Comer v R

Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179
DJ v R [2017] NSWCCA 319
Fantakis v R [2023] NSWCCA 3
Jibran v R [2020] NSWCCA 86
Kershaw v R [2024] NSWCCA 27
Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54
Palser v Grinling [1948] AC 291
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v MacDonald [2000] NSWCCA 1; 110 A Crim R 238
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331

Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 October 1990
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 May 1997
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 November 2001
New South Wales Legislative Council, Parliamentary Debates (Hansard), 3 June 1998
New South Wales Legislative Council, Parliamentary Debates (Hansard), 25 June 2003

Category: Principal judgment

Parties: Daniel Hamilton Comer (Applicant)
Rex (Respondent)

Representation: Counsel:
Ms A Francis (Applicant)
Ms A Bonnor (Respondent)
Solicitors:
SANS Law (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2016/228153; 2017/228173; 2017/228210; 2017/327750

Publication restriction: Nil.

HEADNOTE

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

The applicant, Daniel Comer, was sentenced by the District Court on 17 May 2019 after pleading guilty to a number of offences, including serious firearm and drug supply offences. The two offences which were the subject of this appeal, an offence of failing to comply with reporting obligations (the “fail to report offence”) and an offence of resisting an officer in the execution of duty (the “resist arrest offence”), were placed on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (“CP Act”).

The applicant sought leave to appeal against his convictions on the fail to report and resist arrest offences and his aggregate sentence on the ground that the District Court lacked jurisdiction to deal with these offences. The issue to be determined on appeal was whether the fail to report offence and resist arrest offence were each a “related offence” within the meaning of s 165 of the CP Act.

The Court (N Adams J, Sweeney J agreeing, Coleman J dissenting) held, granting leave to appeal but dismissing the appeal:

1. Discussion of the legislative history and purpose of the procedure in Part 3, Division 7 of the CP Act: [89]-[105] (N Adams J, Sweeney J at [145] and Coleman J at [146] agreeing).

Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179; R v MacDonald [2000] NSWCCA 1; 110 A Crim R 238; Jibran v R [2020] NSWCCA 86, considered.

2. The word “substantially” in the definition of “related offence” in s 165 of the CP Act means “in substance” or “essentially” and qualifies the need for the related offence to arise from the same circumstances as the first indictable offence. The word “circumstances” includes factors such as time, place, manner and other details that accompany the event of the first indictable offence, but does not include elements. The definition of related offence should be construed broadly to achieve the purpose of Part 3, Division 7 of increasing efficiency in the administration of justice. There may often be no “bright line” for determining whether a court has jurisdiction to consider a “related offence” and each case will turn on its own facts: [117]-[124] (N Adams J, Sweeney J at [145] and Coleman J at [147]-[149] agreeing).

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331; Fantakis v R [2023] NSWCCA 3; Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54, considered.

3. The resist arrest offence was properly dealt with as a related offence. It arose from substantially the same circumstances as those from which the firearm offences arose in light of their closeness in time and place and the factual nexus: [125]-[129] (N Adams J, Sweeney J at [145] and Coleman J at [155] agreeing).
4. The fail to report offence is a related offence because it was part of the state of affairs that surrounded and affected the police searches giving rise to the first indictable offence: [130]-[137] (N Adams J, Sweeney J at [145] agreeing).

Per Coleman J (dissenting)

5. The failure to report offence is not a related offence to any of the other indictable offences. These indictable offences were discovered because of the search undertaken pursuant to a Firearms Prohibition Order, and not because of or in any way connected with the circumstances giving rise to the failure to report offence: [156]-[161] (Coleman J).

JUDGMENT

1. N ADAMS J: The applicant seeks leave pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed on him by Judge Townsden DCJ on 17 May 2019 in the Campbelltown District Court. On that day, he was sentenced in relation to twelve offences including serious firearm and drug supply offences. A further nine offences were taken into account on four separate Form 1 documents pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1986 (NSW) (“Sentencing Act”).

2. Of the twelve offences upon which the applicant stood to be sentenced, three of them were before the court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (“CP Act”). The applicant pleaded guilty to those offences in the District Court. He now seeks leave pursuant to ss 5AA(1)(a), (7) and 5AD(1), (2) of the Criminal Appeal Act to appeal against his convictions on two of those three offences. The applicant agreed at the time that his matters were committed for sentence to the District Court that the offences the subject of the conviction appeal were “related” offences and should be dealt with in the District Court. He confirmed that position at his proceedings on sentence in the District Court. He now contends that the District Court lacked the jurisdiction to deal with them because they do not in fact come within the definition of “related offence” in s 165 of the CP Act. He seeks orders that his convictions on those two offences be quashed, that they be remitted to the Local Court for sentence and that he is sentenced afresh by this Court on the remaining ten offences.

3. In the Notice of Appeal filed on 24 April 2025, the following two grounds of appeal are relied on:

Ground 1: The sentencing proceedings miscarried by virtue of the applicant being sentenced for an offence, or offences, for which the District Court lacked jurisdiction.

Ground 2: The convictions for those offences in respect of which the Court lacked jurisdiction should be quashed.

4. The applicant does not identify any other latent or patent error in the sentencing reasons.

5. The applicant filed a Notice of Intention to Appeal on 30 May 2019. The Notice of Appeal was not filed until 24 April 2025, which is out of time pursuant to r 3.5(2)(a) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The applicant has applied for leave to file the appeal out of time, which is opposed by the respondent.

6. In support of his application for leave out of time, the applicant relied on an affidavit affirmed by Alen Sahinovic on 24 April 2025. The delay was partially explained by matters such as re-assignment of the matter from Legal Aid NSW, delay in obtaining the transcript and remarks on sentence, delays caused by the COVID-19 pandemic and the need for other investigations. The applicant submitted that it would be in the interests of justice for the Court to exercise its discretion to extend the time in which notice to appeal can be given pursuant to s 10(1)(b) of the Criminal Appeal Act.

7. The Crown accepted that if merit was found in the grounds of appeal, then it was open to the Court to grant an extension of time according to what the interests of justice require. However, the Crown submitted that there had not been a full explanation of the delay in prosecuting the appeal. Accordingly, if merit was not found, the interests of justice in the Crown’s submission would not require an extension of time.

The applicant’s charges

8. The applicant was committed for sentence on the following offences:

(a) Two offences of possess unauthorised pistol contrary to s 7(1) Firearms Act 1996 (NSW) (sequence 766/1 and sequence 255/13): Maximum penalty of 14 years’ imprisonment and Standard Non-Parole Period (“SNPP”) of 4 years; (b) One offence of supply prohibited drug (large commercial quantity), namely 1.153 kilograms of methylamphetamine, contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”) (sequence 255/5): Maximum penalty of life imprisonment and SNPP of 15 years. (c) One offence of supply indictable quantity of prohibited drug, namely 2.646 kilograms of cannabis leaf, contrary to s 25(1) DMTA (sequence 255/6): Maximum penalty of 10 years’ imprisonment; (d) One offence of supply prohibited drug (commercial quantity), namely 328.99 grams of 3,4-Methylenedioxymethylamphetamine (“MDMA”), contrary to s 25(2) DMTA (sequence 255/8): Maximum penalty of 20 years’ imprisonment and SNPP of 10 years. (e) Two offences of acquire ammunition subject to a prohibition order contrary to s 74(3) of the Firearms Act (sequence 695/9 and sequence 695/12): Maximum penalty of 5 years’ imprisonment; (f) One offence of possess shortened firearm contrary to s 62(1)(b) of the Firearms Act (sequence 695/11): Maximum penalty of 14 years’ imprisonment; and (g) One offence of demand property with menaces contrary to s 99(2) Crimes Act 1900 (NSW) (sequence 114/1): Maximum penalty of 14 years’ imprisonment.

9. The following nine offences were taken into account on four Form 1 documents:

10. In relation to sequence 766/1 (possess unauthorised pistol), one offence of not keep firearm safely and one offence of possess ammunition without a licence contrary to ss 39(1)(a) and 65(3) of the Firearms Act (Form 1A);

11. In relation to sequence 255/5 (supply large commercial quantity of methylamphetamine), two offences of supply indictable quantity of prohibited drug, namely 13.52 grams of cocaine and 39.58 grams of methylamphetamine, contrary to s 25(1) DMTA (Form 1B);

12. In relation to sequence 255/8 (supply commercial quantity of MDMA) (Form 1C):

(a) Two offences of supply indictable quantity of prohibited drug, namely 19.54 grams of amphetamine and 112.70 grams of MDMA, contrary to s 25(1) DMTA; (b) One offence of possess prescribed restricted substance, namely 30 Sildenafil tablets, contrary to s 16(1) Poisons and Therapeutic Goods Act 1966 (NSW); and (c) One offence of possess ammunition without a licence, contrary to s 65(3) of the Firearm**s Act;

4. In relation to sequence 114/1 (demand property with menaces), one further offence of demand property with menaces contrary to s 99(2) of the Crimes Act (Form 1D).

5. The three offences to which the applicant pleaded guilty in the Local Court and which were placed on a s 166 certificate were as follows:

(a) One offence of fail without reasonable excuse to appear before the Campbelltown Local Court in accordance with bail acknowledgement contrary to s 79(1) of the Bail Act 2013 (NSW) (sequence 766/3); (b) One offence of fail without reasonable excuse to comply with reporting obligations contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) (“CPOR Act”) (sequence 255/1) (the fail to report offence); and (c) One offence of resist officer in execution of duty contrary to s 58 of the Crimes Act (sequence 695/3) (the resist arrest offence).

