David Morse (Office of State Revenue) v Chan - [2010] NSWSC 1290

No judgment structure available for this case.

CITATION: David Morse (Office of State Revenue) v Chan and Anor [2010] NSWSC 1290
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 October 2010

JUDGMENT DATE :
26 November 2010

JUDGMENT OF: Schmidt J

DECISION: Appeal dismissed.

CATCHWORDS: APPEAL AND NEW TRIAL - appeal - appeal on inadequacy of sentences imposed - sections 23 and 56 of the Crimes (Appeal and Review Act) 2001 - whether appeal raises a question of law alone - application of principle of totality - no question of law alone raised on this ground - application of s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 - no question of law alone raised on this ground - appeal as to manifest inadequacy of sentence may raise a question of law alone - whether error made in the interpretation of the Crimes (Sentencing Procedure) Act 1999 - construction of and interaction between s 10 and s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 - no error of law established - operation of s 21A(3)(i) - no error of law established - other arguments raised mixed questions of law and fact not available to be appealed under s 56 of the Crimes (Appeal and Review) Act 2001 - no manifest inadequacy of sentence shown - appeal dismissed

LEGISLATION CITED: Consumer, Trader And Tenancy Tribunal Act 2001
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Local Court Act 2007
Mental Health Act 2007
Mental Health (Forensic Provisions) Act 1990
Road Transport (General) Act 2005
Tax Administration Act 1996

CATEGORY: Principal judgment

CASES CITED: Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305
Carroll v R [2009] HCA 13; (2009) 254 ALR 379
Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
House v The King (1936) 55 CLR 499
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 84 ALJR 663
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
R v Butters [2010] NSWCCA 1
R v Engert (1995) 84 A Crim R 67
R v Helmsley [2004] NSWCCA 228
R v Israil [2002] NSWCCA 255
R v King [2004] NSWCCA 444; (2004) 150 A Crim R 409
R v Paris [2001] NSWCCA 83
R v Pearson [2004] NSWCCA 129
R v Piccin (No 2) [2001] NSWCCA 32
R v PL [2009] NSWCCA 256; (2009) 262 ALR 365
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1
R v Thomas [2007] NSWCCA 269
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Robalino v Idameneo (No 123) Pty Limited [2010] NSWCA 278
The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Limited [2008] NSWSC 936

PARTIES: David Morse (Office of State Revenue) - Plaintiff
Miranda Chan - First Defendant
His Honour Magistrate G Curran - Second Defendant

FILE NUMBER(S): SC 2010/93223

COUNSEL: Mr M Thangaraj SC - Plaintiff
Mr G Bellow SC - Defendants

SOLICITORS: Plaintiff - IV Knight, Crown Solicitor
Defendants - Athena Touriki Solicitors

LOWER COURT JURISDICTION: Local Court

LOWER COURT JUDICIAL OFFICER : Magistrate Curran

LOWER COURT DATE OF DECISION: 24 March 2010

- 49 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT J

FRIDAY, 26 NOVEMBER 2010

2010/93223 DAVID MORSE (OFFICE OF STATE REVENUE) v MIRANDA CHAN

JUDGMENT

1 HER HONOUR: By amended summons filed in August 2010, the plaintiff sought orders under s 59(1)(a) of the Crimes (Appeal and Review) Act 2001, setting aside the sentences imposed in prosecutions brought under s 178BB of the Crimes Act 1900 (now repealed) and remitting the matters to the Local Court to be determined according to law. In the alternative, orders in the nature of certiorari were sought, quashing the Local Court’s orders, or orders in the nature of mandamus, remitting the proceedings to the Local Court to be determined according to law.

2 At the hearing it was common ground between the parties that if the appeal were upheld, the Court should itself determine the sentence by exercising the power to vary the sentence granted in s 59(1)(a).

3 The offences in question were concerned with making false or misleading statements in order to obtain financial advantage for the defendant's daughter, under the first home owner’s scheme. The penalty imposed for each offence was a discharge under s 10 of the Crimes (Sentencing Procedure) Act 1999, subject to the defendant entering into good behaviour bonds on the condition that for a period of two years the defendant accept the guidance of a psychiatrist or psychologist, take medication as prescribed and attend counselling, rehabilitation or education development courses on medical advice. A treating psychiatrist was specified.

The appeal is limited to questions of law alone

4 On appeal the plaintiff’s case was that the penalty imposed was manifestly inadequate. It was argued that the ultimate question to be determined was whether the bottom of the range of sentences available for these offences, taking into account the defendant’s objective criminality and the subjective matters in evidence, was above and beyond a s 10 bond. It was the common view of the parties that the appeal raised an error which fell within the ambit of the last category identified in House v The King (1936) 55 CLR 499 at 504-5. In this case it is pertinent to revisit what the High Court there said:

Victorian Stevedoring and General Contracting Co. Pty. Ltd, and Meakes v. Dignan

R. v. Hush; Ex parte Devanny

R. v. Sidlow

R. v. Wolff

on the ground of substantial miscarriage of justice (R

Skinner v. The King

Whittaker v. The King

5 The defendant accepted that manifest inadequacy of sentence was an error of law, relying on Carroll v R [2009] HCA 13; (2009) 254 ALR 379 at [7] and [8] and Markarian v R [2005] HCA 25; (2005) 228 CLR 357, to submit that the plaintiff had to demonstrate that the sentence imposed was unreasonable or unjust. In Carroll it was observed:

"[7] Rather, as pointed out in Dinsdale v The Queen (2000) 202 CLR 321 at [6]-[9], [24], [57]-[61]; 74 ALJR 1538. error must first be identified by the appellate court. And as was held in House v The King (1936) 55 CLR 499 at 504-505 an appeal against an exercise of discretion, in this case a sentencing discretion, is governed by established principles.

House v The King

"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."

The Director's allegation in his notice of appeal to the Court of Criminal Appeal, that the sentence passed was "manifestly inadequate", was an allegation of this kind of error. It was not an allegation that the primary judge had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, had mistaken the facts or had not taken into account some material consideration. If a case of specific error of any of those kinds was to be made it would have been necessary to identify the asserted error in the grounds of appeal. But as indicated at the outset, no case of specific error was alleged; the sole ground of appeal was manifest inadequacy of sentence."

6 These submissions must be considered in the light of the scheme of the Crimes (Appeal and Review) Act, which is to give a prosecutor the right to appeal the adequacy of sentences imposed by the Local Court to the District Court (s 23). Appeals to the Supreme Court are by s 56 confined. The sections provide:

"23 Appeals as of right

(1) The Director of Public Prosecutions may appeal to the District Court against a sentence imposed on a person by the Local Court in any of the following proceedings:

(a) proceedings for any indictable offence that has been dealt with summarily,

(b) proceedings for any prescribed summary offence (within the meaning of the Director of Public Prosecutions Act 1986),

(c) proceedings for any summary offence that has been prosecuted by or on behalf of the Director of Public Prosecutions.

56 Appeals as of right

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

(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,

(2) An appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court."

7 Having in mind the Court of Appeal’s judgment in R v PL [2009] NSWCCA 256; (2009) 262 ALR 365, where the operation of s 107 of the Crimes (Appeal and Review) Act, which also provides for an appeal ‘on any ground that involves a question of law alone’, was considered; I raised with the parties whether this appeal raised such a question of law alone. The parties were agreed that it did. In PL it was held that this limitation on a prosecution appeal, did not permit an appeal to be brought on a mixed question of fact and law. Accordingly, Spigelman CJ explained, it is necessary to identify from the grounds of the appeal, what question of law alone was raised.

