had no record of previous convictions. His Honour stated that, given the size and operations of Damorange as well as the period over which it conducted its business "one might have expected, if there was a deliberate attempt by the defendant company to flout the law upon a continual basis over the years, there would have been ... an encyclopaedia of offences but there is nothing".

1. Ultimately his Honour convicted each defendant. In respect of Damorange his Honour fined it $300 for each breach of reg 156(3) at Level 3, $200 for each breach of reg 156(2) at Level 2 and $300 for each breach of s 69C. In the end result, Damorange's fines totalled just over $40,000.

1. Lawrence Splatt was fined $150 for each offence under reg 156(3) at Level 3, and $200 for each offence under s 69C. These fines totalled $5,450.

1. Scott Splatt was ordered to pay a fine of $150 for each offence under reg 156 at Level 3, $100 for each offence under reg 156 at Level 2 and $200 for each offence under s 69C. These fines totalled $4,950.

1. Damorange was ordered to pay the plaintiff's professional costs, which his Honour assessed at $52,000.

Nature of the appeal

1. Subsection 56(1) of the Review Act provides:

"56 Appeals as of right

(1) The prosecutor may appeal to the Supreme Court against:

(a) a sentence imposed by the Local Court in any summary proceedings, or

(b) an order made by the Local Court that stays any summary proceedings for the prosecution of an offence, or

(c) an order made by the Local Court dismissing a matter the subject of any summary proceedings, or

(d) an order for costs made by a Magistrate against the prosecutor in any committal proceedings, or

(e) an order for costs made by the Local Court against the prosecutor in any summary proceedings,

other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone." (emphasis added)

1. The powers of the Court when determining appeal against sentence imposed by the Local Court under s 56(1)(a) are specified in s 59(1) which provides:

"59 Determination of appeals

(1) The Supreme Court may determine an appeal against sentence:

(a) by setting aside the sentence, or

(b) by varying the sentence, or

(c) by dismissing the appeal."

1. These powers are, to an extent, narrower than the powers of the Court when hearing an appeal under the other subparagraphs of s 56(1). Section 59(2) provides:

"(2) The Supreme Court may determine an appeal against an order referred to in section 56 (1) (b), (c), (d) or (e) or 57 (1) (b) or (c):

(a) by setting aside the order and making such other order as it thinks just, or

(b) by dismissing the appeal."

1. As I will explain, the qualification on the right of appeal conferred by subsection 56(1) to an appeal "only on a ground that involves a question of law alone" is of particular significance to this case. However, at the outset it should be noted there is a significant tension between s 56(1)(a) and the restricted nature of the relief that can be ordered under s 59(1).

1. In a number of decisions the Court of Appeal has held that an appeal to that Court restricted to questions of law, does not enable that Court to make findings of fact if legal error is established (see, for example, the cases cited in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 at [83] to [87]) ("Thaina Town"). In Thaina Town, Spigelman CJ, with whom Mason P, Beazley, Giles and Ipp JJA agreed, held that the Court of Appeal can, on an appeal on a question of law, exercise a discretionary power vested in the body appealed from when no further factual findings were required (at [102] to [104]). In so stating, the Court in Thaina Town overruled an earlier authority (Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78, 51 NSWLR 673) ("Maurici") which appeared to preclude the exercise of such discretionary powers, but nevertheless affirmed its status so far as it held that the Court of Appeal was precluded from making findings of fact (Thaina Town at [110]). Maurici was a case in which s 75A of the Supreme Court Act 1970 (NSW) was available to be invoked by the Court of Appeal, if it was otherwise applicable.

1. It is not entirely clear whether s 75A was of significance to the conclusion of the Court of Appeal in Thaina Town that the reviewing court could exercise the discretion of the court below where no findings of fact were required (see [94] to [102] and [110]). The relevance of that observation is that s 75A has no application to proceedings under the Review Act (see s 75A(3)(a)).

1. The end result is that a jurisdiction conferred in the terms of s 56(1) of the Review Act would not ordinarily be construed to enable this Court to make findings of fact where the Court was satisfied that the Local Court had answered a question of law incorrectly, and that there may be reason to doubt that it would enable the re-exercise of the discretion conferred on the Local Court.

