Re Attorney-General's Application (No 1 of 2002) (NSW)

[2002] NSWCCA 518

Reported Decision: (2002) 56 NSWLR 146
137 A Crim R 180

New South Wales

Court of Criminal Appeal

CITATION:	ATTORNEY GENERAL'S APPLICATION UNDER s37 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999 NO 1 OF 2002 [2002] NSWCCA 518
FILE NUMBER(S):	CCA AG 001/02
HEARING DATE(S):	25 November 2002
JUDGMENT DATE:	20 December 2002
PARTIES :	Applicant: Attorney General Intervenor: Director of Public Prosecutions Intervenor: Senior Public Defender
JUDGMENT OF:	Spigelman CJ at 1; Wood CJ at CL at 70; Grove J at 71; Sully J at 72; James J at 73

COUNSEL :	Applicant: R Cogswell SC / P Singleton / J Quilter Intervenor: Director of Public Prosecutions, LMB Lamprati Intervenor: Senior Public Defender, C Craigie SC / RJ Button
SOLICITORS:	Applicant: IV Knight Intervenor: Director of Public Prosecutions, SE O'Connor
CATCHWORDS:	CRIMINAL LAW - sentencing - application for guideline judgment - take into account - uncharged offence - Form 1 - whether sentencing for principal offence only - discretion not to take into account - Crimes (Sentencing Procedure) Act 1999, s 33.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Statute Law (Miscellaneous Provisions) Act No 1 1987
CASES CITED:	Maxwell v The Queen (1995) 184 CLR 501 Murrell v The Queen (1985) 4 FCR 168 The Queen v De Simoni (1981) 147 CLR 383 The Queen v Olbrich (1999) 199 CLR 270 The Queen v White (1981) 28 SASR 9 R v AEM Snr [2002] NSWCCA 58 R v Anderson [1978] AC 964 R v Barton (2001) 121 A Crim R 185 R v Bavadra (2000) 115 A Crim R 152 R v Burtt (1981) 5 A Crim R 34 R v Daley [2002] NSWSC 148 R v Dawson [2000] NSWCCA 399 R v Harris (2001) 125 A Crim R 27 R v Irusta (2000) 117 A Crim R 6 R v Jones [1978] Tas SR 126 R v Kay [2002] NSWCCA 286 R v Lemene (2001) 118 A Crim R 131 R v McAllister (1982) 30 SASR 493 R v Morgan (1993) 70 A Crim R 368 R v Perese (2001) 126 A Crim R 508 R v Vougdis (1989) 41 A Crim R 125
DECISION:	Application granted in part.

AG 001/02

SPIGELMAN CJ
WOOD CJ at CL
GROVE J
SULLY J
JAMES J

Friday 20 December 2002

ATTORNEY GENERAL’S APPLICATION UNDER s37 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999 NO 1 of 2002

The Attorney General applied to the Court for a guideline judgment in relation to the statutory procedure under Div 3 of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 whereby a court sentencing an offender for one offence may take into account the offender’s admitted guilt of another offence which is not charged on the indictment.

AG 001/02

SPIGELMAN CJ
WOOD CJ at CL
GROVE J
SULLY J
JAMES J

Friday 20 December 2002

ATTORNEY GENERAL’S APPLICATION UNDER s37 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999 NO 1 of 2002

Judgment

1 SPIGELMAN CJ: This is an application by the Attorney General pursuant to Div 4 of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (“the 1999 Act”) for a guideline judgment in relation to the proper administration of Div 3 of Pt 3 of the 1999 Act. Division 3 now contains the procedure whereby a Court sentencing an offender for one offence may take into account another offence. Prior to the enactment of the 1999 Act the procedure was found in s21 of the Criminal Procedure Act 1986. Before 1986 it was found in s447B of the Crimes Act 1900. The procedure has, in substance, been the same throughout. It is derived from a non-statutory practice of the English Courts.

2 By s32 of the 1999 Act provision is made for a “list of additional charges”. The form for such a list is provided in “Form 1” in Schedule 1 of the Crimes (Sentencing Procedure) Regulation 2000. The procedure is generally referred to as ‘taking into account matters on a Form 1’.