8 More recently the High Court gave consideration to what constitutes an appeal ‘with respect to a matter of law’ under s 67 of the Consumer, Trader And Tenancy Tribunal Act 2001 in Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 84 ALJR 663. French CJ observed:

"[33] An appellant invoking s 67 should identify the decisions of the Tribunal of questions with respect to matters of law which are the subject of the appeal [ McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at 653 654 [18], 654 [20] per McHugh, Gummow and Heydon JJ; [2005] HCA 55; Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [58] per Bryson JA; Grygiel v Baine [2005] NSWCA 218 at [29] per Basten JA, Mason P]. A decision of a question with respect to a matter of law is not merely a condition of the jurisdiction conferred by s 67, it is the subject matter of that jurisdiction [See the like observation made by Gummow J with respect to s 44 of the Administrative Appeals Tribunal Act in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178.]. The requisite identification did not happen in this case. Nevertheless, the grounds of appeal to the Supreme Court asserted errors of law and of mixed law and fact on the part of the Tribunal constituting, or reflective of, decisions amenable to appeal under s 67. They raised a number of questions including that which is dispositive of this appeal, namely, whether there was any evidence before the Tribunal upon which it could make particular findings. That is a question of law [ Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 per Mason CJ (with whom Brennan J agreed), 368 per Deane J, 387 per Toohey and Gaudron JJ; [1990] HCA 33. See also Brown v Repatriation Commission (1985) 7 FCR 302 at 304.]."

9 The majority took the view that:

"[86] The appellants and the first respondent each advanced submissions about what was said to be the preferable construction of the phrase "question with respect to a matter of law". The appellants submitted that the connecting expression "with respect to" is, and should be understood in this context as, a broad expression, which permitted appeal to the Supreme Court in a wide range of circumstances. The appellants further submitted [Referring to the Supreme Court Act 1970 (NSW), s 75A and Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230 at 251-252 [95]-[101] per Spigelman CJ] that once "a question with respect to a matter of law" was identified, the Supreme Court could, on finding error in dealing with that question, "determine any other question of fact or law or mixed fact and law as would enable it to make appropriate orders" including orders of the kind contemplated by s 67(3)(a): "such order in relation to the proceedings ... as ... should have been made by the Tribunal".

[87] By contrast, the first respondent submitted that s 67 does not give the Supreme Court the capacity to find facts differently from the Tribunal or to find facts not found by the Tribunal. In effect, the first respondent submitted that the task of the Supreme Court, on an appeal under s 67 of the Tribunal Act, was to determine only "the question [or questions] with respect to a matter of law" that founded its jurisdiction (including, perhaps, applying the correct legal holding to the facts, as found by the Tribunal). That conclusion was said to be supported by, even to follow from, the fact that, on reference under s 66 of "a question ... with respect to a matter of law", the Supreme Court would answer that question and none other. On such a reference, the Court could make no decision or order with respect to any other question or issue in the proceedings in the Tribunal.

[88] Because the first respondent accepted that, if there was the erroneous decision of a question with respect to a matter of law, the primary judge's orders should be restored, it is not necessary to decide the issues presented by these competing submissions about what follows from a finding that the Tribunal has erred in determining a question with respect to a matter of law. Further, there are considerable difficulties presented by expressing the operation of the relevant provisions in the fashion described. First, it is not useful to attempt to chart the metes and bounds of the task given to the Supreme Court by s 67 of the Tribunal Act, and to attempt to do so is dangerous. Secondly, to attempt such a task at the level of abstraction at which the submissions of the parties were cast, or in terms divorced from the circumstances of a particular case, would invite error.

[89] Likewise, when considering whether a question is a question with respect to a matter of law, it is not useful, with respect, to attempt a taxonomy of the kind proposed by Basten JA. First, as his Honour pointed out ([2009] NSWCA 292 at [83]), "there are more variations than the categorisation [which he proposed] would suggest". Secondly, the adoption of such a taxonomy would lead to error if the classes identified were treated as useful starting points for consideration of the effect of particular statutory provisions for appeal. The language of the statute must be the relevant starting point, not a taxonomy which seeks to reduce a wide variety of statutory provisions to a few discrete categories.

[90] It is sufficient, for present purposes, to determine that the ground usually described as a "no evidence ground" raises a question of law. And the first respondent accepted that a no evidence ground may form a basis for a statutory appeal under s 67(1). The first respondent further submitted, however, that whether "there was sufficient evidence before the Tribunal such that a 'no evidence' submission could not be made ... is a factual question rather than the identification of a decision of the Tribunal of a question with respect to a matter of law".

Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2

"in the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. That is because it is a question for the court to decide and not for a tribunal of fact."

Lombardo v Federal Commissioner of Taxation

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation

10 In these proceedings the statutory phrase takes a different form to that considered in Kostas. PL is binding as to the meaning of the statutory phrase used in s 56.

11 It was common ground between the parties that an appeal raising manifest inadequacy of sentence was an appeal on ‘a question of law alone’. The plaintiff relied on the decision of Price J in The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Limited [2008] NSWSC 936 to support that proposition.

The background to the appeal

12 The defendant was served with twelve Court Attendance notices alleging eight offences in breach of s 178BB of the Crimes Act 1900 (now repealed) and four counts under s 55 of the Tax Administration Act 1996. The defendant initially made an application under s 32 of the Mental Health (Forensic Provisions) Act 1990.

13 The offences related to benefits accruing to the defendant’s daughter in respect of the purchase of a property as a first home owner. The maximum penalty for each offence was 5 years imprisonment. The defendant’s daughter and a real estate agent were also charged in connection with the matters which led to the defendant’s prosecution. The facts were not in dispute. The facts sheet in evidence dealt with all three defendants.

14 It is necessary to say something about the course which the hearing took. His Honour announced at the outset that he was pressed for time and would have to adjourn at 4pm. The matter was listed to deal with the application brought under s 32 of the Mental Health (Forensic Provisions) Act. It was announced that the defendant intended to enter a plea if that application failed, but the parties did not anticipate dealing with the plea that day.

15 The evidence included a report by the treating psychiatrist Dr Westmore, who had expressed the opinion that at the time of the offences the defendant was under considerable stress, suffering from symptoms of anxiety. She was caring for her mother, after her father had suffered a stroke and had been admitted to a nursing home, as well as studying for a masters degree at University and working. Her daughter was not coping with her studies in London and she had to travel there and remain with her for some months. The defendant had a long history of psychiatric problems and treatment, including hospitalisation. Dr Westmore diagnosed mood disorder and a major depressive illness, with a long history of depression and anxiety associated with disturbances in biological functions and a provisional diagnosis of past adjustment disorder. A history of obsessive and compulsive symptoms were also noted.

16 Dr Westmore concluded:

"She has a mental condition (major depression) and the court could consider her under Section 32 of the Mental Health (Forensic Provisions) Act. The treatment plan in this particular case is relatively straight forward. She needs to continue to attend the treating psychiatrist for as long as required. I would anticipate she will be under psychiatric care for at least another 12 to 18 months. Sessions are likely to occur once a month. She will probably remain on antidepressants however for 18 months to 2 years and if that is the case then her need to continue to see a psychiatrist may extend to that period.