11. Both of (b) and (c) carried a maximum penalty of 5 years’ imprisonment. However, dealt with summarily by the Local Court, the maximum penalty is 2 years’ imprisonment.

12. The sentencing judge imposed an aggregate sentence of 14 years’ imprisonment with a non-parole period of 10 years and 6 months commencing on 27 January 2018. The non-parole period expires on 26 July 2028 and the aggregate term expires on 26 January 2032.

Relevant legislation

13. Part 3, Division 7 of the CP Act (ss 165-169) is headed “Certain summary offences may be dealt with”.

14. Section 166(1) of the CP Act provides:

166 Certification and transfer of back up and related offences

(1) On committal for trial or sentence of a person charged with an indictable offence—

(a) the prosecutor must inform the Magistrate as to whether or not the person has been charged with any back up offence or related offence, and

(b) if the person has been charged with any back up offence or related offence—

(i) the prosecutor is to produce to the court a certificate specifying each back up offence and related offence with which the person has been charged, and

(ii) the proceedings on each back up offence and related offence with which the person has been charged are to be transferred to the court in which the person has been committed to trial or sentence (along with the certificate).

(2) This section does not prevent the person referred to in subsection (1) being charged with any offence after committal.

(3) Proceedings on a back up offence or related offence that are laid after committal for trial or sentence of a person charged with an indictable offence are to be transferred to the court in which the person has been committed to trial or sentence.

(Emphasis added.)

15. “Related offence” is relevantly defined in s 165(1) of the CP Act as follows:

…

related offence, in relation to an indictable offence, means an offence—

(a) that is—

(i) a summary offence, or

(ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and

(b) that arises from substantially the same circumstances as those from which the first indictable offence has arisen,

but does not include a back up offence.

(Emphasis added.)

16. I pause to note that the determination of this appeal turns on the meaning of the italicised portion of this definition of “related offence”.

17. Although not directly relevant in this matter, a “back up” offence is defined in s 165(1) of the CP Act as follows:

back up offence, in relation to an indictable offence, means an offence—

(a) that is—

(i) a summary offence, or

(ii) an indictable offence that is capable of being dealt with summarily by the Local Court in accordance with the provisions of Chapter 5, and

(b) all the elements of which are elements that are necessary to constitute the first indictable offence, and

(c) that is to be prosecuted on the same facts as the first indictable offence.

18. Section 167 of the CP Act provides for the manner in which back up and related offences are to be dealt with in the District or Supreme Court. Section 167(1) provides that:

(1) If, following a plea of guilty by an accused person to an indictable offence or at the conclusion of the trial of an accused person for an indictable offence, a court finds the accused person guilty of the offence, the court—

(a) is (unless it considers it inappropriate in the circumstances to do so) to order that the charge in relation to each back up offence be dismissed, and

(b) is to deal with any back up offence the charge for which is not dismissed under paragraph (a) and any related offence with which the accused person has been charged in accordance with this Part, unless to do so would not be in the interests of justice.

(Emphasis added.)

19. Section 168(1) and (2) of the CP Act provides for the procedure when an offender has pleaded not guilty to one or more s 166 offences. Section 168(3) provides that:

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.

20. It should be noted that, putting to one side the s 166 certificate procedure, the District Court otherwise had jurisdiction to deal with both the resist arrest offence and the fail to report offence on indictment as neither of them are summary offences; they are both Table 2 offences.

21. Section 260 of the CP Act provides as follows:

(1) An indictable offence listed in Table 1 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor or the person charged with the offence elects in accordance with this Chapter to have the offence dealt with on indictment.

(2) An indictable offence listed in Table 2 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor elects in accordance with this Chapter to have the offence dealt with on indictment.

22. Thus, pursuant to s 260 of the CP Act, a “Table 1” offence is an indictable offence which can be dealt with summarily by the Local Court unless the prosecutor or the accused elects to have the offence dealt with on indictment and a “Table 2” offence is an indictable offence which can be dealt with summarily by the Local Court unless the prosecutor elects to have the offence dealt with on indictment.

23. In Table 2 to Schedule 1 of the CP Act, s 1 in Part 1 provides that an offence under s 58 of the Crimes Act (the resist arrest offence) is a Table 2 offence. Section 23 in Part 13 provides that an offence under s 17 of the CPOR Act (the fail to report offence) is also a Table 2 offence.

Criminal Appeal Act

24. Sections 5AA(1)(a), (7) and 5AD of the Criminal Appeal A**ct provide that this Court can hear and determine an appeal with respect to related or back up offences dealt with by the District Court.

25. Section 5AA of the Criminal Appeal Act relevantly provides as follows:

5AA Appeal in criminal cases dealt with by courts in their summary jurisdictions

(1) A person—

(a) convicted of an offence, or

…

by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.

…

(4) The Court of Criminal Appeal in proceedings before it on an appeal under this section may—

(a) confirm the determination made by the Supreme Court in its summary jurisdiction, or

(b) order that the determination made by the Supreme Court in its summary jurisdiction be vacated and—

(i) make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal, or

(ii) order a new trial in such manner as the Court of Criminal Appeal thinks fit.

…

(7) This section applies to and in respect of the District Court in its summary jurisdiction in the same way as it applies to and in respect of the Supreme Court in its summary jurisdiction.

26. Section 5AD of the Criminal Appeal Act provides as follows:

5AD Appeals as to related or back up summary offences in criminal cases dealt with by the Supreme Court or the District Court

(1) Section 5AA applies to and in respect of a person convicted of an offence by the Supreme Court or District Court in the exercise of its jurisdiction under Division 7 of Part 3 of Chapter 3 of the Criminal Procedure Act 1986 in the same way as it applies to a person referred to in section 5AA (1).

(2) For the purposes of this section, a reference in section 5AA to the Supreme Court is to be construed as including a reference to the District Court.

(3) The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised by such single judge of the Supreme Court as the Chief Justice may direct unless—

(a) the judge considers that the appeal should be dealt with by the full court and notifies the Chief Justice accordingly, or

(b) an appeal is lodged under this Act in relation to the related indictable offence.

(Emphasis added.)

27. Sections 5AA and 5AD permit the Full Court of the Court of Criminal Appeal (CCA) to hear and determine an appeal with respect to one or more related offences dealt with by the District Court if an appeal is lodged in relation to the related indictable offence: s 5AD(3)(b). It was the joint position of the parties that this appeal should be heard by the Full Court as the applicant ultimately complains about the aggregate sentence which was imposed in relation to a number of other strictly indictable offences. In the event that the applicant is successful, he seeks an order that the aggregate sentence be quashed and he be re-sentenced in relation to, inter alia, those strictly indictable matters.

28. The operation of ss 5AA and 5AD of the Criminal Appeal Act was explained by Leeming JA (Wright and Wilson JJ agreeing) in Kershaw v R [2024] NSWCCA 27 at [48]-[49]:

“[48] Those provisions operate as follows. The District Court convicted the appellant of the two s 58 offences in the s 166 certificate and was exercising its jurisdiction to deal with summary offences pursuant to Division 7 of Part 3 of Chapter 3 of the Criminal Procedure Act. Accordingly, s 5AD(1) applied, and in accordance with s 5AD(2), the right of appeal conferred by s 5AA was applicable as if a reference to the ‘Supreme Court’ were a reference to the ‘District Court’. In that fashion, s 5AA(1)(a) conferred a right of appeal from the convictions for the two s 58 offences, and the powers in s 5AA(4) were thereby made available. By reason of s 5AD(3), the Court of Criminal Appeal has been constituted as the same court which is to hear the appeal against the aggregate sentence imposed for the convictions including those pursuant to the related indictable offences (namely, counts 1, 2, 4 and 6 on the indictment).

[49] Although s 5AA(1) confers a right of appeal, it does not specify the grounds which may be invoked; contrast s 6(1). But it is well established that an appeal under s 5AA requires error to be demonstrated: see the decisions collected in ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4 at [13]. In Gilmour v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 at [19] and Parker v R [2023] NSWCCA 234 at [14] this Court said that error must be demonstrated ‘as a threshold point’. It is far from clear that the appellant has an entitlement to set aside his conviction following his guilty pleas, even if the advice he received at the time is shown to be incorrect. But this Court received no submissions from the appellant on the point, which may have been at least in large measure due to the fact that the ground of appeal explicitly accepted that the appellant needed leave, while the unelaborated oral submissions maintained an entitlement as of right.”

Agreed Facts

29. The following summary is based on the Agreed Facts that were placed before the sentencing judge.

Fail to report offence (sequence 255/1)

30. On 6 November 2009, the applicant was convicted of wounding with intent to murder a child and sentenced to 8 years’ imprisonment with a non-parole period of 6 years. On 18 June 2015, he was released on parole. At this time, he became a registrable person under the CPOR Act.

31. On 7 July 2015, the applicant attended Macquarie Fields Police Station and signed a Form 3 notifying him of his requirements under the CPOR Act. This included obligations to disclose:

(a) if he was working, the nature of his work, the name and address of his employer, and the address of each place he was employed; (b) the make, model, colour and registration number of any motor vehicle he owned, hired or generally drove; and (c) details of any phone numbers he used or intended to use.

32. On 14 July 2016, the applicant attended Macquarie Fields Police Station in compliance with his annual registration requirements. In a Form 4 document signed by the applicant, he reported that:

(a) he was currently employed as a “builder” with “Shane’s Waterproofing” located at Smeaton Grange; (b) he possessed one mobile phone number; and (c) no vehicles were registered in his name or generally driven by him.

33. The Form 4 included an acknowledgement by the applicant that he was required to notify the Commissioner of Police of any changes to his details within seven days pursuant to s 17 of the CPOR Act.