3 Section 37 of the 1999 Act empowers the Court to give a guideline judgment on the application of the Attorney. By s37(5) the Court is empowered to give a guideline judgment under the section either “separately” or it may be “included in any judgment of the Court that it considers appropriate”.

4 It has been the practice of the Court to list applications by the Attorney for a guideline judgment with appeals to the Court which raise issues relating to the matter for which a guideline judgment is sought. That has not been necessary on this occasion. The Court is very familiar with the Form 1 procedure.

5 By s36 of the 1999 Act the words “guideline judgment” are defined:

“ guideline judgment means a judgment that is expressed to contain guidelines to be taken into account by courts sentencing offenders, being:
(a) guidelines that apply generally, or
(b) guidelines that apply to particular courts or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of offenders (but not to particular offenders).”

6 The application in the present case concerns a procedure that potentially applies to all offences. Accordingly, the application by the Attorney is made pursuant to par (a) of the definition of guideline judgment.

7 By s38 and s39 of the 1999 Act the Senior Public Defender and the Director of Public Prosecutions have power to intervene in “guideline proceedings”. The definition of “guideline proceedings” in s36 of the 1999 Act extends to proceedings under s37 upon application by the Attorney. Both the Senior Public Defender and the Director of Public Prosecutions have intervened and made submissions in these proceedings.

Statutory Scheme

8 Division 3 of Pt 3 of the 1999 Act should be set out in full:

“31 In this Division
further offence means an offence referred to in a list of additional charges.
impose a penalty includes:
(a) impose a sentence of imprisonment or a fine, or
(b) make a periodic detention order, home detention order or community service order, or
(c) make an order that provides for an offender to enter into a good behaviour bond, or
(c1) make a non-association order or place restriction order, or
(d) make an order under section 10, 11 or 12.
…
32(1) In any proceedings for an offence (the principal offence ), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.
(2) A list of additional charges may be filed at any time:
(a) after the court finds the offender guilty of the principal offence, and
(b) before the court deals with the offender for the principal offence.
(3) A copy of the list of additional charges, as filed in the court, is to be given to the offender.
(4) A list of additional charges:
(a) must be in the form prescribed by the regulations, and
(b) must be signed by the offender, and
(c) must be signed by or on behalf of the Director of Public Prosecutions.
(5) A list of additional charges is taken to be signed on behalf of the Director of Public Prosecutions if it is signed by a person:
(a) who is authorised to do so by means of a written order signed by the Director of Public Prosecutions or who belongs to a class of persons so authorised, or
(b) who is prescribed by the regulations or who belongs to a class of persons so prescribed.
33(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.
(2) The court may take a further offence into account in dealing with the offender for the principal offence:
(a) if the offender:
(i) admits guilt to the further offence, and
(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and
(b) if, in all the circumstances, the court considers it appropriate to do so.
(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.
(4) A court may not take a further offence into account:
(a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or
(b) if the offence is an indictable offence that is punishable with imprisonment for life.
(5) For the purposes of subsection (4)(a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender.
(6) Despite subsection (4)(a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account.
34(1) If a court takes a further offence into account under this Division, the court may make such ancillary orders as it could have made had it convicted the offender of the offence when it took the offence into account, but may not impose a separate penalty for the offence.
(2) An offender with respect to whom an ancillary order is made has the same rights of appeal as he or she would have had if the order had been made on the conviction of the offender for the further offence.
(3) An ancillary order for an offence taken into account lapses, by operation of this subsection, if the offender’s conviction for the principal offence is quashed or set aside.
(4) In this subsection, ‘ancillary order’ means an order or direction with respect to restitution, compensation, costs, forfeiture, disqualification or loss or suspension of a licence of privilege.
35(1) If a further offence is taken into account under this Division:
(a) the court is to certify, on the list of additional charges, that the further offence has been taken into account, and
(b) no proceedings may be taken or continued in respect of the further offence unless the conviction for the principal offence is quashed or set aside.
(2) This section does not prevent a court that has taken a further offence into account when dealing with an offender for a principal offence from taking the further offence into account if it subsequently imposes a penalty when sentencing or re-sentencing the offender for the principal offence.
(3) An admission of guilt made for the purposes of this Division is not admissible in evidence in any proceedings relating to:
(a) the further offence in respect of which the admission was made, or
(b) any other offence specified in the list of additional charges.
(4) An offence taken into account under this Division is not, merely because of its being taken into account, to be regarded for any purpose as an offence of which an offender has been convicted.
(5) In or in relation to any criminal proceedings, reference may lawfully be made to, or evidence may lawfully be given of, the fact that a further offence has been taken into account under this Division in imposing a penalty for a principal offence of which an offender has been found guilty if, in or in relation to those proceedings:
(a) reference may lawfully be made to, or evidence may lawfully be given of, the fact that the offender was found guilty or convicted of the principal offence, and
(b) had the offender been found guilty or convicted of the further offence so taken into account, reference could lawfully have been made to, or evidence could lawfully have been given of, the fact that the offender had been found guilty or convicted of that further offence.
(6) The fact that a further offence has been taken into account under this Division may be proved in the same manner as the conviction for the principal offence.”