17 His Honour was able to give his decision on the s 32 application immediately, taking the view that the evidence showed that the defendant probably realised that what she was doing at the time was inappropriate in the circumstances; that the offences involved dealing with the revenue of the State; that the defendant was operating under considerable pressure at the time of the offences, which would have born on her psychological condition; given the nature of her longstanding mental condition, she had problems in coping with the circumstances at the time; but nevertheless she was capable of directing her attention to all that was necessary to maintain the grant previously granted to her daughter and that despite her illness, the defendant could function at a high level; the charges were serious; and that there was significant public interest, raising issues of deterrence. His Honour concluded that the weighing exercise required by the section resulted in the conclusion that the defendant should be dealt with according to law, given the seriousness of the charges and what was contained in Dr Westmore’s report. In his view, the matters relied on could be taken into account on sentence.

18 The defendant then immediately pleaded guilty to the eight offences under s 178BB Crimes Act 1900 (now repealed) and the plaintiff withdrew the other four ‘backup’ charges and his Honour heard the parties on sentence. The defendant’s counsel asked that the discretion under s 10 of the Crimes (Sentencing Procedure) Act be exercised in favour of the defendant, even though the s 32 application had been refused. The plaintiff submitted that such a course would involve appellable error.

19 There was a problem with the transcription of part of the reasons for decision given on the s 32 application and the commencement of the submissions on the sentence. The parties were, however, agreed on the substance of what was said by Curran LCM and by the parties. The s 32 application was dismissed and the following exchange occurred:

"McANULTY: The defendant will plead guilty on all matters.

HIS HONOUR: I have a fair idea of what you will ask me to do.

20 The submission in relation to the s 10 bond was developed, the plaintiff arguing that in the circumstances, notwithstanding the evidence as to the defendant’s mental illness and its effects, it would involve appellable error to proceed under s 10 of the Crimes (Sentencing Procedure) Act. It was clarified that this followed from the charges, which related to four single acts in April and July 2008, each attracting two criminal charges. The plaintiff relied on what was revealed in a facts sheet, which dealt with the position of all three defendants, as to the nature of the defendant’s offences.

21 Curran LCM did not accept the plaintiff’s case. He gave his decision on sentence, discharging the defendant in relation to all eight offences, on condition that she enter into a good behaviour bond pursuit to s 10 of the Crimes (Sentencing Procedure) Act, subject to the conditions specified.

22 His Honour accepted that the evidence established that at the time of these offences the defendant was suffering from an illness which was not being treated; that the offences occurred at almost precisely the times of the events identified in Dr Westmore’s report; that she was then acting in a fashion which was not indicative of her normal way of behaving; that she was otherwise of good character; that there were pressures operating on her when she was vulnerable because of her mental health and that she was not then acting in a way that would be expected, given that she came before the Court without antecedents. His Honour noted the pressures operating on the defendant between March 2007 and her father’s death in February 2009 and the treatment which she then received for major depression. He noted that the offences were committed for the benefit of her daughter and that she herself had received no direct benefit. He noted that the defendant had taken responsibility for her actions and the considerable stress and pain which Dr Westmore observed they had caused her. His Honour noted that the defendant had been dealing with mental health issues since 1992; that she had been admitted to hospital in Hong Kong in 2000 in relation to these matters; that since the offences she had received treatment in relation to ongoing mental health issues; that it was anticipated that further treatment was necessary for a further 12 to 18 months. His Honour found that the defendant was cognisant of doing wrong at the time that the acts occurred and had since taken responsibility for them. He concluded that taking into account all matters, particularly the strong subjective features associated with the defendant's ongoing mental health condition, that the offences should be found proven, without proceeding to conviction and imposing bonds under s 10, with conditions relating to continuing medical treatment and submitting to her doctor's reasonable directions in relation to treatment, including if necessary, treatment in hospital.

The three grounds of appeal advanced

23 The first ground advanced was imposing a penalty for each offence which was manifestly inadequate in the circumstances identified. The second, failing to have regard, or sufficient regard to s 21A(2)(n) of the Crimes (Sentencing Procedure) Act and the third, failing to have sufficient regard to the principle of totality.

24 It is only if these grounds raise a question of law alone, that they may be pursued in these proceedings. The amended summons did not identify, as the Chief Justice suggested in Kostas ought to be specified in the pleadings, what ‘error of law alone’ was raised by each of the three grounds. That this ought to have been identified was underscored by what Spigelman CJ observed in PL at [26]:

25 It is in this context that the grounds of appeal advanced must be considered.

Ground 3 - totality

26 Ground 3 raises the application of the principle of totality. Common law principles such as those dealing with totality, deterrence, proportionality and consistency must be applied in the sentencing process. Section 21A of the Crimes (Sentencing Procedure) Act preserves the common law, with the aggravating, mitigating and other matters specified in s 21A also being required to be taken into account in determining the appropriate sentence, unless it would be contrary to any Act or rule of law to do so (s 21A(4)). The sentence imposed must have regard to the purposes of sentencing, which includes matters such as punishment, deterrence, rehabilitation of the offender and protection of the community (see s3A). The punishment must both fit the crime and have regard to the circumstances of the offender.

27 On the binding authority of PL, it seems to me that it must follow that this ground involving, as the plaintiff’s submissions made clear, his Honour’s application of the principle of totality to the evidence led in relation to the eight charges to which a plea was entered, raises a question of mixed fact and law.

28 It was not the plaintiff's case that there was any error, such as that identified in PL, in the proposition of law which had to be applied to the facts of the case. Nor was it the plaintiff’s case that any particular finding made rested on no evidence, an error accepted in Kostas as raising a matter of law (see at [90] - [91]). Rather, it was the application of the principle of totality to the facts proven, involving as they did eight offences arising out of four events which occurred over a period of some three months, in which false documents were supplied, which was argued to have involved error.

29 It was the plaintiff’s case that the application of the principle of totality ought to have resulted in the recording of a conviction in each case, as well as a fine, albeit a low one, given the powerful subjective case made out by the defendant on the evidence. The failure to record any convictions in respect of these eight offences, each with a maximum penalty of five years, was unreasonable and involved error in the application of the principle of totality. Those submissions made it clear that this ground of the appeal raised mixed questions of fact and law, which are not available to be appealed under s 56(1) of the Crimes (Appeal and Review) Act.

30 Plainly enough, if the appeal succeeded on another question of law alone, with the result that the Court undertakes the resentencing task which the parties urged, the application of the principle of totality will necessarily have to be considered. Any errors in its application to the facts in the judgment appealed from, is undoubtedly a question which might then arise for consideration, in determining sentence. Absent any error of law alone, which would lead to the appeal being upheld and consideration needing to be given to how the sentence should be varied, errors in the application of the principle of totality may not be dealt with in this appeal.

Ground 2 - s 21A(2)(n) of the

Crimes (Sentencing Procedure) Act

31 The same conclusion must follow in relation to ground 2, which raises the question of whether sufficient attention was paid to the provisions of s 21A(2)(n) of the Crimes (Sentencing Procedure) Act in the sentencing exercise. Section 21A(2)(n) requires that consideration be given to whether the offence was part of a planned or organised criminal activity.

