Date of Hearing: 2 September 2021 Date of Judgment: 10 November 2021
S61/2021
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation
B J Rigg SC with J S Paingakulam for the appellant (instructed by Legal Aid NSW)
H Baker SC with B K Baker and K M Jeffreys for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Park v The Queen
Criminal law – Sentence – Plea of guilty – Where appellant sentenced in District Court of New South Wales for multiple offences including taking a conveyance without consent of owner contrary to s 154A(1)(a) of Crimes Act 1900 (NSW) ("offence") – Where maximum penalty for offence five years' imprisonment – Where offence dealt with as a "related offence" under s 165 of Criminal Procedure Act 1986 (NSW) – Where sentencing court subject to jurisdictional limit of two years' imprisonment for offence – Where s 22(1) of Crimes (Sentencing Procedure) Act 1999 (NSW) provided sentencing court may impose lesser penalty than it would otherwise have imposed but for plea of guilty – Where sentencing judge awarded 25% discount for guilty plea for offence – Where indicative sentence of two years and eight months' imprisonment exceeded jurisdictional limit – Whether sentence that court "would otherwise have imposed" can exceed jurisdictional limit.
Words and phrases – "aggregate sentence", "appropriate sentence", "discount to the sentence", "guilty plea", "indicative sentence", "jurisdictional limit", "lesser penalty than it would otherwise have imposed", "maximum penalty", "plea of guilty", "sentence in excess of the jurisdictional limit".
KIEFEL CJ, GAGELER, KEANE, EDELMAN AND GLEESON JJ. This appeal concerns the correct interpretation of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"), which prescribes the manner in which certain courts, including, relevantly, the District and Local Courts of New South Wales, are required to take into account an offender's guilty plea in passing sentence. At the time of the relevant offending, s 22 provided:
"(1)In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account –
(a)the fact that the offender has pleaded guilty, and
(b)when the offender pleaded guilty or indicated an intention to plead guilty, and
(c)the circumstances in which the offender indicated an intention to plead guilty,
and may accordingly impose a lesser penalty than it would otherwise have imposed.
(1A)A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
(2)When passing sentence on such an offender, a court that does…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Park v The Queen [2021] HCA 37
Case
[2021] HCA 37
Decision Date
CaseChat Overview and Summary
The appellant, Park, was sentenced in the District Court of New South Wales to an aggregate term of 11 years imprisonment for multiple offences, including taking a conveyance without consent. This specific offence carried a maximum penalty of five years imprisonment but was treated as a "related offence" under the Criminal Procedure Act 1986 (NSW), subjecting the District Court to the jurisdictional limit of the Local Court, which was two years imprisonment for this offence. The sentencing judge applied a 25% discount for the guilty plea, resulting in an indicative sentence of two years imprisonment for the offence, noting that without the discount, the sentence would have been two years and eight months, exceeding the jurisdictional limit.
The central legal issue before the High Court of Australia was whether the phrase "the sentence that the court would otherwise have imposed" in s 22(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) could refer to a sentence that exceeded the court's jurisdictional limit. The appellant argued that if the sentence that would otherwise have been imposed exceeded the jurisdictional limit, then the discount for the guilty plea should be applied to that higher figure, potentially leading to a sentence within the limit.
The High Court held that the sentence that a court "would otherwise have imposed" under s 22(1) refers to the sentence determined in accordance with the Sentencing Act, without regard to any jurisdictional limits imposed by other legislation, such as the Criminal Procedure Act. The Court reasoned that any relevant jurisdictional limit is applied by the sentencing judge after the appropriate sentence for the offence has been determined. The majority of the Court of Criminal Appeal of New South Wales had correctly interpreted s 22 in this manner.
Consequently, the appeal was dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
When s 22 is read in its context, the sentence that the court "would otherwise have imposed" in s 22(1) is the sentence that the court would otherwise have imposed in accordance with the Sentencing Act. That sentence is determined without regard to any jurisdictional limit affecting the court's sentencing power under the Criminal Procedure Act 1986 (NSW) ("the Criminal Procedure Act"). Any relevant jurisdictional limit is applied by the sentencing judge after the judge has determined the appropriate sentence for the offence. The majority of the Court of Criminal Appeal of the Supreme Court of New South Wales correctly interpreted s 22 and, accordingly, the appeal must fail.Background to appeal On 6 November 2018, the appellant was sentenced in the District Court of New South Wales to an aggregate sentence of imprisonment of 11 years, with a non-parole period of eight years, for multiple offences including an offence of taking a conveyance without the consent of the owner contrary to s 154A(1)(a) of the Crimes Act 1900 (NSW) ("the offence"). The offence was dealt with as a "related offence" within the meaning of s 165 of the Criminal Procedure Act and the appellant pleaded guilty to the offence. The maximum penalty for the offence was five years' imprisonment[1] but the District Court's sentencing power was affected by s 168(3) of the Criminal Procedure Act, which provided:"In sentencing or otherwise dealing with a person for a back up offence or related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court."[1]Crimes Act 1900 (NSW), ss 116, 117, 154A. By s 268(1A) of the Criminal Procedure Act, the maximum term of imprisonment that the Local Court could have imposed for the offence was two years. The combined operation of ss 168(3) and 268(1A) was to impose a jurisdictional limit upon the District Court of two years' imprisonment in sentencing the appellant for the offence ("the jurisdictional limit"). As the sentencing judge (Judge Bennett) imposed an aggregate sentence in accordance with s 53A of the Sentencing Act, his Honour was required by s 53A(2)(b) to indicate "the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence". His Honour indicated a sentence of two years' imprisonment for the offence after "applying a discount of 25%" and noted that he had "applied a 25% discount to the sentence that would have otherwise been imposed" to reflect the utility of the appellant's early plea of guilty. As all members of the Court of Criminal Appeal inferred, but for the appellant's guilty plea, his Honour's indicative sentence would have been two years and eight months' imprisonment, being a sentence in excess of the jurisdictional limit[2].[2]Park v The Queen (2020) 282 A Crim R 551 at 553 [3], 578 [130], 586 [169].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, GAGELER, KEANE, EDELMAN AND GLEESON JJ
(dissent)
Section 22 concerns the determination of the appropriate sentence for an individual offence. Section 53A applies once the sentencing judge has determined appropriate sentences for each of multiple offences, and the section permits a single sentence to be imposed for multiple offences, "to simplify the process when setting sentences for multiple offences, such that the overall impact of the sentence is clear, as is the court's assessment of the offender's criminality with respect to each offence"[21]. Among other things, the indicative sentences required by s 53A(2)(b) assist in explaining how the aggregate sentence was arrived at[22].[21]New South Wales, Legislative Council, Parliamentary Debates (Hansard), 23 November 2010 at 27870.[22]R v Nykolyn [2012] NSWCCA 219 at [58]; PD v The Queen [2012] NSWCCA 242 at [43]; JM v The Queen (2014) 246 A Crim R 528 at 537-538 [40].Conclusion The appeal must be dismissed.