Lavorato v The Queen - [2012] NSWCCA 61

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lavorato v Regina [2012] NSWCCA 61
Hearing dates: 10 February 2012
Decision date: 17 April 2012
Before: Basten JA at 1;
RS Hulme J at 52;
Schmidt J at 64;
The Court at 129
Decision:
1. Answer questions 1, 2 and 3(b) in the negative and questions 3(a), 4, 5 and 6 in the affirmative.
2. Set aside the orders of the District Court.
3. Remit the matter to the District Court for disposal in accordance with law.
4. The Crown to pay the applicant's costs of the stated case.

Catchwords:
COSTS - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - whether "an appeal" within the meaning of Criminal Appeal Act 1912 (NSW), s 17 - whether costs can be ordered

CRIMINAL LAW - appeal - procedure - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - whether appropriate for trial judge to identify findings of fact other than those identified in the judgment - whether extension of time to submit stated case should be granted

CRIMINAL LAW - appeal - sentencing - application pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 - whether failure to consider facts relied upon by applicant or other relevant matters amounted to an error of law - whether failure to make factual findings and consider submissions amounted to an error of law - whether failure to consider mitigating factors specified in Crimes (Sentencing Procedure) Act, s 21A amounted to an error of law - whether s 10 is available to a person charged with a strict liability offence
CRIMINAL LAW - procedure - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - trial judge in declined to proceed with matter under Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 - whether issue not proffered for determination by the District Court can form the basis of a stated case - whether question of law arises
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17, 20
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 4, 10, 21A; Pt 2, Div 3
Criminal Appeal Act 1912 (NSW), ss 5B, 10
Criminal Appeal Rules, r 29
Director of Public Prosecutions Act 1986 (NSW), s 9
Evidence Act 1995 (NSW)
Justices Legislation Amendment (Appeals) Act 1998 (NSW), item 2.8
Liquor Act 2007 (NSW), ss 11, 150; Sch 4, cl 4
Registered Clubs Act 1976 (NSW), ss 17, 17AAA, 44A, 66
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Castlebar Holding Pty Ltd v Riley [2005] NSWCCA 105
Collins v State Rail Authority of NSW (1986) 5 NSWLR 209
Commissioner of Taxation v Baffsky [2001] NSWCCA 332; 164 FLR 375
Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58
Hoffenberg v The District Court of New South Wales [2010] NSWCA 142
Jones v Morley (1981) 29 SASR 51
Kirk v Industrial Relations Commission [2010] HCA 1; [2010] 239 CLR 531
McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority [2000] NSWCCA 367
Muin v Refugee Review Tribunal (No 3) [2000] HCA 49; 174 ALR 681
R v Vallett [1951] 1 All ER 231
Regina v Van Nam Nguyen [2002] NSWCCA 183
Robinson v Woolworths Ltd (T/as Woolworth Plus Petrol Werrington) [2005] NSWCCA 426; 64 NSWLR 612
Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547
Talay v R [2010] NSWCCA 308
Thomas v R [1937] HCA 83; (1937) 59 CLR 279
Category: Principal judgment
Parties: Michael Lavorato - Applicant
Regina - Respondent
Representation:
Counsel:

T M Lynch - Applicant
F A Veltro - Respondent
Solicitors:
Piggott Stinson Lawyers - Applicant
S Kavanagh, Solicitor of Public Prosecutions - Respondent

File Number(s): CCA 2009/62338
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-08-25 00:00:00

Before:

Syme DCJ

File Number(s):

DC 2009/62338

Judgment

BASTEN JA: On 16 June 2009 the applicant, Mr Lavorato, appeared before Magistrate Pearce in the Local Court at Campbelltown, charged with three offences under the Liquor Act 2007 (NSW), s 11(2). (The name of the informant does not appear from the papers before this Court.) Each offence identified a failure to comply with the conditions of the licence held by the applicant as the secretary/manager of the Campbelltown Catholic Club Ltd. The offences were not committed by the applicant personally, but by staff, in serving alcohol after midnight in glass containers. The submissions for the applicant in the Local Court were that the charges should be dismissed without proceeding to conviction, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"). The magistrate declined to take that course, convicting the applicant and fining him $600 on each count.

On 10 July 2009, the applicant filed an appeal against sentence, pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), s 11(1). The Director of Public Prosecutions took over the proceedings in the District Court, pursuant to the Director of Public Prosecutions Act 1986 (NSW), s 9. Accordingly, the Director is the respondent in this Court. (Following a practice long predating the creation of the Director's office, the proceedings are still entitled in the name of the Queen, in Latin.)

On 25 August 2010 the appeal against sentence was heard by Syme DCJ and was dismissed. The proceedings come to this Court by way of case stated by Syme DCJ pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). In dismissing the appeal, Syme DCJ rejected the applicant's submission that he should have been dealt with under s 10 of the Sentencing Procedure Act. Her Honour was subsequently invited to state a number of questions for determination by this Court, which, if determined in the applicant's favour, would form the basis for an order quashing the judgment on the sentence appeal and remitting the matter to the District Court for determination in accordance with the answers given by this Court: s 5B(3).

For the reasons set out below, such relief should not be granted. However, before addressing the stated questions of law, two preliminary steps must be taken. First, it is necessary to identify the procedures by which the case has been stated. Secondly, it is necessary to explain why the Court granted the applicant an extension of time within which to file the stated case.

(1) Procedure for case stated

There is no appeal from a decision of the District Court in its criminal jurisdiction determining an appeal from a judgment in the Local Court. Apart from judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW), the only step available to an aggrieved party in the District Court is to invite the judge to submit for determination by this Court a question of law arising on the appeal to the District Court. That procedure is available under s 5B of the Criminal Appeal Act, which provides:

"5B Case stated from District Court

(1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.

(2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.

(3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court."

The absence of any appeal from the District Court in such cases is long standing and deliberate: a case stated is not to be converted into a general right of appeal, or even one limited to error of law. Rather, the subject matter of the proceedings in this Court is identified by the questions submitted by the judge of the District Court.

The essential step to be taken by the District Court judge, almost invariably upon the application of one party or the other, is to formulate the questions of law to be submitted. The second essential step is to identify the facts which demonstrate that the questions of law are questions "arising on" the appeal to the District Court. In the absence of an agreed statement of facts, it is necessary for the District Court judge to determine the facts in issue: cf Muin v Refugee Review Tribunal (No 3) [2000] HCA 49; 174 ALR 681 at [4] (Gaudron J).

It is clear that the powers conferred on this Court do not include making findings of fact or drawing inferences from facts found by the Court below. In those circumstances, it is curious, to the extent of being confusing, that the Criminal Appeal Rules require that the questions submitted to the Court shall be accompanied by "a summary of the evidence and a statement showing the names of the parties and their legal representatives, if any": r 29. The evidence is, generally speaking, irrelevant to the exercise required of this Court and should generally be ignored. On the other hand, there is no reference in the Rules to the case being accompanied by the judgment below. That is probably an historical anomaly, dating from a time when the questions had to be submitted before judgment was given.

In relying on authorities from other jurisdictions, it is important to take into account variations in legislative schemes, which are not all identical. It is possible that the scheme in this State is affected by the applicable Rules. However, r 29 is not merely anomalous, having regard to other regimes; its purpose is unclear when read in context. It cannot vary the statutory provision for determination of a question of law.

Although there is no reference in the Rules to submissions made by the parties below, and generally submissions will be irrelevant, there may be circumstances in which it is necessary for the case stated to identify a submission in order to demonstrate that the question said to have arisen on the appeal was in fact proffered for determination by the District Court. No issue subsequently identified by the aggrieved party, not having been proffered for determination below, can form the basis of a stated case.

A difficulty can arise where there are discrepancies or inconsistencies between the findings of fact identified by the trial judge in the stated case and those appearing from the judgment.

Where a case is stated prior to delivery of a final judgment (as occurred in Muin) facts may be agreed. Generally speaking, however, where a case is stated following a final judgment it will be inappropriate for the stated case to identify findings of fact other than those identified in the judgment. In the present case, under the heading "My findings", the trial judge summarised the content of her judgment. That was inappropriate: all that was required (and appropriate) was to identify findings of fact made in the judgment.