32 As the respective arguments advanced on appeal reveal, s 21A(2)(n) required an assessment to be made of what the evidence as to the defendant’s conduct showed, particularly in relation to whether or not it was the defendant who was responsible for certain actions, described in the facts sheet which dealt with the position of all three defendants. These were matters which his Honour dealt with in his decision. His Honour then had to consider whether the evidence permitted conclusions under s 21A(2)(n) to be reached.

33 It follows that this ground of the appeal also requires an assessment to be made of the view which his Honour took of the facts and the application of s 21A(2)(n) in light of those facts. That does not involve a question of law alone, but a question of mixed fact and law. There was here no need to give consideration to the requirements of s 21A(2)(n), as a distinct step in the reasoning process, separate from a consideration of the facts to which the provision had to be applied. Nor was it the plaintiff’s case that his Honour had erred in the construction of the section. Rather, for the same reasons advanced in relation to ground 3, it was argued that his Honour had erred in the conclusions reached on the evidence. That does not raise a question of law alone available to be pursued under s 56.

Ground 1- manifest inadequacy

34 Reliance was placed on the approach adopted by Price J in Fletcher International Exports Pty Limited to support the view that this ground of appeal raised a question of law alone. This decision was given before PL and Kostas were decided. It is apparent from his Honour’s reasoning that he did not approach the question of whether the appeal was confined to a question of law alone, in the way discussed in PL, by reference to the various grounds of appeal relied on. Rather, at [23] his Honour noted:

House v The King

Director of Public Prosecutions v Sami El Mawas

35 It is useful to refer to what was there said by McColl J:

"79 I accept the respondent’s submission, which I do not believe the appellant gainsaid, that the s 32 diversionary regime is available to serious offenders as long as it is regarded, in the Magistrate’s opinion, as more appropriate than the alternative. No doubt a Magistrate considering that question will consider whether proceeding in accordance with s 32 will produce a better outcome both for the individual and the community.

80 Once the Magistrate has determined that it is more appropriate to deal with the defendant in accordance with s 32, the Magistrate must determine which of the actions set out in subs (2) or (3) should be taken. As Brownie J said in Minister for Corrective Services v Harris & Anor subs (2) permits interlocutory orders to be made pending determination of the proceedings pursuant to s 32(3). The subs (3) decision is also a discretionary decision, akin to the discretion exercised by a sentencing judge.

81 Before the primary judge the respondent sought to challenge the discretionary decision the Magistrate made at the second stage of the s 32 inquiry. In the ordinary course appellate review of that decision would be undertaken in accordance with the principles laid down in House v R. In the present case, however, the scope of review was confined to a question of law alone.

82 The primary judge appears to have identified the question of law as being whether the facts fell within the provisions of s 32 properly construed: see Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at pp 8–9 per Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed).

ex tempore

Acuthan v Coates

36 At [25], Price J indicated that he would adopt the approach of deferring resolution of the defendant’s contention that the appeal did not involve a question of law alone, until after consideration of the plaintiff’s complaints of discrete error. The matters dealt with were in summary:

Firstly, failure to take into account aggravating factors in s 21A of the Crimes (Sentencing Procedure) Act . Such failure was not established, because no factors of aggravation had been identified as present a the trial (see at [26]).

Secondly, that the Magistrate did not direct himself as to the proper approach to determining penalty by imposing a penalty on the tenth charge and dealing with the other nine charges as if they were on a schedule. This was found to involve error, because such an approach to sentencing was not available to be taken in the circumstances, given the applicable provisions of the Crimes (Sentencing Procedure) Act (see at [30] – [33].)

Thirdly, his Honour erred in law in failing to apply the principle of totality (see at [34]).

Fourthly, his Honour failed to recognise that each of the overloads for which the defendant came to be sentenced was a ‘severe risk breach’ under s 34 of the Road Transport (General) Act 2005 and thus failed to sentence in accordance with the requirements of s 60 and s 97 of that Act. This was found to have involved an error of law (at [43]).

Fifthly, there was a failure to have proper regard to general and specific deterrence (see at [44]).

Sixthly, there was an error in characterising the defendant’s involvement being at the lower end of the scale of seriousness, a finding that ‘was essentially one of fact’ (see at [46]).

Seventhly there were other errors in fact finding as to mitigating factors found (see at [48]-[50].

37 Price J then dealt with a number of other matters, before concluding at [65]:

38 It is thus apparent that there were unquestionably errors of law alone which were raised on appeal in Fletcher International Exports Pty Limited, namely, sentencing on the basis of a schedule not available under the statutory scheme and the failure to identify that the offences fell within the definition of a severe risk breach under the Road Transport (General) Act 2005. Those matters were clearly not concerned only with the exercise of the sentencing discretion, but with matters of the kind identified by McColl J in Director of Public Prosecutions v El Mawas as involving a question of law, namely whether the statutory provision in question, properly construed, applied to the facts proven on the evidence. That in those circumstances Price J upheld the appeal and approached the resentencing task in the context of other errors identified in the judgment appealed against, is not surprising. After all, once an appeal court embarks on a variation of a sentence, an explanation for the sentence imposed must be given. One way in which that may be done is by reference to other identified errors in the judgment under appeal, even if not themselves questions of law alone, so that the conclusions reached by the appeal court as to sentence may thereby be understood.

39 By way of contrast, it seems to me that an appeal as to inadequacy of the sentence imposed does not necessarily raise a question of law alone, as the parties argued. The sentencing exercise involves that instinctive synthesis discussed in Markarian (at [37] for example by the majority) and in R v King [2004] NSWCCA 444; (2004) 150 A Crim R 409, where it was observed:

Veen v The Queen (No 2)

Wong v The Queen

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 fact and law. It is only errors of law alone which may be raised on appeal to this Court under s 56. On the approach in PL, the application of a particular legal principle or statutory provision to the facts, does not involve questions of law alone, but mixed questions of fact and law. Errors in that aspect of the sentencing exercise may not be the subject of an appeal brought under s 56.

41 On appeal it was argued that the sentence imposed fell below the available sentence range for the offences. In R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1, the role which a consideration of the available sentence range plays in a sentencing exercise was explained at [51] - [52]:

"51 A sentencing discretion is not properly exercised by simply determining where in a range of sentences the particular matter before the court falls, and that is so whether that range has been established by a guideline judgment, by a pattern of sentences reflected in statistics maintained by the judicial commission, or by a consideration of the sentences imposed in other identified cases. While an established range of sentences for a particular class of offence and offender is important because of the need for consistency in sentencing, a consideration of the range will normally be the last point of reference rather than the first.

42 In this case there was no argument advanced below as to any range of sentences imposed for these offences, either by reference to any guideline judgment, sentencing statistics or decided cases. The exercise of the s 10 discretion is always likely to involve a departure from a sentencing range, given the very nature of the discretion. In determining whether the exercise of the discretion under s 10 involved error, it is thus necessary to consider the particular ways in which this ground of appeal was advanced. As French CJ observed in Kostas at [34]:

43 This explains his Honour’s view as to the necessity for identifying, with precision in the pleadings, what errors of law are sought to be raised on appeal. In this statutory scheme that would appear to be of particular importance. Were every prosecution appeal as to manifest inadequacy of sentence to raise a question of law alone, no matter on what basis that inadequacy is said to rest, it is difficult to see what work s 23(1) of the Crimes (Appeal and Review) Act would have to do, other than to give a prosecutor an election as to whether to bring such an appeal to the District or Supreme Court. It is difficult to see that was what the legislature intended by the enactment of s 56.

