Ilic v The Queen

[2020] NSWCCA 300

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Ilic v R [2020] NSWCCA 300

Hearing dates:

12 October 2020

Date of orders:

20 November 2020

Decision date:

20 November 2020

Before:

McCallum JA at [1];
Garling J at [47];
Wright J at [63]

Decision:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentence imposed by Williams SC DCJ.

4. Remit the proceedings to the District Court for sentence on 4 December 2020.

Catchwords:

SENTENCING — Sentencing procedure — offender sentenced for offences against laws of the State — where offender asked the sentencing court to take federal offences into account on a “Form 1” — whether State legislation permitted the sentencing court to take federal offences into account — whether “Form 1” provisions picked up and applied as federal law by s 68(1) or s 79 of the Judiciary Act 1903 (Cth) — whether Form 1 provisions inconsistent with federal sentencing law

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 15, Pt 3 Div 3, ss 53A, 103(2), Sch 2 Pt 14 cl 54

Crimes (Sentencing Procedure) Amendment (Forms) Regulation 2004 (NSW)

Crimes (Sentencing Procedure) Regulation 2000 (NSW), Sch 1

Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 4

Crimes Act 1900 (NSW), s 193B

Crimes Act 1914 (Cth), Pt 1B, ss 16A(1), 16BA, 19AJ

Criminal Procedure Act 1986 (NSW), s 166

Director of Public Prosecutions Act 1983 (Cth), s 6(1)

Interpretation Act 1987 (NSW), s 12(1)

Judiciary Act 1903 (Cth), ss 68(1), 69, 79

Radiocommunications Act 1992 (Cth), s 47(1)

Cases Cited:

Adams v Western Australia [2014] WASCA 191; (2014) 245 A Crim R 351

Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1

Director of Public Prosecutions (Cth) v Beattie (2017) 327 FLR 71; [2017] NSWCCA 301

DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

John Robertson and Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65; [1973] HCA 21

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Mok v Director of Public Prosecutions (NSW) (2016) 257 CLR 402; [2016] HCA 13

Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8

Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23

Solomons v The District Court of NSW (2002) 211 CLR 119; [2002] HCA 47

Woods v R [2020] NSWCCA 219

Category:

Principal judgment

Parties:

Branimir Ilic (Applicant)
Regina (Respondent)

Representation:

Counsel:
P Lange (Applicant)
B K Baker (Respondent)

Solicitors:
Abbas & Co Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/345519

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

21 February 2020

Before:

Judge M L Williams SC

File Number(s):

2018/0345519

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Mr Branimir Ilic, was sentenced for two State offences of dealing with proceeds of crime. At his request, the sentencing court took six additional offences into account on a Form 1 as allowed under Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Two of those offences were federal offences arising from the applicant’s possession of signal jammers contrary to s 47(1) of the Radiocommunications Act 1992 (Cth).

The principal issue on appeal was whether it was permissible for the sentencing court to take the two Commonwealth offences into account on a Form 1 when sentencing the applicant for a New South Wales offence. In juridical terms, the question was whether the provisions of Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act are picked up and applied as federal law by s 68(1) or s 79 of the Judiciary Act 1903 (Cth). The Crown conceded that it was open to the Court to conclude that the sentencing judge was not permitted to take the two federal offences into account on the Form 1.

Held (per McCallum JA, Garling and Wright JJ agreeing), allowing the appeal:

1. The Form 1 provisions do not apply of their own force to federal offences: at [21]-[22].

   Interpretation Act 1987 (NSW), s 12(1); Solomons v The District Court of NSW (2002) 211 CLR 119; [2002] HCA 47 at [37] applied.

2. Sections 68(1) and 79 of the Judiciary Act 1903 (Cth) operate to apply the substance of any relevant State sentencing law to federal offences in so far as it can be applied: at [26]-[27]. Textual references in the relevant State law to features of the criminal justice system peculiar to the State will not necessarily preclude the application of that principle: at [29].

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 applied.

1. The provisions of Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act are, in theory, capable of being picked up and applied for the purpose of sentencing an offender for federal offences: at [32].

   Director of Public Prosecutions (Cth) v Beattie (2017) 327 FLR 71; [2017] NSWCCA 301 at [141]-[146]; Woods v R [2020] NSWCCA 219 at [87]; Adams v Western Australia [2014] WASCA 191; (2014) 245 A Crim R 351 cited.

per McCallum JA, Wright J agreeing:

1. However, there are two relevant inconsistencies between the federal and State sentencing regimes which preclude the application of the NSW Form 1 provisions as surrogate federal law:

   (a) the prohibition under the Commonwealth law on fixing a single non-parole period in respect of both federal and State sentences: at [41].