34. Two weeks later, on 28 July 2016, the applicant once again attended Macquarie Field Police Station. He informed Detective Sergeant Lee that he continued to use the mobile number disclosed on the Form 4, but the phone was broken so he had been using his brother’s phone number, which he provided. Detective Sergeant Lee asked the applicant if there were any other phones on his person. The applicant then removed a Blackberry mobile phone from his pocket. Police then searched the applicant’s car and located a further four mobile phones. The applicant told police that these phones were “for his workers”.

35. The applicant informed police that he no longer worked for Shane’s Waterproofing and was now both self-employed as a vending machine operator and working for his father’s butcher business. After the applicant told police that his vending machine business was based at 3/10 Saggart Field Road, Minto, police determined that the applicant had been using these premises for the previous 12 months. When asked why he had not notified police about his change in employment, the applicant answered, “Parole know about this”.

36. When the applicant was asked how he travelled to Macquarie Fields Police Station, he first stated that he was driven there. When pressed further, he admitted that he had driven himself there in a work vehicle. This was identified as a white Renault Kangoo with Victorian registration 1CL-8XW. The police also established that, during the period of reporting, the applicant purchased two vehicles: a Toyota Camry sedan with registration CH-75-MP acquired on 24 March 2016; and a Toyota Carolla sedan with registration CG-46-XM acquired on 20 June 2016.

Residential firearm offences (sequences 766/1, 766/2 and 766/4)

37. On the same day, 28 July 2016, following his meeting with police, the applicant was served with a Firearms Prohibition Order. He accompanied police to his residential address of 4 Rider Place, Minto, where a search of the premises was conducted.

38. Under the mattress in the applicant’s bedroom, the police located a .22 calibre Ruger pistol which was loaded with a magazine containing four rounds of ammunition. The pistol was found to be in working order. A mixed DNA profile found on the trigger and guard of the pistol was consistent with the applicant’s profile.

Drug offences and business firearm offences

39. About 1:30pm that same day, the applicant accompanied police to his business address of 3/10 Saggart Field Road, Minto. Police intended to search the premises in relation to the Firearms Prohibition Order. While securing the premises, police located numerous items which appeared consistent with the supply of prohibited drugs. The applicant was placed under arrest and taken to Macquarie Fields Police Station. The police were granted a search warrant and a crime scene warrant in relation to 3/10 Saggart Field Road, Minto.

40. The premises were examined by police from the State Crime Command Drug Squad Chemical Operations Unit. Police seized a number of exhibits including an amount of a brown substance and a white crystal substance, which were presumptively tested and identified as being methylamphetamine. The search of the premises was suspended until the next morning.

41. On 29 July 2016, the police located and seized the following prohibited drugs:

(a) 1153.18 grams of methylamphetamine (sequence 255); (b) 2636.80 grams of cannabis leaf (sequence 255/6); (c) 9.54 grams of amphetamine (sequence 255/7 – Form 1); (d) 328.99 grams of MDMA (sequence 255/8); (e) 13.52 grams of cocaine (sequence 255/9 – Form 1); (f) 112.70 grams of MDMA (sequence 255/10 – Form 1); and (g) 30 tablets of Sildenafil (Viagra) (sequence 255/11 – Form 1).

42. The police also located a 44 Remington Magnum Revolver, which was later tested and found to be in working order. This gave rise to the offence of possess prohibited pistol (sequence 255/13). Various calibre cartridges were also found, giving rise to the offence of possess ammunition without licence (sequence 255/12).

43. Several items including the plastic containers and resealable bags containing the prohibited substances were examined and revealed fingerprints and DNA matching that of the applicant.

Fail to appear offence (sequence 766/3)

44. On 29 July 2016, the applicant was granted conditional bail by the Local Court in relation to the charged residential firearm offences.

45. On 12 September 2016, the applicant failed to attend Campbelltown Local Court and answer his bail undertaking in relation to these offences. The Local Court issued a warrant for the applicant’s arrest. On 4 August 2016, the State Parole Board also issued a breach of parole warrant for the applicant.

Demand property with menaces in company (sequences 114/1 and 114/2)

46. About 1:15pm on 22 December 2016, the applicant and a co-accused attended the premises of Vertikote Pty Ltd (“Vertikote”). The applicant was carrying an object wrapped in grey material. The applicant and the co-accused spoke to a sales manager at Vertikote, Dimitris (“Jim”) Fallas, about recovering debts while the accused was holding the wrapped object in front of his body. The applicant made threats to Mr Fallas, including stating, “You have seven days to get the money or we’re coming to Kangaroo Point and we’re gonna break your legs. This one and this one”, gesturing to Mr Fallas’ legs with the object he was holding. Mr Fallas suspected that the object the applicant was holding was a firearm.

47. After the applicant and the co-accused left the building, relatives of Mr Fallas went outside to confront the applicant and the co-accused. The applicant demanded that Paul Fallas pay him “$35,000 and some money for a boat” otherwise he would “take that kneecap off first, then that kneecap, then that fucking thing last”, pointing at Paul’s left knee, right knee and head. The applicant was holding the object wrapped in material behind his back. The applicant said, “I know where you all live. You live in Kangaroo Point. We’ll be coming around. I’ve taken photos of everyone’s cars and we’re going to get our money”. The applicant and the co-accused then walked away. Photographs taken by Jim Fallas clearly depict the applicant and the co-accused.

48. The applicant was charged with offences of demand property with menaces arising from this incident on 30 October 2017.

Resist arrest offence (sequence 695/3)

49. On 26 July 2017, police became aware that the applicant was inside a house at 19 Malbec Place, Eschol Park. About 5:20pm, police entered via the front door, which was open, and saw the applicant in the living room. Police identified themselves and told the applicant to “get on the ground”. The applicant threw a BlackBerry mobile phone on the ground and broke it. The applicant then bent down, turned his back away from police and attempted to remove a black coloured item from a plastic container on the floor. The police continued to yell, “Do not move”, “Show me your hands”, and “Get on the ground”. The applicant ignored all directions and bent down to remove the black coloured item from the container.

50. Police placed their hands on the applicant. The applicant struggled and a physical altercation began. The applicant refused to comply with directions to get on the ground, continued to physically resist police and refused to place his hands behind his back. During the struggle, the applicant continued to reach towards the container. Once he was struck in the face, the applicant said, “Alright, alright, I’m sorry, you got me, I’ll stop.”

51. The applicant was then handcuffed, cautioned and arrested.

Eschol Park firearms offences (sequences 695/9, 695/11 and 695/12)

52. While police were securing the Eschol Park premises, they observed an object wrapped in black material with blue trim in the front yard of the adjoining premises at 19A Malbec Place. The police located and seized a black shortened .22 calibre Miroku ML22 lever action rifle which had a sawn-off barrel and a sawn off stock. The firearm was loaded with three rounds of ammunition. It was later tested and found to be in working order.

53. Police informed the applicant they intended to conduct a search in accordance with the Firearms Prohibitions Order. The applicant told them that when he saw the police arrive, he had thrown a box of .22 calibre rounds of ammunition into drawers in a bedroom at the rear of the house and he threw a firearm into the adjoining premises.

54. The police were granted a crime scene warrant for 19 Malbec Place. They located 150 rounds of .22 calibre ammunition and four rounds of .308 calibre throughout the house. DNA swabs and fingerprint impressions from the firearm also matched the applicant.

55. While searching the house, police also located and seized 39.58 grams of methylamphetamine (sequence 605/10 – Form 1).

Committal for sentence

56. The applicant pleaded guilty to all charges in the Campbelltown Local Court on 2 November 2019. When he did so, there were seven offences placed on the s 166 certificate as follows:

Pursuant to s 166(1)(b) of the Criminal Procedure Act 1986 I certify that DANIEL COMER has been charged with back up offence/s and related offence/s specified as follows:

The related offence/s set out in the charge sheets*/*court attendance notice/marked:

| H62174766 | 2 | Not keep firearm safely-pistol | | H62174766 | 3 | Fail to appear in accordance with bail acknowledgment | | H62174766 | 4 | Possess ammunition w/o holding licence/permit/authority | | H270414695 | 3 | Resist officer in execution of duty-T2 | | H63467255 | 1 | Fail to comply with reporting obligations-T2 | | H63467255 | 11 | Possess/attempt to, prescribed restricted substance | | H63467255 | 12 | Possess ammunition w/o holding licence/permit/authority |

57. The document was signed by the relevant ODPP solicitor and dated 10 October 2018.

Proceedings on sentence

58. The proceedings on sentence took place on 27 February 2019. The Crown sentence bundle comprised the Agreed Facts, the s 166 certificate, the applicant’s criminal history, the applicant’s custodial history, Parole Authority Material and documents relating to the co-offender.

59. The applicant did not give evidence at his proceedings on sentence. Rather, he relied on a report by Megan Godbee, forensic psychologist, dated 8 February 2019 and two character references: Monique Lee Comer (his sister) dated 27 February 2019; and Leah-Simone O’Flynn (his partner).

60. During the proceedings on sentence, there was a discussion between the sentencing judge and counsel concerning the offences that were on the s 166 certificate. His Honour noted that although there were seven offences on the s 166 certificate, four of those matters had since been placed on Form 1 documents leaving only three of them on the s 166 certificate. The following exchange then took place:

“ROLLESTONE: The fail to appear has not been put on a form 1 and the resist police charge has not been placed on a form 1.

HIS HONOUR: Are they to be dealt with in this Court?

ROLLESTONE: Yes.

HIS HONOUR: Just remind me, in relation to the fail to comply, that is an indictable offence. Why isn't [sic -is] it a 166?

