Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002)
[2002] NSWCCA 515
•20 December 2002
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: ATTORNEY GENERAL'S APPLICATION UNDER s37 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999 NO 2 of 2002 [2002] NSWCCA 515
FILE NUMBER(S):
AG 002/02
HEARING DATE(S): 25 November 2002
JUDGMENT DATE: 20/12/2002
PARTIES:
Applicant: Attorney General
Intervenor: Director of Public Prosecutions
Intervenor: Senior Public Defender
Intervenor: Sydney Regional Aboriginal
Corporation
JUDGMENT OF: Spigelman CJ Wood CJ at CL Grove J Sully J James J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
Applicant: R Cogswell SC / M Buscombe /
J Quilter
Intervenor: Director of Public Prosecutions,
LMB Lamprati
Intervenor: Senior Public Defender,
PR Zahra SC / D Yehia
Intervenor: Sydney Regional Aboriginal
Corporation, J Stratton
SOLICITORS:
Applicant: IV Knight
Intervenor: Director of Public Prosecutions,
SE O'Connor
CATCHWORDS:
CRIMINAL LAW - sentencing - application for guideline judgment - "assault police" - whether appropriate to promulgate guideline - where offence encompasses wide range of offending behaviour - where no history of crown appeals - Crimes Act 1900, s 60(1).
LEGISLATION CITED:
Crimes Act 1900
Crimes Act 1914 (Cth)
Crimes Amendment (Police and Other Law Enforcement Officers) Act 2002
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Criminal Procedure Act 1986
DECISION:
Application refused.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
AG 002/02
SPIGELMAN CJ
WOOD CJ at CL
GROVE J
SULLY J
JAMES JFriday 20 December 2002
ATTORNEY GENERAL’S APPLICATION UNDER s37 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999 NO 2 OF 2002
The Attorney General applied to the Court for a guideline judgment concerning sentences imposed for the offence of “assault police” in s60(1) of the Crimes Act 1900.
IN THE COURT OF
CRIMINAL APPEAL
AG 002/02
SPIGELMAN CJ
WOOD CJ at CL
GROVE J
SULLY J
JAMES JFriday 20 December 2002
ATTORNEY GENERAL’S APPLICATION UNDER s37 OF THE CRIMES (SENTENCING PROCEDURE) ACT 1999 NO 2 OF 2002
Judgment
SPIGELMAN CJ: This is an application by the Attorney General of New South Wales, pursuant to s37 of the Crimes (Sentencing Procedure) Act 1999 (“the 1999 Act”) for a guideline judgment concerning the offence of “assault police” in s60(1) of the Crimes Act 1900.
The Legislation
Sections 37 and 37A of the 1999 Act provides:
“37(1) The Court may give a guideline judgment on the application of the Attorney General.
(2) An application for a guideline judgment may include submissions with respect to the framing of the proposed guidelines.
(3) An application is not to be made in any proceedings before the Court with respect to a particular offender.
(4) The powers and jurisdiction of the Court to give a guideline judgment in proceedings under this section in relation to an indictable or summary offence are the same as the powers and jurisdiction that the Court has, under section 37A, to give a guideline judgment in a pending proceeding in relation to an indictable offence.
(5) A guideline judgment under this section may be given separately or may be included in any judgment of the Court that it considers appropriate.
37A(1) The Court may give a guideline judgment on its own motion in any proceedings considered appropriate by the Court, and whether or not it is necessary for the purpose of determining the proceedings.
(2) The Court is to give the Senior Public Defender, Director of Public Prosecutions and Attorney General an opportunity to appear as referred to in sections 38, 39 and 39A before giving a guideline judgment.”
Section 36 contains the following definition:
“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 a particular classes of offenders (but not to particular offenders).”