The critical part of the case stated is the setting out of the questions of law. In the present case, six questions were identified, five of which started, "Did I err in law in deciding that ...". This form of question has been criticised on more than one occasion. Such a question does not identify an error of law and, indeed, will usually obscure the fact that the particular finding about which the question is asked involved mixed questions of fact and law: see Robinson v Woolworths Ltd (T/as Woolworth Plus Petrol Werrington) [2005] NSWCCA 426; 64 NSWLR 612 at [8]; Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547 at [15]. To ask whether a particular conclusion was "open" on the basis of identified facts, or to ask whether the identified facts were "capable of supporting" that conclusion may well constitute a question of law, which it would be appropriate for this Court to answer.

Finally, the requirement for questions of law to be submitted to this Court within 28 days after determination of the appeal proceedings in the District Court has consequences for the process of formulating a stated case. In Talay v R [2010] NSWCCA 308, after noting the obligation of the judge to state a case on request unless frivolous (or, in the words of Jordan CJ in Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58 at 61, "so obviously frivolous and baseless that its submission would be an abuse of process") Simpson J said that the settling of the case involved matters of "some considerable importance, in which the opposing party has an interest, and to which it is entitled to make a contribution": at [11]. Howie AJ posited an obligation to inform the prosecutor of the proposed procedure and invite his or her participation, characterised as "really a matter of procedural fairness": at [63].

The term "procedural fairness" is sometimes used colloquially, rather than by reference to its legal meaning. It was probably intended to be used in a practical or colloquial sense by Howie AJ in Talay, no analysis being undertaken of the statutory scheme, nor any authority being cited for the proposition that the respondent to a stated case had a right to be consulted about the form of the questions or the findings of fact to be stated. The issue need not be pursued further, except that the manner in which the draft stated case came to be submitted is relevant to the need for the applicant for an extension of time.

It is not without significance that, until 1 March 1999, a request for a case to be stated to this Court had to be made before the District Court judge actually delivered judgment on the appeal: Justices Legislation Amendment (Appeals) Act 1998 (NSW), item 2.8[1]. Not infrequently, it was only upon hearing the reasons for judgment being delivered that one party was able to identify a supposed error of law which might be placed before this Court for its determination. There could then be an unseemly attempt to interrupt the judge before he or she delivered final orders. There was then no limit on the time for submitting the case to this Court, but that step usually occurred with little delay.

In a practical sense, there might be much to be said for the involvement of the party other than the one applying for the case to be stated; however, in the present case, the "contribution" made by the Director was to lodge detailed "submissions", together with further objections to each variation of the draft stated case. Although there are difficulties with the form of the questions stated, no material improvement occurred after the first draft stated case was lodged with the District Court judge, exactly 28 days after the appeal to that Court was dismissed. It was no doubt unfortunate (but not uncommon) that a transcript of her Honour's judgment was not immediately available, to allow for precise identification of the findings of fact which she had made. However, that provided no excuse for what followed.

First, the applicant was undoubtedly at fault in failing to file the draft stated case with a request for submission to this Court within a few days of the judgment. Secondly, the adversarial approach of the Director was entirely inappropriate. If he thought that the questions needed to be reformulated, he should have given assistance in that regard by indicating what he thought would be an appropriate variation to the proposed questions in the draft stated case prepared by the applicant. Thirdly, both parties appear to have accepted the need (or at least the desirability) of waiting for the transcript of the judgment on sentence. Fourthly, significant further costs and delay must have been incurred through a series of "mentions" and directions hearings which then occurred before a number of judges in the District Court. That process was based on a misconception: it was a matter for the sentencing judge to determine whether she would sign or amend the draft stated case in the form in which it was submitted. At least so far as the challenge to the sentencing appeal was concerned, there was no suggestion in the material before this Court that her Honour was unavailable to perform that task, nor was there any suggestion that another judge had any involvement in the task. Given the statutory time limit, not extendable by the District Court, the judge was obliged to sign, or amend and sign the draft case expeditiously.

(2) Reasons for extending time

The stated case was signed by the sentencing judge on 27 May 2011 and submitted to this Court on 2 June 2011. The applicant therefore needed an extension of time until 2 June 2011, being a period of a little over eight months.

Factors favouring the extension were:

(a) the Director did not submit that there was any prejudice suffered as a result of the delay;

(b) it was common ground between the applicant and the Director that the settling of the draft stated case should await receipt of a transcript of her Honour's reasons for judgment;

(d) part of the delay appears to have arisen from complications due to a contemporaneous application for a stated case in relation to a separate appeal against conviction (later abandoned);

(e) the inappropriate procedure adopted in the District Court whereby timetables were set for the DPP to file objections and for the applicant to respond;

(f) a decision by the sentencing judge to "list the matter" (being the request to state a case) at a time when she was to be available in Sydney, and

(g) the preliminary assessment made by the District Court on the papers of the merits of the legal issues to be determined.

Other considerations tended against the extension sought. As the Director correctly submitted, the time period allowed under s 5B requires prompt action, not only by the applicant, but by the other party (if it is to play some role) and by the Court itself. In the present case, the applicant was undoubtedly at fault in failing to file the draft stated case within a few days of the judgment. There were also later periods when the applicant acted in weeks, rather than days. Significantly, there were (and remain) problems with the form of the questions. However, the Director was also at fault in embarking upon a series of objections which appear to have led the Court to adopt an adversarial approach to resolving issues in dispute, without resolving the infelicities in the questions. The Court itself was at fault in failing to deal with the request in a timely fashion. Each of these factors combined to result in a totally unjustifiable delay; however, because both parties were partly to blame and because the Director cannot, understandably, point to any direct prejudice flowing to the prosecution or the public interest from the delay, it was appropriate to grant the necessary extension of time.

(3) The questions

(a) question 1: penalty notices

The first question stated for this Court was as follows:

(1) Did I err in law in deciding that the document from Tab 8 (Annexure "A" hereto) was admissible because of the Penalty Notices referred to therein?

The document referred to in this question did not name the applicant, but it appears to have been common ground that it related to him. It appeared to identify his status as "Secretary manager" of the Campbelltown Catholic Club from 31 August 2006; it identified three offences committed by the club secretary; each involved permitting intoxication on club premises contrary to s 44A(1)(a) of the Registered Clubs Act 1976 (NSW), as in force in 2008. A person served with a "penalty notice" who did not wish to have the matter determined by a court, could pay the prescribed amount within the time specified by the notice: s 66. Further, s 66 made provision for the consequences of such a course in the following terms:

"66 Penalty notices

...

(4) If the amount of penalty prescribed for the purposes of this section for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence except proceedings under sections 17 or 17AAA.

(5) Payment under this section is not to be regarded as an admission of liability for the purpose of, nor in any way affect or prejudice, any civil proceeding arising out of the same occurrence.

(6) However, when a penalty is paid under this section in respect of a penalty notice served on a person, the person is for the purposes of sections 17 and 17AAA taken to have been convicted of the offence to which the penalty notice related.

...

(9) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences."

Despite the fact that the document in question expressly referred to the Registered Clubs Act as the authority under which the penalty notices were issued in respect of the three offences to which it referred, the submissions in this Court addressed a similar scheme for penalty notices arising under the Liquor Act, s 150. Although the wording of the two provisions was similar in many respects, there were two potentially significant variants which needed to be considered. The first was that each applied to an offence under the Act in which it appeared. That would have required comparison between the offence under the Registered Clubs Act in respect of which the notices were issued and any analogous offence under the Liquor Act, which had not been invoked in relation to the applicant in 2008. Secondly, the deemed conviction provision in s 66(6) may serve a different purpose to that found in s 150(7) of the Liquor Act. These differences were not addressed.

The form of the question is opaque as to the point of law sought to be raised. Indeed, when considering questions of admissibility, it will usually be necessary to identify with some particularity the objection taken to the evidence and the basis of the ruling on that objection. From the relevant finding of fact identified in the stated case it may be inferred that there was an objection and that it was based on relevance, the District Court judge stating that she had found "that a Penalty Notice addressed to Mr Lavorato had been paid was relevant to the sentencing of Mr Lavorato": par 2.2. The stated case also referred to the provisions of s 10 of the Sentencing Procedure Act, in respect of which findings were made that the applicant "was a person of good character, and high moral character" and that "the penalty notices that were issued against him previously ... would [not] alter that standing within the community": par 2.10. The question of relevance thus related to the central issue raised by the applicant in the District Court, namely that he should be dealt with pursuant to s 10 of the Sentencing Procedure Act. That provision, so far as relevant, provides as follows:

"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:

(a) an order directing that the relevant charge be dismissed,

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

...

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

(a) the person's character, antecedents, age, health and mental condition,

(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."

