Elzahed v Kaban

Finding that Ms Elzahed intended to communicate disrespect

1. In the 4 May 2018 decision, at [161] her Honour concluded that Ms Elzahed "repeatedly and intentionally failed to stand for the Judge in the District Court proceedings, and in doing so she intended to communicate by her behaviour lack of respect". The defendant submitted that, properly understood, in the context of her Honour's reasons as a whole, the latter part of the sentence was a reference to Ms Elzahed intentionally engaging in conduct that objectively communicated disrespect, rather than involving a separate finding that she intended to do so. That understanding is said to be consistent with the findings made by her Honour at [46]-[55] of her decision, which contained no finding of an intention to communicate disrespect. Ms Elzahed accepts that the factual findings from the 4 May 2018 judgment were incorporated into her Honour's remarks on sentence and does not suggest that her Honour made relevant factual findings on sentence that went beyond the scope of her principal judgment.
2. The defendant emphasised that whether Ms Elzahed intended by her conduct to be disrespectful was not relevant to the conviction but was relevant to sentence. However, if her Honour were to be understood as finding, at [161] of her principal judgment, that Ms Elzahed intended to communicate disrespect, that finding has been sufficiently explained by the reasons she gave.
3. The defendant noted in this respect that Ms Elzahed tendered an unsworn letter to her Honour in the sentencing proceedings which included the following: "I did not intend to cause any trouble to the Court and I did not mean to cause any disrespect to Judge Balla, especially a lady."
4. Referring to authorities that urge caution when self-interested and un-tested statements are made in sentencing proceedings, her Honour said that she was not persuaded by Ms Elzahed's letter to revise her earlier view.
5. Ms Elzahed contended that the defendant's assertion that her Honour did not find that she intended to communicate disrespect was "unmaintainable". She expressly found that Ms Elzahed "intended to communicate by her behaviour lack of respect". Ms Elzahed emphasised that that was not a finding as to the "objective character" of her conduct, and that any suggestion that her Honour did not make a finding of intentional disrespect was not an available reading of her remarks.
6. According to Ms Elzahed, her Honour gave insufficient reasons for a finding of intentional communication of disrespect. Any evidence of intention was circumstantial only and intention could not be found unless it was the only rational possibility and nothing in her Honour's reasons indicates that she made a finding to that effect.
7. Moreover, Ms Elzahed submitted that it is unrealistic and erroneous to suggest that she had a genuine opportunity on the sentencing hearing to controvert her Honour's finding of intention in the conviction judgment. Her Honour purported to make all her findings in the conviction judgment beyond reasonable doubt. It would probably have been an abuse of process for Ms Elzahed to seek to controvert those findings on sentencing. The defendant assumes, but does not explain, how Ms Elzahed could have sought to controvert findings made in a final judgment beyond reasonable doubt after three days of hearing. Ms Elzahed submitted that her Honour would have rejected any attempt to do so. This seems particularly likely having regard to her Honour's remarks as follows: "In relation to the facts, I note that the facts as found by the Court detailed in the judgment of 4 May are the facts that must be borne in mind by me in assessing the objective seriousness of the offence of offending behaviour. Those facts were found after a three day hearing. The evidence if the defendant wished to rely on any evidence there was an opportunity to provide evidence in those proceedings but there was no evidence provided. The findings of fact in that decision are set out in a lengthy judgment and formed the factual basis for this sentencing exercise." [Emphasis added]
8. Her Honour made it clear that she was unwilling to "traverse" findings from the conviction judgment.
9. In my opinion, it is correct to say that her Honour found that Ms Elzahed intended to communicate disrespect. That was not a finding that was relevant to the determination of her guilt, but it was potentially significant in the assessment of her moral culpability and the objective seriousness of her offending. The finding was incorporated in her Honour's sentencing remarks by reference to her earlier decision. That foreclosed Ms Elzahed's opportunity to confront the finding and deal with it before her sentence was pronounced. The consequence for Ms Elzahed is that she was denied procedural fairness.