Sections 38 and 39 of the Act provide, respectively, that the Senior Public Defender and the Director of Public Prosecutions may appear in guideline proceedings. Each of those officers has appeared and made submissions to the Court on the application presently before the Court. Furthermore, by reason of the particular significance of the offence, the subject of this application, for the indigenous population of New South Wales, the Sydney Aboriginal Corporation Legal Service sought, and was granted, leave to intervene and to make submissions. Those submissions were made both on its own behalf and on behalf of the five other New South Wales Aboriginal Legal Services.
The offence with respect to which a guideline judgment is sought is that of assault police in s60(1) of the Crimes Act 1900. Section 60 provides:
“60(1) A person who assaults, stalks, harasses or intimidates a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.
(2) A person who assaults a police officer while in the execution of the officer’s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years.
(3) A person who maliciously by any means:
(a) wounds a police officer, or
(b) inflicts grievous bodily harm on a police officer,
while in the execution of the officer’s duty is liable to imprisonment for 12 years.
(4) For the purposes of this section, an action is taken to be carried out in relation to a police officer while in the execution of the officer’s duty, even though the police officer is not on duty at the time, if it is carried out:
(a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of the officer’s duty, or
(b) because the officer is a police officer.”
It is pertinent to note the contrast between the respective subsections of s60 and other assault provisions of the Act.
Section 61 of the Crimes Act provides:
“61 Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”
Section 60(1) refers to a common assault of a police officer and provides for a maximum period of imprisonment for five years, rather than two years which is applicable in any other case. Further, by amendments introduced by the Crimes Amendment (Police and Other Law Enforcement Officers) Act 2002, s60(1) extends beyond assault to include stalking, harassing or intimidating a police officer and, by s60(4) to an officer who is not on duty.
Section 60(2) provides for a period of imprisonment of seven years for assaulting a police officer in a manner which occasions actual bodily harm. Section 59 of the Crimes Act provides for a maximum penalty of five years with respect to an assault with such an affect upon other persons.
Section 60(3) imposes a maximum penalty of twelve years for a person who maliciously wounds or inflicts bodily harm on a police officer. By s35 of the Crimes Act, the equivalent offence committed against another person has a maximum penalty of seven years, or of ten years if committed in the company of another person or persons.
An offence under s60(1) of the Crimes Act is a Table 2 offence within s20 and Schedule 1 of the Criminal Procedure Act 1986. Accordingly, it is to be dealt with in the Local Court, unless an election is made for trial on indictment by the prosecutor, pursuant to s20(2) of that Act. By s28 of the Criminal Procedure Act 1986 the maximum penalty which can be imposed with respect to an offence under s60(1) of the Crimes Act in the Local Court is two years imprisonment or a fine of fifty penalty units or both.
Over the period of five years since 1997, when the special provisions with respect to assault on police were enacted, the overwhelming majority of proceedings under s60(1) have been brought in the Local Court. The statistics compiled by the Judicial Commission of New South Wales record only seven cases of offences under s60(1) being dealt with in the District Court between July 1997 and December 2001. The statistics presented to this Court from the Judicial Commission indicate that, over a similar period, more than 500 offenders were dealt with in the Local Court.
The guideline judgment is sought pursuant to an application dated 10 May 2002. After this date the Parliament of New South Wales has made substantial amendments to the regime for sentencing offenders in the State. The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (“the 2002 Act”) received the Royal Assent on 22 November 2002. The Court has been informed that the amendments introduced by that Act are to be proclaimed to take effect as and from 1 February 2003.
The 2002 Act introduced a new s3A into the 1999 Act on the subject of the “Purposes of Sentencing”, which provides:
“3A The purposes for which a court may impose a sentence on an offender are as follows:
(a) To ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.”