ROLLESTONE: That was a discretionary decision. It wasn't on the indictment. It was felt that it was perhaps dealt with and better encapsulated as a related offence.

HIS HONOUR: It could have been brought up and placed on a form.

ROLLESTONE: It could have been.

HIS HONOUR: 166 includes table 1 offences.

ROLLESTONE: Yes. The Crown's position is that it is an offence where there should be a conviction recorded on a criminal history.

HIS HONOUR: Are you saying the 166 can include indictable offences?

ROLLESTONE: Yes, it's a table offence. Your Honour would be limited to the two-year period.

HIS HONOUR: Those three offences, Mr Todd, are pleas of guilty?

TODD: Yes, your Honour.

HIS HONOUR: You ask that they be dealt with, as well?

TODD: Yes, your Honour.”

(Emphasis added.)

61. On the question of whether the fail to report offence was a “related offence”, the following exchange took place between the sentencing judge and the Crown:

“ROLLESTONE: Ordinarily, this is a matter that would be - particularly the reporting offence would be dealt with in the Local Court. In terms of this matter, it is related and it does provide a context to the later offending. Clearly, the obfuscation of his place of business--

HIS HONOUR: What do you say to the observation - not particularly, one might say, without casting any aspersions - not particularly sophisticated.

ROLLESTONE: No, and I'm not suggesting that it is--

HIS HONOUR: Turns up to a police station, reporting a different phone being used - there's a Blackberry in his possession, which would trigger suspicion by any law enforcement officer.

ROLLESTONE: And he was quite upfront with it when--

HIS HONOUR: There are a number of phones in the car that he's driven to and they make further inquiries about the - of other cars whilst he's been on parole and they attend the premises, find the items.

ROLLESTONE: Yes. It is an interesting aspect of the case, your Honour, considering that Mr Comer certainly knew what police would find if they went there.

HIS HONOUR: He's under reporting obligations and in those circumstances it's readily apparent that the items are there.

ROLLESTONE: Yes.”

(Emphasis added.)

62. As for the objective seriousness of the related offences, the Crown submitted in relation to the fail to report offence that the applicant failed to disclose changes in his employment, mobile phone number and registered vehicles in order to facilitate the commission of serious offences. It was submitted that the offending was objectively serious, and general deterrence had a role to play. In relation to the resist arrest offence, the Crown accepted that the offending could be placed below the midrange of objective seriousness, but emphasised the serious nature of offences committed against police officers and the need for general deterrence.

Remarks on sentence

63. Given the narrow scope of this application, it is not necessary to set out the various findings made by his Honour regarding the objective and subjective factors relevant to his Honour’s instinctive synthesis. Relevantly his Honour made the following findings concerning the two s 166 offences the subject of this appeal.

64. In relation to the fail to report offence, his Honour concluded that it was not below the midrange of objective seriousness for offences of this type. His Honour was satisfied that:

“His failure to notify police of changes to his place of employment, mobile phone number and registration of two vehicles facilitated the commission of serious offences.”

65. In relation to the resist arrest offence, his Honour found that it was well below the midrange of objective seriousness for offences of this type. His Honour noted that:

“The offender struggled with police for some duration before cessing [sic] and subsequently being handcuffed.”

66. His Honour then noted the following indicative sentences (after taking into account a 25% discount for the guilty pleas):

67. Possess unauthorised pistol (sequence 766/1): 4 years and 6 months’ imprisonment with a non-parole period of 3 years and 4 months.

68. Supply prohibited drug (large commercial quantity) (sequence 255/5): 7 years and 6 months’ imprisonment with a non-parole period of 5 years and 7 months.

69. Supply cannabis leaf (sequence 255/6): 18 months’ imprisonment.

70. Supply prohibited drug (commercial quantity) (sequence 255/8): 4 years and 6 months’ imprisonment with a non-parole period of 3 years and 4 months.

71. Possess unauthorised pistol (sequence 255/13): 4 years and 6 months’ imprisonment with a non-parole period of 3 years and 4 months.

72. Acquire ammunition subject to prohibition order (sequence 695/9): 18 months’ imprisonment.

73. Possess shortened firearm (sequence 695/11): 4 years and 6 months’ imprisonment.

74. Acquire firearm subject to prohibition order (sequence 695/12): 18 months’ imprisonment.

75. Demand property with menaces (sequence 114/1): 3 years’ imprisonment.

76. Fail to report offence (sequence 255/1): 12 months’ imprisonment.

77. Fail to appear (sequence 766/3): 9 months’ imprisonment.

78. Resist arrest offence (sequence 695/3): 6 months’ imprisonment.

79. As noted above, the sentencing judge imposed an aggregate sentence of 14 years’ imprisonment with a non-parole period of 10 years and 6 months.

The relevant Court Attendance Notices

68. Given the arguments made in this Court, it is necessary to note the time and date of some of the relevant offences in the Court Attendance Notices (“CANs”).

Fail to report offence

69. The CAN for the fail to report offence alleges that the offending occurred between 9:30am and 10:30am on 28 July 2016.

70. The CANs for the firearm offences arising from a search of the applicant’s residence allege that the offending occurred between 11:00am and 1:24pm or 1:30pm on the same day, 28 July 2016. The supply offences and possess unauthorised pistol offence arising from the search of the applicant’s business premises are alleged to have been committed from 1:00pm or 1:45pm on 28 July 2016 until the following day in the relevant CANs.

Resist arrest offence

71. The CAN for the resist arrest offence alleges that the offending occurred between 5:15pm and 5:20pm on 26 July 2017. Relevantly, the CANs for all of the other offences charged on that day, being the Eschol Park firearms offences and supply methylamphetamine offence, all allege that the offending occurred between 5:15pm and 5:20pm on the same day as well.

Grounds 1 and 2: meaning of “related offence”

Applicant’s submissions

72. The applicant’s written submissions were brief: no authorities or extrinsic materials were relied on. Rather, the submissions were confined to applying the relevant facts to the statutory language. Those submissions were expanded upon at the hearing.

73. The applicant submitted that neither the fail to report offence nor the resist arrest offence arose from “substantially the same circumstances as those from which the first indictable offence arose” and thus neither fell within the definition of “related offence” under s 165 of the CP Act. In oral submissions, counsel for the applicant emphasised that the “circumstances” from which an offence has arisen do not include the circumstances of the offence being detected. It was submitted that merely because one offence leads to the detection of another offence does not make them “related”.

74. Turning to the fail to report offence, it was submitted that the criminality was distinct and not “circumstantially connected to an indictable offence”. It was accepted that following the applicant’s attendance at the police station in connection with his registration, he was served with a Firearms Prohibition Order. Police subsequently searched his premises and discovered the firearms and ammunition which were the subject of sequences 766/1, 766/2 and 766/4. Despite this, it was submitted that the fact that the applicant’s breach of a disclosure provision in the CPOR Act gave rise to the service of a Firearms Prohibition Order did not engage s 166 of the CP Act. Further, it was submitted that the circumstances attaching to the breach of the register are “antecedent in time” and “qualitatively different”.

75. As for the resist arrest offence, it was accepted that police located the firearm giving rise to sequences 695/11 and 695/12 in the course of arresting the applicant in the Eschol Park premises. Despite this, it was submitted that “the act of resisting the police did not arise from substantially the same circumstances whereby he possessed the firearm and ammunition”.

76. As for the relevance of the fact that s 166 is beneficial legislation, it was submitted that if these matters had been dealt with by the Local Court, there would not have been the power to accumulate upon the District Court sentence because of its length. There was therefore ultimately, a distinct disadvantage caused to the applicant by having the offences dealt with in this way.

77. The applicant submitted that the Court has power to remit the matter or re-sentence the applicant for those matters in respect of which he was properly convicted: ss 6(3) and 7 of the Criminal Appeal Act. It was further submitted that this Court could remit the two offences to the Local Court under its supplemental powers in s 12 of the Criminal Appeal Act.

Crown submissions

78. The Crown submitted that ground 2 should be considered before ground 1 because success on ground 1 is dependent upon ground 2 being upheld. The Crown accepted that if ground 2 is upheld it would be open to the Court to grant leave in respect of ground 1.

79. The Crown’s position was that the District Court had jurisdiction to deal with the fail to report and resist arrest offences because both of them relevantly arose “from substantially the same circumstances as those from which the first indictable offence has arisen” in accordance with the definition of “related offence” in s 165(1) of the CP Act.

80. It was submitted that the text of s 165(1) of the CP Act does not import a test of “circumstantial connection”. Rather, a related offence arises from the same circumstances as to time, place, manner etc which accompanied, determined or modified the event of the first indictable or “primary” offence. Further, the related offence could arise from the state of affairs surrounding and affecting the primary offence, or from an unessential, secondary or accessorial matter or minor detail to the primary offence.

81. It was further submitted that the word “circumstances” in s 165(1) does not refer to the elements of the offence but to the “state of affairs that exist around the offence”.

82. Reliance was placed on the decision of this Court in Jibran v R [2020] NSWCCA 86 (“Jibran”). The Crown also relied upon the decision in T**illmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 (“Tillmanns”) and the application of the principles derived from that decision by Rothman J in Fantakis v R [2023] NSWCCA 3 at [786]-[789] (“Fantakis”). I will consider these decisions further below.

83. In relation to the fail to report offence, the Crown submitted that it was a related offence because it provided context to the later offending. It was also noted that part of the conduct included in the fail to report offending was keeping business premises that were not disclosed. In relation to the resist arrest offence, the Crown submitted that the offence “accompanied” the discovery of the shortened firearm and created the state of affairs that led to the property being secured and the shortened firearm being located.