The Draft Guideline

9 The Attorney General proposes the following guideline:

“1. When sentencing for an offence or offences in proceedings where the prosecutor has filed in court a document referred to in s32(1) of the Crimes (Sentencing Procedure) Act 1999 (“Form 1”), the court must ensure that appropriate weight is given to the Form 1 offences so as to reflect the overall criminality involved in both the offences in respect of which a sentence is being passed and the offences on the Form 1.
2. An offender who uses the Form 1 procedure can normally expect to receive more than an insignificant increase in the penalty imposed for the principal offence and will sometimes suffer a very significantly greater sentence than would have been imposed for the principal offence alone.
3. An offender who adopts the Form 1 procedure is entitled per se to expect that the additional penalty (attributable to the Form 1 offences) will be significantly less than would have been imposed had separate charges been prosecuted.
4. If there is in a particular case an identifiable value derived by the community from the use of the Form 1 procedure (a value over and above the benefit which ordinarily flows to the law enforcement agencies and the courts) then that value should be taken into account further to reduce the sentence.
5. A sentencing court should normally specify the increase in penalty flowing from the taking into account of an offence or offences on a Form 1. Ordinarily a sentencing court should indicate whether or not a significant discount has been accorded because of the use of the Form 1 procedure but need not ordinarily specify more precisely the size of the discount.
6. Care should be used as to when the Form 1 procedure is used. For example, the procedure should not be used when to do so would undermine or defeat the objectives of sentencing or important principles of sentencing. Nor should the procedure be used when to do so would distort or unbalance the sentencing process or resulting sentences.
7. The prosecution has an important role in ensuring the Form 1 procedure is not misused.
8. The prosecution should ensure that the sentencing court is fully apprised of the circumstances relevant to the offences which are contained on the Form 1.”

The Need for a Guideline Judgment

10 The primary thrust of the Attorney’s submissions on the need for a guideline judgment was the absence of authoritative guidance in a number of particular respects. In some of these respects it was suggested that there are unresolved conflicts amongst judgments of this Court. Any such conflicts would, of course, justify resolution by a five judge bench as is convened for this occasion. It would have been possible to convene a five judge bench with respect to a particular case or cases in which such an issue arose. The nature of the procedure invoked by the Attorney is such that it is possible to consider the issues on application by the Attorney.

11 The Attorney identified four issues:

1 What is the meaning of “take into account” and what is the fundamental approach to be taken by sentencing courts when they proceed under s33 of the Act?

2 What circumstances (in particular, what types of offences) warrant an offence being taken into account instead of being separately charged (that is, when – and when not – should the procedure be used)?

3 To what extent should the penalty for the principal offence be increased because another offence is, or other offences are, being taken into account? (In practice this inquiry needs to focus on the extent to which the penalty for the other offence should be the same as it would have been had it been included in the indictment or other charging document instead of on the Form 1 document.)

4 What are the steps that should be taken when the Form 1 procedure is used (for example, should the sentencing judge receive full evidence about the matters listed on the Form 1)?

12 The Attorney submitted that the issues raised involved certain sub-questions. These are identified in the Draft Guideline proposed by the Attorney and set out above

13 The Director of Public Prosecutions generally supported the application of the Attorney. However, the Director did not support the Attorney’s proposal in point (5) set out in [9] above, i.e. that the increase in penalty should normally be specified by the Court. Nor did the Director support the suggestion in the Attorney’s written submission that a sentencing judge should notionally determine a sentence for offences on a Form 1.