1. However, the difficulty is that s 59(1) of the Review Act does not include a power to remit the proceedings to the Local Court (cf s 59(2)(a)). It will often be the case that the correction of a legal error in the sentencing process will not of itself mandate a particular result or outcome. In such a case and in circumstances where the Court does not appear to be able to remit the proceeding to the Local Court, then, subject to any discretionary reason not to, it seems inevitable that this Court will have to re-exercise the sentencing discretion so as to allow it to make an order under s 59(1)(a) or (b) (and possibly s 59(1)(c) if the outcome is the same as the Local Court at first instance). Thus, in this respect, s 59 appears to reinforce the conclusion in Thaina Town, even though s 75A has no application.

1. I note that this was the course adopted by Price J in Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Ltd [2008] NSWSC 936, 51 MVR 41 at [56] ff ("Fletcher"). Accordingly, I will act on the basis that the power to re-exercise the sentencing discretion is available. It is unnecessary to address the further question of what approach the Court would adopt if further factual findings were required.

1. In any event, the subject matter of the appeal is a question of law and a question of law alone (Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [33] per French CJ) ("Kostas"). The plurality judgment in Kostas at [88] suggests that caution should be exercised in attempting to chart the outer boundaries of such a jurisdiction divorced from the circumstance of the particular case. Their Honours also stated that it is not useful to undertake an analysis which compares and contrasts the formulation in s 56(1) with other phrases such as "appeals on a question of law" or appeals "with respect to a question of law" (cf HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [83] ff per Basten JA).

1. Bearing those observations in mind, three related propositions should be noted. The first is that an appeal on a ground that involves a question of law alone does not include a mixed question of fact and law (see R v PL [2009] NSWCCA 256 at [25] per Spigelman J ("PL (No 1)"). This distinction between a question of law alone and a mixed question of law and fact can often be difficult to identify, much less maintain.

1. This leads to the second proposition, namely that, ultimately it is incumbent on the parties contending that a question of law was decided erroneously, to identify the question and to do so in abstract terms. Thus in Williams v R [1986] HCA 88; 161 CLR 278 at 287 ("Williams"), Gibbs CJ stated:

"... there is 'a question of law alone' if the question of law can be stated and considered separately from the facts which it may be connected in a given case." (see also 314 per Wilson and Dawson JJ.)

1. If that task is undertaken, then the consequential questions that will arise are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome (see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 per Mason CJ; Mark Aronson and Matthew Groves Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013, at [4.270])).

1. This is illustrated by comparing the approach in PL (No 1) and the return of the same case to the Court of Criminal Appeal in R v PL [2012] NSWCCA 31 (PL (No 2)). Both appeals were brought under s 107 of the Review Act from directed acquittals. Appeals under s 107 are also restricted to grounds that involve a question of law alone. In PL (No 1) at [25] and [26], Spigelman CJ found that a ground of appeal alleged that the trial judge "erred in applying the principles applicable to the question of verdicts of acquittal" involved a mixed question of fact of law. His Honour stated (at [26]):

"Even if his Honour erred in applying the correctly stated principle, that process necessarily encompassed an assessment of the facts. The process of 'applying' a legal principle to the facts of a case involves a mixed question of fact and law, which, the Crown accepts, is not within s 107(2) [of the Review Act]."

1. When the same case returned to the Court of Criminal Appeal in PL (No 2) the Court of Criminal Appeal upheld a ground expressed in different terms, namely that "his Honour erred by misdirecting himself on the test of whether there is a case to answer" (at [3] and [40]). The relevant passage from the judgment of Bathurst CJ addressing that ground is as follows:

"36 It seems to me that the trial judge erred in law in two respects. First, his statement of the need for sufficient certainty implied an evaluation process of the weight of the evidence as distinct from a consideration of the question of whether the evidence taken at its highest could support a verdict of guilty. Second, and related to this issue, the trial judge reached his conclusion after evaluating alternative hypotheses which it was open to the jury to consider, contrary to the approach referred to above and in particular what was said by this Court in R v JMR supra at 44.