Although the applicant conceded that he had paid the penalty notices in question, that did not mean, he submitted, that he had a conviction in respect of those offences. The reference in s 10(3)(a) to "character" and "antecedents" could not, as a matter of law, extend to charges for which he had not been convicted.

The materiality of that issue in the District Court was somewhat obscure, given the findings that he was of good character and that the payment of the penalty notices did not affect his character.

The inapt formulation of this question illustrates the difficulties which this Court can face where it must, in effect, identify for itself the question of law raised. A reference to a penalty notice could have been relevant for the purposes of s 10(3)(a) as evidence of the applicant's "antecedents", a term with a meaning once described as being "as wide as can be conceived": R v Vallett [1951] 1 All ER 231 at 232 (Lord Goddard CJ), referred to in Jones v Morley (1981) 29 SASR 57 at 63-65, in a passage adopted by Spigelman CJ in Commissioner of Taxation v Baffsky [2001] NSWCCA 332; 164 FLR 375 at [27]. Nor was that the sole basis upon which the material might have been admitted: s 10(3)(d) permitted the Court to consider "any other matter" which it thought proper, language which, though not without implied limitations, is not readily constrained as a matter of law.

To answer the question favourably to the applicant in these circumstances is not possible. To answer the question at all is to require reformulation so as to identify a particular statutory term as the basis of admissibility, being a basis on which the question arose in the proceedings in the District Court. As the only relevance attached to the document, so far as may be inferred from the stated case, related to the applicant's character, as to which no adverse inference was drawn, there is no purpose in pursuing this issue further. The appropriate response to the question must be, "Inappropriate to answer".

(b) question 2: effect of conviction on standing within community

The second question identified in the stated case was as follows:

(2) Did I err in law in deciding that in the exercise of my discretion in s 10 [of the Sentencing Procedure Act] that Mr Lavorato's standing within the community would not be affected by convictions for the offences?

This question raised, if possible, even greater difficulties than the first question. It identified no question of law. The phrase "standing within the community" was used by the sentencing judge in assessing the effect of proceeding to conviction, rather than dealing with the matter under s 10 of the Sentencing Procedure Act, in determining that the conviction would not affect his status as a person of good character or "high moral character". The phrase has no significance as a legal criterion identified in the statute. The finding made by the sentencing judge was not even, properly understood, an exercise of discretionary power, but an evaluative judgment made in the course of determining not to exercise the statutory power under s 10.

Question (2), therefore, does not identify any question of law which it is appropriate to answer. Because no step has been taken to set aside the stated case, generally or in relation to this question, the appropriate response to the question is, "Inappropriate to answer".

(c) question 3: relevant considerations

Question 3 had two parts, the second of which at least gave rise to a possible question of law. The question was in the following form:

(3) Did I err in law in deciding that each of the circumstances in para 2.10(3)(a)-(c) were

(a) for the purposes of s 10(3)(c) of the [Sentencing Procedure Act], not extenuating circumstances in which the offence by Mr Lavorato occurred; or

(b) for the purposes of s 10(3)(d) of the [Sentencing Procedure Act], matters that I might properly consider?

The circumstances identified in paragraph 2.10(3) of the stated case were as follows:

"2.10 I then proceeded to consider the provisions of s 10 [of the Sentencing Procedure Act] and made the following findings:

...

(3) none of the following were 'extenuating circumstances'

(a) Mr Lavorato's position within the Club,

(b) the short interval between the commencement of Sch 4 to the Liquor Act, and the offence of [sic] the offences charged,

(c) that the offences occurred because of a mistake rather than a deliberate attempt to flout the law,

because the offences were

(d) offences of strict liability,

(e) for regulatory type matters unless there is a salutary type punishment there is really no deterrent effect of any penalty."

Reading the question as a whole, it is apparent that her Honour took into account each of the factors identified for the purposes of the question, but did not characterise them as "extenuating circumstances", in the sense presumably of circumstances which would materially support proceeding under s 10. There will be an error of law if the Court took into account a consideration which, either expressly or by implication, it was forbidden to consider in exercising the sentencing power. The applicant did not suggest that the identified factors were in that legal sense impermissible. Further, because the sentencing judge in fact took them into account, no question arose as to whether or not they were mandatory considerations. Accordingly, the question which appears to have been intended was whether her Honour erred in law in characterising them as matters which could be taken into account under par (d) of s 10(3), rather than, as the applicant submitted, extenuating circumstances under par (c). However, that analysis would give rise to an error of law only if the factors could only be characterised as extenuating circumstances, no other characterisation being open.

That submission was untenable. Whatever was meant by the reference to Mr Lavorato's "position within the Club", his role as licensee was an essential element of the offence. The reference to Sch 4 of the Liquor Act, and its time of commencement, involved a number of factual assumptions. One was that, prior to its commencement, there had been no prohibition on serving a drink "in a glass or breakable plastic container" after midnight - Liquor Act, Sch 4, cl 4(1) - and that the "short interval" (referred to in the findings as one month) was material in respect of the failure to comply. Finally, the characterisation of the offences as "a mistake" (presumably meaning a mistake, in each case) rather than a deliberate attempt to flout the law, in respect of an offence of strict liability, must be held to be material in favour of an exercise of the power under s 10.

How these factors were to be treated was entirely a matter to be determined by the sentencing judge. While s 10(3) identified what might be described as mandatory factors, where they were known, the language was otherwise not directory, let alone preclusive, in respect of the facts which might need to be assessed in considering those factors. It did not require that particular facts be assessed in any particular way. No error of law was identified in respect of question 3.

(d) questions 4 and 5: steps taken to achieve compliance

It is convenient to deal, as the applicant did, jointly with questions 4 and 5. They were stated in the following terms:

(4) Did I err in law in deciding that:

(1) the issue of whether Mr Lavorato had or had not taken all reasonable steps in so far as a manager could to obtain compliance by the staff whose conduct constituted the offences,

(2) was not an issue relevant to:

(a) whether the offences might properly be dealt with under s 10(1)(a) [of the Sentencing Procedure Act], or

(b) the sentencing of Mr Lavorato for the offences upon conviction for them?

(5) Alternatively to [(4)] above, did I err in law in failing to decide the issue in [4(1)] above?

The alternative form of these questions is partly explained by the "findings" set out in the case stated at paragraph 2. In particular, at 2.9, her Honour stated:

"I made no finding about whether Mr Lavorato had or had not taken all reasonable steps in so far as a manager could to obtain compliance with the condition by the staff whose conduct constituted the offences."

The distinction between questions 4 and 5 revealed an elision in the stated case. Question 5 could not give rise to a question of law unless the reason for the failure was identified. For example, if no relevant evidence is tendered, it could not be an error of law to fail to make a finding. Paragraph 2.9 did not indicate why her Honour made no finding. On the other hand, implicit within question 4 was the proposition that evidence pertaining to the issue had been tendered, but had been disregarded as irrelevant as a matter of law. There was no finding to that effect, except by implication from question 4, which was inconsistent with the implication to be derived from question 5. A further possibility, not adverted to in the findings, was that the evidence was insufficient to allow a finding one way or the other.

More importantly, the question is framed in a way which involves an inference to be drawn from other facts. The inference itself was not, in its terms, a mandatory consideration. No doubt it was a permissible consideration and, to the extent that the evidence permitted, it would have been appropriate for the sentencing judge to make findings with respect to such aspects of the steps taken by the licensee to obtain compliance with the licence conditions and to make an assessment as to whether more could be done. If the relevant evidence had been assessed, the failure to make a finding in the terms adopted in the question would not constitute an error of law. Indeed, unless a finding in those terms was specifically sought, it is arguable that such a question did not arise at all for the purposes of the sentencing hearing.

To the extent that it is permissible for this Court to look beyond the finding set out in the case stated, to the judgment of the District Court, the following passages may be noted. First, at p 5, her Honour stated:

"I have read the statement of the appellant in these proceedings and take all those matters into account. The fact that it is a very large club with a large number of employees that trades 363 days a year is an important consideration but it is an important consideration in two competing areas. Firstly, because it is a large club with a large presence in the community it has a very high obligation to comply with all of the Licensing Act requirements and a very high obligation to make sure that any licensing requirements are assiduously complied with by it. On the other hand I acknowledge that because of its size and because of the number of employees strict compliance in very many ways is obviously going to be very difficult. These are competing considerations."