Finding that Ms Elzahed's behaviour was disrespectful to the judge

1. Ms Elzahed's complaint assumes that the position of the Court and of the Judge ought to be understood independently of one another. The defendant submits that in the circumstances of this case such a distinction is artificial. There was no additional or separate finding of disrespect to the Judge (as distinct from disrespect to the Court) to which Ms Elzahed required an opportunity to respond in order for procedural fairness to be afforded.
2. Ms Elzahed maintained that the defendant's suggestion that any distinction between disrespect to the Court and disrespect to the Judge is "artificial" and cannot withstand scrutiny. Section 200A(1)(c) expressly distinguishes between the two. Ms Elzahed was only charged with conduct that was disrespectful to the Court. The expert evidence of Mr Blanch QC was only directed to that topic. According to Ms Elzahed, the error in the defendant's contention can be exposed by supposing that her Honour had only found that her behaviour was disrespectful to the Judge but had not found that it was disrespectful to the Court. In such circumstances, the conviction would have been flawed because Ms Elzahed would have been convicted of an offence with which she had not been charged.
3. The burden of Ms Elzahed's submission is that her Honour's reference to conduct that caused disrespect to the Judge suggests that her Honour somehow unfairly accumulated her level or degree of culpability by doing so: disrespect to both the Court and the Judge is more serious than disrespect caused to only one of these. However, in common parlance, the Judge is the personification of the Court. The behaviour with which s 200A(1)(c) is concerned is to be objectively assessed: it is not necessary in order to establish the fact that the behaviour is disrespectful to the Judge to prove the Judge's perception of the behaviour, and that prospect is in any event proscribed by s 200A(10).
4. In my opinion, the references in s 200A(1)(c) to both the court and the Judge presiding over the proceedings do no more than inform the task of determining whether the conduct in question is or may be disrespectful. They provide the context against which the conduct is to be measured. They are alternatives to be used for that purpose but do not create the prospect of a more serious offence if the behaviour is found to be disrespectful to both. In that sense I accept that Ms Elzahed's distinction is artificial. I find it difficult to conceive of a circumstance in which behaviour could be disrespectful to one but not the other. Her Honour's reference to the Judge in her remarks on sentence was unnecessary but it added nothing to Ms Elzahed's culpability and her Honour cannot be taken to have denied Ms Elzahed any opportunity that was not in the event wholly devoid of any relevant content.

Finding as to the plaintiff's religious belief

1. I referred in my earlier decision, at [13], to the transcript of the exchange between Mr Evatt and Judge Balla on 7 December 2016. Ms Elzahed submitted that she did not knowingly or intentionally act in a disrespectful way but "because her religion required her to", and that her behaviour was for that reason not disrespectful. Her Honour did not accept that argument and expressed the view that the evidence did not establish that Ms Elzahed held a genuine religious belief that she should not or could not adhere to the established court practice and convention of standing upon the entry and exit of Judge Balla.
2. In the sentencing proceedings, Ms Elzahed contended that her Honour's view as to a lack of evidence about her religious belief was erroneous. In addition, in her unsworn letter tendered at the sentencing proceedings, Ms Elzahed said: "I have a strong faith in Islam and I follow the Quran and obey the Majmoo' al-Fataawas. They provided that there is a prohibition to stand or bow for anyone but Allah. I do not mean to ever disrespect any laws of my country Australia."
3. In her remarks on sentence, her Honour again concluded that, on the evidence, she was not persuaded that a genuinely held religious belief compelled Ms Elzahed's offending conduct. That was so notwithstanding the letter. The defendant submitted that it was open to her Honour to decline to find that Ms Elzahed held a religious belief of a kind that excused or mitigated her offending conduct as she contends.
4. Ms Elzahed drew attention to the fact that the defendant apparently does not seek to defend her Honour's conclusion that there was no evidence before her to support a finding of fact about Ms Elzahed's beliefs. The defendant is correct to do so: Mr Evatt's submission to the District Court that Ms Elzahed's failure to stand was motivated by religious belief was tendered by the prosecutor as an admission and went in for all purposes. It was wrong in law to say that there was "no evidence" in her favour. The defendant instead (impliedly) contends that any error was cured by the opportunity to adduce further evidence on the sentencing proceeding. Ms Elzahed submitted that that contention is wrong for two reasons.
5. First, as earlier indicated, it was either not open to Ms Elzahed to controvert the findings made beyond reasonable doubt in the principal judgment or any attempt to do so would have been rejected. Secondly, in respect of the finding as to lack of evidence of religious belief, any attempt to re-agitate that issue would have been rejected for the same reasons given in the principal judgment.
6. The issue of Ms Elzahed's religious beliefs was raised at the sentencing proceedings. It was relied upon by her in an attempt to mitigate the objective seriousness of her conduct. The incorporation of the evidence at the earlier hearing did not operate in a practical way to deny Ms Elzahed the opportunity to rely upon this issue at the sentencing hearing. She was not denied procedural fairness in the circumstances.