44 The matters identified in the plaintiff’s written submissions as revealing the manifest inadequacy of the sentence were said to be firstly, the failure to record convictions, in circumstances where the offences were not trivial, carrying with them a maximum penalty for each offence of 5 years imprisonment. In oral submissions it was argued that it was very important when sentencing for dishonesty offences under s 178BB of the Crimes Act, that convictions be recorded and that his Honour had erred in failing to give sufficient weight to the planning involved in the offences, which occurred over some months (s 21A(2)(n)).

45 The second matter identified was that the plaintiff’s strong subjective case, given the evidence of her mental illness, was given excessive weight in the context of her other circumstance, which included her work history at the ATO and her university studies, when considered in the light of the criminality involved in the offences in question. The evidence showed that the offences had been driven by greed, rather than need. Section 21A(3)(j) of the Crimes (Sentencing Procedure) Act required that there be a causal connection shown between the mental state and the offending, if a substantial discount was to result. There was no such evidence in this case.

46 The third matter identified was that while the defendant’s strong subjective case was relevant to penalty, it did not diminish the weight to be given to general deterrence, which had not been given sufficient weight in the sentence imposed.

47 It was also argued that while the conclusion reached on the evidence that the s 32 application should be refused had been correct, the evidence as to the defendant's mental state showed strong subjective factors, but not exceptional ones. The conclusion thus reached in relation to the s 10 bond was erroneous. The defendant’s mental condition did not go to the heart of her criminality. Nor did the evidence show that the defendant was not aware of the consequences of her actions. To the contrary, the agreed facts showed that she was. These were dishonesty offences, not a one off offence. Accordingly, the circumstances did not permit the exercise of the discretion granted by s 10, but demanded that convictions be imposed. The failure to record a conviction was manifestly inadequate. Convictions ought to have been recorded, with fines and bonds imposed.

48 Furthermore, it was argued, the discretion granted by s 10 of the Crimes (Sentencing Procedure) Act was subservient to s 21A(3)(j). In the sentencing exercise, once the evidence had been considered in determining appropriate penalty, some further matters identified in s 10 could be given particular emphasis, but in order to qualify or have regard to disability under s 10, the defendant had to go past the threshold in s 21A(3)(j). If the mental illness was not a mitigating factor under s 21A(3)(j), it would not be relevant to s 10. To have regard to any s 10 factors, they would have to be relevant to s 21A(3)(j) too.

49 A fourth matter was argued orally. It was submitted that remorse had not been demonstrated. The Court of Criminal Appeal was argued to have been ‘strident in its interpretation of s 21A(3)(i) as to remorse’ (see R v Butters [2010] NSWCCA 1 and R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369). Hearsay evidence as to remorse from a third party had to be considered with circumspection; such evidence was not sufficient; and it did not have the same effect as evidence given by the defendant. This was submitted by the plaintiff to be a highly inefficient approach, especially in proceedings before the Local Court, but the effect of the Court of Criminal Appeal’s approach was that if remorse was to be demonstrated on the balance of probabilities, the defendant really needed to give evidence.

50 In my view of these various arguments advanced to support this ground of appeal, it is only the arguments as to the proper interpretation of the provisions of the Crimes (Sentencing Procedure) Act and their interaction, which raised a question of law alone, which may be pressed on an appeal brought under s 56. Like the conclusions reached in relation to the other two grounds of appeal, errors as to the application of statutory provisions, or legal principles to the facts raise mixed questions of fact and law, as do errors in the weight to be given to various factors in determining sentence.

51 As to the argument advanced in relation to s 21A(2)(n) and the weight given to various evidence of planning, it must be noted that the defendant disputed the plaintiff’s characterisation of matters dealt with in the facts sheet, which were said to have revealed planning on her part, rather than on the part of the other defendants. That facts sheet dealt with the facts relevant to the charges brought against all three defendants. It was the defendant’s case that there was no error of the kind alleged and that his Honour had not mistaken the facts. Plainly enough, a dispute as to what the evidence about the defendant established, raises the question of whether there was any error of fact, as well as the principle that any punishment may only be imposed for matters proven against the defendant. A question of whether any error of fact has been made, is not one which may be raised on this appeal, nor is an error of mixed fact and law in the application of a principle to the facts.

52 The other arguments raised mixed questions of fact and law not available to be brought to this Court under s 56. Absent errors of law being established, the arguments advanced as to the application of statutory provisions to the facts proven, which it was claimed resulted in manifest inadequacy of sentence, also do not raise a question of law alone, but mixed questions of fact and law. An appeal as to those questions also does not lie under s 56.

Was error in the interpretation of the Crimes (Sentencing Procedure) Act shown?

The construction of and interaction between s 10 and s 21A(3)(j) of the

Crimes (Sentencing Procedure) Act

53 It should firstly be observed that while it was argued below that imposing a s 10 bond would involve appellable error, the arguments advanced on appeal as to the interaction between s 21A and s 10 were not there advanced. The reasons for the submission made, that to exercise the s 10 discretion would involve appellable error, was certainly not explained in the way advanced on appeal. It ought not to be overlooked, it seems to me, that while appeals are directed to the correction of error, ‘it is generally accepted that a party is bound on appeal by the way it has conducted the trial’ (see Robalino v Idameneo (No 123) Pty Limited [2010] NSWCA 278 at [17]).

54 Sections 21A and 10 relevantly provide:

21 A Aggravating, mitigating and other factors in sentencing

(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters:

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,

(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

(2) Aggravating factors

...

(3) Mitigating factors

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,

(b) the offence was not part of a planned or organised criminal activity,

(c) the offender was provoked by the victim,

(d) the offender was acting under duress,

(e) the offender does not have any record (or any significant record) of previous convictions,

(f) the offender was a person of good character,

(g) the offender is unlikely to re-offend,

(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,

(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,

(k) a plea of guilty by the offender (as provided by section 22),

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m) assistance by the offender to law enforcement authorities (as provided by section 23).

(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.

(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.

(5A) ...

(5B) ...

(6) ...

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(b) that it is expedient to release the person on a good behaviour bond.

(2B) Subsection (1) (c) is subject to Part 8C.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

55 The consequences of mental illness are a mitigating factor which can be taken into account in determining sentence, in accordance with s 21A(3)(j), if they are such that ‘the offender was not fully aware of the consequences of his or her actions’. That, however, is not the only way in which evidence as to mental illness may be relevant in the sentencing exercise.

56 Section 21A(3)(j) does not itself refer to mental illness, but to disability. Disability is not a defined term, but clearly encompasses mental illness. Mental illness, which is expressly referred to in s 10, is also not defined. The account of mental illness which s 10 permits in the sentencing exercise, as a matter of the trial judge's discretion, is seemingly wider than that envisaged by s 21A(3)(j). This is because s 10(3) is not confined to a mental illness which has the result that the ‘the offender was not fully aware of the consequences of his or her actions’. It follows, it seems to me, that there is no warrant for reading into s 10 the limitation which appears in s 21A(3)(j). To the contrary, there is good reason for the view that the provision made in s 10 is intended to permit a wider consideration of mental illness, than that envisaged by s 21A(3)(a).