Her Honour then turned to consider the timing of the offences in respect of the imposition of the licence condition and continued (p 6-7):

"In terms of the objective seriousness of each of those particular offences: in relation to each offence it was a single breach. In relation to each offence the alcohol was served in the original bottle rather than poured out into a glass. And in relation to each offence it appears clear that there was a general directive to staff not to do what they had done and for reasons relating to either the hour or sheer mistake the staff who usually complied did not comply on these three separate occasions on that particular day. Therefore in terms of objective seriousness of the offence this is an offence towards the lower end of the scale in relation to this particular type of breach.

...

The other thing the Court takes into account are the subjective circumstances. The appellant is the executive officer of this club. He was not in attendance on that particular night and there is no requirement that he actually be in attendance for all of the times that the club is operating as I understand it. His statement sets out a management structure and also attaches a staff handbook. All of those things appear to be very proper and very properly managed by the club. There are details in his statement of compliance with the responsible service of alcohol principles and I have no argument with respect to those matters and they all appear to be perfectly well managed. There was some observation ... in relation to the lack of signage in relation to plastic containers. But that is a matter that I consider to be of less importance than anything else. There is no suggestion in this case that this was anything but an oversight or a mistake. I have also had a look at the staff training handbook. Such a handbook is a necessary part of such an organisation."

These statements in the reasons suggest that such evidence as was before the Court was taken into account. Even by reference to the judgment, the case stated does not demonstrate that there was any evidence before her Honour to the effect that no other step could reasonably have been taken in order to obtain compliance. On one view, accordingly, it might be appropriate to answer question 4 (or question 5) in the negative. However, the inadequacies in the form of the questions and the absence of sufficient findings, leaving some doubt as to what in fact was decided, render the better response, "Inappropriate to answer".

(e) question 6: strict liability offences

The final question was in the following form:

(6) Did I err in law in deciding that the object of imposing strict liability for regulatory type offences would not be achieved in the absence of a conviction and the imposition of a penalty ie by then being dealt with under s 10(1)(a) [of the Sentencing Procedure Act]?

Problems of a different kind arise in relation to this formulation. However, as it appeared from the applicant's submissions, the inference said to be drawn from her Honour's judgment was that, as a matter of law, s 10 of the Sentencing Procedure Act could have no application in relation to a "regulatory type offence" involving strict liability.

Whilst this approach might give rise to a question of law, it is not consistent with the findings in the case stated, which included a finding for the purpose of s 10(3)(b) that the offences were "not trivial": paragraph 2.10(2). That finding, together with the findings of 2.10(3) set out above, are simply inconsistent with the proposition that her Honour determined that s 10 could have no operation in relation to an offence of this kind. She considered factors which were relevant only on the basis that the provision could apply. She stated, in rejecting the extenuating circumstances relied upon by the applicant, that "this is an offence of strict liability and of course even for regulatory type of matters unless there is a salutary punishment in relation to non-compliance then there is really no deterrent effect of any penalty": judgment, p 8. In short, her Honour thought that a conviction and penalty were necessary "as a matter of specific and general deterrence" by way of changing the attitude of leadership and licensees: p 9.

It is tolerably clear from the reasons given that there was no blanket rejection of the applicability of s 10 to offences of the kind in question, but rather a finding that, in the circumstances of the particular case, it was not appropriate to proceed under s 10. The question of law apparently sought to be raised by question 6 was based on a false premise. Even if that fact could not properly be established by reference to the reasons for judgment, the ambiguity within the question would be sufficient to require the response, "Inappropriate to answer".

(4) Conclusions

In the circumstances set out above, each of the questions raised should be answered "Inappropriate to answer", except question 3, which should be answered "No". Because the effect of these answers is to find no error of law in the approach adopted by the District Court, there is no further order necessary in respect of the judgment below.

There is a further question with respect to the costs of these proceedings. Because the procedure under s 5B of the Criminal Appeal Act is not the hearing or determination of "an appeal" the prohibition on orders for costs contained in s 17 does not apply. The Director sought costs in his written submission: par 41. Although the applicant filed a reply, he did not deal with this issue. However, in the course of oral argument, counsel for the applicant accepted that costs could be ordered, in the discretion of the Court: Tcpt, 10/02/12, p 14(28).

In this case considerable effort was devoted to resisting the extension of time, consistently with the adversarial approach adopted by the Director in respect of the statement of the case whilst the proceeding was still in the District Court. Although the applicant has been unsuccessful in obtaining the answers sought to the questions, he was successful in obtaining an extension of time. In the circumstances, the preferable course is to make no order as to the costs of the proceedings on the stated case.

RS HULME J: In this matter, I have had the advantage of reading the reasons for judgment of Basten JA and Schmidt J. I agree with the criticism both their Honours make of the stated case procedure.

I also agree with the first three paragraphs of Schmidt J's reasons.

My responses to the specific questions raised in the stated case are as follows.

Question 3.1

I agree with Schmidt J that this question should be answered, no. I agree generally with her Honour's reasons.

Question 3.2

My answer to this question is no. The decision referred to in the question was, as Basten JA has observed, an evaluative judgment and not one which amounts to a decision on a question of law. Thus, Syme DCJ did not "err in law".

Question 3.3

The terms of this question were:-

Did I err in law in deciding that each of the circumstances in para 2.10(3)(a) - (c) were:

(a) for the purposes of s 10(3)(c) C(SP)A, not extenuating circumstances in which the offence by Mr Lavorato occurred; or

(b) for the purposes of s 10(3)(d) C(SP)A, matters that I might properly consider?

So far as sub-paragraph (a) is concerned, I would answer this question, yes, and, subject to one matter, for the reasons given by Schmidt J in arriving at the same conclusion.

The reservation referred to concerns the statement in [108] to the effect that Syme DCJ was obliged to determine whether the circumstances in paragraph 2.10(3)(a) - (c) were "extenuating circumstances". A judicial officer asked in an application to employ s 10 of the Crimes (Sentencing Procedure) Act 1999 to take into account a particular fact or circumstance does not have to decide into which the sub-paragraph of s 10(3) that fact or circumstance falls.

So far as sub-paragraph (b) of Question 3.3 is concerned, it is not apparent to me from either the judgment of her Honour or in the factual findings set out in paragraphs 2.1 - 2.12 of the stated case that her Honour made a decision in the terms reflected in this part of the question. That said, her Honour's reasons for her decision the subject of Question 3.3(a) were expressed in terms wide enough to indicate she probably took a similar view in respect of the matters arising under s10(3)(d) as she did in respect of matters arising under s 10(3)(c).

My response to Question 3.3(b) is, inappropriate to answer.

Question 3.4 and 3.5

I agree with Schmidt J that these questions should be answered, yes. I agree with her Honour's reasons for these conclusions.

Question 3.6

I agree with Schmidt J that this question should be answered, yes. I agree with her Honour's reasons for this conclusion.

SCHMIDT J: I have had the benefit of reading Basten JA's reasons, but find myself in disagreement with his Honour's conclusions.

In my view the questions posed in the stated case are not disguised attempts to exercise a right of appeal, of the kind discussed in Castlebar Holding Pty Ltd v Riley [2005] NSWCCA 105. Nor do they require reformulation, which must be guarded against, as Spigelman CJ discussed in McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority [2000] NSWCCA 367 at [81].

The stated case raises questions of law which are relevant to the conviction of the applicant of the offences to which he entered pleas; to the proper construction of s 10 of the Criminal Appeal Act 1912 and of s 11(2) of the Liquor Act 2007. In my view, while the questions posed have not been framed as clearly as they might have been, they must still be answered, consistently with the pragmatic approach adopted by the High Court in Thomas v R [1937] HCA 83; (1937) 59 CLR 279.

The need for law reform

The case was stated under s 5B of the Criminal Appeal Act which provides:

"5B Case stated from District Court

(1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.

(2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.

(3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court."

The difficulties raised by the stated case procedure have been the subject of repeated comment by this and other courts and are discussed again by Basten JA. These are not new observations. In Collins v State Rail Authority of NSW (1986) 5 NSWLR 209, for example, Street CJ described the process at 211 as:

"... a cumbersome and often unsatisfactory means of bringing a matter up for consideration on appeal ... fraught with difficulties ..."

The passage of time has not cured these difficulties. What occurred in this case amply reveals the problems which the process still tends to create. As Simpson J discussed in Talay v R [2010] NSWCCA 308 at [11]:

"Although, unless a question of law proposed to be submitted is frivolous, a judge is obliged on request to state a case to this court (see Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 at 164-165, citing Ex parte McGavin; Re Byrne (1945) 46 SR (NSW) 58), the settling of the stated case, including the statement of facts found, and the question (or questions) submitted for determination, are a matter of some considerable importance, in which the opposing party has an interest, and to which it is entitled to make a contribution."