Finding that Ms Elzahed knew of the relevant court practice

1. In her principal judgment, her Honour found, at [50], that Ms Elzahed "knew from the repeated conduct of everyone around her, including her son, the expected behaviour was that she stand for the Judge, as the Judge entered and left the courtroom" and that "the only inference to be drawn from all of the evidence is that [Ms Elzahed] was so aware and that she chose to not stand". This finding is said by Ms Elzahed to be erroneous because it did not account for the evidence that Mr Evatt, her counsel, did not stand for medical reasons. However, the defendant submitted that contrary to Ms Elzahed's submission, in the paragraph that follows immediately after the paragraph containing the impugned finding, her Honour referred to Ms Elzahed's submission that she was not "aware of the requirement to stand given that her own legal counsel was not standing on occasion". Her Honour rejected that submission.
2. Her Honour's conclusion, that Ms Elzahed must have known from the behaviour of others in the small courtroom and the court officer's command that she was expected to stand, was open to her. The issue of Ms Elzahed's knowledge or realisation of the relevant court practice was raised by her in the principal proceedings and again in the sentencing proceedings. In her unsworn letter to her Honour, Ms Elzahed said: "I thought the Judge was alright with me sitting in the back … I did not know I was breaking any law in Court". As noted above, her Honour referred to authorities that urge caution when using self-interested and un-tested statements in sentencing proceedings.
3. Ms Elzahed did not suggest to her Honour that she was "not aware of the requirement to stand given that her own legal counsel was not standing on occasion". In any event, her Honour erroneously made a finding as to knowledge when that was no part of the prosecutor's case and was not part of the offence charged.
4. The issue of Ms Elzahed's knowledge of the established court practice or convention was raised at the sentencing hearing. That fact overtook what Ms Elzahed maintains were her Honour's unavailable conclusions in her principal judgement and neutralises any concern she may have about them.

Finding that Ms Elzahed in fact communicated disrespect

1. Ms Elzahed's complaint is that her Honour failed to distinguish between behaviour that may be characterised as disrespectful and behaviour that results in disrespect being communicated. That complaint focusses on the following remarks on sentence: "It was so deliberate and so clear a communication of disrespect to remain seated in a small courtroom when everyone around you is standing for the judge repeatedly when the court officer says, 'All stand'. In my view, as I indicated in the judgment, it was intentional and it was disrespectful and it communicated significant disrespect. The sentence that I need to impose needs to reflect the objective seriousness of the offending. The defendant showed repeated disrespect to the Court. What that behaviour did was communicate to everybody around, both in the courtroom and in the community that the Court was not deserving of respect."
2. In the defendant's submission, these comments are directed towards characterising the act of failing to stand and the seriousness of that behaviour. Her Honour was assessing the disrespectful nature of the behaviour by reference to what the behaviour was capable of communicating. That is said to be clear from the following discussion later in her Honour's remarks: "The expression of disrespect to the Court communicates to all in the courtroom as well as the wider community a message that the institution that is, the court and the rule of law are not deserving of respect. The disrespectful behaviour communicates a lack of esteem and honour for the Court system, for the independent judiciary and for the rule of law. The disrespectful behaviour communicates that the careful and impartial decision-making process required of courts by the rule of law is one that should not [be] esteemed, honoured or respected. The disrespectful behaviour challenges the authority of the Courts to make decision[s] which bind all our citizens."
3. These comments do not rely on Judge Balla having perceived Ms Elzahed's behaviour to be disrespectful in this particular case.
4. It was open to her Honour to find that Ms Elzahed's behaviour conveyed disrespect. The evidence was that Judge Balla noticed her failure to stand; that others in the courtroom noticed it as well; that Judge Balla raised a question as to Ms Elzahed's failure to stand with her counsel and that she failed to stand even after this exchange; and also that the court officer asked people in the courtroom to stand at relevant times.
5. Ms Elzahed challenged the defendant's submission that her Honour did not find that her behaviour in fact communicated disrespect but instead found only that the behaviour was "capable of communicating" disrespect. That reading of her Honour's reasons, she argues, is not open. Her Honour's express findings were relevantly in these terms "…but it was so deliberate and so clear a communication of disrespect to remain seated in a small courtroom when everyone around you is standing for the judge repeatedly when the officer says, 'All stand'. In my view, as I indicated in the judgment, it was intentional and it was disrespectful and it communicated significant disrespect." [Emphasise added]
6. Ms Elzahed submitted that the emphasised portions cannot be read as referring merely to the "capability" of the conduct to communicate disrespect.
7. The defendant does not submit that the finding that Ms Elzahed's behaviour in fact communicated disrespect was not procedurally unfair.
8. In her principal judgment, her Honour found that Ms Elzahed "intended to communicate by her behaviour lack of respect or disrespect for the Court and the Judge". The question of whether or not Ms Elzahed did intend to do so or whether she in fact communicated disrespect were not relevant to her guilt but was potentially relevant as a matter to be raised in the sentencing proceedings. The incorporation of that finding into her Honour's sentencing decision without being foreshadowed as a potentially adverse factual finding amounted to a denial of procedural fairness.