84. If the grounds of appeal were to be upheld, the Crown submitted that it would be open to the Court to either re-sentence the applicant afresh or remit the matter, save for the fail to report offence and the resist arrest offence, to the District Court for re-sentencing. The Crown accepted that the remaining offences could be remitted to the Local Court for re-hearing. The power to do so was identified as s 8 of the Criminal Appeal Act*.*

Consideration

85. The procedure in Part 3, Division 7 of the CP Act by which the District or Supreme Court can deal with related and back up charges has been available in NSW in various forms since 1990. Despite this, there has been very little judicial consideration of the relevant statutory provisions. Significantly, there has been no judicial consideration of the meaning of a “related offence”, namely, an offence “that arises from substantially the same circumstances as those from which the first indictable offence has arisen”.

86. It should be observed at the outset that the reference to “the first indictable offence” in the definition of “related offence” does not require the prosecutor to identify “the first indictable offence”. In that way, the procedure can be contrasted with the “Form 1” procedure provided for in s 33 of the Sentencing Act whereby the “principal offence” in relation to which the Form 1 offence is to be taken into account must be identified. Provided that this Court is satisfied that each of the offences dealt with as related offences by the sentencing judge was in fact related to another indictable offence contained on the indictment or CANs that would be sufficient to ground jurisdiction.

87. In the absence of any statutory requirement to identify the “first indictable offence”, it is usually not done. It did not occur in the applicant’s case. Although procedurally it may assist the sentencing judge to have the “the first indictable offence” identified, in the usual case, (and as occurred in this case), jurisdiction is not challenged so the need to do so does not arise. As for why the primary offence is described as the “first indictable offence” in the definition, as will be seen below at [96], the amendment which included that expression was made at the time when the CP Act was amended to permit indictable offences (Table 1 and 2 offences) to be included on a s 166 certificate.

88. Before turning to construe the meaning of the words in s 165, it is helpful to first trace the legislative history and note any relevant principles derived from the few decisions which have considered the “related offence” procedure.

Legislative history

89. The provisions now found in Part 3, Division 7 of the CP Act were first introduced by the Criminal Procedure Legislation (Amendment) Act 1990 (NSW), which came into effect on 17 March 1991. The provisions became the new Part 10 of the CP Act.

90. The history and purpose of the relevant provisions were conveniently set out by Stein JA (with whom Giles and Hodgson JJA agreed) in Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179 (“Sinton”) up until the date of that decision (2001). As Stein JA observed in Sinton at [9]:

“The provisions of Part 10 clearly demonstrate that it was principally concerned with the conferral of jurisdiction with respect to summary offences upon the Supreme Court and the District Court. It was directed at achieving a more efficient use of court time, and at reducing wastage of time and inconvenience to the parties and witnesses by avoiding the need to later return to the Local Court to have a related summary offence heard and determined.”

91. The purpose of Part 10 (as it then was) was described in this way in the second reading speech: [1]

“Another proposal contained in the bill will allow a trial court to deal with back-up summary matters at the completion of a trial. At present these summary matters must be determined by the Local Court even where the trial judge has heard evidence which would be relevant to the summary matter. The bill will allow the trial judge, at the conclusion of the trial, to determine or dismiss any related summary offence. The consent of the defendant and the prosecution will be required before a matter can be dealt with in this manner and, should it be inappropriate for the matter to be dealt with in this way, it can be remitted to the Local Court to be disposed of in the usual manner. It is intended that summary matters which are complex or lengthy will not be dealt with in the trial court, but will instead by remitted to the Local Court for determination in the usual way.

I should explain that the present procedure is that where it is patently clear that a summary matter cannot proceed because the necessary ingredients — the head charge — in the particular trial is missing and will be missing in the summary offence, the police must take it back before the Local Court for mention. The matter then either does not proceed or no evidence is offered. This is time consuming for prosecution authorities and, in some cases, for witnesses. In appropriate cases this is a means of resolving the matter. In due course it will become obvious what are appropriate matters to be referred to the Local Court to be dealt with in the usual way.”

92. When it was first enacted, the definition of “related summary offence” in what was then s 34 was “a summary offence capable of being dealt with by a Local Court that arises from substantially the same circumstances as those from which the indictable offence has arisen.”

93. Part 10 of the CP Act was amended by the Crimes Legislation Amendment Act 1997 (NSW). The amendments at that time included the insertion of a definition of “back up summary offence” in s 34 as meaning a summary offence “(a) all the elements of which are elements that are necessary to constitute the indictable offence, and (b) that is to be prosecuted on the same facts as the indictable offences”. A new s 34A for the certification of back up and related summary offences was also enacted (the predecessor of s 166).

94. The Minister introducing the Bill observed the following: [2]

“Part 10 of the Criminal Procedure Act 1986 provides that a court may, at the conclusion of the trial of an indictable offence, deal with any ‘related summary matters’ if the parties consent. ‘Related summary matters’ are defined by the part to be summary matters which arise from substantially the same circumstances as those from which the indictable offence, the subject of the trial, arose. Part 10 presently does not differentiate between ‘back-up matters’ and other ‘related summary matters’. A ‘back-up matter’ is a summary matter that is a less aggravated version of an indictable offence with which a defendant is also charged.

…

At present the provisions of part 10 are being underutilised. This arises in part because it is often unclear to the trial court, and to the prosecutor, which summary matters are related to which indictable matters, and in some cases whether or not those summary matters are actually ‘back-up’ matters or are merely other related summary matters. Accordingly, trial courts often decline to deal with any of the summary matters, electing instead to allow a Local Court to sort them out at some later time. The consequent management and disposal of pending back-up and related summary matters takes up a significant amount of Local Court time. Some courts, such as Waverley, have devoted two full days a year to calling over and sorting out such matters.

… The amendments will require the prosecuting authority to tender to the Local Court, at the time of committal for trial, a certificate detailing, in respect of each charge to be dealt with on indictment, any ‘back-up’ summary offences, and any other related summary offences. The amendments also will require the trial court, at the conclusion of the trial, in relation to any indictable matter upon which the defendant is convicted, to deal with any ‘back-up’ summary offence unless the court believes that it is inappropriate to do so. The proposal will ensure that clear information is provided to the trial court as to what summary matters exist, and whether those summary matters are ‘back-up’ summary matters or merely ‘related’ summary matters. It will also ensure that, unless there is a particular reason that it is not appropriate in a given case, the trial court will dismiss any backup summary matter following a person’s conviction of the indictable offence to which it relates.”

95. As Stein JA observed in Sinton at [12], these amendments:

“… clearly sought to achieve a greater use by trial courts of the jurisdiction conferred upon them by Part 10 of the Act to determine such offences at the conclusion of the trial. However, it appears that there has been no procedure or requirement introduced which requires or facilitates the transmission of a certificate from the committing Local Court to the trial court.”

96. The provisions were amended again in 1998 by the Crimes Legislation Amendment Act 1998 (NSW). New definitions of related and back up offences were inserted in s 34. This confirmed that back up and related offences could not only be summary, but also indictable offences that are capable of being dealt with summarily (eg Table 1 and Table 2 offences). The new definition of “related offence” was in the same terms as it is today, namely an offence:

(a) that is:

(i) a summary offence, or

(ii) an indictable offence that is capable of being dealt with summarily by a Local Court in accordance with the provisions of Part 9A, and

(b) that arises from substantially the same circumstances as those from which the first indictable offence has arisen,

but does not include a back up offence.

97. This was the amendment which introduced the term “the first indictable offence” to the definition.

98. The then Attorney-General explained the purpose of the amendment as follows: [3]

“The Criminal Procedure Act is also amended, by schedule 5, to enable the trial court, at the completion of a trial of an indictable offence, to deal with less serious related indictable offences that are capable of being dealt with summarily. Currently the trial court, under part 10 of the Act, can deal with related summary matters which arise from substantially the same circumstances which are the subject of the trial. Part 10 is amended to enable the court to deal with related indictable matters that are capable of being dealt with summarily. This measure will help to enhance court efficiency as the remaining matter will no longer require a separate relisting before the Local Court.”

99. As Stein JA observed of this amendment in Sinton at [13]:

“The purpose was to ensure that the trial court is able to address, not only related summary matters which arise under substantially the same circumstances as are the subject of the trial, but also related indictable matters that are capable of being dealt with summarily, thereby enhancing court efficiency as the need for a separate re-listing in the Local Court is removed.”

100. These provisions were amended again by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW). Pt 10 was renumbered Pt 2, Div 4 of the Act and the heading was changed to “Supreme Court or District Court may deal with certain summary offences related to indictable offences”. Section 35 was subsequently amended by the Statute Law (Miscellaneous Provisions) Act 2000 (NSW), simply to change the definitions to refer to the correct division of the CP Act that provides for indictable offences that are capable of being dealt with summarily.

101. The relevant provisions were amended again by the Criminal Legislation Amendment Act 2001 (NSW) following the decision in R v MacDonald [2000] NSWCCA 1; 110 A Crim R 238 (“MacDonald”) (discussed below at [106]). The purpose of the amendments was described in this way in the second reading speech: [4]

“Although the Supreme Court and the District Court have the power at the conclusion of the trial of an accused person to deal with certain summary offences related to indictable offences, few back-up and related offences are being dealt with following trial. This results in a subsequent hearing in the Local Court of the more serious offence some time after the trial, prolonging the delay in having matters finalised, and gives rise to possible unfairness to accused persons. This also results in added stress to victims and witnesses, and incurs additional expense to all stakeholders.

