"Mr and Mrs Kostas submitted, in the first place, that the particular question for decision by the Tribunal, namely, whether they had validly terminated the contract, was a question with respect to a matter of law within the meaning of s 67(1) of the CTTT Act and that the Supreme Court had jurisdiction to determine whether the Tribunal erred in answering that question. In the alternative, they submitted that there were "sub-questions" contained within the larger question of the validity of the termination of the contract which "separately and cumulatively grounded the Court's jurisdiction in the appeal". It may be accepted that the "question with respect to a matter of law", which is the subject of a decision under appeal pursuant to s 67, may be defined with varying degrees of generality. It may be defined as a single question or multiple questions which can be regarded as subsumed in one decision or separately decided. In this case, as appears below, the decision that Mr and Mrs Kostas had not validly terminated the contract turned upon errors of law, including a finding of fact as to the service by SCC of claims for extensions of time which was not grounded in any evidence, material or information properly before the Tribunal."
43 This explains his Honour's view as to the necessity for identifying, with precision in the pleadings, what errors of law are sought to be raised on appeal. In this statutory scheme that would appear to be of particular importance. Were every prosecution appeal as to manifest inadequacy of sentence to raise a question of law alone, no matter on what basis that inadequacy is said to rest, it is difficult to see what work s 23(1) of the Crimes (Appeal and Review) Act would have to do, other than to give a prosecutor an election as to whether to bring such an appeal to the District or Supreme Court. It is difficult to see that was what the legislature intended by the enactment of s 56.
44 The matters identified in the plaintiff's written submissions as revealing the manifest inadequacy of the sentence were said to be firstly, the failure to record convictions, in circumstances where the offences were not trivial, carrying with them a maximum penalty for each offence of 5 years imprisonment. In oral submissions it was argued that it was very important when sentencing for dishonesty offences under s 178BB of the Crimes Act, that convictions be recorded and that his Honour had erred in failing to give sufficient weight to the planning involved in the offences, which occurred over some months (s 21A(2)(n)).
45 The second matter identified was that the plaintiff's strong subjective case, given the evidence of her mental illness, was given excessive weight in the context of her other circumstance, which included her work history at the ATO and her university studies, when considered in the light of the criminality involved in the offences in question. The evidence showed that the offences had been driven by greed, rather than need. Section 21A(3)(j) of the Crimes (Sentencing Procedure) Act required that there be a causal connection shown between the mental state and the offending, if a substantial discount was to result. There was no such evidence in this case.
46 The third matter identified was that while the defendant's strong subjective case was relevant to penalty, it did not diminish the weight to be given to general deterrence, which had not been given sufficient weight in the sentence imposed.
47 It was also argued that while the conclusion reached on the evidence that the s 32 application should be refused had been correct, the evidence as to the defendant's mental state showed strong subjective factors, but not exceptional ones. The conclusion thus reached in relation to the s 10 bond was erroneous. The defendant's mental condition did not go to the heart of her criminality. Nor did the evidence show that the defendant was not aware of the consequences of her actions. To the contrary, the agreed facts showed that she was. These were dishonesty offences, not a one off offence. Accordingly, the circumstances did not permit the exercise of the discretion granted by s 10, but demanded that convictions be imposed. The failure to record a conviction was manifestly inadequate. Convictions ought to have been recorded, with fines and bonds imposed.
48 Furthermore, it was argued, the discretion granted by s 10 of the Crimes (Sentencing Procedure) Act was subservient to s 21A(3)(j). In the sentencing exercise, once the evidence had been considered in determining appropriate penalty, some further matters identified in s 10 could be given particular emphasis, but in order to qualify or have regard to disability under s 10, the defendant had to go past the threshold in s 21A(3)(j). If the mental illness was not a mitigating factor under s 21A(3)(j), it would not be relevant to s 10. To have regard to any s 10 factors, they would have to be relevant to s 21A(3)(j) too.
49 A fourth matter was argued orally. It was submitted that remorse had not been demonstrated. The Court of Criminal Appeal was argued to have been 'strident in its interpretation of s 21A(3)(i) as to remorse' (see R v Butters [2010] NSWCCA 1 and R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369). Hearsay evidence as to remorse from a third party had to be considered with circumspection; such evidence was not sufficient; and it did not have the same effect as evidence given by the defendant. This was submitted by the plaintiff to be a highly inefficient approach, especially in proceedings before the Local Court, but the effect of the Court of Criminal Appeal's approach was that if remorse was to be demonstrated on the balance of probabilities, the defendant really needed to give evidence.
50 In my view of these various arguments advanced to support this ground of appeal, it is only the arguments as to the proper interpretation of the provisions of the Crimes (Sentencing Procedure) Act and their interaction, which raised a question of law alone, which may be pressed on an appeal brought under s 56. Like the conclusions reached in relation to the other two grounds of appeal, errors as to the application of statutory provisions, or legal principles to the facts raise mixed questions of fact and law, as do errors in the weight to be given to various factors in determining sentence.
51 As to the argument advanced in relation to s 21A(2)(n) and the weight given to various evidence of planning, it must be noted that the defendant disputed the plaintiff's characterisation of matters dealt with in the facts sheet, which were said to have revealed planning on her part, rather than on the part of the other defendants. That facts sheet dealt with the facts relevant to the charges brought against all three defendants. It was the defendant's case that there was no error of the kind alleged and that his Honour had not mistaken the facts. Plainly enough, a dispute as to what the evidence about the defendant established, raises the question of whether there was any error of fact, as well as the principle that any punishment may only be imposed for matters proven against the defendant. A question of whether any error of fact has been made, is not one which may be raised on this appeal, nor is an error of mixed fact and law in the application of a principle to the facts.
52 The other arguments raised mixed questions of fact and law not available to be brought to this Court under s 56. Absent errors of law being established, the arguments advanced as to the application of statutory provisions to the facts proven, which it was claimed resulted in manifest inadequacy of sentence, also do not raise a question of law alone, but mixed questions of fact and law. An appeal as to those questions also does not lie under s 56.