Consideration

1. Section 200A(1) of the District Court Act is in these terms: "200A Disrespectful behaviour in Court (1) A person is guilty of an offence against this section if: (a) the person is an accused person or defendant in, or a party to, proceedings before the Court or has been called to give evidence in proceedings before the Court, and (b) the person intentionally engages in behaviour in the Court during the proceedings, and (c) that behaviour is disrespectful to the Court or the Judge presiding over the proceedings (according to established court practice and convention)."
2. I have included detailed sections of the parties' respective submissions out of deference to the significant and helpful legal analyses that they expose. However, stripped to the barest essentials, Ms Elzahed's single or predominating complaint is that her Honour made findings of fact adverse to her in her principal judgment that were arguably unnecessary for her decision on liability but which relevantly for present purposes were made both without Ms Elzahed first having been given an opportunity to contradict them and secondly by incorporating those unchallenged findings into her sentencing decision. I was not satisfied that the adverse fact finding allegation had any impact upon her Honour's decision that Ms Elzahed was guilty of the offences against s 200A of the Act. I am, however, of a different view with respect to the possible impact of those adverse factual findings in the context of the exercise of her Honour's sentencing discretion. That is particularly so if there is any prospect that Ms Elzahed was denied, in the sense that she lost, a genuine opportunity to contend for a contrary position.
3. As I attempted to explain in my earlier decision, the essential elements of s 200A are plain enough. It was only necessary for her Honour to have been satisfied beyond reasonable doubt that Ms Elzahed was a party to proceedings, that she intentionally remained seated when Judge Balla entered or left the courtroom and that doing so was behaviour that was disrespectful according to established court practice or convention. The fact that Ms Elzahed did or did not intend to communicate disrespect to the Judge or to the Court in so doing was a matter of no significance or relevance to the issue of her liability for her actions in such circumstances. In a similar vein it is irrelevant to a finding with respect to Ms Elzahed's guilt that she did or did not have a relevant religious belief that may have explained or otherwise informed her conduct, or that she did or did not know of the relevant court practice or convention that she transgressed. The fact that Ms Elzahed's conduct was found to have communicated disrespect in fact was equally irrelevant to her guilt or innocence. As I concluded, her Honour's finding that the essential elements of the s 200A offences were made out was not diminished or degraded by superfluous or unnecessary findings that extended beyond those necessary to establish the question of Ms Elzahed's guilt.
4. By way of significant contrast, findings of fact in these particular categories acutely inform the question of both Ms Elzahed's moral culpability and the objective seriousness of her offending conduct. It is not difficult to appreciate that one or both of these issues may turn upon whether, for example, Ms Elzahed intended to engage in disrespectful conduct for whatever reason, as opposed to the possibility that she did so inadvertently or mistakenly. In expressing the issue in that way I do not wish to be taken to have formed a view one way or the other about the correctness or otherwise of her Honour's findings. Ms Elzahed's simple proposition is that she was sentenced in circumstances that suggest either that her Honour actually or at least possibly took these factual findings into account and/or that she did so without giving Ms Elzahed the opportunity to confront them.
5. I also accept that by the time her Honour sentenced Ms Elzahed and delivered her remarks on sentence, it was then too late for Ms Elzahed to rectify the problem. Without in any way intending criticism of her Honour, it is unrealistic to suggest that her Honour would have been inclined to resile from any of the factual findings that she made in her principal judgment. That includes both the findings that were strictly necessary to her Honour's conclusions with respect to Ms Elzahed's guilt as well as what Ms Elzahed contends were the extraneous findings that went beyond the strict elements of the s 200A offences. The practical problem for Ms Elzahed is that her Honour gave no indication during the sentencing proceedings that she proposed to incorporate any of those extraneous factual findings in the principal judgment into her remarks on sentence. The difficulty from Ms Elzahed's point of view is that even if her Honour's findings were unnecessary or extraneous and even harmless in that context, the situation changed when some of these findings became expressly incorporated into her Honour's remarks on sentence. The consequence for Ms Elzahed has been a denial of procedural fairness.
6. Implicit in Ms Elzahed's approach is an acceptance that she cannot complain about her Honour's findings that were necessarily referable to the finding of guilt. For example, Ms Elzahed could not complain that her Honour incorporated in her sentencing exercise a finding that Ms Elzahed's failure to stand was an intentional act or a finding that doing so was disrespectful to the Court according to established practice and convention. Ms Elzahed does not complain that the extraneous findings may not have been relevant to the sentencing exercise, only that she should have been given an indication that they would be used by her Honour in that context. By the time her Honour said, referring to her principal judgment in her remarks on sentence, that "[t]he findings of fact in that decision are set out in a lengthy judgment and formed the factual basis for this sentencing exercise", it was too late.
7. It follows in my opinion that Ms Elzahed has demonstrated error on the part of her Honour and that the sentencing exercise miscarried.