37 There remains the issue of whether the error of the trial judge was an error of law alone or an error of mixed fact and law. It was correctly accepted by the parties that the Crown was not entitled to appeal on a question of mixed fact and law. If what the trial judge did was to wrongly apply the correct principles to the facts, that would be an error of mixed fact and law and an appeal would not lie (see Smith v R (2000) 1 WLR 1644 at 1653).

38 The respondent contended that in the present case any error of the trial judge was an error of that nature and that at most the trial judge had wrongly concluded, in accordance with the correct principles, that there was not evidence on which a jury could convict, thereby committing an error of mixed fact and law.

39 Although support for this argument can be derived from the correct statement of the principles in the opening paragraphs of the judgment of the trial judge, it seems to me for the reasons set out above he failed to apply these principles in reaching his conclusion, in particular in his requirement of sufficient certainty and in his consideration of various hypotheses favourable to the accused. The trial judge in these circumstances in my view, applied incorrect principles to his consideration of the issue and thereby committed an error of law alone." (emphasis added)

1. The critical part of this extract is the reference in [39] to "incorrect principles". In effect, Bathurst CJ inferred, from the errors of the trial judge identified by his Honour in PL (No 2) at [36], that the trial judge had implicitly adopted, or assumed the existence of, "incorrect principles". This was so, even though in one part of the judgment, the trial judge had correctly enunciated the relevant legal test. This approach is an illustration of the proposition that Gibbs CJ in Williams at p 287 derived from the judgment of Nettlefold J in R v Jessop [1974] Tas SR 64 at 89, namely that: "[a] conclusion of mixed law and fact may be challenged under a provisions in the terms of s 401(2)(b) [of the Tasmania Criminal Code which conferred a right to appeal on a question of law alone] where that conclusion proceeds from a misdirection of law".

1. Thus in PL (No 2) the trial judge had implicitly decided or assumed that in considering an application for a directed verdict, a trial judge could evaluate the weight of the evidence adduced by the Crown rather than consider it at its highest and should evaluate alternative hypotheses which it was open for the jury to consider (PL (No 2) at [36]). Both propositions were wrong in law.

1. The third and related proposition is that to identify an "error" on the part of the Local Court in the exercise of its discretion in sentencing in terms that amount to an error of the kind identified in House v R [1936] HCA 40; 55 CLR 499 at 504 ("House"), does not of itself answer the question posed by s 56(1) of the Review Act as to whether that court answered a question of law alone incorrectly, or otherwise made an assumption as to the existence of a legal principle which was wrong.

1. Much of the plaintiff's submission in this case invoked the language employed in House, and by the Court of Criminal Appeal when it determines sentence appeals. In the case of the latter, neither the Court of Criminal Appeal's jurisdiction to hear an appeal against sentence, or its power to intervene in respect of a sentence, is defined by, or predicated upon, the presence of an incorrectly decided question of law (see Criminal Appeal Act 1912 (NSW), s 5(1)(c) and s 5D). In the case of the former, the classic passage from House at 504 makes it clear that the stated circumstances in which a discretionary judgment of a lower court will be interfered with are where the appeal is "a full one on law and fact". Thus the High Court stated:

"The appeal is a full one on law and fact (Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [...]; R. v. Hush; Ex parte Devanny [...]). But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow [...]). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff [...]). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar [...]). See, further, Skinner v. The King [...] and Whittaker v. The King [...]."

1. Clearly some of the errors in the exercise of a discretion identified in this passage are capable also of being agitated on appeal restricted to a question of law alone. Thus, if it was apparent that the court had acted on a "wrong principle", then the question of law would be whether that principle was wrong or correct and, if wrong, whether the trial judge acted on that principle and whether that materially affected the outcome.

1. The position is less straightforward if it is only demonstrated that the lower court failed to take into account some material consideration, or allowed extraneous or irrelevant material to guide it. In such a case the reviewing court would have to consider whether it could be inferred from that circumstance that the lower court acted on an incorrect principle by a process similar to that undertaken by Bathurst CJ in PL (No 2).