   Crimes Act 1914 (Cth), ss 19AJ, 16BA considered.

   (b) the intention that a Commonwealth offence should not be disposed of contrary to the determination of a Commonwealth prosecutor: at [44].

   Director of Public Prosecutions Act 1983 (Cth), s 6(1) considered.

per Garling J:

1. The practical utility of the appeal is entirely illusory because except for the error of law in respect of the New South Wales Form 1 procedure, the applicant has no complaint about the sentence imposed: at [48], [54], [58].

2. The relevant inconsistency between the federal and State law is between Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act and s 16BA of the Crimes Act 1914 (Cth): at [61]-[62].

Judgment

1. McCALLUM JA: Offenders in New South Wales can be undiscriminating as to whether they commit State or federal offences. Sometimes they do both, which complicates the sentencing task. The applicant in the present case provides a good example. On a day when he was found dealing with proceeds of crime (a State offence), he was in possession of a prohibited weapon, prohibited drugs and false identification (all State offences) but also two signal jammers (a federal offence). This appeal raises a difficult question concerning the sentencing procedures available for such an offender.

2. There is a sentencing procedure available under the law of New South Wales that allows the court, in dealing with an offender facing multiple charges, to sentence the offender for a selected offence (usually the most serious) on the basis that additional offences admitted by the offender will be “taken into account”: Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The additional offences to be taken into account are listed on a form known as a “Form 1”. The applicant pleaded guilty to and was sentenced for two State offences. At his request, he had six additional offences taken into account on a Form 1 in respect of one of those offences, including the two federal offences arising from his possession of the two signal jammers. He now contends that the sentencing judge had no authority to sentence him on that basis.

3. The sole ground of appeal specified in the notice of appeal as filed is that the sentencing judge erred in taking into account two Commonwealth offences when sentencing the offender in respect of a New South Wales offence. For practical purposes, the question raised by that ground is whether a federal offence can be included on a Form 1 in respect of a New South Wales offence. In juridical terms the issue is whether the provisions of Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act are picked up and applied as federal law by s 68(1) or s 79 of the Judiciary Act 1903 (Cth).

4. The Form 1 procedure is of benefit to offenders and prosecuting authorities alike. The procedure allows the court to address the offender’s criminality in a streamlined manner that combines transparency and efficiency. It allows the offender, having been found guilty or admitted guilt of a serious offence, to have all outstanding charges dealt with at the same time so as to emerge with a clean slate. So it is perhaps surprising to see the point taken on appeal by an offender. It is the offender who invokes the procedure in the first instance: s 32 of the Crimes (Sentencing Procedure) Act. There can be no criticism of the sentencing judge in the present case for taking the course the parties asked him to take.

5. Be that as it may, if the relevant State provisions are not picked up by s 68(1) or s 79 of the Judiciary Act, it follows inexorably that the sentencing discretion has miscarried in the present case and must be exercised afresh. The offender would not in that event have been sentenced according to law, as he is entitled to be: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [44].

6. This Court’s task in determining that question has been facilitated by a concession by the Crown that it would be open to the Court to conclude that the sentencing judge was not permitted to take the two federal offences into account on the Form 1. The Crown provided careful submissions broadly supporting the applicant’s argument in the appeal. I am of the view that the Crown’s concession was correctly and properly made and that the appeal must be allowed.

The Form 1 procedure

7. The provisions concerning taking further offences into account included in Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act are ss 31-35A (referred to in this judgment as the “Form 1 provisions”).

8. As already noted, s 32 contemplates that the Form 1 procedure will be invoked by the offender. However, implicitly at least, that is subject to the consent of the prosecutor, who is burdened with filing the relevant document:

32 Prosecutor may file list of additional charges

(1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.

9. If the offences included on a Form 1 were the subject of plea negotiations, the prosecutor is also required to file a certificate verifying that consultation with the victim and the police officer in charge of investigating the offences has taken place or explaining why such consultation has not taken place: s 35A(2). The consultation must have taken place in accordance with the relevant prosecution guidelines issued by the New South Wales Director of Public Prosecutions.