While the principles which ought to be followed when stating a case are well settled, that they are difficult to implement has also been repeatedly discussed. The process very plainly raises unnecessary difficulties for both the parties involved and for the judicial officers obliged to adhere to it. The result in practical terms is that stating a case cannot always be achieved in the time frame which the statute contemplates.

It is long settled that this Court may not have regard to matters outside the stated case, in answering the questions which are posed. Thus the importance placed on the framing of the stated case put before this Court. In this case, despite the trial judge having heard both parties, stating the facts, which in her opinion dictated her conclusions, in the form of a document with numbered paragraphs, as the applicable practice requires, appending her judgment to the stated case and posing what she considered to be questions of law, still before this Court the parties debated whether both the facts which her Honour had identified truly reflected the conclusions, which she had reached in her judgment and whether the questions of law posed, were questions of law which could be answered.

Basten JA's explanations of the steps which the parties pursued to have the case stated, and the difficulties and delays which were encountered, underscores how cumbersome, unwieldy and in my view, ultimately unjust and unnecessarily expensive the stated case process remains today. It appears to be the antithesis of the current drive in this State in the civil sphere, to ensure that parties have access to quick, cheap justice.

Given what the stated case process requires and the costs which it necessarily involves, it is entirely understandable that the parties and the judge required to state the case would wish to have access to the transcript and the judgment which has generated the stated case application, before finally stating the case. Delays inevitably result when such material is not readily available. Both parties are entitled to be heard on the questions to be posed in the stated case. Ultimately, it is for the judge stating the case to settle the terms of the case which is stated.

Given the burden which is imposed on the judge called upon to state the case and the difficulties which repeatedly result from the way in which stated cases are framed, as is also amply discussed in the authorities and again by Basten JA in this case, it seems to me surprising that the stated case process has not already received the legislature's attention. The current process does not appear to be consistent with what it has been recognised in the civil sphere, that the requirements of justice demand.

It seems to me, in these circumstances, that the difficulties which the process repeatedly creates for the criminal justice system and the expense and delays which it generates, are matters which could profitably receive the consideration of the legislature or perhaps of the Law Reform Commission.

The proceedings below

The applicant was charged with three strict liability offences under s 11(2) of the Liquor Act 2007. He was the secretary manager of the Campbelltown Catholic Club. The offences involved the applicant's failure as licensee, to comply with a condition of the Club's license, which required that during a restricted service period, drinks not be served in a glass or breakable plastic container. The offences were described below as 'vicarious liability' offences under the Liquor Act, because they involved failures by employees of the Club to ensure that the Club's policies, which were designed to ensure that this licence condition was adhered to, were met. They did not involve a direct breach of the licence condition by the applicant himself.

In the Local Court the applicant entered a plea and made an application under s 10 of the Crimes (Sentencing Procedure) Act 1999, that the charges be dismissed without proceeding to conviction. The s 10 application was refused and the applicant was convicted and fined $600 for each offence. He appealed to the District Court under s 11(1) of the Crimes (Appeal and Review) Act 2001. Syme DCJ dismissed the appeal, rejecting the applicant's case that he should have been dealt with under s 10.

The extension of time

An application for a case to be stated to this Court was later made under s 5B of the Criminal Appeal Act, but not within the applicable 28 day time limit. Basten JA has explained the circumstances in which an extension of time to file the application was granted. The application was opposed by the Crown, even though it conceded that no prejudice would flow from the grant of the extension. My reasons for the extension granted at the hearing were as follows.

The application for the stated case was made to Syme DCJ within 28 days. The applicant provided her Honour with a draft stated case at a time when neither the transcript of the proceedings, nor her Honour's judgment were available. It took months for the facts in issue and the questions to be stated to be settled by Syme DCJ. As Basten JA explains, both parties and her Honour contributed to the time taken before the application was filed in this Court. In large part the delays were the result of the need to await the transcript and for her Honour to be able to hear the parties, given the Crown's opposition to what the applicant proposed, before settling the stated case.

That delay was unfortunate, but it was clearly the result of the nature of the stated case process, which does not permit the trial judge to simply put the judgment out of which the stated case arises, before this Court and requires, in the case of dispute, that the parties be heard as to both the framing of the factual findings and the questions to be stated.

In this case, even when the matter came before this Court, there were still disagreements between the parties as to the accuracy of the facts Syme DCJ had identified as having been found in her judgment, her Honour's grounds for the conclusions she had reached and the form of the questions which had been posed. In its written submissions, the Crown addressed its 'objections' to the form of the stated case, which was submitted to contain various errors and deficiencies. Given that the stated case process does not give a defendant a right of appeal to this Court from the trial judge's determination of the factual findings and the questions of law which are to be stated, that debate carried with it a certain futility. As Basten JA discussed in Sasterawan v Morris [2007] NSWCCA 185; (2007) 69 NSWLR 547, s 5B does not 'authorise this Court to determine any questions of fact or to draw factual inferences. This Court is constrained to act on the facts as stated by the District Court'.

Nevertheless, in the circumstances, it was apparent to me that as a matter of justice, the extension of time sought had to be granted.

The questions stated

The questions which her Honour stated were:

3.1 Did I err in law in deciding that the document from Tab 8 (annexure "A" hereto) was admissible because of the Penalty Notices referred to therein?

3.2 Did I err in law in deciding that in the exercise of my discretion in s.10 C(SP)A that Mr Lavorato's standing within the community would not be affected by convictions for the Offences?

3.3 Did I err in law in deciding that each of the circumstances in para 2.10(3)(a)-(c) were

(a) for the purposes of s.10(3)(c) C(SP)A, not extenuating circumstances in which the offence by Mr Lavorato occurred; or

(b) for the purposes of s.10(3)(d) C(SP)A, matters that I might properly consider?

3.4 Did I err in law in deciding that

(1) the issue of whether Mr Lavorato had or had not taken all reasonable steps in so far as a manager could to obtain compliance by the staff whose conduct constituted the offences,

(2) was not an issue relevant to:

(a) whether the Offences might properly be dealt with under s10(1)(a C(SP)A, or

(b) the sentencing of Mr Lavorato for the Offences upon conviction for them?

3.5 Alternatively to 3.4 above, did I err in law in failing to decide the issue in 3.4(1) above?

3.6 Did I err in law in deciding that the object of imposing strict liability for regulatory type offences would not be achieved in the absence of a conviction and the imposition of a penalty i.e. by then being dealt with under s10(1)(a) C(SP)A?

The factual findings

The factual findings were shortly stated. It is convenient to quote them:

"2.1 I began my reasons by identifying the appeal before me as a severity appeal and referring to the matters in 1.5 above.

2.2 I gave my reasons for admitting the document from Tab 8. In essence I held that the fact that a Penalty Notice addressed to Mr Lavorato had been paid was relevant to the sentencing of Mr Lavorato.

2.3 I then dealt with the admissibility of other evidence in respect of which I am not asked to submit any question of law.

2.4 On the substantive matter before me I found the relevant background to be as follows

(1) on the date in question the Club was in breach of the condition of its licence as alleged in the CAN,

(2) Mr Lavorato was then its secretary and thus its chief executive officer thus its responsible licensee,

(3) the Club is the largest licensed venue in the Macarthur region with 50,000 members and 350 full time and casual employees,

(4) in the circumstances in (3) above, gave rise to competing considerations,

(a) the Club had a very high obligation to comply with all Liquor Act requirements, but

(b) achieving that outcome would be very difficult.

(5) the condition the breach of which was the subject of the charges had

(a) come into effect only a month or so prior to the occurrence of those offences, and

(b) as its object the elimination of a means of potential injury to persons at the Club.

2.5 In respect of the objective seriousness of the offence, I found that

(1) each offence was a single offence,

(2) the alcohol had been supplied in its original bottle rather than poured into a glass,

(3) there had been a general directive to staff not to do what they did,

(4) the staff who engaged the subject of the charges,

(a) for reasons relating to the hour or sheer mistake did not do so on these occasions, but

(b) usually complied with the condition.

2.6 Having regard to the above and taking into account the potential consequence of the conduct charged, I concluded the offences were towards the lower end of the scale.