1. The other form of error identified in the passage from House, namely, that based upon the facts a decision is "unreasonable or plainly unjust", is of significance to this the appeal. As the balance of that passage makes clear, its equivalent in a case of sentence appeals is a complaint that the sentence is "manifestly wrong", or in modern parlance, "manifestly inadequate" or "manifestly excessive" (see Barbaro v R [2014] HCA 2 at [26]).

1. In David Morse (Office of the State Revenue) v Chan [2010] NSWSC 1290, Schmidt J determined an appeal against the sentence under s 56 of the Review Act. Her Honour declined to act on the agreed position of the parties that "manifest inadequacy of sentence was [itself] an error of law" (at [5]). Instead her Honour found that an "appeal as to the inadequacy of a sentence imposed does not necessarily raise a question of law alone, as the parties argued" (at [39]). Her Honour referred to the sentencing exercise as involving the "instinctive synthesis" described in Markarian v R [2005] HCA 25; 228 CLR 357 ("Markarian"), and explained (at [40]):

"Determining the particular sentence to be imposed by this instinctive synthesis requires both a consideration of the facts proven, as well as the statutory provisions and common law principles pursuant to which the sentencing task must be undertaken. It follows that if a manifestly inadequate sentence is imposed, that may be the result of either errors of law, or errors of fact, or errors of mixed law and fact. It is only errors of law alone which may be raised on appeal to this court under s 56."

1. Subject to the possible qualification of the approach in PL (No 1), by the approach adopted in PL (No 2) that I have discussed above, I agree with her Honour.

1. Consistent with House, a conclusion that the exercise of judicial discretion was unreasonable or plainly unjust, may enable the appellate court to infer that there was error, but it does not necessarily enable the appellate court to infer that the error was one that involved the lower court applying or adopting a wrong legal principle. In cases such as these it will often be a distraction to attempt to label a sentence appealed from manifestly inadequate or excessive. Instead, it will simply remain the task of the relevant appellant to isolate the question or law or legal principle that the lower court adopted or assumed and then demonstrate that it was wrong and material to the outcome before questions of relief arise.

1. Finally, if it is not otherwise obvious, it needs to be emphasised that the limitations on an appeal under s 56(1) are such that the section does not constitute a mandate to this Court to ensure consistency in sentencing for similar offences by magistrates across New South Wales. This is not the function of intermediate courts of appeal either. Instead, their role is to seek "consistency in the application of legal principles, not some numerical or mathematical equivalence" (see Hili v R [2010] HCA 45; 242 CLR 520 at [18]). A fortiori, on appeals of this kind this Court's function is even more limited, namely, to identify and correct legal error.

Ground 1: Manifest inadequacy of the sentence

1. Ground 1 of the appeal was stated in the plaintiff's written submissions as follows:

"By imposing sentences at the bottom of the available range the learned Magistrate failed to give effect to his factual finding that the sentences were 'serious' and warranted 'denunciatory type penalties'."

This ground encompassed each of sub-paragraphs 11(a) to (d) of the plaintiff's amended summons.

1. Consistent with the formulation of this ground, during oral argument repeated reference was made to the fact that the sentence in this case was an example of a residual category of error referred to in House, namely one where the result was unreasonable.

1. It follows from the above discussion that this complaint does not identify a question of law alone. Further, in and of itself it does not imply there was any incorrect principle of law adopted by the presiding Magistrate.

1. The essence of this complaint concerns the apparent discrepancy between the acknowledged seriousness of the offence and its maximum penalty on the one hand, and the asserted leniency of the result on the other. Various calculations were set out in the plaintiff's written submissions, which indicated that the fines imposed for all the offences was not greater than 2.4% of what his Honour was advised was the maximum. Yet, subject to one matter, neither in the written submissions nor oral submissions was there any identification of an incorrect legal principle said to have been adopted by his Honour. Thus, for example, it was asserted:

"By imposing sentences at the bottom of the available range, the [Magistrate] failed to have due or any regard to his factual characterisation of the offences.

It appears that his Honour can have attached little weight to general deterrence, even though he referred to this concept. The failure to attached greater weight to deterrence, where some breaches were in the highest category, ("Level 3") was an error of law."

Submissions which are couched in terms of his Honour failing to have "due or any regard" or only attaching "little weight" to a particular matter do not assert legal error.