The new legislation also omitted the previous s21A which was, in general terms, modelled on s16A of the Crimes Act 1914 (Cth), with a different approach in a new s21A as follows:
“21A Aggravating, mitigating and other factors in sentencing
(1) General
In determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c) any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation,
(b) the offence involved the actual or threatened use of violence,
(c) the offence involved the actual or threatened use of a weapon,
(d) the offender has a record of previous convictions,
(e) the offence was committed in company,
(f) the offence involved gratuitous cruelty,
(g) the injury, emotional harm, loss or damage caused by the offence was substantial,
(h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability),
(i) the offence was committed without regard for public safety,
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
(k) the offender abused a position of trust or authority in relation to the victim,
(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant),
(m) the offence involved multiple victims or a series of criminal acts,
(n) the offence was part of a planned or organised criminal activity.
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3) Mitigating factors
The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise,
(i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,
(j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability,
(k) a plea of guilty by the offender (as provided by section 22),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23).
(4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
(5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.”
The 2002 Act introduced a new Division 1A in Pt 4 of the Act which made provision for a “standard non-parole period”, a new concept in sentencing. There is now a table in which particular offences are listed, together with a number of years imprisonment against each offence, under a column called “standard non-parole period”.
The effect of the ‘standard non-parole periods’ so identified is set out in the new s54B(2):
“54B(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.”
Section 60(1) of the Crimes Act 1900 is not identified in the table. However, s60(2) has a standard non-parole period of three years and s60(3) has a standard non-parole period of five years.
The Proposed Guideline
Mr R Cogswell SC, who appeared for the Attorney, relied on a number of propositions in support of the Attorney’s application for a guideline judgment with respect to s60(1). In particular he stressed the following factors:
“(a) Perceptions of the prevalence of the offence in question;
(b) The demonstrated emergence of a sentencing pattern, in connection with the offence in question, that is manifestly inadequate;
(c) Inconsistency in the quantification of sentences imposed as punishment for the offence in question;
(d) The requirements of general deterrence in connection with the offence in question.”
On the issue of prevalence Mr Cogswell SC accepted that this was not his strongest point. He placed particular emphasis on the second matter: a demonstrated sentencing pattern that was manifestly inadequate. This pattern, he submitted, was itself suggestive of inconsistency. In this regard he relied on some observations I made in R v Henry (1999) 46 NSWLR 346 at [109] to the effect that a significant proportion of lenient sentences indicates inconsistency between those offenders who obtain such leniency and those who do not. The need for general deterrence reflects well-established sentencing principles to which I will refer below.
By reason of the changes in the legislative scheme made shortly before the case was heard, the Attorney amended the guideline originally sought so as to encompass the new legislative scheme once it came into effect. The amended proposed guideline is as follows:
“(1) Assaults against police in the execution of their duty should always be regarded as objectively serious by sentencing courts and the element of general deterrence must be given particular significance by courts when sentencing for this offence. This is because such assaults represent a challenge to the authority of the police to whom the community looks for protection of their lives and property. Accordingly sentences imposed for this offence should show an appropriate measure of support for the police.
(2) A court should regard the seriousness of offences contrary to s60(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the type and quantum of sentence if any of the factors in s21A(2), excluding s21A(2)(a), of the Crimes (Sentencing Procedure) Act 1999 are present or if any of the following three factors are present:
a. where the assault is a significant challenge to the authority of the police;
b. where the assault occurs in the presence of other members of the public;
c. where the assault takes place on a police officer who is acting alone or in a remote location.
(3) The sentencing court will of course take into account the factors that mitigate the offence and the subjective features of the offender as set out in s21A(3) of the Crimes (Sentencing Procedure) Act 1999.
(4) A sentence involving a period of full-time custody exclusively referable to the offence will often be an appropriate penalty where there are present one or more of the factors listed in paragraph (2).
(5) A fine alone will rarely be an appropriate penalty where there are present one or more of the factors listed in paragraph (2).”
The Offence
Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property. The Courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police.
Mr Cogswell SC identified a number of authorities in which this Court has emphasised the significance for sentencing purposes of the fact that the relevant offences are committed against police officers. The sentencing principles identified in this line of authority are not challenged in these proceedings. It is, in any event, apparent that the principles have been affirmed by the Parliament of New South Wales by the introduction of Div 8A into the Crimes Act 1900 and specifically the contrast between the respective offences in ss60(1), (2) and (3) having, in each case, a maximum penalty several years longer than those applicable to the same offence when committed against other persons.