The court may deal with relevant back-up or related offences on its own motion, or on the application of the accused person or the prosecutor, but may not do so unless both the accused person and the prosecutor have consented to the offence being dealt with under this part. The amendment removes the need for the trial court to seek consent from the parties to deal with back-up or related offences and provides that the court is required to deal with such offences unless it is not in the interests of justice to do so. In addition, the process of managing such back up and related offences has been improved by facilitating the transfer of these matters to the Supreme Court or the District Court at the time of committal. The amendments will achieve a more efficient use of court time and reduce wastage and inconvenience to parties and witnesses.”

102. The relevant provisions were renumbered as ss 165-169 of the CP Act following the passing of the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW). The division’s title was also changed at that time to “Certain summary offences may be dealt with”.

103. The provisions were amended again by the Crimes Legislation Amendment Act 2003 (NSW) which provided that related and back up offences may be dealt with by a court following committal for sentence (as occurred in the applicant’s case). The amendment was described in the second reading speech as being to “improve the efficiency of the court”. [5]

104. The provisions were amended again by the Miscellaneous Acts (Local Court) Amendment Act 2007 (NSW), but the only change was that the reference to “a Local Court” became a reference to “the Local Court”. There have been no further amendments since 2007.

105. Having regard to the legislative history, it is apparent that the legislative purpose for each amendment made to the regime over the years has been to broaden the jurisdiction of the District or Supreme Court to deal with the related offence(s) in the interests of efficiency and convenience.

Relevant decisions

106. The 2000 amendments followed the decision of Bell J (as her Honour then was) in Ma**cDonald. In that matter, the offender had pleaded guilty upon arraignment to supplying not less than the commercial quantity of methylamphetamine contrary to ss 25(2) and 29 of the DMTA and asked that four other summary offences be dealt with at that time. The difficulty was that at that time the District (or Supreme) Court could only deal with summary matters as “related offences” at the conclusion of “contested trial proceedings”. Given that the appellant had pleaded guilty, her Honour was satisfied the District Court lacked jurisdiction. She quashed the convictions and remitted them to the Local Court.

107. Sinton concerned whether the failure to provide the court with a certificate (now a “s 166 certificate”) precluded the District (or Supreme) Court from dealing with a related or back up offence. The respondent to those proceedings was charged with the indictable offences of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. He was also charged with the related summary offence of negligent driving. He was acquitted of the indictable offences at trial. The prosecutor did not hand up a certificate detailing the related offences, so the matter had remained in the Local Court. The Magistrate permanently stayed the summary offence proceedings on the basis that the respondent had lost the opportunity to have the negligent driving charge determined at the time of trial. The DPP appealed unsuccessfully to the Supreme Court and then appealed successfully to the Court of Appeal. On appeal, it was held that what was then Part 10 of the CP Act was not a “code” such that the failure to provide the certificate did not deprive the court of jurisdiction.

108. DJ v R [2017] NSWCCA 319 concerned the jurisdiction of the District Court to deal with Children’s Court matters under s 166 of the CP Act and is not directly relevant.

109. As noted above, the Crown relied on the decision of the CCA in Jibran. In that case, an applicant successfully appealed his aggregate sentence, and the CCA proceeded to re-sentence him. One of the offences the CCA was required to re-sentence on was a summary offence of driving whilst disqualified which had been before the sentencing judge on a s 166 certificate. That offence was committed at about 10:50am on 5 May 2018, hours after the “first indictable offence” of aggravated kidnapping which took place between about 10:00pm on 4 May 2018 and 1:32am on 5 May 2018. Johnson J (with whom Leeming JA and Harrison J (as his Honour then was) agreed), observed the following about “related offences” at [6]-[10]:

“[6] The offences of driving whilst disqualified and damaging property were dealt with in the District Court as related offences nominated on a certificate under s.166 Criminal Procedure Act 1986. It may be taken that these related summary offences were before the District Court as they were said to arise ‘from substantially the same circumstances as those from which the [aggravated kidnapping] offence has arisen’ in accordance with the definition of ‘related offence’ in s.165(1) Criminal Procedure Act 1986.

[7] As will be seen, the damage property offence was committed by the Applicant in the course of the aggravated kidnapping offence on the evening of 4-5 May 2018. The driving whilst disqualified offence on the s.166 Certificate was committed later on 5 May 2018 after the aggravated kidnapping offence was complete. No submission was advanced in this Court that the driving whilst disqualified offence was not a ‘related offence’ for the purpose of s.166 Criminal Procedure Act 1986.

[8] It has been observed that the ‘related offence’ provisions in ss.165-168 Criminal Procedure Act 1986 assist the efficient administration of justice by conferring jurisdiction on higher courts to deal with summary offences arising out of circumstances giving rise to an indictable offence: DJ v R [2017] NSWCCA 319 at [60]-[61]. The sentencing Judge was prepared to deal with the related offences in accordance with s.167(2)(b) Criminal Procedure Act 1986 and this Court should do so as well in the event that error is demonstrated and the Court moves to resentence the Applicant.

[9] In sentencing the Applicant for the related offences, the District Court has the same functions, and is subject to the same restrictions and procedures, as the Local Court: s.168(3) Criminal Procedure Act 1986. Accordingly, the jurisdictional limit in the Local Court applied in the District Court so that the sentence for the damage property offence could not exceed imprisonment for two years.

[10] It was open to the sentencing Judge to impose an aggregate sentence for a combination of offences including an indictable offence and summary offences which were in the District Court on a s.166 Certificate: R v Price [2016] NSWCCA 50 at [76]-[80].” (Emphasis in original.)

110. The related offence in Jibran was committed the day after the first indictable offence(s). Although the applicant in Jibran did not challenge the jurisdiction of the CCA to re-sentence him, it is apparent from the decision that Johnson J turned his mind to the question and was satisfied that the CCA had jurisdiction to do so.

111. Although only a very limited number of appellate decisions have considered the s 166 certificate procedure, they have all confirmed that the purpose of the relevant provisions is to achieve efficiency in the administration of justice in dealing with less serious offences when more serious offences are charged and to avoid wastage of time and inconvenience to the parties.

The text, context and purpose of the provision

112. Turning to the relevant definition in s 165 of the CP Act, it is well established that when construing a statutory provision the starting point is the text considered in its context, which includes the Act as a whole, the legislative history and extrinsic materials, having regard to the purpose and objects of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[71]; [1998] HCA 28; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47]; [2009] HCA 41; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2.

113. The question for consideration is what is required before an offence can be said to arise from “substantially the same circumstances as those from which the first indictable offence has arisen” (emphasis added).

114. It is of some significance that the word “substantially” has been included in this provision which confers jurisdiction. The quantitative imprecision of that word was considered in Tillmanns, although that case concerned different legislation in a different context. The question in that appeal was whether the conduct of black banning an abattoir would have the effect of causing “substantial loss or damage” to the corporation’s business under s 45D of the Trade Practices Act 1974 (Cth). In that context, Bowen CJ observed the following (at 338-9):

“The word ‘substantial’ would certainly seem to require loss or damage that is more than trivial or minimal. According to one meaning of the word the loss or damage would have to be considerable (see Palser v. Grinling). However, the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word imports a notion of relativity, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business.” (footnotes omitted)

(Emphasis added.)

115. Similarly, Deane J considered the meaning of the term “substantial” at 348 as follows:

“The word ‘substantial’ is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase ‘substantial loss or damage’, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v. Grinling where, after holding that, in the context there under consideration, the meaning of the word was equivalent to ‘considerable, solid or big’, he said: ‘Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case ...’

In the context of s. 45D (1) of the Act, the word ‘substantial’ is used in a relative sense in that, regardless of whether it means large or weighty on the one hand or real or of substance as distinct from ephemeral or nominal on the other, it would be necessary to know something of the nature and scope of the relevant business before one could say that particular, actual or potential loss or damage was substantial. As at present advised, I incline to the view that the phrase, substantial loss or damage, in s. 45D (1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal.” (footnotes omitted)

(Emphasis added.)

116. These observations by Deane J in Tillmanns were applied by Rothman J in Fantakis at [786]-[789] in the context of s 23A(1) of the Crimes Act. That provision requires a jury to consider whether a mental health or cognitive impairment was “so substantial as to warrant liability for murder being reduced to manslaughter”. His Honour noted Deane J’s observations in Tillmanns and referred to the two meanings of “substantially” or “substantial” as follows (at [787]-[789]):

“[787] In this context the term ‘substantially’ is used to mean more than ephemeral or more than significant. In other words, the impairment must be not insignificant; it must be, at least in part, efficacious or causative. The term ‘substantially’ and/or ‘substantial’ has two quite distinct meanings:

‘The word ‘substantial’ is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision … [I]t can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in the relative sense or can indicate an absolute significance, quantity or size.’

[788] Otherwise stated, the term substantial or substantially can either qualify the totality of that which is described or qualify its insignificance. In other words, the term can be used to qualify existence at all and is used, in that sense, in contradistinction to the term ‘nominal’ or ‘ephemeral’.

[789] The second meaning, which, in the circumstances of this legislation is not the preferred use of the term, is that the word ‘substantial’ or ‘substantially’ means ‘in substance’ and is used to qualify the totality of a class or quantity. In that sense, it is used to mean ‘essentially’ or ‘essential’, for example ‘substantial compliance’ or ‘substantially all’.”

117. Taken in the context of the definition in s 165 of the CP Act, the word “substantially” should be taken to mean “in substance” or “essentially”. It qualifies the need for the related offence to arise from the same circumstances, and its inclusion lends support for a construction that incorporates flexibility as to the identity of the relevant circumstances.

118. The word “circumstances” is another term in the statutory definition which is to be construed broadly as encompassing a variety of factors such as time, place, manner, people and other details that accompany the event of the first indictable offence. The Crown suggested that “circumstances” in this context refers to the “state of affairs” that existed around the offence, and I accept that description as being apt.