What should now occur?

1. Section 55(2) of the Crimes (Appeal and Review) Act 2001 provides as follows: "55 Determination of appeals (1)… (2) The Supreme Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by setting aside the sentence and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination, in relation to sentence, in accordance with the Supreme Court's directions, or (d) by dismissing the appeal."
2. Ms Elzahed submitted that I should set aside the sentence imposed by her Honour pursuant to s 55(2)(a) and vary the sentence pursuant to s 55(2)(b).
3. The defendant emphasised that where error is established in an appeal such as the present, the making of an order for remittal of the matter to the Local Court is an approach that is consistent with the proper relationship between the Supreme Court and the Local Court in statutory appeals with respect to criminal matters: see Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492 at [101]; Director of Public Prosecutions v Sadler [2013] NSWSC 718 at [103]-[105]; Matheson v Director of Public Prosecutions (2008) 185 A Crim R 83; [2008] NSWSC 550 at [73]; Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387 at [65]; Director of Public Prosecutions v Belani (2005) 64 NSWLR 319; [2005] NSWSC 1013 at [66]-[68].
4. The defendant also conceded that if I were to find error to have been established in the present case it would be open either to remit the matter pursuant to s 55(2)(c) or to exercise one of the powers in s 55(2)(a), and, following further submissions in this Court, s 55(2)(b). I take the defendant's primary position to be that the appeal should be dismissed pursuant to s 55(2)(d).
5. In the events that occurred, I directed the parties to furnish me with written submissions on sentence.