10. The list of additional charges must be signed by the offender and by or on behalf of the New South Wales Director of Public Prosecutions or by a person “prescribed by the regulations”: s 32(4) of the Act. The list of persons prescribed for the purpose of that section includes police officers but also numerous public officials (presumably being those with authority to prosecute offences against statutes administered by their respective departments): cl 4(2) of the Crimes (Sentencing Procedure) Regulation 2017 (NSW).

11. Section 33(2) of the Act contemplates that, where additional offences are taken into account, the court only imposes a sentence for the principal offence (“the court may take a further offence into account in dealing with the offender for the principal offence”). That is the construction that was adopted in a guideline judgment of this Court in which the proper application of the Form 1 provisions was considered by an enlarged bench: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [39]. In that respect, the procedure of taking further offences into account on a Form 1 differs from the power under s 53A of the Crimes (Sentencing Procedure) Act to impose an aggregate sentence for more than one offence. When offences are taken into account on a Form 1, no sentence is imposed for those offences. Instead, in determining the appropriate sentence for the selected “principal offence”, the sentencing court is authorised to take the additional offences into account in a manner that, absent the authority conferred by the Form 1 provisions, would entail error.

12. The guideline judgment explains that the sentence imposed when additional offences are taken into account will likely be higher than would otherwise have been imposed: at [42]. However, it cannot exceed the maximum penalty for the principal offence: s 33(3). While the additional charges are taken into account with a view to imposing an increased penalty, the effect is to give the offences listed on the Form 1 “a significantly lower salience in the sentencing process”: guideline judgment at [66]. The Court has regard to the additional offences by giving greater weight to the need for personal deterrence and “the community’s entitlement to extract retribution for serious offences…for which no punishment has in fact been imposed”: guideline judgment at [42].

13. Importantly for present purposes, an essential feature of the procedure authorised by the Form 1 provisions is that, while the offences on a Form 1 are taken into account in a different way, the offender is not sentenced for those offences, even though they are offences in respect of which guilt is admitted. And, as already noted, the persons authorised to initiate that procedure (by filing the relevant document) include State public officials other than the Director of Public Prosecutions.

14. Before leaving the Form 1 provisions, it may be helpful to record something about “Form 1” itself. A search for the prescribed “Form 1” shows it to have been repealed. Having traced its convoluted legislative history, it seems a shame not to share that information with any person who may be mystified, as I was, as to why a repealed form is still in common use. Form 1 was formerly contained in Sch 1 to the Crimes (Sentencing Procedure) Regulation 2000 (NSW), which is also repealed. The repeal of the form was effected by the Crimes (Sentencing Procedure) Amendment (Forms) Regulation 2004 (NSW) which, in the case of certain forms, replaced the requirement to use the “prescribed form” with a requirement to use the “approved form” (a term defined to mean a form approved by the Minister). Presumably the reason for authorising the Minister to approve forms was for administrative convenience. That change is reflected in cl 4 of the current regulation, the Crimes (Sentencing Procedure) Regulation 2017, which provides that a list of additional charges under s 32 of the Act is to be in the “approved form”. However, no form has yet been approved for the purpose of that section. Accordingly, the position is governed by the transitional provisions in Pt 14, cl 54 of Sch 2 to the Crimes (Sentencing Procedure) Act, the effect of which is to provide (inter alia) that a form “to the effect of” Form 1 may be used for the purpose of s 32 until such time as regulations are made under section 103(2) of the Act (which authorises the making of regulations requiring any document required by the Act to be in a form approved by the Minister). So, technically, the requirement is to file the list of additional charges on a form “to the effect of” the now repealed Form 1.

Circumstances in which the appeal is brought

15. The applicant was committed for sentence to the District Court for two indictable offences of knowingly dealing with proceeds of crime contrary to s 193B of the Crimes Act 1900 (NSW). Six related offences were transferred to the District Court at the same time, as contemplated by s 166 of the Criminal Procedure Act 1986 (NSW). The sentencing judge could have sentenced the applicant for those offences. However, in circumstances not disclosed by the material before this Court, it was evidently determined instead to ask the court to take those offences into account on a Form 1 in respect of one of the indictable offences. As already noted, the offences on the Form 1 included two offences against federal law, being offences of possessing a radiocommunications device contrary to s 47(1) of the Radiocommunications Act 1992 (Cth).