14 Furthermore, with respect to point (8) of the Attorney’s draft guideline the Director suggested the following alternative:

“A sentencing court should be sufficiently apprised of the circumstances relevant to the offences contained on the Form 1 so as to enable the court to make a proper assessment of the criminality involved.”

15 The Senior Public Defender submitted that the Form 1 procedure is long standing and well established. He also submitted that there was no evidence of any inappropriate use of the procedure. He warned that care should be exercised so as not to undermine the utility of the Form 1 procedure by diminishing the incentives for, or benefits flowing to, offenders who admit guilt via the procedure. The Senior Public Defender expressed a particular concern with the proposal to identify circumstances which could circumscribe the discretion of a judicial officer not to adopt the procedure, where both the prosecution and the defence urge the trial court to accept matters on a Form 1.

16 Alternatively, the Senior Public Defender indicated that a guideline judgment should be limited to restating with clarity matters of principle that have been settled in the earlier case law. He opposed any quantification of an increase in sentence arising when offences are taken into account on a Form 1. Finally, the Senior Public Defender stated that the most the Court should do would be to caution judicial officers against accepting the use of the procedure where it was “manifestly inappropriate”.

17 For the reasons that will appear below, I do not believe it is appropriate to answer the questions posed by the Attorney in the form in which they are put. There are, however, matters which suggest different approaches in earlier judgments of this Court, or lack of clarity in such judgments, which should be resolved by a five member bench. The Form 1 procedure is in daily use in the criminal justice system of this State. Insofar as conflicting or uncertain guidance has been given by this Court with respect to the procedure, it is appropriate that a court of five should resolve such issues.

A Divergence of Approaches

18 A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. (See e.g. The Queen v White (1981) 28 SASR 9 at 13; Murrell v The Queen (1985) 4 FCR 168 at 179 per Blackburn J; R v Vougdis (1989) 41 A Crim R 125 at 128-129; R v Morgan (1993) 70 A Crim R 368 at 371-372.)

19 These authorities focus on the sentence that is appropriate for the charge on the indictment, with a view to increasing it by reason of the Form 1 offences for which guilt has been admitted. This can be characterised as a ‘bottom up’ approach.

20 The Attorney’s submissions have raised an issue of principle with respect to the fundamental approach to the task of ‘taking into account’ Form 1 offences. The submissions support a “top down” approach. The Attorney submits that it is pertinent to consider the sentence that would have been imposed by the application of sentencing principles, including the principle of totality, if the court had been sentencing for the full range of offences. In written submissions the Attorney stated:

“A sentencing court should strive to set an appropriate set of sentences in respect of all the matters before it, both those on indictment and those on a Form 1 …”
… the sentencing court should recognise the Form 1 offence or offences as separate heads of criminality warranting punishment. The Form 1 offence or offences should not be merely treated as a matter of aggravation to be appended to the count on the indictment in respect of which it is or they are being taken into account.
…
… the sentencing court should set sentences by reference to all the offences before it (including the Form 1 offences). In reaching an ‘instinctive synthesis’ of all the relevant factors, the sentencing court should weigh the factor that there should be, because a discount is due when the Form 1 procedure is used, a reduction in the penalty which would otherwise be appropriate for the offence or offences on the Form 1. This approach may be contrasted with an approach of focussing on the principal offence (the one on the indictment) and sentencing for that offence on the basis of an ‘instinctive synthesis’ of factors including the amount of increase in punishment due because a Form 1 was involved. In other words, sentencing in matters involving a Form 1 calls for a totality based approach in which the penalty is reduced because of use of the Form 1 procedure rather than a principal offence based approach in which the penalty is increased because of use of the Form 1 procedure.”

21 Accordingly, the Attorney has propounded a guideline which refers to the additional penalty “attributed to the Form 1 offences” as being “significantly less than would have been imposed had separate charges been prosecuted” and referred to this as a “discount”.

22 The choice between a ‘top down’ approach and a ‘bottom up’ approach, raises an important issue of principle with respect to which there is uncertain and perhaps conflicting guidance in previous decisions of this Court.