57 The submission that if mental illness is not a mitigating factor, that it would not be relevant to the exercise of a s 10 discretion may also not be accepted. In determining what interaction there is between s 21A(3)(n) and s 10, account must be taken of the fact that the Act does not itself expressly make s 10 subject to s 21A, or ’subservient’ to it, as was argued. Nor does the Act make s 21A a ‘threshold’ for consideration of the exercise of the discretion given by s 10, as was also submitted. It is difficult to see that implicitly, the sections must be read with such limitations. To the contrary, as a matter of statutory construction, a construction which gives each section the work it is apparently intended to do, must be preferred over one which confines the operation of one section, by the introduction of a limitation which the legislature has not expressly adopted.

58 The Act specifies in s 10(3) the matters which must be given consideration, when the exercise of the discretion to impose the particular kinds of sentences dealt with in s 10(1), is being entertained. In the case of an order under s 10(1)(b), an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, the order here imposed, the matters about which satisfaction must be reached are those specified in s 10(2). They are:

"(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

59 Circumstances in which it might be considered inexpedient to inflict other than nominal punishment on a person suffering a mental illness, or expedient to release such a person on a good behaviour bond, particularly one imposed with the condition of adhering to medical treatment, can readily be envisaged. That is so, even if the illness is not of such a kind that it might be concluded that ‘the offender was not fully aware of the consequences of his or her actions’. So contrasted, it is apparent that s 21A is concerned with mitigating and aggravating matters present at the time of the offence. Section 10 is also concerned with the defendant's position at a later time, namely when the sentence is being imposed. It is conceivable that an offender who was not suffering any mental illness at the time that an offence was committed, might be suffering such an illness at the time of sentencing. I can see no reason why that situation is not one which could be considered under s 10, in an appropriate case.

60 The operation of s10 was considered in R v Paris [2001] NSWCCA 83, where Simpson J, with whom Woods CJ at CL and Ipp J agreed, said as to s 10(3):

61 The decision in this case is a different one. His Honour did not consider the offences to be trivial, clearly they were not. He also considered the other factors identified in s 10(3) in the conclusion to which he came on sentence.

62 The plaintiff argued, however, that a substantial discount for mental illness was only available to be considered under s 21A(3)(j), if the illness was causally connected with the offence, a temporal connection was not enough and that s 10 was similarly confined. I can see no basis on which these sections may be so construed. Further, as I have explained, while s 21A(3)(j) directs attention to the effect of mental illness at the time that the offence occurred, s 10 permits a consideration of those effects, as well as evidence as to the offender’s state at the time sentence is imposed.

63 It is pertinent to note that in Paris, the view that consideration could only be given to the defendant’s mental illness under s 10, if the Court was first satisfied that it was ‘causally connected’ with the offence in question, was not taken. That is not surprising. Section 21A(3)(j), itself does not require that there be such a connection, if mental illness is to be regarded as a mitigating factor. Rather, it requires satisfaction that the evidence shows that the ‘offender was not fully aware of the consequences of his or her actions’ because of the illness.

64 While the question of mental illness was not in issue in R v Piccin (No 2) [2001] NSWCCA 323, it must be noted that Giles JA, with whom James J agreed, took a different view of s 10(3), to that taken in Paris, although the judgment given earlier that year in Paris was not referred to. Hulme J was in dissent on this issue. Giles JA, observed:

R v Underhill

65 This approach to the construction of s 10(3) does not accord with that later discussed in Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305. The approach there adopted accords with that discussed in Paris, to which reference was made. There it was observed by Howie J, with whom Spigelman CJ, Wood CJ At CL, Grove and Dunford JJ agreed:

"130 I accept that s 10 must apply to the offence of high range PCA and there may be cases where, notwithstanding the objective seriousness of the offence committed, it is appropriate in all the circumstances to dismiss the charge or to discharge the offender. But those cases must in my view be rare. They must be exceedingly rare for a second or subsequent offence. I accept that the court must concentrate on the particular conduct of the offender and the circumstances of offending rather than on the nature of the offence in determining whether the particular offence before the court is trivial: Walder v Hensler (1987) 163 CLR 561 at 577. I am prepared to acknowledge the possibility that there may be cases where the offending is technical (rather than trivial), there being no real risk of damage or injury arising from the driving, so that the highly exceptional course in making an order under the section would be justified.

131 The court must also have regard to all of the criteria in s 10(3) in determining whether a dismissal of the offence or a discharge of the offender is appropriate: R v Paris [2001] NSWCCA 83. I recognise that there can be cases where there were such extenuating circumstances that a dismissal or a discharge under s 10 might be justified. It is impossible and inappropriate to delineate the situations in which an order under s 10 might be warranted notwithstanding the objective seriousness of the offence. One example might be where the driver becomes compelled by an urgent and unforseen circumstance to drive a motor vehicle, say, to take a person to hospital.

66 Again, there was no suggestion in this case that the exercise of the discretion granted in s 10(1), required the conclusion, in a case of mental illness, that the illness was causally connected with the offence. To the contrary such a general principle was eschewed. That there need not be such a connection is also supported by the discussion in R v Pearson [2004] NSWCCA 129, of the differing ways in which evidence of mental illness may be relevant in sentencing. It was observed that:

"42 It is first necessary, however, to state the correct approach to this topic. Mental illness in a case such as the present may be relevant, principally, in two ways. First, it may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported).

Henry

Jiminez

Tsiaras

Lauritsen

67 That approach reflects the common law position. In R v Engert (1995) 84 A Crim R 67, Gleeson CJ said at 71:

"There has been some discussion in later cases as to whether what is described as the "principle" mentioned above only applies in cases where the mental disorder is causally related to the commission of the criminal offence. As the passage from Dr Barclay's report above indicates, it would not have been possible for the sentencing judge to have found as a fact, in the present case, that there was such a causal relationship.

In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system."

68 In R v Israil [2002] NSWCCA 255, Spigelman CJ observed at [23]:

“… the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing.”"

69 An offender who is mentally ill may plainly enough be able to understand the wrongfulness of his or her actions and still be unable to make reasonable judgements, or control his or her faculties or emotions. This was the effect of the conclusions which his Honour reached in this case.

70 In R v Helmsley [2004] NSWCCA 228 at [33] - [36], this view was taken:

33 Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].

34 Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].

35 Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].

Israil

71 In R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 reference was made to mental illness causally related to the offence. It was said at [86]:

Channon v The Queen

R v Engert

72 Even more recently it was observed in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194:

R v Engert

R v Tsiarias

R v Fahda

Lauritsen v R

R v Harb

R v Israil

R v Hemsley

R v Verdins

Courtney v R

R v Henry

● Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].

Tsiaris

Jiminez

Israil

Henry

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

Israil

Henry

R v Lawrence

R v Skura

R v Verdins

73 It seems to me that it must follow that the argument as to Curran LCM’s error as to the construction of these provisions may not be accepted. While s 21A(3)(j) permits account to be taken of evidence which shows that the offender was not ‘fully aware of the consequences of his or her actions’, the consideration of mental illness permitted under s 10 is not so limited. It would even permit consideration of the consequences of a mental illness which has been suffered only after the commission of an offence, but which is relevant to the sentence to be imposed.

74 Full awareness of the consequences of an offender’s actions, at the time that the actions which resulted in the commission of the offence occurred, may be absent where a mental disorder or abnormality results in less control of an offender’s cognitive facilities or emotional restraints; in a lack of ability to make reasoned or ordered judgments; or in a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility, does justify special consideration upon sentencing. Whether it is inexpedient to inflict any punishment (other than nominal punishment) on an offender suffering a mental illness when being sentenced, or whether it is expedient to release the offender on a good behaviour bond, may raise these and other considerations as to the offender’s state at the time of sentence, given the mental illness suffered.