These sentencing principles have been asserted by this Court on numerous occasions. (See e.g. R v Kevin Gary Crump, unreported, NSWCCA, 7 February 1975 esp at p7; R v Wayne Anthony Myers, unreported, NSWCCA, 13 February 1990 esp at pp6-7; R v Hamilton (1993) 66 A Crim R 575 esp at 581; R v Edigarov (2002) 125 A Crim R 551 esp at [42]-[43]; R v Paris [2001] NSWCCA 83 at [35]-[39]; R v Knight [2001] NSWCCA 334 esp at [41]. See also R v Williams, unreported, QCA, 21 November 1997; R v Wotton, R v Byrne, unreported, QCA, 9 September 1999; Farmer v R, unreported, WACCA, 16 February 1994; Dhu v Ward [2000] WASCA 140 at [10]-[13]; Bull v Tuckey (1986) 40 SASR 321 at 324-325.)
As Gleeson CJ put it in R v Hamilton at 581:
“It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task. The risks that were run by the police officers who were involved in the present case were substantial.”
As the facts of the cases summarised for the Court in the course of the present application indicate, significant risks are run by police officers throughout the State in the normal execution of their duties. The authority of the police, in the performance of their duties, must be supported by the courts. In cases involving assaults against police there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases.
These principles apply irrespective of whether the offender is to be sentenced in the Local or District Courts. The jurisdictional maximum of two years imprisonment in the Local Court should not affect the actual level of sentence imposed. Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for a worst case. (See R v Doan (2000) 50 NSWLR 115.)
The importance of supporting the police has been recognised by the Parliament in the recently enacted s21A, which identifies in s21A(2)(a), as the first of the list of aggravating factors, the fact that the victim was a police officer or one of a number of other persons performing public functions. This will be of significance for other offences against police, but the offence presently under consideration is, of course, specifically concerned with police.
As I have already said, the very section with which the present proceedings are concerned is part of a special Division of the Crimes Act introduced for the precise purpose of establishing substantially higher maximum sentences in the case of offences against police than is the case with the equivalent offences when committed against any other member of the community. The Parliament has made it quite clear that the traditional sentencing principles, in accordance with which assaults against police are treated as particularly serious offences, must be given full effect.
The Appropriateness of the Proposed Guideline
The guideline sought by the Attorney, and supported by the Director of Public Prosecutions, is not a numerical guideline. The thrust of the guideline focuses on the nature of the penalty. The guideline sought states that wherever an assault is combined with one of the identified aggravating circumstances then a full-time custodial sentence will “generally be appropriate” and a fine will be “rare”. No particular level of penalty is proposed in any identified category.
A guideline of this general character has been approved on other occasions. In R v Jurisic (1998) 45 NSWLR 209 at 231E, the first limb of the guideline was:
“A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment.”
Pursuant to the reconsideration of the guideline for this offence in R v Whyte [2002] NSWCCA 343 the guideline presently in force is:
“[214] A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.”
To similar effect was the form that guidance took in the decision of the Full Court of the Supreme Court of South Australia in Police v Cadd (1997) 69 SASR 150 at 171:
“… that the punishment should be imprisonment in the ordinary case of contumacious offence by a first offender, but the circumstances of the offending or the offender may dictate some less severe form of punishment …”
This form of guidance was referred to with approval in the joint judgment in the High Court in Wong v The Queen (2001) 76 ALJR 79 at [61]-[62], where their Honours referred to the guidance given by the use of the word “ordinary” in the expression “ordinary case of contumacious offending”. (See the analysis in Whyte esp at [208]-[211].)