23 The Court must, of course, give effect to the statutory regime. However, it does so in a context in which the basic principle of the common law is that no-one should be punished for an offence of which he or she has not been convicted. (The Queen v De Simoni (1981) 147 CLR 383 at 389, 395-396; The Queen v Olbrich (1999) 199 CLR 270 at [18].) The offences on a Form 1 constitute an admission of guilt, but there is no conviction.

24 The ‘top down’ approach which, notionally, identifies an appropriate penalty for the full gamut of offences, appears to me to be inconsistent with this principle. No doubt it can be said that even the ‘bottom up” approach involves, in a sense, punishment ‘for’ the Form 1 offences, because the penalty for the primary offence is increased. (See e.g. R v Anderson [1978] AC 964 at 969 per Lord Diplock.) But that is not necessarily the case, as I sought to show in R v Barton (2001) 121 A Crim R 185 at [64].) (Lord Diplock’s observations were appropriately qualified by Neasey J in R v Jones [1978] Tas SR 126 at 131.)

25 Decisions of this Court contain a number of different formulations which, with different degrees of explicitness, may be understood as supporting a ‘top down’ approach. As will appear, some of the formulations represent no more than an acknowledgement that the effect of placing matters on a Form 1 will result in a lower, often a substantially lower, sentence than if the same offences had been placed on an indictment. Others do adopt a ‘top down’ approach in the sense that the sentencing judge notionally formulates sentences for the full range of offending behaviour.

26 The clearest statement of the top down approach is to be found in a number of judgments of Hulme J. When sitting in a two judge bench in R v Dawson [2000] NSWCCA 399 at [50]-[51], affirmed in R v Perese (2001) 126 A Crim R 508 esp at [53], his Honour propounded the view that, subject to the statutory restriction in s33(3) of the 1999 Act, the sentence should not be less than it would have been if the Form 1 offences had been included on the indictment. A similar view had been adopted by Wells J in The Queen v White at 12-13. However, when Hulme J applied this approach at first instance it was rejected on appeal to this Court. (See R v Kay [2002] NSWCCA 286 esp at [50]-[54].) A similar proposition had been rejected by Neasey J after considering the case law which pre-existed the statutory provision. (See R v Jones.) This approach should be taken as having been rejected.

27 A different formulation is found in R v Bavadra (2000) 115 A Crim R 152 where Wood CJ at CL, with whom Beazley JA and Greg James J agreed, said at [31]:

“… the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality”.

28 Subsequent cases have also referred to “total criminality” or “overall criminality”. (See e.g. R v Perese at [81] per McClellan J; R v AEM Snr [2002] NSWCCA 58 at [80], [82].)

29 I do not understand Wood CJ at CL’s reference in Bavadra to the “totality of criminality” to suggest that a sentencing judge should determine sentences for all the offences before the judge, whether on the indictment or on the Form 1. I understand his Honour to have intended no more than the proposition for which Simpson J referred to Bavadra as authority in R v Harris (2001) 125 A Crim R 27 at [23] that a sentencing judge “should give due recognition to the gravity of those offences”. If, contrary to my understanding, the reference in Bavadra was intended to suggest that a sentencing judge was imposing punishment for the Form 1 offences, I would respectfully disagree that this is permissible under the statute. The focus, as I will show below, must be on “the principal offence” alone.

30 The objective is as Campbell J put it in R v Vougdis at 129, drawing on Fox J in R v Murrell at 176, that offences to be taken into account “should be dealt with … so as to ensure that the total period of imprisonment is one which best meets the situation”. If that test is not particularly helpful, it simply reflects the discretionary nature of the sentencing task.

31 Another formulation is that of Simpson J, originally propounded in R v Lemene (2001) 118 A Crim R 131 at [7] and repeated in R v Harris at [27] that:

“… an offender who adopts the procedure is entitled to expect an additional penalty significantly less than would have been imposed had separate charges been prosecuted”.