119. I am satisfied that the meaning of “circumstances” in the context of being those from which the first indictable offence “has arisen” cannot include matters which constitute the elements of the first indictable offence because those circumstances are provided for in the definition of “back up offence”. The word “circumstances” in the context of which the first indictable offence “has arisen” is thus to be considered broadly, qualified by the word “substantially”.

120. During the course of the hearing, I inquired of the applicant’s counsel as to whether any “bright line” could be identified as a matter of principle to determine whether jurisdiction exists for the purposes of s 165 of the CP Act. It was accepted on behalf of the applicant that “the court may not be able to identify a bright line” as to whether an offence is related or not. That submission must be accepted. The wording of the definition of related offence is an evaluative one on which judicial minds may differ.

121. On behalf of the applicant, a number of submissions were made identifying what is not a related offence. It was submitted that an offence cannot be a related offence simply because it gives rise to the discovery of the first indictable offence. I accept that that fact alone might not establish that an offence is a related offence, but it could*,* depending on the particular facts in a given case.

122. The applicant also submitted that a temporal element is instructive but not determinative. In other words, the fact that an offence was committed very close in time to the first indictable offence may suggest that an offence is a related offence, but that fact alone would be insufficient. Again, that is to be accepted to some extent, but each case will turn on its own facts. It was further accepted on behalf of the applicant that there does not need to be any particular order in which the first indictable offence and the related offence were committed. It was also accepted on behalf of the applicant that relevant factors such as the temporal aspect may arise differently in different cases.

123. The applicant suggested that the test requires this question to be answered: “by the commission of the indictable offence was the related offence committed?”. I do not accept that submission as it goes beyond the statutory language and imposes a higher test than is provided for in s 165 of the CP Act. As the High Court observed in Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 421; [1994] HCA 54:

“It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.”

124. In summary, I propose to consider the question of whether each of the fail to report offence and the resist arrest offence is a related offence having regard to the following principles:

125. There may often be no “bright line” for determining whether a court has jurisdiction to consider a “related offence”; each case will turn on its own facts;

126. The provision should not be read such as to impose limitations which are not found in the statutory language;

127. The word “circumstances” includes factors such as time, place, manner, and other details that accompany the event of the first indictable offence but does not include elements;

128. The word “substantially” is quantitively imprecise, susceptible of ambiguity and “calculated to conceal a lack of precision”. Its inclusion in the definition qualifies the text that follows it. “It must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case”: Palser v Grinling [1948] AC 291 at 317 as cited by Deane J in Tillmanns (at 348);

129. A temporal element can be important in identifying whether an offence is a related offence but is not determinative;

130. The fact that an offence leads soon afterwards to the detection of the first indictable offence might be insufficient on its own to establish a related offence, but it could be a relevant factor in combination with other factors, depending on each case;

131. There is no need for either the related offence or the first indictable offence to have occurred first in time;

132. The purpose of the provision is to achieve efficiency in the administration of justice and reduce wastage of time and inconvenience to the parties. The purpose compels a broad construction; and

133. The legislative history of the provision demonstrates an intention on each occasion to broaden the jurisdiction of the District or Supreme Court to deal with the related offence(s). This is a further basis to construe the provision broadly.

Was the resist arrest offence a related offence?

125. The resist arrest offence was committed on 26 July 2017, and the first indictable offence was the finding of the firearms and/or prohibited drugs almost immediately thereafter.

126. The CANs reveal that all of the offences committed by the applicant on 26 July 2017, including the resist arrest offence and the possession of the firearms, were charged as having been committed between 5:15pm and 5:20pm. There was thus no time separating the commission of the offences as charged.

127. Further, the Agreed Facts show that when police attended the applicant’s premises to arrest him on outstanding warrants, he immediately smashed his mobile telephone and sought to remove a particular item. He ignored all police requests. These acts in resisting police were clearly done to conceal his criminality on the more serious offending. When he ceased resisting that arrest, the firearms and prohibited drugs were located very shortly thereafter.

128. The applicant disputed that there was this temporal closeness between the resist arrest offence and the more serious offences. It was submitted that there is a difference between the circumstances in which the drugs and firearms offences arose and the circumstances in which the drugs and firearms were discovered. The difficulty with that submission is that the drugs and firearms offences were all charged by police as having been committed at the time that they were discovered. Thus, on the facts in this case, there was no meaningful difference between the circumstances in which those items were discovered and the circumstances in which the offences arose, or were committed.

129. Having regard to the closeness in time and place and the factual nexus described above, I am comfortably satisfied that the resist arrest offence is a related offence in that that it arose from substantially the same circumstances as those from which the firearms offence arose. To find otherwise would require giving such a restrictive reading to the definition of related offence in s 165 as to defeat the clear purpose of the provision.

Was the fail to report offence a related offence?

130. The sentencing judge accepted that the fail to report offence was a related offence because it provided context for the later offending (see above at [61]). It was common ground that the applicant’s failure to comply with his reporting conditions under the CPOR Act was the triggering event which led to his arrest for the first indictable offence. Although on its own that may not be sufficient in any given case to fall within the statutory definition, I consider it to be one of a number of factors relevant to the question on the facts in this case.

131. As for the temporal question, although not quite as proximate to the relevant first indictable offence as the resist arrest offence, the fail to report offence is still relatively close in time. The applicant made admissions to police about failing to comply with his reporting conditions under the CPOR Act. The relevant CAN shows that that offence is described as having been committed between 9:30am and 10:30am. The firearms were located in his home only half an hour later at 11:00am. The other CANS show that the offences committed at his place of work were described as having been committed from 1.00pm. Although it may have been the case that the applicant had possessed the firearm and ammunition much earlier in time, they were all charged as having been committed at that time.

132. In addition to the temporal connection evidenced by the times on the respective CANs there was also a factual connection. The failure to report offence included failing to report his correct place of work. It was when police attended the applicant’s place of work that they located the items that constituted the first indictable offence.

133. Another factual connection flows from the fact that when the applicant made admissions that he had failed to comply with his reporting conditions under the CPOR Act, he was served with a Firearms Prohibition Order. He then accompanied police to his residential address where the s 22 calibre Ruger pistol was located.

134. The applicant’s counsel submitted during the hearing that even if police had located the firearms in the applicant’s vehicle at the same time that they located the phones (which formed part of the failure to report offence), the definition of related offence would still not be satisfied. This was said to be because there was insufficient evidence as to the reason why the applicant failed to report the phone to conclude that the failure arose from the same circumstances as the possession of the firearms/drugs. I do not accept that submission. If the items had all been found at the same time as part of the same search, then both offences would have arisen from substantially the same “circumstances”.

135. As it was, the multiple mobile telephones located in the applicant’s possession that morning, in breach of the applicant’s reporting conditions under the CPOR Act, were found by the sentencing judge to have been for the purpose of facilitating the commission of the serious offences in relation to which he was apprehended later that day (see above at [64]). That is a further factual nexus between the relevant offences lending support to the conclusion that they arose from substantially the same circumstances.

136. The high point of the applicant’s argument that the fail to report offence was not a related offence is that the firearms were found at a different location to where the fail to report offence was committed and after it had been completed. But there is nothing in the statutory language to suggest that the relevant circumstances have to be at the same address or time. In Jibran the related offence was a driving offence that occurred many hours later. Further, the circumstance of the applicant’s work address was relevant to both offences: his lie about that address was relevant to the fail to report offence and it was where the firearm and ammunition was located.

137. It seems to me that the question of whether the fail to report offence is a related offence is less straightforward than for the resist arrest offence and one on which judicial minds may differ. The applicant accepted that there will often be no “bright line” for determining the question. Having regard to the facts in this case, the purpose of the provision and the qualifying nature of the word “substantially”, I am satisfied that the fail to report offence was part of the state of affairs that surrounded and affected the searches giving rise to the first indictable offence. They were committed close in time and place to each other, and they are sufficiently factually connected to conclude that they arose from substantially the same circumstances as the firearms offence. Accordingly, I am satisfied that the fail to report offence was a related offence as well.

Practical considerations

138. The applicant accepted in both the Local Court and the District Court that the fail to report and the resist arrest offences were related offences and did not challenge the court’s jurisdiction. The s 166 certificate was dated 10 October 2018, the proceedings on sentence took place on 27 February 2019 and the Notice of Appeal challenging jurisdiction was filed on 25 April 2025.

139. If, contrary to the above, I was not satisfied that the relevant offences were “related” offences, the Court would have had no option but to quash the aggregate sentence, remit the two Table 2 offences to the Local Court for sentence and resentence the applicant on the remaining ten offences. Such a result is antithetical to the purpose of the legislation to avoid time wastage. Further, the lateness in raising a complaint of this nature can raise practical difficulties; by way of example, there were two practical considerations which arose in this matter which might have been avoided had the objection been raised at an earlier time.

140. First, if the objection now made had been taken in the Local Court, or even in the District Court, there were two other avenues by which the matters could have been dealt with in the District Court. Given that both the fail to report offence and the resist arrest offence were Table 2 offences they could have been placed on an indictment. The alternative option would have been to have placed them on Forms 1 to be dealt with pursuant to s 33 of the Sentencing Act (as occurred in relation to four of the seven offences which were originally placed on the s 166 certificate). A third option, that they remained in the Local Court, was also available. By failing to raise any issue about jurisdiction at the appropriate time, none of these options could be considered at that time.

141. Secondly, the lateness in raising the question of jurisdiction means that the Crown was not on notice of any issue at the time that the Agreed Facts were drafted. The Agreed Facts are necessarily brief as to what precisely occurred from the time that the applicant admitted to breaching his reporting conditions to when he accompanied police to the premises where the firearm was located. It remains unknown as to whether more details may have been included in the Agreed Facts had there been any suggestion that jurisdiction was to be challenged.