Ms Elzahed's submissions

1. Consistently with her earlier submissions, Ms Elzahed submitted that a number of factual findings made by her Honour were made erroneously and should not be taken into account by me in considering the appeal against sentence. Ms Elzahed submitted that, contrary to her Honour's findings, it should be no part of the relevant factual matrix in this Court on re-sentencing that: 1. she intended to communicate lack of respect or disrespect; 2. she intended to communicate disrespect to the Judge; 3. was aware of a requirement to stand; 4. her behaviour in fact communicated disrespect; 5. her behaviour was disrespectful to the Judge.
2. Further, Ms Elzahed contended that I should (and must) proceed on the basis that the case established by the prosecutor in the court below did not travel beyond the particulars of offending provided by the prosecutor on 8 August 2017. Accordingly: 1. the only state of mind alleged and established by the prosecutor was that the omission to stand was voluntary: see particular (1); 2. the prosecutor did not allege or establish that the defendant had any state of mind qua the disrespectfulness of the behaviour: see particular (5); 3. the prosecutor did not allege or establish that Ms Elzahed had any state of mind qua the court practice and convention: see particular (6).
3. It follows from this that Ms Elzahed is to be sentenced for an offence of strict or absolute liability. Further, the only relevant matters established beyond reasonable doubt against her for the purposes of sentencing are as follows: 1. Ms Elzahed voluntarily (in the sense of not being under duress) failed to stand on nine occasions; 2. that her behaviour was contrary to established practice and convention (but was not known by her to be so); 3. that her behaviour was objectively disrespectful to the Court (but was not intended to be).
4. So understood, Ms Elzahed is in the same position as a person who does not bow when entering or exiting the court or who does not stand when making submissions while not knowing that it is conventional to do so. Further, the failure to stand was not contrary to a direction by the presiding Judge and did not interfere with the proceedings in any way.
5. Ms Elzahed also submitted that I should take notice of the following matters of fact in her favour. She is qualified to work in childcare. She hopes to find a childcare job, but her conviction may affect her prospects of doing so. Arising out of these proceedings, Ms Elzahed has been the subject of significant adverse media publicity and has suffered a backlash within her community.
6. The pre-sentence report indicates the following matters concerning Ms Elzahed: 1. She is assessed as a low risk of re-offending; 2. She "acknowledged her behaviour in relation to the offence"; 3. This is her first contact with the criminal justice system in an otherwise blemish-free history; 4. She has no criminogenic needs that could be addressed by supervision processes; 5. She has been seeing a psychologist for a number of years for depression and anxiety.
7. Further, Ms Elzahed has already served the 75 hours of community service in relation to the offending following the sentence imposed by her Honour.
8. Ms Elzahed referred to s 10 of the Crimes (Sentencing Procedure) Act 1999: "(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed; … (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider."
9. Ms Elzahed drew attention to my remarks in R v Mauger [2012] NSWCCA 51 at [18]: "Section 10 and its predecessors reflect the willingness of the legislature and the community to provide offenders with an opportunity in certain circumstances to maintain a good reputation of good character and to avoid the otherwise rigid application of inexorable laws":
10. The provision is particularly apt in the case of first offenders: R v Nguyen [2002] NSWCCA 183 at [50].
11. The scope for the operation of s 10 is less where an offence is objectively serious and general deterrence and denunciation are important factors: Mauger at [19]. "However, the focus must be on the particular conduct of the offender and the circumstances of the offending rather than the nature of the offence": Mauger at [19]. "Consideration of extra-curial punishment may be relevant to the exercise of the discretion conferred by s 10": Mauger at [21].
12. Ms Elzahed submitted that the objective seriousness of the offending was low. The maximum penalty of 14 days' imprisonment or 10 penalty units is at the low end. The offence is one of strict or absolute liability, with the only relevant state of mind being that the conduct was engaged in voluntarily. Ms Elzahed did not intend disrespect and did not know it was contrary to practice and convention. The offending was reasonably "trivial" for the purposes of s 10(3): it comprised unwitting breach of a court convention akin to a failure to bow when entering or exiting and arguably less serious than answering a mobile phone in court or eating in the public gallery. The offending did not interfere with the proceedings and was not criticised by the presiding Judge.
13. Ms Elzahed is approximately 50 years old. She has no criminal record. She is a "first offender" of the kind referred to in Nguyen at [50].
14. Ms Elzahed submitted that general deterrence is not a significant consideration. That is because the offence is one of absolute or strict liability: see Mok v R [2011] VSCA 247 at [7]; DPP v Pell [2019] VCC 260 at [172]. Ex hypothesi, future offenders who do not know that what they are doing is against convention or is disrespectful are unlikely to be deterred by any sentence imposed upon Ms Elzahed in this case. Ms Elzahed maintained that this is not a case where general deterrence is an important factor: see Mauger at [19].
15. The need for specific deterrence is low. The assessed risk of re-offending is low. The adverse publicity and community backlash already caused by reason of these proceedings have already operated as a strong disincentive to further similar offending. Ms Elzahed has already served a substantial sentence of 75 hours of community service.
16. A conviction may impede Ms Elzahed's prospects of obtaining employment in childcare: note Mauger at [28]. This reflects the point made in R v Ingrassia (1997) 41 NSWLR 447 at 449 that "[t]he legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a Court".
17. Ms Elzahed has been the subject of extra-judicial humiliation by reason of these proceedings. This is extra-curial punishment of the kind described in Mauger at [21]. She has been generally of good character throughout her life, has no adverse antecedents but has mental health problems.
18. The nine offences were closely related, both as to the circumstances in which they occurred and when they occurred. The totality principle has a significant role to play.
19. Ms Elzahed maintained that this is a case where "[t]he particular legal and social consequences for [her] of recording a conviction against [her] in this case far outweigh the requirements of punishment, denunciation or special or general deterrence": Mauger at [41]. She submitted that an order under s 10(1)(a) is appropriate.