32 This formulation was subsequently referred to in R v AEM Snr at [82] and R v Kay at [53]-[54].

33 I do not understand Simpson J in Lemene or Harris to support a process by which the sentencing judge determines sentences for all the offences before him or her and then applies a substantial “discount” to those sentences. Her Honour did not use the language of discount in her reasoning in this Court. (Cf Her Honour’s first instance judgment in R v Daley [2002] NSWSC 148 at [87].) Nor did she refer to a sentence for all or each of the Form 1 offences. Indeed her Honour adopted ‘bottom up’ terminology when, on both occasions, she referred to “the additional penalty”.

34 Her Honour’s statement about the result an offender “is entitled to expect” is a recognition that using the Form 1 procedure will generally result in a lower effective sentence than would have been imposed in the case of a conviction followed by a separate sentence. Her Honour correctly concluded that this was the most likely consequence of not imposing a sentence for a distinct offence. If, contrary to my understanding, her Honour intended that the Court should determine, in a notional way, the sentence it would imposed if the Form 1 offences had been the subject of a conviction and then apply a ‘discount’, I would respectfully disagree that this is permissible under the statute.

Resolution of the Issues

35 The starting point of the analysis must be the terms of the statutory power. In my opinion, the power is inconsistent with the ‘top down’ approach proposed in the Attorney’s submissions, as quoted above. The statutory scheme, like its common law predecessor (analysed most comprehensively by Neasey J in R v Jones esp at 131-133) emphasises that the court is concerned and concerned only with imposing a sentence for “the principal offence”.

· By s32(1) a prosecutor may file a list of additional charges which the offender wants the court to take into account “when dealing with the offender for the principal offence”.

· By s32(2)(b) a list of additional charges can only be filed before the court deals with the offender for the principal offence.

· Section 33(1) empowers the court to ask an offender whether the offender wants the court “to take any further offences into account in dealing with the offender for the principal offence”.

· Section 33(2) confers the power to take matters into account in expressly limited terms: “The court may take a further offence into account in dealing with the offender for the principal offence”, a formulation repeated in s33(2)(a)(ii).

· By s33(3) the fact that the Court is only sentencing for the principal offence is confirmed by the restriction that the court cannot impose a sentence greater than the maximum penalty for the principal offence.

36 For certain purposes, the effect of an admitted offence, which is taken into account, is assimilated to the position that would have arisen upon conviction for the offence.

· By s34 ancillary orders in the nature of restitution, compensation, costs, forfeiture, disqualification or loss of a licence or privilege may be made as if there was a conviction.

· By s35(5) subsequent reference to, or evidence of, the further offence may be made or given whenever reference to or evidence of a conviction could be made or given.

37 Otherwise, s35(4) provides that an offence taken into account is not to be regarded as a conviction.

38 The approach urged on the Court by the Attorney (quoted in full in par [20] above) that the court should

· “set an appropriate set of sentences in respect of all matters before it”,

· “should recognise the Form 1 offence or offences as separate heads of criminality warranting punishment”, or

· “should set sentences by reference to all the offences before it”.

is, in my opinion, inconsistent with the statutory scheme.

39 The sentencing court is sentencing only for the “principal offence”. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a “discount” for the use of the procedure. This is not sentencing for the principal offence.

40 In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, i.e. the primary offence.

41 In Barton at [64], in a passage subsequently referred to in R v AEM Snr at [81] and R v Perese at [81], I made some observations which I repeat.

42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.

43 I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence.

44 The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay at [69].)

45 The suggestion in the Attorney’s proposed guideline that the increase in penalty should normally be specified may have been appropriate if the Attorney’s basic approach were to be adopted, i.e. that in some senses sentences were being imposed for the Form 1 offences. Once that approach is rejected, specification of quantum is inappropriate.

The Use of the Procedure

46 Point [6] of the draft Guideline propounded by the Attorney refers to circumstances in which the Form 1 procedure may not be appropriate. Point [7] emphasises the role of the prosecution in preventing misuse of the procedure.

47 The legislative scheme empowers a prosecutor to file a list of additional charges specifying other offences which an offender wants the court to take into account. Nothing in the statutory scheme identifies any criterion for selection of matters to be included on any such list. Nor is there any statutory indication of any desirable, let alone necessary, relationship between a principal offence and offences on such a list. However, the Court is given an overriding discretion to refuse to accede to the wishes of the prosecution and the offender. By s33(2)(b), a sentencing judge only needs to take into account the further offences “if, in all the circumstances, the court considers it appropriate to do so”.