2.7 I found relevant subjective considerations as follows

(1) Mr Lavorato was not at the Club on the particular night and was not required that he actually be in attendance at that time,

(2) the management structure and staff handbook were very proper and very properly managed,

(3) the Club appeared to manage its "responsible service of alcohol" duties well,

(4) there was some evidence in the document in Tab 13 of a du(sic) lack of some signage on the Club's premises, but there was no suggestion in that evidence of anything but an oversight or mistake. I considered this evidence to be of less importance that(sic) anything else.

2.8 I then considered the importance of deterrence for the matter before me and

(1) concluded that on the matter of general deterrence it seemed rather pointless to punish Mr Lavorato personally, but

(2) the position was different on the issue of specific deterrence because a chief executive officer must show leadership and a change in attitude within the organisation must change from the top,

(3) a penalty imposed on its chief executive officer is something the Club would take into account in how it deals with matters of this nature.

For the above reasons considerations of general and specific deterrence were matters I would take into account in sentencing Mr Lavorato for the offences before me.

2.9 I made no finding about whether Mr Lavorato had or had not taken all reasonable steps in so far as a manager could to obtain compliance with the condition by the staff whose conduct constituted the offences.

2.10 I then proceeded to consider the provisions of s. 10 C(SP)A and made the following findings

(1) Mr Lavorato was a person of good character, and high moral character.

Neither the penalty notices that were issued against him previously nor a conviction on the matters before me would alter that standing within the community,

(2) the offence(sic) for which he had pleaded guilty were not trivial,

(3) none of the following were "extenuating circumstances"

(a) Mr Lavorato's position within the Club,

(b) the short interval between the commencement of Sch 4 to the Liquor Act, and the offence of the offences charged,

(c) that the offences occurred because of a mistake rather than a deliberate attempt to flout the law,

because the offences were

(d) offences of strict liability,

(e) for regulatory type matters unless there is a salutary type punishment there is really no deterrent effect of any penalty.

2.11 I then restated my conclusions and concluded that charges before me were not a proper matter do(sic) deal with under s.10 C(SP)A.

2.12 On that basis and having regard to the

(1) maximum penalty that could be imposed for each offence, fifty penalty units ($5,500), and

(2) the plea of guilty,

I concluded a $600 penalty for each matter was quite proper. For those reasons I dismissed the appeal."

Section 10 of the Crimes (Sentencing Procedure) Act 2010

The section provides:

"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:

(a) an order directing that the relevant charge be dismissed,

(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.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:

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

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

(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(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:

(a) the person's character, antecedents, age, health and mental condition,

(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.

(4) An order under this section has the same effect as a conviction:

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(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.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence."

Question 3.1 - Did I err in law in deciding that the document from Tab 8 (Annexure "A" hereto) was admissible because of the Penalty Notices referred to therein?

The document was annexed to the stated case. It identified that the applicant had earlier been fined in relation to three penalty notices issued under s 44A(1) of the Registered Clubs Act 1976. Syme DCJ noted at 2.2 of the findings of fact that she had 'held that the fact that a Penalty Notice addressed to Mr Lavorato had been paid was relevant to the sentencing of Mr Lavorato'.

The document had been tendered without objection in the Local Court. By s 17 of the Crimes (Appeal and Review ) Act 2001, the appeal in the District Court was by way of 'rehearing of the evidence given in the original Local Court proceedings'. It follows that the admissibility of the document did not strictly arise before Syme DCJ, but, nevertheless, the question was raised and thus determined by her Honour.

The question of the admissibility of the document was a question of law. If the document was relevant to the issues which arose to be determined in the proceedings, it was admissible in accordance with the provisions of the Evidence Act 1995.

The applicant relied on s 150(2) of the Liquor Act, which provides:

"150 Penalty notices

(1) In this section:

authorised officer means a police officer or an inspector.

(2) An authorised officer may serve a penalty notice on a person (including a licensee) if it appears to the officer that the person has committed an offence under this Act or the regulations and the offence is one that is prescribed by the regulations to be an offence to which this section applies.

(3) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay within a time and to a person specified in the notice the amount of penalty prescribed by the regulations for the offence if dealt with under this section.

(4) A penalty notice may be served personally or by post."

For the applicant it was argued that the payment of a penalty notice did not amount to a conviction for the purposes of offence proceedings under the Liquor Act. Payment of a penalty under the relevant administrative arrangements avoided the invocation of the criminal justice system. The payment prevented the pursuit of criminal proceedings and did not amount to an admission of guilt. That was particularly relevant in this case, where the offences later charged, in respect of which the s 10 application was made, were vicarious liability offences. It followed, it was submitted, that the penalty notices were not 'antecedents' for the purpose of s 10(3)(a) and should not have been admitted.

Those submissions may not be accepted. The penalty notices had been issued under the Registered Clubs Act, in relation to offences alleged to have been committed in February and May 2008. That Act then provided:

"66 Penalty notices

(1) An authorised officer may serve a penalty notice on a person (including a registered club) if it appears to the officer that the person has committed an offence against this Act or the regulations and the offence is one that is stated by the regulations to be an offence to which this section applies.

(2) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay within a time and to a person specified in the notice the amount of penalty prescribed by the regulations for the offence if dealt with under this section.

(3) A penalty notice may be served personally or by post.

(4) If the amount of penalty prescribed for the purposes of this section for an alleged offence is paid under this section, no person is liable to any further proceedings for the alleged offence except proceedings under section 17 or 17AAA.

(5) Payment under this section is not to be regarded as an admission of liability for the purpose of, nor in any way affect or prejudice, any civil proceeding arising out of the same occurrence.

(6) However, when a penalty is paid under this section in respect of a penalty notice served on a person, the person is for the purposes of sections 17 and 17AAA taken to have been convicted of the offence to which the penalty notice related.

(7) The regulations may:

(a) prescribe an offence for the purposes of this section by specifying the offence or by referring to the provision creating the offence, and

(b) prescribe the amount of penalty payable for the offence if dealt with under this section, and

(c) prescribe different amounts of penalties for different offences or classes of offences.

(8) The amount of a penalty prescribed under this section for an offence must not exceed the maximum amount of penalty which could be imposed for the offence by a court.

(9) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.

(10) In this section:

authorised officer means a police officer, the Director or a special inspector."

Section 17 of the Registered Clubs Act dealt with various types of complaints made against registered clubs and their secretaries and s 17AAA with the power of the Licensing Court to make a declaration in relation to a person against whom a complaint was made under s 17(2)(f), as to their eligibility to "stand for election or to be appointed to, or to hold office in, the position of secretary or member of the governing body" of the Club. The effect of s 66(6) was that payment of a penalty by a secretary, such as the applicant, had the result that the secretary was taken to have been convicted of the offence to which the penalty notice related, for proceedings brought under s 17 or s 17AAA. It did not have that same effect for any other purpose.

It does not follow from this provision, however, that the fact that penalties had been paid by the applicant in relation to alleged offences under the Registered Clubs Act, was irrelevant to the matters which arose for consideration, when he made an application under s 10 of the Crimes (Sentencing Procedure) Act, in relation to the offences here in question.

In resisting that application, the Crown was entitled to rely on the document, because it was unquestionably relevant to a consideration under s10(3)(a) of the applicant's 'antecedents', a term which has the wide meaning Basten JA discussed at [28]. Payment of the penalties was also arguably relevant to an assessment of the applicant's 'character' under s 10(3)(a). It may also have been received as a matter 'proper to consider' in determining the application, as provided by s 10(3)(d). It follows that the document was admissible, as her Honour concluded.

It follows that this question should be answered no.

Question 3.2 - Did I err in law in deciding that in the exercise of my discretion in s.10 C(SP)A that Mr Lavorato's standing within the community would not be affected by convictions for the offences?

The facts stated by her Honour were:

"2.10 I then proceeded to consider the provisions of s. 10 C(SP)A and made the following findings

(1) Mr Lavorato was a person of good character, and high moral character.

Neither the penalty notices that were issued against him previously nor a conviction on the matters before me would alter that standing within the community,

(2) the offence(sic) for which he had pleaded guilty were not trivial,"

The Crown's case was that her Honour's finding that the applicant was a person of good character and of high moral character and that his standing in the community would not be affected by convictions of the offences in question, rested on character references written after conviction of the offences the subject of the appeal. In the absence of evidence that the applicant's standing in the community might be affected by conviction of those offences, or that some adverse consequences would flow from that conviction, those findings were open and involved no error of law. The applicant's case was that those conclusions rested on a fundamental misunderstanding of s 10.