16. The resolution of the issue raised by the appeal does not turn on the underlying facts of Mr Ilic’s offending. It is enough for present purposes to record that he was arrested in possession of over $1 million in cash. That was the principal offence. Police searched his car and his home and discovered the items which formed the basis for the six charges taken into account on the Form 1 (deemed supply of a quantity of methylamphetamine and a quantity of cocaine and possession of a taser, a false licence and the two signal jamming devices). The second offence of dealing with the proceeds of crime related to earlier events and did not involve any related charges.

17. The sentencing judge imposed an aggregate sentence of imprisonment for 4 years and 10 months with a non-parole period of 2 years and 9 months. The sentencing judgment confirms that his Honour took the six Form 1 matters into account in dealing with the principal offence. The indicative sentence for that offence was imprisonment for 4 years and 2 months.

18. The only other fact that should be mentioned is that, as is commonly the position in cases of mixed State and federal offending, the New South Wales Director of Public Prosecutions had authority to prosecute the two federal offences pursuant to a delegation by the Commonwealth Director of Public Prosecutions. However, as submitted by the Crown, the legal question whether Pt 3 Div 3 is picked up by s 68(1) or s 79 of the Judiciary Act is to be assessed by reference to the general application of the relevant provisions, not by reference to their application in this particular case.

Amended grounds of appeal

19. Before turning to the principal issue raised by the appeal, it is appropriate to record that there is an additional basis for allowing the appeal arising from a problem identified by the Crown. Careful fact-checking by the solicitor instructing the Crown Prosecutor in the appeal revealed that, in both the Form 1 and the Crown Sentence Summary provided to the sentencing judge, the wrong penalty provision was identified for the two federal offences on the Form 1. The result was that the sentencing judge was led to believe the maximum penalty for those offences was imprisonment for two years whereas, in fact, as the radiocommunications device in question was a radiocommunications device other than a radiocommunications transmitter, the maximum penalty was twenty penalty units (the section is poorly numbered; the applicable penalty provision is par (b) under the heading “penalty” in s 47(1) of the Radiocommunications Act 1992 (Cth)). At the end of the hearing, the applicant was granted leave to rely on a further ground of appeal raising that issue. It is not necessary to consider that issue further, save to say that it is an additional reason for allowing the appeal.

Issues raised by the parties’ submissions

20. The Crown identified four principles to be borne in mind in considering whether the Form 1 provisions allow the court to take a federal offence into account in respect of a State offence. The principles were stated succinctly in the Crown’s written submissions and can conveniently be repeated verbatim:

“1. State laws do not apply of their own force in the exercise of the Court’s jurisdiction relating to the prosecution of federal offences: Solomons v The District Court of NSW [2002] HCA 47; 211 CLR 119 at [21] (per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ); Hili v The Queen [2010] HCA 45; 242 CLR 520 at [21] (per French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Rizeq v Western Australia [2017] HCA 23; 262 CLR 1 at [15] and [21] (per Kiefel CJ), at [57] and [60]-[61], per Bell, Gageler, Keane, Nettle and Gordon JJ.

2. However, State laws relating to the prosecution of offences may be ‘picked up’ and applied by s 68 or s 79 of the Judiciary Act as federal laws: Putland v The Queen [2004] HCA 8; 218 CLR 174 at [4] (per Gleeson CJ); Solomons at [21] (per Gleeson, Gaudron, Gummow, Hayne and Callinan JJ). When so applied, the State law applies as federal law: Solomons at [20]-[21]; Mok v Director of Public Prosecutions (NSW) [2016] HCA 13; 257 CLR 402 at [84] (per Gordon J).

3. When s 68 or s 79 of the Judiciary Act ‘pick up’ and apply a State law as a federal law, the State law applies with its meaning unchanged, subject to the qualification that the State law is applied on the hypothesis that it operates as a federal law: Solomons at [59] (per McHugh J); Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; 204 CLR 559 at [134], [137] and [141] (per McHugh J); John Robertson and Co Ltd v Ferguson Transformers Pty Ltd [1973] HCA 21; 129 CLR 65 at 88 (per Gibbs J) and at 95 (per Mason J).

4. A State law will not be picked up by s 68 or s 79 of the Judiciary Act if the law is inconsistent with a law of the Commonwealth: Hili at [21] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Putland at [7] (per Gleeson CJ) and at [41] (per Gummow and Heydon JJ).”