1. The one matter of exception in relation to this ground was a contention that his Honour misconceived the significance of the maximum penalty to the overall sentence to be imposed (see Markarian at [30] to [31], per Gleeson CJ, Gummow, Hayne and Callinan JJ). This contention needs to be distinguished from the third ground, which alleges that his Honour acted upon a legal misconception as to what the maximum penalty was.

1. If a sentencing judge was to approach the sentencing exercise on the basis that the maximum sentence was irrelevant, then that would undoubtedly constitute an error of law. The question of law that would arise would be "what is the relevance of the maximum sentence in the exercise of a discretion to impose a sentence?" In such a case the sentencing court would have answered that question, or assumed that the answer to that question, was "none" and in doing so would have erred.

1. However, there is no basis for assuming that his Honour took that approach in this case. Allowing for the fact that the reasons were delivered ex tempore, the opening words in the passage that I have set out above (at [21]), clearly indicate that his Honour was properly cognisant of the significance of the maximum penalty to the sentencing exercise.

1. Finally, I note that one part of the plaintiff's written submission on these grounds refers to the fact that on the day the pleas were entered, the presiding Magistrate expressed a desire to complete the matter that day. The submissions asserted that the plaintiff did not have time to consider the affidavits that were read by the defendants. The relevance, if any, of this contention on this ground was not made clear, although there is a bare assertion that the "magistrate's undue haste must have affected his sentencing task". For my part, I do not accept the assertion that there was undue haste but, in any event, I do not see how that assertion adds to this ground. The presiding Magistrate either acted on a wrong legal principle or he did not. At least so far as this ground is concerned, I am not satisfied that his Honour did.

1. I reject ground 1.

Ground 2: Incorrect characterisation of sub-clause 156(3) offences as "minor speeding offences"

1. The plaintiff's written submissions describe ground 2 of the appeal as follows:

"The learned Magistrate misapprehended the legislative scheme in that he incorrectly characterised the offences against clause 156(3) as 'minor' speeding offences."

1. This ground corresponded with sub-paragraph 11 (e) of the amended summons. Sub-paragraph 11 (f) made the same complaint in relation to the offences under s 59C of the Safety Act. It is not clear whether that sub-paragraph of the summons was being pressed but, for the sake of caution, I will assume it was.

1. As articulated, this complaint does not appear to raise a question of law. In any event, I do not consider it has any substance. I have already set out the relevant passages from the presiding Magistrate's judgment in which his Honour repeatedly referred to the "seriousness of the offences" (see [21]).

1. The plaintiff seeks to impugn those statements by relying on two exchanges between counsel and the Bench during the course of the proceedings. The first occurred when the matter was called on the first day. After appearances were announced, his Honour stated "[a]ll right now, these are all separately minor matters, speeding matters". This statement was made before his Honour was apprised of anything concerning the case, including the legislative regime that was applicable to the charges. It is most likely that the only material before his Honour at that point was the charge sheets.

1. The second exchange occurred after lunch on the first day when the defendants sought an adjournment to consider their position in relation to whether to enter a plea. His Honour acceded to the application and stated that he would, instead, hear applications in other cases that afternoon. The following exchange then occurred:

"HIS HONOUR: It's not the most complicated case. It is in terms of all the different sections, and trying to prove the ... accuracy of these instruments, but at the end of the day it's just a group of speeding matters and, you know, we do them every day, speeding matters.

[COUNSEL FOR THE PLAINTIFF]: Factually it is not complex.

HIS HONOUR: No."

1. There is no warrant for using exchanges between counsel and a judicial officer of this kind as a basis for impugning the reasons for sentence. One of the obvious purposes of dialogue between Counsel and the Bench is to allow any misapprehension on the part of either to be corrected. It is also quite common for a judicial officer to raise a proposition with Counsel that they later find to be incorrect.

1. In this case, the first exchange occurred, as I have said, before his Honour had heard anything about the case. The exchange should also be seen in the context of a court that deals with an array of criminal offences, some of which are undoubtedly more heinous than those under present consideration.