Section 4(1) of the Crimes (Sentencing Procedure) Act provides that '[t]he penalty to be imposed for an offence is to be the penalty provided by or under this or any other Act or law.' The maximum penalty for the offences with which the applicant was charged under s 11(2) of the Liquor Act was 100 penalty units ($5,500) or imprisonment for 12 months, or both. The order which the applicant sought to have made under s 10(1)(a) of the Crimes (Sentencing Procedure) Act, that the charges be dismissed, was one of the various 'non custodial orders' specified as being available to be imposed upon the applicant under Part 2, Division 3 of that Act.

It was not in issue that on the face of the section, an application under s 10 was available to the applicant. By the express terms of the section, it is apparent that such an application is available to be made by anyone found guilty of any offence. Once such an application has been made, it must be heard and determined on the evidence led by the parties, in the ordinary way, with the onus falling on the applicant for the order to establish circumstances warranting the exercise of the discretion in their favour.

The purpose of s 10 is that discussed in Regina v Van Nam Nguyen [2002] NSWCCA 183 at [50]. It reflects 'the willingness of the legislature, and thus the community, to provide to first offenders, in certain circumstances, a second chance to maintain a reputation of good character'.

The view that conviction of a particular type of offence will not affect a person's standing in the community, with the result that an application to be dealt with under s 10 ought not to be entertained, is directly inconsistent with the legislative purpose underpinning the enactment of s 10 in the wide terms in which it has been cast.

The section gives every sentencing judge the power to dismiss any criminal charge, even though the applicant has been found guilty of the offence in question, if a case be made out in accordance with the matters specified in s 10(3). If such a case be established on the merits, an order under s 10 should follow, so that the applicant can receive the benefit which the section is designed to achieve, namely a chance to maintain their reputation of good character, which the section recognises will be lost upon conviction of an offence.

A refusal to entertain an application made under s 10, because of a view that conviction of a particular type of offence, will not have the consequences which the section is designed to deal with, is not a matter of the exercise of a discretion given by the section. Such a refusal involves an error of law, namely a failure to exercise the jurisdiction granted by s 10, so as to deprive the applicant of the right to have the application made under the section determined.

This involves jurisdictional error of the kind discussed in Kirk v Industrial Relations Commission [2010] HCA 1; [2010] 239 CLR 531 at [72], namely a 'misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing'. While such errors can be difficult to discern, as discussed in Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 at [21], that difficulty is not present here.

This question should be answered yes.

Question 3.3 - Did I err in law in deciding that each of the circumstances in para 2.10(3)(a) - (c) were:

"(a) for the purposes of s 10(3)(c) C(SP)A, not extenuating circumstances in which the offence by Mr Lavorato occurred; or

(b) for the purposes of s 10(3)(d) C(SP)A, matters that I might properly consider?"

The facts stated by her Honour were:

"2.10 I then proceeded to consider the provisions of s. 10 C(SP)A and made the following findings

..

(3) none of the following were "extenuating circumstances"

(a) Mr Lavorato's position within the Club,

(b) the short interval between the commencement of Sch 4 to the Liquor Act, and the offence of the offences charged,

(c) that the offences occurred because of a mistake rather than a deliberate attempt to flout the law,"

because the offences were

(d) offences of strict liability,

(e) for regulatory type matters unless there is a salutary type punishment there is really no deterrent effect of any penalty "

The proceedings below were by way of an appeal from the Local Court under s 17 and s 20 of the Crimes (Appeal and Review ) Act 2001. They were by way of a rehearing (see Hoffenberg at [17]). Her Honour had to determine whether the applicant had satisfied the onus which fell upon him to make out a case for the exercise of the discretion to make an order dismissing the charge under s 10(1)(a), having in mind the facts found on the evidence led. That obliged her Honour to determine whether those facts established 'extenuating circumstances' of the kind which s 10(3)(c) is concerned with, so as to warrant the exercise of the discretion (see Hoffenberg at [25]).

A refusal to entertain an application under the section, because of a view that the strict liability offences of which the applicant was found guilty, were not offences in respect of which the s 10 discretion was available to be exercised, because "for regulatory type matters unless there is a salutary type punishment there is really no deterrent effect of any penalty", involved an error of law.

The effect of an order dismissing a charge under s 10(1)(a), is that there is no penalty imposed. The charge is dismissed. To refuse to entertain an application for the exercise of that discretion, because of a view that particular strict liability regulatory offences all require the imposition of a penalty, because of the need for deterrence for such offences, involves obvious error.

The legislature has granted those convicted of any offence the right to have an application under s 10 heard and determined on its merits, on the evidence led and the submissions advanced. Section 10(3) specifies the matters to which the Court must have regard in determining such an application. By s 10(3)(d), that includes 'any other matter that the court thinks proper to consider.' Such a 'matter' cannot include a view that applications made under the section in respect of strict liability or regulatory offences ought not to be entertained at all. That is a matter for the legislature to determine. To act on such a view is to fail to exercise the jurisdiction granted by the section.

The question must be answered yes.

Question 3.4 - Did I err in law in deciding that

(1) the issue of whether Mr Lavorato had or had not taken all reasonable steps in so far as a manager could to obtain compliance by the staff whose conduct constituted the offences,

(2) was not an issue relevant to:

(a) whether the offences might properly be dealt with under s 10(1)(a C(SP)A, or

(b) the sentencing of Mr Lavorato for the offences upon conviction for them?

Question 3.5 - Alternatively to [(4)] above, did I err in law in failing to decide the issue in [4(1)] above?

These questions may be considered together. The Crown submitted that there was no finding in the terms posed by these questions and accordingly they did not arise.

The facts stated by her Honour were:

"2.5 In respect of the objective seriousness of the offence, I found that

(1) each offence was a single offence,

(2) the alcohol had been supplied in its original bottle rather than poured into a glass,

(3) there had been a general directive to staff not to do what they did,

(4) the staff who engaged the subject of the charges,

(a) for reasons relating to the hour or sheer mistake did not do so on these occasions, but

(b) usually complied with the condition.

2.6 Having regard to the above and taking into account the potential consequence of the conduct charged, I concluded the offences were towards the lower end of the scale.

2.7 I found relevant subjective considerations as follows

(1) Mr Lavorato was not at the Club on the particular night and was not required that he actually be in attendance at that time,

(2) the management structure and staff handbook were very proper and very properly managed,

(3) the Club appeared to manage its "responsible service of alcohol" duties well,

(4) there was some evidence in the document in Tab 13 of a du(sic) lack of some signage on the Club's premises, but there was no suggestion in that evidence of anything but an oversight or mistake. I considered this evidence to be of less importance that (sic) anything else.

2.8 I then considered the importance of deterrence for the matter before me and

(1) concluded that on the matter of general deterrence it seemed rather pointless to punish Mr Lavorato personally, but

(2) the position was different on the issue of specific deterrence because a chief executive officer must show leadership and a change in attitude within the organisation must change from the top,

(3) a penalty imposed on its chief executive officer is something the Club would take into account in how it deals with matters of this nature.

...

2.9 I made no finding about whether Mr Lavorato had or had not taken all reasonable steps in so far as a manager could to obtain compliance with the condition by the staff whose conduct constituted the offences."

Whether or not Mr Lavorato had taken all reasonable steps in so far as a manager could, to obtain compliance by the staff whose conduct constituted the offences of which he was convicted, was a question of fact, raised to be determined on the case which the applicant advanced in support of his application under s 10. He was entitled to advance a case that the evidence established that he had taken such steps and that this was a matter which her Honour should take into account, in considering his s 10 application.

Her Honour was obliged to determine the application on the evidence led and the submissions advanced by the parties. Section 10(3)(b) permitted the application to be advanced on the basis of 'extenuating circumstances' and s 10(3)(c) 'any other matter that the court thinks proper to consider'. A failure to consider facts relied on to establish the existence of extenuating circumstances, or other matters relevant to be considered in determining whether the discretion granted by the section should be exercised, amounted to an error of law.

Reference to her Honour's judgment and the evidence there referred to, is not an available means of determining whether or not the extenuating circumstances on which the applicant relied, were dealt with. The case which her Honour has stated, after hearing the parties' contest over this matter, indicate that they were not.

The questions posed require consideration of whether that omission involved an error of law. Given the requirements of s10(3); the failure to make factual findings in relation to the claim that the applicant had taken all reasonable steps, in so far as a manager could, to obtain compliance by the staff whose conduct constituted the offences; and the failure to consider the submissions advanced in respect of that claim, to support the application for the exercise of the discretion, involved an error of law.