The Interpretation Act

21. As to the application of the first principle in the present case, it was common ground that the Form 1 provisions do not apply of their own force to federal offences. The parties’ position on that issue should be accepted. The starting point is that the several references to “offence” or “offences” in ss 32 and 33 are taken to refer to offences “in and of New South Wales”. That is because s 12(1) of the Interpretation Act 1987 (NSW) says so. As noted in the applicant’s submissions, McHugh J in Solomons at [37] referred to this as a “long recognised rule of statutory construction” which in New South Wales is “enshrined” in s 12. No contrary intention is indicated. In my view, the rule of statutory interpretation stated in s 12 of the Interpretation Act should be given force on that basis alone: but cf DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242 at [9]-[41] (Bell P).

22. The applicant also identified a number of textual indications that the Form 1 provisions were intended to apply only to State offences. In particular, he noted the inclusion of various State department officials in the range of persons authorised under cl 4(2) of the Crimes (Sentencing Procedure) Regulation 2017 to sign a Form 1 on behalf of the prosecution; the requirement of s 35A(2)(a) for consultation governed by the prosecution guidelines of the NSW Director of Public Prosecutions; the requirement of s 35A(2)(b) that any agreed facts tendered at the hearing must have been settled in accordance with those guidelines and the requirement for certification of those steps by or on behalf of the NSW Director of Public Prosecutions. Those provisions tend to confirm what is clear in any event from the application of s 12 of the Interpretation Act that the Form 1 provisions were not intended to authorise the Court to accept the inclusion of a federal offence on a Form 1.

Sections 68(1) and 79 of the Judiciary Act 1903 (Cth)

23. The critical question is whether the Form 1 provisions are “picked up” and applied as federal law by s 68(1) or s 79 of the Judiciary Act 1903 (Cth). The parties’ submissions focussed primarily on s 68(1). That section provides:

(1)    The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:

(a)   their summary conviction; and

(b)   their examination and commitment for trial on indictment; and

(c)    their trial and conviction on indictment; and

(d)    the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;

and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.

24. As noted in the Crown’s submissions, it has been accepted that the references to the laws of a State concerning “conviction” are capable of including laws concerning the sentencing of offenders. The authority for that proposition is the decision of the High Court in Williams v The King (No 2) (1934) 50 CLR 551 at 560; [1934] HCA 19; cited in Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 at [4] (Gleeson CJ) and see Putland at [34] (Gummow and Heydon JJ).

25. The applicant submitted (in writing at least) that the Form 1 provisions are not capable of operation in respect of an offence under a law of the Commonwealth because “the same interpretive difficulties [as were identified in support of the construction argument considered above] arise”. If I have understood the argument correctly, it was that the Form 1 provisions cannot be picked up by the relevant provisions of the Judiciary Act and be made applicable to persons charged with offences against the laws of the Commonwealth because, on their proper construction, they evince an intention to apply to State offences only. At the hearing of the appeal I understood Mr Lange, who appeared for the applicant, to move away from that argument. To the extent that it was maintained, I would reject it. A similar argument was rejected by the High Court in Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1. In that case, the respondents submitted that s 79 of the Judiciary Act did not apply to “pick up” provisions of the Corporations Law of Victoria because for s 79 to do so would require a “rewriting” of the definition of “Court” in that Law. In explaining his reasons for rejecting that argument, McHugh J said at [137]:

“The fact that a State statute either expressly or as a matter of construction provides only for State courts to enforce its provisions does not mean that it cannot be ‘picked up’ and applied by s 79 of the Judiciary Act in the exercise of federal jurisdiction.”

26. As his Honour went on to explain, courts exercising federal jurisdiction should rather proceed on the basis that (in that case) s 79 “will apply the substance of any relevant State law in so far as it can be applied”: at [141]. His Honour said at [141]:

“The efficacy of federal jurisdiction would be seriously impaired if State statutes were held to be inapplicable in federal jurisdiction by reason of their literal terms or verbal distinctions and without reference to their substance.”

27. Section 68(1) should similarly be construed so as to apply the substance of any relevant State sentencing law in so far as it can be applied. The intended operation of s 68(1) was explained by Gleeson CJ in Putland at [4]:

“The background to the section is the obvious circumstance that State and Territory laws concerning the matters to which the section relates may differ. The necessary consequence is that, in certain respects, those differences will apply as between federal offenders, depending upon where they are tried.”