1. The second exchange is of no significance whatsoever. His Honour was addressing the factual complexity of the case, not the seriousness of the charges. His Honour was doing so as part of a discussion as to the most efficient progress of this case in light of the defendant's request for more time, and the demands that were being made on the court by other litigants. In any event, counsel for the plaintiff agreed with his Honour's assessment as to the complexity of the matter.

1. I reject ground 2.

Ground 3: Incorrect maximum penalty and jurisdictional limit

1. Ground 3 contends that his Honour failed to apply clause 167 of the General Regulation 2005 in treating all of the offences under reg 156 (3) as though they were first offences. This ground reflects sub-paragraph 11(g) of the summons. This ground does not concern the s 69C offences.

1. This Court was advised that the applicable form of clause 167 was as follows:

"167 Provisions relating to first offences and second or subsequent offences

(1) This clause determines whether, for the purposes of this Part, an offence is:

(a) a first offence, or

(b) a second or subsequent offence.

(2) A person is found guilty of a second or subsequent offence if, and only if, the occasion when the second or subsequent offence occurred:

(a) was different from the occasion when the first offence for which the person was found guilty occurred, and

(b) was within 3 years of the occasion of the first offence.

(3) The order in which the offences were committed is irrelevant.

(4) It is also irrelevant whether or not the offences were subject to the same penalties.

(5) If the court is satisfied that a person is guilty of an offence but cannot determine (from the information available to the court) whether the offence is a first offence for which the person was found guilty, the court may only impose a penalty for the offence as if it were a first offence.

(6) When determining whether a person has previously been found guilty of an offence under this Part, the court must have regard to a finding of guilt for an offence committed under corresponding provisions of a corresponding law."

1. In Fletcher Price J considered s 96 of the General Act 2005 which, for present purposes, was not relevantly different to reg 167. His Honour held that the word "occasion" in the equivalent provision to reg 167(2) was a reference to the "... incident giving rise to the prosecution" and not to the "occasion" of the prosecution (at [58]). The consequence of that construction is that where a person, such as one of the defendants, with no record of previous convictions, are prosecuted for multiple offences under sub-clause 156(3), then the offence which was first in time to be committed is to be treated as "a first offence" and the balance of the offences are to be treated as second and subsequent offences for the purposes of determining the applicable maximum. Senior Counsel for the Defendants, Mr Hodgkinson SC, did not seek to argue to the contrary of Price J's construction in Fletcher, or that that construction was not applicable to reg 167(2).

1. The next issue that arises is whether his Honour acted on an understanding to the contrary of this construction of reg 167 in its application to reg 156. In the passage that I have referred to above, his Honour clearly identified the significance of maximum penalties, although his Honour did not specify what they were. Further, in the course of submissions, counsel for the plaintiff told his Honour that "even though there is more than one offence, you don't treat then as subsequent offences because they are all being dealt at the one time". The significance of the fact that the source of any error was a statement made on behalf of the plaintiff is a matter to which I will return.

1. At this point it suffices for me to conclude that this ground clearly raises a question of law, namely, what was the applicable maximum for all of the offences under reg 156 (3) other than the first in time? His Honour acted on a basis that assumed an incorrect answer to that question and that that error was material to the outcome, in that his Honour's reasons reveal an appreciation by his Honour of the proper significance to be attached to maximum penalties. Again, to this point, Mr Hodgkinson SC did not argue to the contrary.

1. Before addressing the consequences of this conclusion, it is necessary to mention a further error that was first mentioned during oral argument in this Court. During submissions in the Local Court both counsel advised his Honour that the "jurisdictional limit" in respect of the fine that could be imposed in that Court for both sets of offences was $11,000. This submission appears to reflect an understanding that both offences fell within s 180(2)(b) of the General Act as in force at that time.

1. This Court was advised that the applicable form of s 180 was as follows:

"180 Proceedings for offences

(1) Proceedings for an offence against the road transport legislation are to be dealt with summarily before the Local Court or the Supreme Court in its summary jurisdiction.

(2) The maximum monetary penalty that may be imposed by the Local Court for an offence under a provision of this Act is;

(a) in the case of an offence under Chapter 3 or under a regulation made under section 11B or 11C - 500 penalty units or the maximum monetary penalty provided for the offence, whichever is less, or;

(b) in any other case - 100 penalty units or the maximum monetary penalty provided for the offence, whichever is less."