These matters were also relevant to an assessment of the nature and seriousness of the applicant's offences, in the event that the exercise of the discretion under s 10 were refused. Section 21A of the Crimes (Sentencing Procedure) Act specified the aggravating and mitigating factors which are relevant and known to the Court, which must be taken into account in determining sentence. By s21A(1) the identified matters 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.'

The mitigating matters specified in s21A(3) include for example that the offence was 'not part of a planned or organised criminal activity' (see (b)) and that 'the offender is unlikely to re-offend' (see (g)). Given the nature of the strict liability offences here in question, if the facts relied on established that Mr Lavorato's had taken all reasonable steps, in so far as a manager could, to obtain compliance by the staff whose conduct constituted the offences of which he was convicted, that was a highly relevant mitigating matter which he was entitled to raise, have determined and if established, have taken into account, in the determination of penalty.

It follows that a failure to consider and determine the matters relied on, to establish this mitigating factor and if established to take it into account in determining the sentences to be imposed, also involved an error of law.

It follows that both questions posed must be answered yes.

Question 3.6 - Did I err in law in deciding that the object of imposing strict liability for regulatory type offences would not be achieved in the absence of a conviction and the imposition of a penalty i.e. by then being dealt with under s 10(1)(a) C(SP)A?

The Crown submitted that this question did not reflect the terms of her Honour's findings. To the contrary, she applied the provisions of s 10 and made a determination, on the evidence, of the appropriate penalty, having in mind the matters specified in s 10(3). Section 10(3)(d) permitted consideration to be given to the nature of the offence and the need for general and specific deterrence in the circumstances. The weight given to those factors was not a question of law.

These submissions may not be accepted. The case her Honour stated leaves no room for doubt that her view was that an order under s 10 should not be made available to the applicant, given 'the object of imposing strict liability for regulatory offences' of the kind in respect of which the applicant had been convicted under s 11(2) of the Liquor Act 2007. That view involved a construction of both s 10 and s 11(2), patently inconsistent with the express terms of the two sections.

The maximum penalties to be imposed in respect of a s 11(2) offence is specified in the section. There is no minimum penalty specified. Orders under s 10 are available to be made in respect of s 11(2) offences. A refusal of an application which rests on a view that orders under s 10 should not be made in respect of such strict liability regulatory offences, does not involve the required consideration of the nature of the particular offences in question, or a determination of the need for general and specific deterrence in the particular circumstances which have arisen for consideration. To the contrary, it reflects a view that irrespective of the nature and seriousness of the particular offences in question, given the need for deterrence in respect of offences of that kind, the discretion granted by s 10 should not be exercised.

That approach is inconsistent with the proper construction of s10 and s 11(2) and involves a failure to exercise the jurisdiction granted under s10, as I have earlier discussed.

By its terms s10 grants a person charged with an offence under s 11(2) the right to make an application for the exercise of the discretion granted in his favour and to have it heard and determined on its merits. The fact that such an offence is a strict liability regulatory offence, does not preclude an applicant from being given the benefit of the section, if a case for the exercise of the discretion is made out on the evidence and submissions advanced.

It follows that the question should be answered yes.

Orders

I would propose the following orders:

1. Answer question 3.1 in the stated case 'no' and the other questions stated 'yes'.

2. Set aside the orders of the District Court.

3. Remit the matter to the District Court for disposal in accordance with law.

4. The Crown to pay the applicant's costs of the stated case.

THE COURT: In order to determine the effect of the Court's conclusions, it is convenient to summarise them in the form of a table. For this purpose, it is convenient to number the questions 1-6, although they all fell within section 3 of the stated case and were, for that reason, numbered 3.1-3.6 in two of the separate judgments set out above.

Question

Basten JA

RS Hulme J

Schmidt J

1

Inappropriate to answer

No

No

2

Inappropriate to answer

No

Yes

3(a)

No

Yes

Yes

3(b)

No

Inappropriate to answer

Yes

4

Inappropriate to answer

Yes

Yes

5

Inappropriate to answer

Yes

Yes

6

Inappropriate to answer

Yes

Yes

In order to set aside the judgment in the Court below, it was necessary for the applicant to obtain an affirmative answer in respect of a particular ground. For this purpose, "Inappropriate to answer" fails to qualify. Accordingly, by majority, questions 1, 2 and 3(b) were answered in the negative; questions 3(a), 4, 5 and 6 were answered in the affirmative.

The errors of law so identified must be considered material and, accordingly, orders 2 - 4 proposed by Schmidt J should also be made.

**********

Amendments

04 June 2013 - Amending typographical errors

Amended paragraphs: 28, 31

22 May 2013 - Correction made to third sentence. Incorrect reference to section and Act.Deleted "s 5B of the Criminal Appeal Act" and replaced with "s 11(1) of the Crimes (Appeal and Review) Act 2001"

Amended paragraphs: [77]

Decision last updated: 04 June 2013

Medium Neutral Citation:	Lavorato v Regina [2012] NSWCCA 61
Hearing dates:	10 February 2012
Decision date:	17 April 2012
Before:	Basten JA at 1; RS Hulme J at 52; Schmidt J at 64; The Court at 129
Decision:	1. Answer questions 1, 2 and 3(b) in the negative and questions 3(a), 4, 5 and 6 in the affirmative. 2. Set aside the orders of the District Court. 3. Remit the matter to the District Court for disposal in accordance with law. 4. The Crown to pay the applicant's costs of the stated case.
Catchwords:	COSTS - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - whether "an appeal" within the meaning of Criminal Appeal Act 1912 (NSW), s 17 - whether costs can be ordered CRIMINAL LAW - appeal - procedure - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - whether appropriate for trial judge to identify findings of fact other than those identified in the judgment - whether extension of time to submit stated case should be granted CRIMINAL LAW - appeal - sentencing - application pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 - whether failure to consider facts relied upon by applicant or other relevant matters amounted to an error of law - whether failure to make factual findings and consider submissions amounted to an error of law - whether failure to consider mitigating factors specified in Crimes (Sentencing Procedure) Act, s 21A amounted to an error of law - whether s 10 is available to a person charged with a strict liability offence CRIMINAL LAW - procedure - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - trial judge in declined to proceed with matter under Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 - whether issue not proffered for determination by the District Court can form the basis of a stated case - whether question of law arises
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17, 20 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 4, 10, 21A; Pt 2, Div 3 Criminal Appeal Act 1912 (NSW), ss 5B, 10 Criminal Appeal Rules, r 29 Director of Public Prosecutions Act 1986 (NSW), s 9 Evidence Act 1995 (NSW) Justices Legislation Amendment (Appeals) Act 1998 (NSW), item 2.8 Liquor Act 2007 (NSW), ss 11, 150; Sch 4, cl 4 Registered Clubs Act 1976 (NSW), ss 17, 17AAA, 44A, 66 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Castlebar Holding Pty Ltd v Riley [2005] NSWCCA 105 Collins v State Rail Authority of NSW (1986) 5 NSWLR 209 Commissioner of Taxation v Baffsky [2001] NSWCCA 332; 164 FLR 375 Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58 Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 Jones v Morley (1981) 29 SASR 51 Kirk v Industrial Relations Commission [2010] HCA 1; [2010] 239 CLR 531 McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority [2000] NSWCCA 367 Muin v Refugee Review Tribunal (No 3) [2000] HCA 49; 174 ALR 681 R v Vallett [1951] 1 All ER 231 Regina v Van Nam Nguyen [2002] NSWCCA 183 Robinson v Woolworths Ltd (T/as Woolworth Plus Petrol Werrington) [2005] NSWCCA 426; 64 NSWLR 612 Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547 Talay v R [2010] NSWCCA 308 Thomas v R [1937] HCA 83; (1937) 59 CLR 279
Category:	Principal judgment
Parties:	Michael Lavorato - Applicant Regina - Respondent
Representation:	Counsel: T M Lynch - Applicant F A Veltro - Respondent Solicitors: Piggott Stinson Lawyers - Applicant S Kavanagh, Solicitor of Public Prosecutions - Respondent
File Number(s):	CCA 2009/62338
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2010-08-25 00:00:00 Before: Syme DCJ File Number(s): DC 2009/62338

Question	Basten JA	RS Hulme J	Schmidt J
1	Inappropriate to answer	No	No
2	Inappropriate to answer	No	Yes
3(a)	No	Yes	Yes
3(b)	No	Inappropriate to answer	Yes
4	Inappropriate to answer	Yes	Yes
5	Inappropriate to answer	Yes	Yes
6	Inappropriate to answer	Yes	Yes