75 So understood I cannot see that his Honour’s approach to the provisions of s 21A(3)(j) or the exercise of the discretion granted by s 10 involved any error of law alone.

Section 21A(3)(i) of the

Crimes (Sentencing Procedure) Act

76 Again it must be observed that the arguments developed on appeal in relation to the approach necessary to be adopted to this provision, were not advanced in the hearing below.

77 Nor may it be accepted that those arguments accorded with the judgments relied on. In Butters, Fullerton J, with whom McClellan CJ at CL and McCallum J agreed held at [17]:

provide

and

provide

give

78 Fullerton J also referred to the judgment in R v Thomas [2007] NSWCCA 269, where the evidence as to remorse to which reference was made in the judgment, had not been given by the defendant. There it was observed that:

“He accepts responsibility for the … offence. He tells me he was heavily intoxicated on bourbon when he committed this offence. … He also tells me he was in the company of antisocial peers at this time. He attributes his offending behaviour to his alcohol use at that time.

Matthew expresses considerable regret and remorse over his offending behaviour: ‘I was definitely in the wrong … I’m sorry … I do feel bad for doing it … I’ve learnt my lesson … Never to get in trouble again … It’s just not worth it’.”

79 In Butters, Fullerton J discussed the evidence there led, finding that it satisfied the statutory precondition in s 21A(3)(i), but noted that there was a need to assess the weight to be given to the evidence, because it sourced from tendered material. Her Honour also took the view that the trial judge was entitled to take into account in the sentencing exercise, the fact that the defendant had not himself given evidence. It was observed at [18] that:

R v Qutami

TS v R

80 In Qutami, Smart AJ observed:

81 In TS, it was observed by Giles JA with whom James and Hislop JJ agreed:

R v Qutami

82 In this case the defendant also did not give evidence. It was not in issue that the moneys in question had been repaid with interest and penalty, some 12 months before the defendant was charged, itself a relevant consideration in determining sentence

83 The pleas were entered immediately on the rejection of the s 32 application. Dr Westmore’s report showed that when he had examined the defendant in January 2010, she had told him of her offences and the circumstances in which they had been committed, acknowledging that what she had done involved false and misleading statements and actions. Dr Westmore commented on the defendant's extreme distress in relation to the matters before the Court. He diagnosed a longstanding mental illness, from which the defendant was suffering at the time of the offences, when she was being particularly subjected to the stressors which Dr Westmore described. The defendant continued to suffer that mental illness, for which she was receiving and required ongoing treatment. In his view she had a case under s 32. He also expressed the opinion that stress alone would act as a powerful deterrent against her re-offending and that her Chinese background contributed to her considerable symptoms of humiliation, shame and embarrassment.

84 His Honour took the view that the fact of the plea showed that the defendant had taken responsibility for the offences; that she was cognisant that she had done something wrong and had accepted responsibility for it. He rejected the s 32 application, notwithstanding the views expressed by Dr Westmore. While his Honour did not expressly find that there had been remorse shown by the defendant, it follows from the matters he referred to, that he was of the view that the prerequisites to s 21A(3)(i) had been satisfied, so that it might be concluded that there was remorse. Clearly these were matters which his Honour took into account in arriving at the sentence which he imposed.

85 The plaintiff's case was that the sentence imposed showed that too much weight had been given to remorse, given the absence of direct evidence from the defendant herself as to her remorse.

86 So understood, it seems to me that it may not be concluded that there was any error of law alone, in his Honour’s approach to the question of the operation of s 21A(3)(i) and the issue of remorse. That his Honour may have erred in the application of the statutory provision to the facts, by the weight which he gave to the evidence, involves an assessment of a mixed question of fact and law, which does not arise for consideration in this appeal.

Conclusion

87 For the reasons given, I have concluded that alleged errors of law alone, which it was argued resulted in a manifest inadequacy in the sentence imposed, have not been established. In my view, whether the sentence imposed was manifestly inadequate, for the other reasons advanced may not be determined in these proceedings, raising as they do mixed questions of fact and law.

88 In the event that I am incorrect in the view to which I have come in so approaching the matters raised on appeal, I should briefly say something about the complaint of manifest inadequacy revealed by the imposition of a s 10 bond, in the case of these eight offences. They arose out of four discrete acts which occurred over a period of time from April to July and involved a deal of planning, as his Honour accepted.

89 His Honour took the view that these were serious offences and that while the defendant was clearly suffering from a longstanding mental illness at the time of the offences and then the subject of considerable ongoing stressors, the defendant had an appreciation of the wrongness of her conduct at the time of the offences and that accordingly, she should be dealt with according to law.

90 In imposing sentence the approach discussed in R v Gay [2002] NSWCCA 6 at [15] - [18], appears relevant to the sentence to be imposed on this offender, particularly given her illness and the treatment which she had pursued since repaying the moneys in question, plus interest and penalty, were made:

R v Schwabegger

.”: R v Liang and Li

Duncan v R

… where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.

… The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.

91 In imposing sentence, the evidence had to be considered in the light of the various aggravating and mitigating factors dealt with in s 21A. The defendant was otherwise of good character, with no prior criminal history. His Honour took the view that the offences were serious, but in the face of the evidence as to the defendant's mental illness and its effects at the time of the offences, to which I have referred, as well as her condition at the time of sentencing, when she was receiving ongoing treatment, the discretion given by s 10 should be exercised. The conclusion that an order under s 32 of the Mental Heath Act 2007 was not available did not preclude the exercise of a discretion under s 10. In determining whether the discretion should be exercised, his Honour considered the factors specified in s 10(3).

92 A decision to exercise a s 10 discretion, in the case of serious offences, does not necessarily involve error, although there is clearly less room for the exercise of the discretion in such cases. The parties were disagreed as to what the facts sheet revealed, as to this defendant’s involvement in various steps taken in respect of the four discrete events with which the eight charges were concerned. The plaintiff’s case was that while the charges were limited to particular days, the repeat offending involved more, the defendant being fully aware of the wrongfulness of her conduct. The defendant’s case was that the facts sheet was a composite which referred to all three offenders. It was not argued below that the defendant was responsible for all of the acts now alleged to have been hers. The plea acknowledged that the defendant had committed the acts charged, namely signing false documents and making false representations, but it could not now be inferred that his Honour erred in not concluding that she had done more, so as to take the defendant out of the ambit of operation of section 10.

93 The plaintiff accepted that the defendant had a strong subjective case, but submitted that the requirements of the principle of totality and the need for deterrence in the sentence imposed, nevertheless meant that the bonds imposed were manifestly inadequate, even though it was accepted, as it must be, that deterrence had a lesser role to play in this case, given that the defendant was mentally ill. That mental illness was not of such a kind that it suggested that there was an increased need for specific deterrence in the defendant’s case, but the plaintiff argued that the weighing exercise necessary to be undertaken in determining sentence had resulted in an over emphasis of subjective factors and latent error, because s 10 bonds were not within the available sentencing range.

94 The s 10 discretion was available to be exercised if his Honour came to the view that in all of the circumstances it was inexpedient to inflict any punishment (other than nominal punishment) on the defendant in the circumstances, or that it was expedient to release her on a good behaviour bond.