48 This is a wide discretion which should not be confined by the identification of a list of situations in which it should not be exercised. The authorities do, however, contain a number of expressions of opinion about when the Form 1 procedure is not appropriate, which may suggest circumstances in which the discretion to take matters into account should not be exercised.

49 There is authority for the proposition that “serious charges” should normally be separately charged, rather than listed on a Form 1. (R v Vougdis at 132 per Yeldham J; R v Morgan at 371 per Hunt CJ at CL.) However, those authorities should be understood in the light of s33(4) which expressly provides that offences punishable by life imprisonment – and only such offences – may not be included on a Form 1. This provision was first introduced into the original s447B of the Crimes Act as subsection (7) by the Statute Law (Miscellaneous Provisions) Act No 1 of 1987. It contemplates the inclusion of serious offences on a Form 1.

50 As long as the most serious offences or, in the case of similar offences, an appropriate range of offences, are included on the indictment, there is no objection to the inclusion of some offences on a Form 1. It would normally be inappropriate to include more serious offences on a Form 1, where the maximum sentence available for the offence on an indictment would be insufficient to allow for the total criminality revealed by the whole course of the offender’s conduct to be appropriately reflected in the sentence.

51 Concern has also often been expressed about the difficulty in sentencing for the principal offence that may arise when the judge is asked to ‘take into account’ a range of unrelated and incomparable offences.

52 Wells J, with whom White and Mohr JJ agreed, said in The Queen v White at 11-12:

“… it is contrary both to logic and to established practice for a sentencing judge to take into consideration offences that are not, viewed broadly, of the same kind and of about the same order of gravity as the offence or offences for which the convictions have been recorded.”

(See also R v McAllister (1982) 30 SASR 493 at 500.)

53 In R v Burtt (1981) 5 A Crim R 34 at 35, King CJ referred to Wells J’s observations in White and added:

“It is extremely difficult in assessing the appropriate penalty for a crime of assault with intent to rob while armed, to take into account in any intelligent way the fact that the offender has also committed crimes of false pretences. I think that it would have been better if the learned judge had declined the appellant’s request.”

54 In R v Harris at [36], Simpson J indicated that taking into account offences on a Form 1 which are “of an entirely different kind” to the primary offence, makes the sentence “rather artificial”.

55 In another case, Simpson J suggested that it was not appropriate to adopt the procedure in that case “having regard to the serious and diverse nature of the charges on which the respondent appeared”. (R v Irusta (2000) 117 A Crim R 6 at [29].)

56 These various observations reflect the difficulties involved in the intellectual exercise of ‘taking into account’, in a particular respect, matters which may appear to be disproportionate or not comparable to the primary matter under consideration.

57 Further, there is a balance to be struck between the number and gravity of charges on an indictment and the number and gravity of charges on a Form 1. A sentencing judge will find it difficult to undertake the statutory task if the number and gravity of the charges on the indictment do not appropriately reflect the total criminality of the whole course of criminal conduct revealed by the indictment and the Form 1.

58 Subject to the agreement of the accused, in accordance with the statutory scheme, the determination of the appropriate balance is a matter for the Crown. This will generally occur in the context of charge negotiations between the prosecution and the defence.

59 The New South Wales Director of Public Prosecutions has published a Prosecution Policy and Prosecution Guidelines. The only express reference in either document to the issue of balance between the charges on an indictment and on a Form 1 is a simple statement that “Some charges may be suitable for inclusion on a Form 1”. That statement appears under “Policy 6: Charge Bargaining”. (Alternative terminology of “charge negotiations” or “charge discussions” appears to be preferable. See Report by the Honourable Gordon Samuels AC, Review of the New South Wales Director of Public Prosecutions Policy and Guidelines for Charge Bargaining and Tendering of Agreed Facts, Sydney, May 2002.)

60 A number of the principles reflected in the DPP Prosecution Policy and Guidelines would appear to be capable of application, with adaptation, to the issue of determining suitability for inclusion of charges on a Form 1. I refer, for example, to the following sentence in Policy 6:

“An alternative plea will not be considered where its acceptance would produce a distortion of the facts and create an artificial basis for the sentencing or where facts essential to establishing the criminality of the conduct would not be able to be relied upon, or where the accused intimates that he or she is not guilty of any offence.”