The defendant's submissions

1. The defendant submitted that it would not be appropriate for me to make orders dismissing the nine charges against Ms Elzahed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act, if I were otherwise persuaded that her sentencing in the Local Court miscarried. The defendant emphasised that Ms Elzahed does not contend that the sentence of 75 hours of community service which her Honour imposed was manifestly excessive. The defendant accepted that, in the event of a resentence, any error(s) which Ms Elzahed will have identified would necessarily have to be taken into account by me. (The defendant does not accept that any errors have been established).
2. In Thorneloe v Filipowski (2001) 52 NSWLR 60; [2001] NSWCCA 213, Spigelman CJ remarked at [154] that: "Notwithstanding, the width of the ameliorative purpose of s 10, it does, in terms, direct attention to 'the relevant charge'. The scope and purpose of s 10 will, to some extent at least, vary from one offence to another."
3. The defendant submitted that Ms Elzahed's contention, that because s 200A(1) of the District Court Act imposes strict liability I might more readily make an order under s 10, misunderstands the purpose of imposing strict liability for the offence. As was said in Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985] AC 1 at 14: "[T]he creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act".
4. In other contexts, the Court of Criminal Appeal has cautioned against the use of s 10 in relation to strict liability or regulatory offences: see Thorneloe v Filipowski at [165]-[169]; Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd (2003) 59 NSWLR 210; [2003] NSWCCA 356 at [23]. The fact that an offence against s 200A(1) may be committed without an intention to show disrespect or without knowledge on the part of the offender of the relevant court practice and convention shows that the object of the legislature was not limited to prohibiting or deterring deliberately defiant or disruptive conduct: Erector Group Pty Ltd v Burwood Council [2018] NSWCCA 56 at [126].
5. The defendant also takes issue with Ms Elzahed's submission that general deterrence is not a "significant consideration" when sentencing an offender for a strict liability offence. The comments of Nettle JA (as his Honour then was) in Mok v The Queen do not support such a broad proposition. As in the case of drink-driving offences, it is not to the point that some persons may not be deterred from the commission of future offences by an offender's conviction and punishment. It might be noted also that it was accepted, correctly in the defendant's submission, by Ms Elzahed in the Local Court that there is "generally an importance for general deterrence when you've got a rule of law offence".
6. The defendant urged me to reject Ms Elzahed's submission that the objective seriousness of her offending conduct was "low". She was convicted of failing to stand for a Judge of the District Court on nine occasions, spread across four sitting days, including in circumstances where a court officer was directing those in the courtroom to stand. The ninth failure to stand occurred after Judge Balla raised a question as to Ms Elzahed's failure to stand with her counsel. The defendant submitted that Ms Elzahed's conduct is not appropriately assessed as being at the low end of the range of objective seriousness for the kind of conduct proscribed by s 200A(1).
7. Furthermore, this is not a case in which the legal and social consequences for Ms Elzahed of recording convictions "far outweigh" the demands of punishment, denunciation and special or general deterrence in the sentencing process. The purposes of sentencing, as set out in s 3A of the Crimes (Sentencing Procedure) Act, would not be achieved by the making of an order under s 10(1)(a). Further, a record of Ms Elzahed's conviction for offences against s 200A(1) will not preclude her from engaging in employment relating to children: see Child Protection (Working with Children) Act 2012, ss 8, 13, 18, Schedule 2. In any event, "it is not proper to dismiss a charge without conviction merely to avoid the operation of some other legislative provision that is otherwise applicable": Mauger at [21].
8. In relation to the pre-sentence report, on which Ms Elzahed relies, it should be noted that, while she "acknowledged her behaviour in relation to the offence" to the author of that report, she is also recorded as having "offered her own version of events". The evidence of Ms Elzahed's "mental health problems" which emerges from that report is limited.
9. In light of the fact (which the defendant accepts) that Ms Elzahed has completed 75 hours of community service since 11 July 2018, it may be said that the object of punishing the offender has been achieved: Crimes (Sentencing Procedure) Act, s 3A(a). As the defendant has previously contended, leave should not be granted to appeal against her sentence where Ms Elzahed has not succeeded in respect of Grounds 4, 5, 6 or 9 (with respect to conviction). The fact that she has performed the community service she was ordered to perform is a reason why the Court would refuse leave. The position is analogous to that occasionally faced by the Court of Criminal Appeal when refusing an applicant leave to appeal against a sentence that has been wholly served. Alternatively, by express reference to the fact that Ms Elzahed has already completed 75 hours community service, it would be open to me, if she is to be re-sentenced, to proceed under s 10A of the Crimes (Sentencing Procedure) Act and to impose no other penalty on her for the offences.