28. His Honour noted that the sentencing judge in that case was exercising jurisdiction conferred by s 68(2) (because the offender was to be sentenced for federal offences). He continued:

“Northern Territory laws respecting the procedure for trial and conviction on indictment were at least potentially picked up and applied as federal law by s 68(1). Sentencing laws come within that description. In Leeth v The Commonwealth, Mason CJ, Dawson and McHugh JJ referred to an observation by Dixon J that s 68 disclosed a policy ‘to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State’ and that it was ‘no objection to the validity of such a provision that the State law adopted varies in the different States’.” (footnotes omitted)

29. Those authorities support an approach that, for the efficacy of federal jurisdiction, a State court dealing with an offender for a federal offence should proceed on the hypothesis described by McHugh J in Edensor that s 68(1) will apply the substance of any relevant State sentencing law in so far as it can be applied. Textual references in the relevant State law to features of the criminal justice system particular to the State will not necessarily preclude the application of that principle.

30. The Crown’s written submissions provided examples of State sentencing provisions that have been held to be picked up and applied by s 68(1) of the Judiciary Act so as to authorise their application by courts sentencing federal offenders. I have already referred to Putland in which it was held that the provision of the Northern Territory Sentencing Act authorising the imposition of an aggregate sentence was picked up and applied so as to authorise its application in sentencing for a federal offence. Putland has been applied by this Court so as to take up the New South Wales provision for aggregate sentences for application to federal offences: Director of Public Prosecutions (Cth) v Beattie (2017) 327 FLR 71; [2017] NSWCCA 301 at [141]-[146]; Woods v R [2020] NSWCCA 219 at [87].

31. Similarly, it has been held that the Western Australian sentencing laws permitting an offender to be sentenced for a summary offence at the same time as being sentenced for a State indictable offence were picked up and made applicable by s 68(1) so as to authorise the court to deal with a Commonwealth offence at the same time as State offences: Adams v Western Australia [2014] WASCA 191; (2014) 245 A Crim R 351.

32. On the strength of those authorities, there appears to be little doubt that, in theory, the provisions of Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act providing for offences to be taken into account on a Form 1 are of a kind that is capable of being picked up and applied for the purpose of sentencing an offender for federal offences.

Inconsistency

33. The more difficult question is whether there is any inconsistency or contrariety with a law of the Commonwealth that precludes the application of the Form 1 provisions as surrogate federal law.

34. Section 68(1) of the Judiciary Act provides that State procedural laws shall “subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth”. Section 79 is qualified by the words “except as otherwise provided by the Constitution or the laws of the Commonwealth”.

35. In Putland, Gleeson CJ explained at [7] that there is little if any functional difference between those two formulations. The question in each case is whether a Commonwealth law “expressly or by implication made contrary provision” or if there was a Commonwealth legislative scheme relating to sentencing which was “complete upon its face” and can “be seen to have left no room” for the operation of the State law.

36. The proposition that the federal sentencing regime in Pt 1B of the Crimes Act 1914 (Cth) covers the field or is “complete upon its face” was rejected in Putland. However, there remains the question of inconsistency.

37. The parties identified three potential inconsistencies. The first focussed on the prohibition under the Commonwealth law on fixing a single non-parole period or making a recognizance release order in respect of both federal and State sentences of imprisonment. Section 19AJ of the Commonwealth Crimes Act provides:

Court may only fix non-parole periods or make recognizance release orders for federal sentences of imprisonment.

This Division does not authorise a court to fix a single non-parole period, or make a recognizance release order, in respect both of federal sentences of imprisonment and State or Territory sentences of imprisonment.

38. The Crown noted that that prohibition does not give rise to any direct inconsistency with the Form 1 provisions because no non-parole period is fixed in respect of offences taken into account on a Form 1. However, it was submitted that the section evinces an intention that a federal sentence of imprisonment should not be intermixed with a State sentence of imprisonment. In that context, the Crown noted that, while in both Beattie and Woods, this Court accepted that State aggregate sentencing provisions may be picked up and applied by s 68(1) of the Judiciary Act, it was not held that those provisions would authorise the aggregation of federal offences and State offences. In the case of a court sentencing for both State and federal offences, separate aggregate sentences have been imposed for each category of offence: Woods at [87]-[88] (Wright J; Bathurst CJ and Garling J agreeing at [1] and [2]).