61 Perhaps consideration should be given to providing guidance explicitly directed to elaborating the ‘suitability’ of offences for inclusion on a Form 1. Any such consideration would need to have in mind the Court’s discretion to refuse to take into account Form 1 offences, notwithstanding the agreement of the prosecution and defence to that course.

62 Two distinct, but consistent, rationales have been advanced for the Form 1 procedure, a practice which emerged before its statutory formulation and which remains non-statutory in some jurisdictions. (See White “Taking Offences into Account in Australia” [1976] Crim L R 232; Fox and Freiberg, Sentencing: State and Federal Law in Victoria (1999) at 2.326-2.331; Potas, Sentencing Manual: Law, Principles and Practice in New South Wales (2001) at 193-197.)

63 First, the opportunity for an offender to emerge from the sentence for the primary offence with a clean slate promotes the objective of rehabilitation. (See e.g. R v Anderson at 977 per Lord Diplock; R v Bavadra at [31] per Wood CJ at CL; Margrave-Jones “Taking Other Offences into Consideration” [1959] Crim L R 18, 108, 197 esp at 197; White, Newark and Samuels “Offences Taken into Consideration” [1970] Crim L R 311 at 311-312.)

64 Secondly, there is a utilitarian value in the admission of guilt which may save resources for law enforcement agencies, particularly where investigations are continuing. (See e.g. R v Bavadra at [31] per Wood CJ at CL; R v Perese at [84] per McLelland J; Margrave-Jones at 197; White, Newark and Samuels at 312-313.)

65 These two purposes do not, however, provide definite guidance for the balance between matters on an indictment and matters on a Form 1. Generally, the ‘clean slate’ will occur and the utilitarian benefits will accrue whatever course is taken. Acknowledgement of guilt always has utilitarian benefits in terms of saving limited public resources and avoiding inconvenience to witnesses. In either case the admissions may relate to offences about which the accused may never have been inculpated. These are real public benefits. Law enforcement agencies and even courts may receive a perceived organisational benefit from increased disposal rates, but such institutional advantages should not be confused with the public interest.

66 The effect of inclusion on a Form 1 is to give the offences so included a significantly lower salience in the sentencing process. There will be an obvious advantage, and hence a greater incentive to admit guilt, where the Form 1 procedure is employed. In my opinion, the issues that arise are broadly equivalent to those involved in the Crown deciding not to prosecute for the full range of offences open to it or to accept a plea to a lesser charge, albeit in the context of multiple, and often divergent, criminal offences.

67 By reason of the express statutory power, a sentencing judge must assess whether it is appropriate to proceed to sentence on a basis where no separate penalty is to be imposed for admitted offences. There will be cases in which, for example, the administration of justice could be brought into disrepute by the court proceeding to sentence a person guilty of a course of criminal conduct on a manifestly inadequate, unduly narrow or artificial basis. I do not intend the previous sentence to constitute a comprehensive statement of the circumstances in which the broad discretion vested in the sentencing judge by s33(1)(b) can be exercised. Nevertheless, the role of the Court must be constrained, to ensure that the independence of the judicial office in an adversary system is protected. (Cf Maxwell v The Queen (1995) 184 CLR 501 esp at 513-514 and 534-535.)

68 Striking the appropriate balance between overloading an indictment and ensuring that the indictment – leading to conviction and to sentence for, and only for, matters on the indictment – adequately reflects the totality of the admitted criminality, is primarily a matter for the Crown. The decision of the Crown in this regard will, no doubt, be guided by the determination in this case that, when matters are ‘taken into account’ on a Form 1, the sentencing judge does not, in any sense, impose sentences for those offences.

69 The application of the Attorney General for a guideline judgment should be upheld to the extent of the above reasons.

70 WOOD CJ at CL: I have read in draft the judgment of Spigelman CJ. I agree with the conclusion reached, and with the reasons of his Honour.

71 GROVE J: I agree with Spigelman CJ.

72 SULLY J: I agree with the Chief Justice.

73 JAMES J: I agree with the judgment of the Chief Justice.

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