In Wong, the joint judgment said at [62] that the “real content of the guidance” was in the reasons where meaning was given to the word “ordinary” in the expression “ordinary case of contumacious offending”. Mullighan J had explained his use of the word “contumacious” in Cadd at 179:
“It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it.”
In Whyte, the equivalent to the Cadd formula of “contumacious offending” is the phrase “a low level of moral culpability” and, with respect to the numerical guideline, the phrase “the offender has abandoned responsibility for his or her own conduct”.
In the proposed guideline for s60(1) in the present proceedings there is no equivalent phrase. What is proposed is the combination of any assault against a police officer with any one of a number of circumstances, i.e. each aggravating circumstance in s21A of the 1999 Act plus the three additional circumstances specified in par [21] above.
The first difficulty with the identification of a guideline in the form sought by the Attorney General arises from the nature of the offence. Section 60(1) covers any form of common assault not leading to actual or grievous bodily harm. This encompasses a wide range of offending behaviour. An assault can be constituted merely by tapping on the shoulder or poking in the chest. On the other hand it may be constituted by pointing a gun to the head of a police officer and cocking it. There can be little doubt that in the latter case a custodial sentence would be required. In the former cases that will often not be the case. There is a wide range of behaviour capable of constituting an assault which does not involve the high public purpose of the courts supporting the authority of the police.
The guideline propounded by the Attorney does not make express provision for the seriousness of the conduct said to constitute the assault. That factor is said to be encompassed within the terminology of when a full-time custodial sentence is “often” found to be “appropriate” and a fine is said to be “rare”. With respect to an offence the gravity of which can vary so greatly, the Court should be very slow to adopt a guideline even of the limited character for which the Attorney contends in this case. (Cf The Attorney General’s Application No 1 under s26 of the Criminal Procedure Act R v Ponfield (1999) 48 NSWLR 327 esp at [43].)
The second reason why the Court should be slow to adopt the proposed guideline arises from the fact that there has been no history of Crown appeals with respect to the offence in question. Neither the Attorney nor the Director of Public Prosecutions has been able to identify even a single instance in which an appeal from a magistrate’s sentence with respect to an offence under s60(1) of the Crimes Act has been brought to the District Court. Mr Lamprati, who appeared for the Director of Public Prosecutions, informed the Court that, on his instructions there had only been a handful of instances in which police prosecutors, who generally conduct prosecutions for s60(1) offences in the Local Court, had raised the possibility of an appeal against inadequacy of sentence with the State Director of Public Prosecutions.
The Attorney presented to the Court details of a significant number of cases in which a term of imprisonment was in fact imposed by magistrates. In many of these cases, there was much to support the submissions that the length of the sentence was inadequate, perhaps manifestly so. However, there was nothing to suggest that such defects could not be cured by the normal appeal process. Furthermore, the Attorney does not seek a guideline in numerical terms which would have any effect on such cases.
In R v Jurisic at 229, I identified a significant number of successful Crown appeals from sentences for offences under s52A of the Crimes Act 1900. It appeared that sentencing judges had ignored the guidance given in a number of decisions of the Court of Criminal Appeal (see at 229-230). I referred to these considerations in R v Whyte in the following terms:
“[142] Prior to Jurisic there were a number of decisions of this Court which had identified such principles applicable to s52A of the Crimes Act, drawing from time to time on the case law of other jurisdictions for parallel offences. However, it was apparent to this Court in Jurisic that these principles had not been applied by sentencing judges. In particular the weight to be given to the need for public deterrence and the seriousness with which the community regarded the particular offences, manifest in a substantial increase in maximum penalties, had not been reflected in a substantial number of cases. As a result there was a flow of almost invariably successful Crown appeals against sentences imposed under s52A. (See Jurisic at 229.) The large proportion of cases that did not result in a term of actual imprisonment suggested a pattern of leniency and of inconsistency on the part of sentencing judges. The numerous statements in this Court about the need for a sharp upward movement in the sentencing pattern (e.g. R v Slattery (1996) 90 A Crim R 519) had been ignored by a significant number of sentencing judges. An approach limited to the identification of relevant sentencing principles had proved inadequate.”