39. The Crown’s submission concerning s 19AJ raises a broader question as to whether federal sentences and State sentences can sensibly be mixed having regard to the different regimes by which they are governed. While it has been accepted that Pt 1B of the Crimes Act 1914 (Cth) does not cover the field of federal sentencing, it does mandate a highly specific approach to the task of determining the appropriate sentence for a federal offence. The Crimes (Sentencing Procedure) Act1999 (NSW) is similarly prescriptive. Just how the two tasks could be mixed in a single sentencing exercise is difficult to conceive. In saying so, I accept that an offence taken into account on a Form 1 is not the subject of a separate sentence but if anything that emphasises the complexity of the task posited.

40. Separately, it may be noted that the Crimes Act 1914 (Cth) makes its own provision in s 16BA for federal offences (and only federal offences) to be taken into account on a document in the nature of a Form 1. Where that occurs, the document must be signed by the Commonwealth Director of Public Prosecutions or on her behalf by a person authorised by her or a person appointed under s 69 of the Judiciary Act 1903 (Cth) to prosecute indictable federal offences.

41. Those considerations reinforce my conclusion that the Crown’s submission on this issue must be accepted. In my view, the existence of a prohibition under the Commonwealth law on fixing a single non-parole period in respect of both federal and State sentences must be understood as a prohibition on “mixing” federal and State sentences of imprisonment, whether in an aggregate sentence or by taking offences into account on a Form 1. Of course, in practical terms, the inconsistency only arises in relation to the laws concerning sentencing for offences punishable by imprisonment. The parties did not address the implications of the Crown’s discovery (embraced by the applicant as a new ground of appeal only at the conclusion of the hearing) that the federal offences in question here are punishable only by fine. I think it would be wrong to approach this question in a manner that distinguished between different applications of the Form 1 procedure. The inconsistency exists and, in my view, stands as an impediment to the application of the Form 1 provisions as surrogate federal law.

42. Secondly, it was submitted that the Form 1 provisions are arguably inconsistent with s 16A(1) of the Commonwealth Crimes Act, which provides:

In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

43. I am less confident that that is a relevant inconsistency for two reasons. As already noted, the effect of including an offence in a Form 1 is that no sentence is imposed for that offence. It follows that, when taking matters on a Form 1 into account, the Court is not “determining the sentence to be passed” for that offence so that s 16A(1) does not in terms apply to that procedure. That analysis is fortified by the fact that the Commonwealth sentencing regime also includes a Form 1 kind of procedure. Reading the relevant Commonwealth provisions coherently as a whole, what is indicated is that, when sentencing for a federal offence, the court must comply with s 16A(1) but the court can alternatively proceed under the analogous Form 1 type procedure.

44. Finally, it was submitted that it would be open to the Court to find that the Commonwealth Crimes Act and the Director of Public Prosecutions Act 1983 (Cth) evince an intention that a Commonwealth offence should not be disposed of contrary to the determination of a Commonwealth prosecutor. That is a relevant inconsistency in my view. Under s 6(1) of the Director of Public Prosecutions Act, the prosecution of indictable offences against the laws of the Commonwealth is a function of the Commonwealth Director of Public Prosecutions. As submitted by the Crown, the inclusion of a federal offence on a Form 1 would have the effect that the offender would have no sentence imposed for such an offence regardless of the attitude of the federal prosecutor. Again, that conclusion is subject to the qualification that the parties did not address the Court as to the significance, if any, of the fact that (as it transpired) the federal offences on the Form 1 in the present case were not indictable. However, in light of my conclusion as to the intention of the legislation that Commonwealth and State sentences should not be mixed, it is not necessary to consider that issue further.

Conclusion

45. It was common ground that, if the Court found that the error contended for by the applicant was established, the only appropriate order would be for the matter to be remitted to the District Court for the applicant to be resentenced according to law (by dealing with the federal offences under s 166 of the Criminal Procedure Act rather than on a Form 1). The applicant submitted that the Court should direct that the proceedings be remitted to the original sentencing judge as his Honour is familiar with the matter. I would take it to be well-established that it is not appropriate for this Court to make an order in such terms. The listing arrangements of the District Court are properly a matter for that court.

46. For those reasons, I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentence imposed by Williams SC DCJ.

4. Remit the proceedings to the District Court for sentence.

47. GARLING J: In this application for leave to appeal, the Court is asked to quash the sentence imposed on the applicant by M L Williams SC DCJ, and remit the matter to the District Court so that the applicant can be sentenced again.