95 Inexpedient means ‘not suitable, judicious or advisable’. ‘Expedient’ means ‘tending to promote some proposed or desired object; fit or suitable for the purpose; proper in the circumstances’ (see Macquarie Online Dictionary).

96 It seems to me that contrary to the tenor of the plaintiff's argument, it must be the case that there may be circumstances where a just and proper exercise of the instinctive synthesis involved in the sentencing exercise, will result in the conclusion that while an application brought under s 32 of the Mental Health Act has not been made out, the exercise of a discretion under s 10 of the Crimes (Sentencing Procedure) Act, is properly available. As well as all of the other matters which must be considered in the sentencing exercise, that will necessarily require a consideration of the evidence as to the nature of the offence, the defendant’s mental illness and its consequences, both at the time of the offence and at sentencing, as well as the other matters referred to in s 10(3). They are the person’s character, antecedents, age and health; whether the offence is trivial; whether there are any extenuating circumstances in which the offence was committed and any other matter that the court thinks proper to consider.

97 It is a consideration of those matters in the light of the objective seriousness of the offences in question, which may bring a s 10 bond into the range of sentences properly available for a particular offence. The facts sheet indicated that the defendant had her daughter’s power of attorney and that the daughter was in London. There was also evidence that the defendant herself went to London for some time. The case advanced on appeal as to the objective seriousness of the offence, having in mind which of the matters dealt with in the facts sheet were the result of the defendant’s actions, other than those referred to in the charges, was not advanced below. It seems to me that his Honour cannot have erred in the conclusions reached about these matters. Not only were they not argued, but given the terms in which the facts sheet was couched, the answer to these controversies was not as obvious as the plaintiff submitted. In the event of doubt, they had to be resolved in favour of the defendant. Given that his Honour came to the view that the offences were serious, it is difficult to see that he erred in this respect.

98 His Honour’s reasons show that the matters specified by s 10 were also considered, as were the relevant matters specified in s 21A. There is no question that his Honour paid particular attention to the unchallenged medical evidence as to the defendant’s mental illness and its consequences, in concluding in the circumstances that it was expedient to impose a bond. The plaintiff accepted that the defendant had a strong subjective case, but argued that it should have, nevertheless, resulted in convictions and small fines, rather than a bond, arguing that ‘even though it is only one or two steps up to go to a fine or bond, there is a significant difference between failure to record a conviction at all and the next step’.

99 That submission highlights the nature of the issue which the plaintiff took with the result of his Honour’s instinctive synthesis of all of the many factors which led to the sentence imposed. Even if this Court would not itself have exercised the s10 discretion, but instead would have taken those ‘one or two steps’ which the plaintiff urged, that itself shows that the imposition of s10 bonds cannot be viewed as reflecting manifestly inadequate sentences.

100 The complaint that the sentence was manifestly inadequate also has to be considered in light of the fact that the bonds were imposed subject to conditions. This reflected the evidence as to the nature of the defendant’s longstanding mental illness, the effects which it was having on the defendant at the time of the offence and at sentencing, when the unchallenged medical evidence was that there was a need for further medical treatment for up to 2 years, including the possibility of hospitalisation.

101 In House v The King, the High Court rejected the appeal, concluding:

102 No error of fact or law, or failure to take into account any material consideration was here established. I am unable to come to the view that the sentences imposed, while on one view lenient given the nature of these eight offences, involved error of the kind which the plaintiff identified as resulting in manifest inadequacy. Nor am I able to come to the view that his Honour’s conclusions were not open as a proper exercise of the sentencing discretion in the circumstances, or that he erred by giving too much weight to the defendant’s subjective circumstances.

103 The evidence unquestionably showed that these were objectively serious offences, but that undue weight was given to the defendant's mental illness in the conclusion that s 10 bonds should be imposed, conditional on ongoing treatment being undertaken, so as to result in manifest inadequacy of sentence, was not established. That it was expedient to take steps to ensure that the defendant undertook the medical treatment which, on the unchallenged medical evidence she required, rather than entering convictions and imposing a small fine, as the plaintiff urged was necessary if the sentence was not to be manifestly inadequate, seems to me to have been a conclusion properly available and not one involving manifest inadequacy of sentence, as the plaintiff argued.

Orders

104 For the reasons given, I order that the appeal be dismissed.

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22/02/2011 - referred to an incorrect Act - replaced Local Court Act 2007 with Crimes (Appeal and Review) Act - Paragraph(s) 43

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Citations

David Morse (Office of State Revenue) v Chan [2010] NSWSC 1290

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CITATION:	David Morse (Office of State Revenue) v Chan and Anor [2010] NSWSC 1290 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	15 October 2010
JUDGMENT DATE :	26 November 2010
JUDGMENT OF:	Schmidt J
DECISION:	Appeal dismissed.
CATCHWORDS:	APPEAL AND NEW TRIAL - appeal - appeal on inadequacy of sentences imposed - sections 23 and 56 of the Crimes (Appeal and Review Act) 2001 - whether appeal raises a question of law alone - application of principle of totality - no question of law alone raised on this ground - application of s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 - no question of law alone raised on this ground - appeal as to manifest inadequacy of sentence may raise a question of law alone - whether error made in the interpretation of the Crimes (Sentencing Procedure) Act 1999 - construction of and interaction between s 10 and s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 - no error of law established - operation of s 21A(3)(i) - no error of law established - other arguments raised mixed questions of law and fact not available to be appealed under s 56 of the Crimes (Appeal and Review) Act 2001 - no manifest inadequacy of sentence shown - appeal dismissed
LEGISLATION CITED:	Consumer, Trader And Tenancy Tribunal Act 2001 Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Local Court Act 2007 Mental Health Act 2007 Mental Health (Forensic Provisions) Act 1990 Road Transport (General) Act 2005 Tax Administration Act 1996
CATEGORY:	Principal judgment
CASES CITED:	Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 Carroll v R [2009] HCA 13; (2009) 254 ALR 379 Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 House v The King (1936) 55 CLR 499 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; (2010) 84 ALJR 663 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 R v Butters [2010] NSWCCA 1 R v Engert (1995) 84 A Crim R 67 R v Helmsley [2004] NSWCCA 228 R v Israil [2002] NSWCCA 255 R v King [2004] NSWCCA 444; (2004) 150 A Crim R 409 R v Paris [2001] NSWCCA 83 R v Pearson [2004] NSWCCA 129 R v Piccin (No 2) [2001] NSWCCA 32 R v PL [2009] NSWCCA 256; (2009) 262 ALR 365 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Studenikin [2004] NSWCCA 164; (2004) 60 NSWLR 1 R v Thomas [2007] NSWCCA 269 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Robalino v Idameneo (No 123) Pty Limited [2010] NSWCA 278 The Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Limited [2008] NSWSC 936
PARTIES:	David Morse (Office of State Revenue) - Plaintiff Miranda Chan - First Defendant His Honour Magistrate G Curran - Second Defendant
FILE NUMBER(S):	SC 2010/93223
COUNSEL:	Mr M Thangaraj SC - Plaintiff Mr G Bellow SC - Defendants
SOLICITORS:	Plaintiff - IV Knight, Crown Solicitor Defendants - Athena Touriki Solicitors
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Magistrate Curran
LOWER COURT DATE OF DECISION:	24 March 2010