Furthermore as I said in Whyte:
“[184] As the experience of this Court with respect to sentencing for s52A prior to Jurisic shows, the mechanisms for ensuring consistency in the absence of guideline judgments may prove to be defective. This is, in part, a reflection of the restrictions applicable to Crown appeals which do not apply severity appeals.
[185] The normal appellate process is not always able to ensure consistency in results in the sense that similar cases are treated similarly. The words of the statutory provisions establishing a right of appeal by the Crown against inadequacy of sentence have been interpreted by the Courts to be subject to a number of restrictions. These restrictions include observations that such appeals should be rare. Furthermore, the determination of Crown appeals are subject to what has been described, not particularly accurately, as “the principle of double jeopardy”. No such restrictions are imposed on severity appeals. The result is sometimes an imbalance in the outcomes of the appellate process. Guidance by an appellate court of a numerical character is at least capable of minimising such inconsistency.”
Nothing of this kind applies in the present case. Not only is there no experience of unsuccessful Crown appeals against sentences by magistrates, the restrictions on Crown appeals are not of the same character.
The Director of Public Prosecutions has the right to appeal to the District Court against any sentence imposed by a magistrate under s133F of the Justices Act 1902. That section provides as follows:
“133F(1) The Director of Public Prosecutions may appeal under this Division to the District Court against any sentence imposed by a magistrate in proceedings of a kind set out in subsection (2).
(2) An appeal may be made in any of the following proceedings:
(a) proceedings for an indictable offence dealt with summarily by a magistrate,
…”
The nature of an appeal under this section is not that of a court of review but a hearing de novo. The judge of the District Court exercises his or her own discretion to determine the appropriate sentence. Accordingly, pursuant to s133I, the powers of the District Court are identified as follows:
“133I(1) The District Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:
(a) confirming, quashing, setting aside, varying, increasing or reducing the sentence appealed against,
(b) imposing such sentence as may seem proper to the District Court.”
There is authority for the proposition that, in exercising this jurisdiction, the District Court must take into account the element of double jeopardy involved in a Crown appeal and also that the Court retains a discretion not to intervene, notwithstanding that it has formed the view that the sentence of the magistrate was not appropriate. The Court received no submissions on this line of authority. It does, however, appear that at least some of the inhibiting factors that render the appellate process less efficacious in the case of appeals to the Court of Criminal Appeal, do not apply to appeals from the decisions of magistrates to the District Court.
This Court should be slow to come to a conclusion that there can be detected any systematic pattern of leniency in sentences by magistrates in a context where the Crown has not exercised its right to lodge appeals against the leniency of sentences at all. The position may well be different if there appeared to be a systematic failure by the District Court to correct a pattern of lenient sentencing by magistrates.
The failure to appeal was emphasised in submissions to this Court by Mr P Zahra SC, the Senior Public Defender. The reply of the Attorney was:
“It would be desirable for more magistrates’ decisions to be the subject of review in the District Court before an approach to this Court. However, the public importance associated with ensuring that the appropriate approach be taken to the sentencing of offenders for this offence, supports an application to this Court for a guideline judgment. Statements of the applicable sentencing principles and appropriate guidelines pronounced by this Court will ensure more consistency in sentencing offenders for this offence than a determination of a number of District Court appeals.”
In oral submissions, Mr Cogswell SC emphasised the possible role of a guideline judgment in overcoming a significant divergence between sentencing principle and sentencing practice.
There were, no doubt, occasions on which many judges would have agreed that the sentence imposed in a particular case summarised in submissions to this Court was manifestly inadequate. Some of the particular examples mentioned in the submissions do suggest such a conclusion. However, the reliance by the Attorney on a number of cases in which imprisonment was ordered but, it was submitted, the terms were too short, appears to be misplaced. The proposed guideline does not contain any element affecting the length of sentences of imprisonment. It focuses on circumstances in which a custodial sentence is to be imposed, without reference to length. This, no doubt, reflects a recognition of the wide range of offending behaviour capable of constituting an assault.