Discernment

1. As earlier noted, Ms Elzahed makes no complaint that the sentence imposed by her Honour is manifestly excessive. In my opinion, that is unremarkable. Having regard to the fact that the maximum penalty for a single offence against s 200A is imprisonment for 14 days, the imposition of a modest community service order could not easily be challenged as being unreasonable in all of the circumstances. It was in that setting that Ms Elzahed quite understandably limited her submissions to the prospect of an order pursuant to s 10 of the Crimes (Sentencing Procedure) Act. That is to say, to the extent that Ms Elzahed has contended that I should vary her sentence, she quite properly draws upon s 3(3) and s 3(3A) of the Crimes (Appeal and Review) Act, which are in the following terms: "(3) In this Act, a reference to 'varying a sentence' includes: (a) a reference to varying the severity of the sentence, and (b) a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature, and (c) … (3A) Without limiting subsection (3), a power conferred on an appeal court under this Act to vary a sentence includes the power to make an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 and, for that purpose, to set aside a conviction made by the original Local Court (without setting aside the finding of guilt on which the conviction is based) to enable the order to be made."
2. It seems to me to follow in those circumstances that Ms Elzahed implicitly accepts that I should proceed to determine her appeal against the sentence imposed upon her in the court below by either making an order pursuant to s 10 of the Crimes (Sentencing Procedure) Act as she seeks or to dismiss the appeal pursuant to s 55(2)(d) of the Crimes (Appeal and Review) Act. Ms Elzahed has not asked that I remit the matter to the Local Court for redetermination and it is not in the interests of justice that I do so having regard to what might reliably be thought to be the additional delays and extra costs associated with such a course.
3. It does not seem to me that Ms Elzahed is entitled to a s 10 order in the particular circumstances of this case. In expressing that view I confirm that I have disregarded the findings of fact which Ms Elzahed has challenged in this appeal. I have restricted my consideration to the anodyne combination of matters in s 200A(1) of the District Court Act that her Honour accepted had been established beyond reasonable doubt. I have also accepted at their highest all of the matters favourable to Ms Elzahed referred to in her submissions, recorded by me at [55] - [56] and [62] - [69] above.
4. My reasons for coming to this view may be shortly stated. First, Ms Elzahed was convicted of multiple offences. I accept that the offences are not the most serious offences one could imagine. However, the offences are directed to the maintenance of respect for the judicial process and a repetition of an offence in that context is inimical to the suggestion that the offending is trivial. I accept that Ms Elzahed's character, antecedents, age, health and mental condition are all otherwise supportive of the making of such an order.
5. Secondly, and in a related sense, the sentence to be imposed for these offences ought in my view to carry an element of general deterrence. I have elsewhere on several occasions indorsed the need for caution in utilising the concept of general deterrence in circumstances where the prospective theoretical offender could not possibly or at least reasonably be expected in advance to assess the consequences of committing the crime concerned. Having regard to the perceived iniquity to the prevention or discouragement of which s 200A is apparently directed, the need for such caution correspondingly recedes. Moreover, I agree with the views expressed by Mr Blanch QC in the evidence given by him in the trial, that spontaneous and passionate outbursts of emotion manifesting in behaviour that would potentially offend the section are regularly discounted or overlooked or ignored in courts on a regular basis. Section 200A is not apparently directed to the criminalisation of such disrespectful conduct.
6. Thirdly, I do not accept that Ms Elzahed is a person in respect of whom the recording of a conviction carries an element of extra-judicial punishment. Although it may seem to be counter-intuitive, there is a considerable prospect in the particular circumstances of this case that public opprobrium might actually be increased by a failure to record a conviction for offences that seem clearly to have been created in response to community expectations.

Disposition

1. It follows that Ms Elzahed's appeal against her sentence should be dismissed pursuant to s 55(2)(d) of the Crimes (Appeal and Review) Act. My formal orders are therefore as follows: 1. Grant leave to appeal against sentence. 2. Dismiss the appeal.

Amendments 29 October 2019 - Paragraph references in [81] amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2019