142. The procedure provided for in Part 3, Division 7 of the CP Act is one that is frequently used. Given that an offender cannot consent to jurisdiction if none exists, and that there may be cases where there is no “bright line” as to whether an offence on a s 166 certificate is in fact a “related offence”, as was the case in relation to the fail to report offence, it may be prudent for the prosecutor in such cases to consider alternative approaches such as the use of the Form 1 procedure to avoid any later challenges to jurisdiction.

Conclusion

143. I am satisfied that both of the fail to report and the resist arrest offences are related offences within the meaning of s 165 of the CP Act. Although I would dismiss the appeal, the issues raised were of some complexity, so I propose to extend the time for filing of the notice of appeal.

Orders

144. Accordingly, the orders I would propose are:

145. Extend the time for the filing of the Notice of Appeal.

146. Grant leave to appeal.

147. Dismiss the appeal.

148. SWEENEY J**:** I agree with N Adams J.

149. COLEMAN J**:** I have had the considerable advantage of reading the reasons of N Adams J in draft. I am grateful for her Honour’s exposition of the relevant facts and the history of the provisions of the Criminal Procedure Act 1986 (NSW) (“CPA”) that deal with “related offences”.

150. I agree with her Honour’s conclusions as to the proper construction of the term “related offences” in s 165 of the CPA. I wish to add some remarks of my own which are meant to be in addition to, and not in any way qualifying, her Honour’s reasons on the proper construction of that term.

151. I agree the word “substantially” qualifies the definition in the way her Honour has identified at [117]. I also agree that the provisions in the CPA that deal with related and back-up offences are intended to increase efficiency so that such matters can be dealt with in the District or Supreme Courts and do not need to be remitted to the Local Court. I accept this context means the definition of “related offences” should be interpreted in a manner which enables this statutory purpose to be effected.

152. I agree with the matters her Honour has set out in [124] that may assist in determining whether an offence is a “related offence” within the meaning of the CPA. I agree that a temporal element can be important in identifying whether an offence is a “related offence” but is not determinative. I do not consider that the “first indictable offence” must be an offence which is committed first in time. The “first indictable offence” is the offence in the indictment or other document on which an accused is committed for trial or sentence, which arises from substantially the same circumstances as the offence to be dealt with as a “related offence” on the s 166 certificate.

153. As N Adams J has said, unlike where a matter is specified on a Form 1 to be taken into account in sentencing for a primary offence, it is not the usual practice for the s 166 certificate to specify the indictable offence to which the “related offence” relates. That is sometimes unfortunate, as evidenced in this case. It is preferable that the s 166 certificate should specify the indictable offence to which each “related offence” relates. If the “first indictable offence” is identified in this way, there can more readily be a consideration of whether the “related offence” arises from substantially the same circumstances as that offence.

154. It is not uncommon, as in this case, for there to be a number of indictable offences for which an accused is committed for trial or sentence or has faced trial. There may also be, as in this case, a number of offences on the s 166 certificate without any reference to which of the indictable offences they are said to be “related offences”. In such circumstances it would be beneficial for the parties to specify on the s 166 certificate or otherwise identify at the time the related offences are being dealt with, which is the “first indictable offence”. It may be that there is more than one “related offence” to an indictable offence. If so, that should also be made clear.

155. It is important that the “first indictable offence” be identified as, without leave of the Court, no additional evidence other than that given during the trial (or on sentence) for the “relevant indictable offence” can be considered by the Court in dealing with the “related offence” (see s 168 CPA). It is only on identification of the relevant indictable offence that the evidence on which the Court can act for the “related offence” can be ascertained.

156. I accept that in many cases the placing of an offence, or several offences, on a s 166 certificate is a matter agreed between the Crown and defence in the course of negotiating whether there would be a plea to some or all of the charges brought. There may be a number of reasons why the Crown (or an accused) wish to deal with some matters as “related offences”. As has been said by N Adams J, however, just because the parties agree to treat matters in this way does not mean a court has jurisdiction to deal with offences as “related offences” unless they fall within the definition in s 165 of the CPA.

157. The failure to specify which is the indictable offence to which an offence on a s 166 certificate is said to be a “related offence” can lead, and in this case has led, to some or all of the practical considerations identified by N Adams J at [138]-[142]. It has meant a late challenge to the jurisdiction of the sentencing court where the Crown was not aware of the issue, and the sentencing judge did not have the benefit of more fulsome agreed facts or appropriate assistance from counsel. It is plain his Honour had the issue in mind but did not need to go into any detail as to which of the offences were the first indictable offences because the parties had agreed to proceed in the manner they did.

158. I agree with N Adams J for the reasons she gives at [125]-[129] that the resist arrest offence is related to either the possession of firearms and/or the possession of prohibited drugs offences committed on 26 July 2017 as the “first indictable” offences. I accept that the District Court had jurisdiction to determine the sentence for the resist arrest offence as a “related offence” to any of those matters as “first indictable offences”. It would have been preferable for the relevant indictable offences to have been identified on the s 166 certificate.

159. Respectfully, however, I have reached a different view as to the failure to comply with reporting obligations offence (“failure to report”). I do not consider it is a “related offence” to any of the other indictable offences relied on by the Crown. I do not consider that the conclusion of the sentencing judge that it “provided context” for the other offences, in the circumstance of this case, as being enough to establish that it arose from substantially the same circumstances as those other offences.

160. This is a situation in which the temporal circumstances are important. The failure to report offence was complete on the applicant attending the police station and it being discovered that he had failed to comply with his obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (“CPOR Act”). That occurred on 28 July 2016. After meeting police and disclosing certain matters, the applicant was served with a Firearms Prohibition Order (“FPO”). I note that counsel for the applicant states in her written submissions at [17] that the breach of the CPOR Act “appears to have given rise to the service of the FPO” but does not say why this appears to be so. There is no evidence in the materials to support a conclusion that he was served with the FPO arising from the breaches of his reporting obligations under the CPOR Act. It may have been because he was on parole at the time. It may have been for some other reason and the FPO was ready to be served on him regardless of the matters he failed to report. The Agreed Facts simply state that “…following his meeting with police, the offender was served with a Firearms Prohibition Order”.

161. As I understand the Crown position, the potential “first indictable offence(s)” to which the failure to report matter relates are the CANs concerning the offences of possess unauthorised pistol (28 July 2016), not keep firearm safely – pistol (28 July 2016) and possess ammunition without licence/authority (28 July 2016). [6] These matters were discovered by the police on entry to the applicant’s residential premises at Minto and then at his work address in Minto later on the day he attended to report and was served with the FPO. The Crown submits that the disclosure by the applicant of certain matters led to the police searching his car and making enquiries about his use or ownership of other vehicles. The Crown submitted that:

“…[f]ollowing that meeting, the applicant was served with the FPO and following that, the police commenced their searches. As such, what occurred in the commission of the fail to report offence accompanied or determined what occurred next on 28 July 2016 with respect to the primary offences; the fail to report offence was part of a state of affairs that surrounded and affected the searches giving rise to the primary offences; and it was a detail of or secondary to or unessentially accompanied the primary offences later on that same day."

159. The offences later that same day were the firearms offences to which I have referred.

160. I do not accept the Crown submissions. Absent any basis to find that the FPO arose from the circumstances of the failure to report offence, I am unable to accept that the failure to report offence is a “related offence” to any of the firearms matters. Without any connection (other than a temporal one) between the failure to report offence and the service of the FPO which then led to the searches which gave rise to the firearms offences, it cannot be concluded that the failure to report offence arises from substantially the same circumstances as any of those firearms offences. Those offences were discovered because of the search undertaken pursuant to the FPO, not because of or in any way connected with the circumstances giving rise to the failure to report offence.

161. I accept that if the applicant had raised this issue at or before the sentence hearing, there may have been evidence available which linked the service of the FPO to the failure to report. However, I am not satisfied the evidence exists to find such a link and I am not prepared to infer this to support the sentence imposed for the failure to report matter as a “related matter” to the firearms offences and therefore be considered as part of the aggregate sentence imposed.

162. The indicative sentence for the failure to report offence was 12 months after the 25% discount. In my opinion the aggregate sentence should be quashed, and the applicant should be resentenced for all of the matters except that matter.

163. It was accepted that if the appeal was successful, in lieu of this Court re-sentencing the applicant, pursuant to ss 6(3) and 7 of the Criminal Appeal Act 1912 (NSW), the matters for which the applicant was properly sentenced could be remitted to the District Court for re-sentence. It is also accepted that this Court could remit any of the offences which are not related offences to the Local Court under its supplemental powers in s 12 of the Criminal Appeal Act.

164. The orders I therefore propose are:

165. Extend the time for filing the Notice of Appeal;

166. Grant leave to appeal;

167. Allow the appeal;

168. Quash the sentence imposed by the District Court on 17 May 2019;

169. Remit the matter to the District Court for sentence on all matters except the failure to comply with reporting obligations (sequence ending 255/1) according to law;

170. Remit failure to comply with reporting obligations charge (sequence ending 255/1) to the Local Court for sentence.

**********

Endnotes

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 October 1990 at 9160.

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 7 May 1997 at 8252.

New South Wales Legislative Council, Parliamentary Debates (Hansard), 3 June 1998 at 5586-7.

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 30 November 2001 at 19302.

New South Wales Legislative Council, Parliamentary Debates (Hansard), 25 June 2003 at 2041.

Appeal Book at 150, 165, 167.

Amendments

15 October 2025

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