48. Except for the error of law dealing with whether two minor federal offences could be taken into account by a sentencing Judge using the NSW Form 1 procedure, the applicant has no, and could not have any, complaint about the sentence which was imposed.

49. The applicant pleaded guilty to the following two offences:

1. an offence against s 193B(1) of the Crimes Act 1900 (NSW) of knowingly dealing with the proceeds of crime with intent to conceal, being the sum of $331,315.00. This offence carries a maximum penalty of 20 years imprisonment. No standard non-parole period is fixed; and

2. an offence against s 193B(2) of the Crimes Act 1900 (NSW) of knowingly dealing with the proceeds of crime being the sum of $1,000,700.00. This offence carries a maximum penalty of 15 years imprisonment. No standard non-parole period is fixed.

50. Again, leaving aside the two minor federal offences described by McCallum JA at [2], the applicant asked the sentencing Judge to take into account four offences: possessing a prohibited weapon, two counts of supplying prohibited drugs (one being for methylamphetamine and the other for cocaine), and possessing a false driver’s licence. Each of these offences carries maximum terms of imprisonment of between 7 and 15 years. They can be quite serious offences.

51. The applicant has a relevant previous criminal history in NSW, Tasmania (for money laundering) and also in Queensland.

52. The offences of which the applicant was convicted were clearly part of a deliberate course of conduct intended to remunerate the applicant very well. The applicant was allowed a 40% discount by the sentencing Judge for his plea of guilty and his past assistance to the authorities.

53. On the first offence, the sentencing Judge indicated a sentence of 2 years and 6 months. On the second offence (including the offences to be taken into account) the sentencing Judge indicated a sentence of 4 years and 2 months. An aggregate sentence of 4 years and 10 months was imposed. A non-parole period of 2 years and 9 months was specified.

54. In my view, for all of the State offences, this aggregate sentence was within the range of appropriate sentences, even if a somewhat lenient one.

55. It is, to say the least, surprising that this Court is required now to quash the sentence because the applicant asked the sentencing Judge, no doubt on the advice of his counsel, and with the active agreement of the prosecution, to take into account two minor federal offences, both of which carry a penalty of a monetary fine only in the maximum sum of $2,100.00.

56. It is surprising to me because I cannot see that the final outcome of this appeal, unless the evidence before the sentencing Judge is significantly different from that upon which the applicant was sentenced in February 2020, will be that any different sentence will be imposed upon resentencing.

57. After all, it was open to the sentencing Judge when considering the second offence, and all of the offences including the federal offences on the Form 1, to impose a fine in addition to the sentence of imprisonment which was ordered: s 15(3) of the Crimes (Sentencing Procedure) Act 1999. He could have, but did not, imposed a fine of up to a maximum of $110,000.

58. Put differently, given the range of possible sentences which could have been imposed by the sentencing Judge, including the length of any possible term of imprisonment and the possible imposition of a fine, and having regard to the aggregate sentence which was in fact imposed and which, as I have said earlier, may well be thought to be lenient, the practical utility of this appeal is entirely elusive. Even if the sentencing Judge had been asked not to take the two federal offences into account, there is no realistic prospect that any lesser indicative sentence on the second offence would have been reached, much less any different aggregate sentence.

59. Were I not constrained by authority, I would have preferred to have disposed of this matter by refusing leave to appeal. However, I agree with the conclusion of McCallum JA that an error of law has occurred in circumstances where a “relevant inconsistency” prevents the provisions of Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act which are, in theory, capable of being picked up by either or both of s 68(1) and s 79 of the Judiciary Act 1903 (Cth), being applied for the purpose of sentencing an offender for federal offences.

60. For my part, I would rest my conclusion about that error of law upon the grounds that there is inconsistency demonstrated between the provisions of Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999, which fixes a procedure by which further offences are to be taken into account by a sentencing Judge, and the provisions of s 16BA of the Crimes Act 1914 (Cth).

61. Having regard to the express provisions of s 16BA, it seems clear that there is no room for any other like, State-based provision to operate with respect to federal offences, and so a relevant inconsistency is to be found.

62. I agree with the orders proposed by McCallum JA.

63. WRIGHT J: I agree with the orders proposed by McCallum JA for the reasons her Honour has given.

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Amendments

20 November 2020 - amendment to order 4.

Decision last updated: 20 November 2020