Before this Court decides that guidance is appropriate it should be satisfied that the pattern of inadequacy extends beyond particular instances. The absence of appeals from magistrates suggests that inadequacy has not been regarded as systematic by the police prosecutors who are closest to day-to-day decision-making by magistrates.
We are here concerned with an offence about which this Court has no direct experience on which to draw. The assessment of existing sentencing patterns cannot be made with the same level of assurance as it can be with respect to offences that frequently come before this Court. The Court should be slow to make such an assessment where the usual course of Crown appeals has not occurred.
The Senior Public Defender submitted that, if appropriate under any circumstances, a guideline judgment with respect to the present offence is premature. In this respect he relied in part on the recent enactment of the amendments to the Sentencing Procedure Act by the 2002 Act. Those amendments include the identification of purposes of sentencing in s3A. They also include the identification of a list of aggravating and mitigating factors in the new s21A.
Many of the listed aggravating and mitigating factors reflect the common law. Nevertheless, some are expressed in ways which differ from that contained in any judgment. Furthermore, they differ from the list of considerations identified in the former s21A which was based in large measure on s16A of the Commonwealth Crimes Act. That section included matters covered in the new s3A as well as many of the matters referred to in s21A.
The list of aggravating factors is stated in a form which has not hitherto been required to be taken into account by sentencing judges. The guideline proposed is basically derived from this list of aggravating factors plus three specific additional ones, based on circumstances that often arise with respect to offences under s60(1).
Further, this Court did not receive submissions about the impact of s3A of the 1999 Act which also takes effect from 1 January 2003. It is arguable that some of the “purposes of sentencing” which must now guide sentencing decisions constitute a change of pre-existing sentencing principle.
For example, “prior” case law refers to the role of sentencing to protect the community, but that objective was often said to be achieved by means of rehabilitation, deterrence or retribution. Section 3A(c) now suggests that this should be regarded as a separate “purpose” and one concerned with protection of the community “from the offender”.
It may also be arguable that s3A(c) – making the offender “accountable” - introduces a new element into the sentencing task. The same may be true of the reference to “harm” to “the community” in s3A(g).
In the absence of argument, I would not wish to be understood to be expressing a view on these matters. The possibility that prior sentencing principle may need to be reviewed does, however, support the conclusion that the present application is premature.
The guideline is sought at a time when the new identification of the purposes of sentencing and the specification of a list of aggravating factors has not been considered by any court. What, if any, effect this new regime will have on the sentencing pattern for offences under s60(1) of the Crimes Act must be a matter of speculation.
Finally, as I have noted above, both offences under s60(2) and s60(3) of the Crimes Act 1900 are included in the table for which the Sentencing Procedure Act now provides for a standard non-parole period. Though not directly relevant for purposes of s60(1), the three subsections of s60 clearly involve offences in a hierarchy, with the maximum sentences increasing from five years to seven years to twelve years, being respectively three years, two years and two to five years longer than the maximum sentences for the parallel offences when committed against a person other than a police officer. A new sentencing pattern may well emerge for s60(2), because of the introduction of standard minimum non-parole periods. This new pattern could have an influence on future sentencing patterns for s60(1).
In my opinion, this Court should allow the new legislative scheme to operate, and to acquire some experience with its effects, prior to determining a guideline with respect to this offence.
The cumulative effect of the considerations I have discussed is, in my opinion, that the Court should decline to issue a guideline of the character sought, at this time.
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.
GROVE J: I agree with Spigelman CJ.
SULLY J: I agree with the Chief Justice.
JAMES J: I have read in draft the judgment of the Chief Justice and I agree with his Honour’s judgment.
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LAST UPDATED: 23/12/2002
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