1. Consistent with his duty to the Court, Mr Hodgkinson SC queried whether the joint position presented to the Local Court was correct insofar as the offences under reg 156(3) were concerned. This is so because it appears that reg 156 (3) was a regulation made "under section 11C" in which case the limit of the Local Court's jurisdiction was not $11,000, that is 100 penalty units, but either 500 penalty units or the maximum monetary penalty provided for the offence, whichever is less, which in this case would be $27,500 (s 180(2)(a)).

1. Section 11C, and various cognate amendments, were introduced into the General Act by the Road Transport Legislation Amendment Act 2008 (NSW). It provided:

"11C Regulations relating to speeding compliance

(1) Regulations may be made for or with respect to the management and prevention of speeding in connection with heavy vehicles or heavy combinations.

(2) Without limiting subsection (1), regulations may be made for or with respect to the following:

(a) the duties of employers of drivers of heavy vehicles and heavy combinations, prime contractors, schedulers, operators, consignors and consignees,

(b) the duties of other persons who make use of or engage in activities involving the use or operation of heavy vehicles or heavy combinations or who may do so.

(3) A regulation made under this section may create an offence punishable by a penalty not exceeding 250 penalty units.

(4) This section is in addition to, and does not limit, any other regulation-making power contained in this Act or any other applicable road law."

1. The regulation introducing reg 156 was made within a few months of the enactment of s 11C (see Road Transport (General) Amendment (Heavy Vehicle Driver Fatigue and Speeding Compliance) Regulation 2008 (NSW)).

1. In these circumstances it is difficult to escape the conclusion that an offence under reg 156(3) is an offence under a regulation made under s 11C. I so find. Thus, to this point, it can be concluded that a question of law arose in the proceedings in the Local Court, namely, what was the jurisdictional limit of that Court in dealing with offences under reg 156(3)? It can also be concluded that, in respect of some of the offences, the Local Court proceeded on the basis of an incorrect answer to that question, firstly, because it was so told and, secondly, because it has adverted to that jurisdictional limit in the passage that I have noted above (at [21]).

1. However, was any such error material in the sense that it could have affected the outcome? In determining the appropriate sentence for an offence, the Local Court was required to, and did, have regard to the maximum penalty. Further, it was required not to treat the jurisdictional limit as some form of modified or notional maximum. The jurisdictional limit is only engaged if the outcome of the sentencing process is such that the sentencing court considers that a sentence above the jurisdictional limit should be imposed. It was not argued in this Court that the Local Court had substituted its understanding of the jurisdictional limit for the maximum. In circumstances where the actual fines imposed were dramatically below any of the possible permutations concerning the calculation of the jurisdictional limit on the Local Court, I am satisfied that any misapprehension by his Honour about that limit did not relevantly affect the sentence that was imposed. It follows that this error can be put to one side.

1. I return to the error concerning the maximum penalty for the offences under reg 156(3). It was not disputed by either party that s 59 of the Review Act embodied a discretion in this Court to decline to intervene, even if a legal error was established. In Fletcher at [67], Price J referred to the Court as having a "lively discretion" to intervene. His Honour added that this extended to considerations of "double jeopardy", although that was doubted by Sully J in DPP v Wunderwald [2004] NSWSC 182 at [36].

1. It is unnecessary to resolve that debate because in this case there is a powerful consideration mitigating against the exercise of the discretion to intervene which does not involve any notions of double jeopardy, namely the fact that the cause of the error presently under consideration was a statement made to the Court by the plaintiff.

1. In R v JW [2010] NSWCCA 49; 77 NSWLR 7 at [92] to [93] Spigelman CJ stated:

"[92] Accordingly, conduct by the Crown with respect to sentence hearings and Crown appeals may be taken into account in exercising the discretion as to whether to intervene at all. Such matters are not, in my opinion, limited to considerations of double jeopardy. The responsibility of the prosecutorial authorities for the fair, just and proper administration of the criminal justice system is such that many forms of inappropriate or unfair conduct can be taken into account in the exercise of the power and discretion vested in a court.

[93] In this regard, I would include such matters as the contribution the Crown made to sentencing error by the sentencing judge and an attempt to conduct an appeal on a different basis to that advanced below. Both of these matters were identified in the judgment of R v Tait as manifestations of the double jeopardy principle ... I do not believe they are so restricted. Nor is the issue of delay in instituting a Crown appeal so restricted. As the Crown conceded in this court, each of these three matters do involve double jeopardy considerations, but they involve additional considerations. It is only resort to the former which s 68A proscribes." (emphasis added)

1. At the outset it needs to be emphasised that there is no suggestion that the incorrect statement that was made to the Court on this issue was either deliberately or even recklessly incorrect. There was a suggestion in the submissions that it occurred in circumstances where the prosecution was under time pressure because his Honour forced the matter on. There is no evidence to support this and it does not appear to be borne out by the relevant part of the transcript. I will not consider that further.

1. Mistakes happen in litigation. It is understandable that they can occur in the context of a complex regulatory regime. The critical question is always, what are the consequences of the mistake? The answer to that question is often nothing, but in this case, by its appeal, the plaintiff seeks to take advantage of its conduct in causing the mistake in circumstances where no other legal error has been established.

1. The emphasised passage from R v JW at [93] draws attention to the contribution made by the prosecutor to the "sentencing error". The passage does so because error is the basis of intervention. In this Court, counsel for the plaintiff referred to two cases where a discretion to re-sentence was not exercised because the Crown had apparently acquiesced in the ultimate sentence that was imposed (R v Allpass (1993) 72 A Crim R 561 and R v Jermyn (1985) 2 NSWLR 194). It was submitted that the plaintiff had not acquiesced in the sentence that was imposed by his Honour in this case. However, the cases that were referred to do not stand for any principle different to that stated in R v JW. In those cases the sentencing outcome was said to be the relevant error and it was argued that the sentence was manifestly inadequate. In this case, the relevant error is that which concerns the appropriate maximum penalty for most of the offences under reg 156(3).

1. In this case the prosecutor did not just contribute to the error, he caused it. The legislative provisions in question were not of the kind that many, or indeed any, judicial officer can be taken to be generally aware of (cf Crimes (Sentencing Procedure) Act 1999). Instead, it was understood by all that his Honour was exclusively reliant on counsel, especially counsel for the plaintiff, to bring to his attention the details of the intricate legislative regime that was engaged by the charges that had been laid.

1. In addressing the question of whether to exercise the discretion to intervene or to decline to intervene, both parties sought to have this Court address the underlying merits of the sentence that was imposed by his Honour. Thus Counsel for the plaintiff submitted that the Court should reconsider his client's complaints of manifest inadequacy and the like that were made under grounds one and two at the point of considering whether to intervene. Mr Hodgkinson SC submitted that the Court should have regard to the comprehensive consideration of the various sentencing criteria that his Honour engaged in, notwithstanding that the judgment was given ex tempore.

1. Contrary to both parties submissions, I do not consider that I should embark on any such exercise at this point. At the risk of repetition, I reiterate that this Court's role under s 56(1)(a) is restricted to identifying and answering questions of law that arise in sentencing proceedings in the Local Court. It is not the Court's function under this provision to embark upon an enquiry into the adequacy or even the manifest inadequacy of a Local Court sentence. As I have stated, if the Court decided to intervene it would do so and re-exercise the sentencing discretion afresh. It would only be in that incidental way that there would be some reflection by this Court on the merits of the sentences imposed by the Local Court. Beyond that, it is not the function of the Court on appeals of this kind to express views one way or another as to the merits of the ultimate sentence imposed by the Local Court.

1. In this case, there was legal error in his Honour's sentence. The error has been recognised. It is to be expected that any other court considering the sentence imposed by his Honour in this case will be cognisant of this Court's finding that it was affected by legal error. However, in circumstances where the only basis for intervention was solely caused by a statement made by the prosecutor to the court below, I consider that, as a matter of discretion, this Court should not intervene at that prosecutor's behest.

1. Accordingly, the Court orders that the appeal be dismissed.

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Decision last updated: 11 June 2014