Hanna v R [2020] NSWCCA 125 | Case summary

Court of Criminal Appeal (NSW)|2019-10-14|Before: Bell P, Hulme J

Solicitors: Not applicable (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2018/235773 Decision under appeal Court or tribunal: Drug Court Date of Decision: 29 June 2018 Before: Judge Barnett File Number(s): 2016/67

HEADNOTE [This headnote is not to be read as part of the judgment] On 29 June 2018 the Drug Court of NSW, exercising the criminal jurisdiction of the Local Court, imposed on the appellant two aggregate sentences pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") in relation to ten offences committed over a period from October 2015 to February 2018 to which the appellant had entered pleas of guilty. Two of the offences involved the breaking and entering of, respectively, a mosque and a car dealership in Parramatta. Another offence was committed whilst the appellant was in the mosque. In imposing the sentences the judge, as required by s 53A(2)(b), indicated the individual sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. The appellant appealed against the sentences imposed. Prior to sentence, the appellant had been given the benefit of the sentencing procedures for which the Drug Court Act 1998 (NSW) makes provision. Each of the offences for which the appellant was sentenced was an indictable offence which may, by Table 1 or Table 2 of Sch 1 of the Criminal Procedure Act 1986 (NSW), be dealt with summarily. By s 267(1) and s 268(1A) of the Criminal Procedure Act the maximum term of imprisonment that the Local Court may impose for such an offence is the lesser of two years or the maximum sentence prescribed for the offence. By s 22(1) of the Sentencing Procedure Act, in passing sentence for an offence to which an offender has entered a plea of guilty, the Court must take that fact into account "and may accordingly impose a lesser penalty than it would otherwise have imposed". The judge stated his intention of taking into account the fact of the appellant's pleas of guilty as a sign of contrition, and recognition of their high utilitarian value. In respect of the two offences committed at the Parramatta Mosque he nevertheless indicated the sentences that he would have imposed if sentencing separately for the offences as imprisonment for two years. That equates to the jurisdictional limit of the Local Court. The appellant (who represented himself) identified four grounds of appeal. The first challenge was to relativity of the sentences imposed in respect of the Parramatta Mosque and car dealership offences; the third asserted error in failure to accept certain evidence given by the appellant; the fourth asserted error in the failure to take into account certain psychological evidence. The Court unanimously rejected all three grounds. By ground two of the appeal the appellant contended that, in purportedly allowing a reduction in sentence referable to his pleas of guilty but nevertheless indicating sentences for each offence at the Local Court jurisdictional limit, the sentencing judge exceeded his jurisdiction and fell into error. The appellant argued that the words "and may accordingly impose the lesser penalty than it would otherwise have imposed" in s 22(1) of the Sentencing Procedure Act do not allow for both reduction of sentence and the imposition of a sentence at the jurisdictional limit. If the judge did take into account the pleas of guilty and reduced the sentence accordingly, the starting point of the sentence must have exceeded the jurisdictional limit and could not have been "the penalty that it would otherwise have imposed". After the appeal had been heard and judgment reserved a similar issue arose in another proceeding: Park v R [2020] NSWCCA 90. Bathurst CJ considered: "30 … The expression 'than it otherwise would have imposed' should be construed as referring to the penalty which would have been imposed but for the constraint resulting from the jurisdictional limit." R A Hulme J considered that term: "174 … is a reference to the sentence a court considers appropriate having regard to the maximum penalty and all of the facts and circumstances of the case." Fullerton J took a contrary view and considered that: "142 … The proper construction of s 22(1) obliges a sentencing court to apply the discount allowed to the plea of guilty to a sentence that the court would in fact have imposed but for an offender's plea of guilty and, where there is a jurisdictional limit for a particular offence, the Court is to have regard to that limit when applying the discount." In reasons prepared before the publication of the judgments in Park, Simpson AJA expressed views similar to those expressed by Fullerton J. Having regard to the judgments in Park, Bell P held that the views of Bathurst CJ and R A Hulme J are to be preferred. R A Hulme J adhered to the views he had expressed in Park. Simpson AJA, while preferring a literal construction of s 22 (and s 53A) of the Sentencing Procedure Act, accepted that convention dictates that that preference yield to precedent resulting from the majority judgments in Park. Accordingly, the Court unanimously rejected ground 2 and dismissed the appeal.

Judgment

BELL P: In this matter I have had the opportunity of reviewing in draft the judgments of Simpson AJA and R A Hulme J. I have also closely considered the recent decision of the Court of Criminal Appeal in Park v R [2020] NSWCCA 90 (Park).
In relation to ground 1 of the appeal, I respectfully agree with the reasons of Simpson AJA.
In relation to ground 2, as Simpson AJA has explained, a similar issue to that raised by ground 2 has recently been considered and determined by the Court of Criminal Appeal in Park.
In Park, both the Chief Justice and R A Hulme J, in a separate judgment, expressed an approach to the issue of principle raised by ground 2 which Simpson AJA, as a matter of comity, accepts should be followed in the current matter although her Honour expresses a preference for a literal approach to the construction of s 22(1) and s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Contrary to her Honour and with the greatest of respect, I prefer and agree with the reasoning of the Chief Justice and R A Hulme J in Park.
Adopting the analysis and reasoning in Park, I would dismiss the second ground of appeal.
In relation to the third and fourth grounds of appeal, I agree with the judgment of Simpson AJA.
I also agree with the dispositive order her Honour proposes, namely that the appeal be dismissed.
SIMPSON AJA: On 29 June 2018, in the Drug Court of New South Wales, two aggregate sentences were imposed on the appellant, in relation to 10 separate offences of which he had admitted his guilt. The first sentence, of imprisonment for a fixed term of 6 months commencing on 14 December 2017, related to two offences in respect of each of which a suspended sentence (Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), s 12, as then in force) had, on 28 April 2016, been imposed in the Drug Court under the provisions of the Drug Court Act 1998 (NSW) ("the Act"). On 11 December 2017 those sentences were set aside, and good behaviour bonds were substituted (s 9, as then in force).
The second aggregate sentence, of imprisonment for 4 years with a non-parole period of 2 years and 6 months commencing on 17 February 2018, related to eight offences committed over a 3 month period between 20 December 2017 and 20 February 2018. The total effective sentence was of imprisonment for 4 years, 2 months and 3 days with a non-parole period of 2 years, 8 months and 3 days.
The sentences of 29 June 2018 were not imposed under the Act. In circumstances to be explained, they were imposed in the exercise of the criminal jurisdiction of the Local Court.
The appellant now appeals against each sentence. In order to do so, he requires an extension of time. There being no opposition on the part of the Crown, an order was made extending the time for filing the appeal. By s 5AF(1) of the Criminal Appeal Act 1912 (NSW), an appeal against a sentence imposed by the Drug Court lies as of right.

The Drug Court Act

The Drug Court of NSW is constituted by Pt 3, Div 1 of the Act. By s 24(1) the Drug Court has the criminal jurisdiction of the District Court, the criminal jurisdiction of the Local Court, and such other jurisdiction as is vested in it by the Act or any other Act. By s 24(2), for the purpose of enabling it to exercise its jurisdiction, the Drug Court has all of the functions of the District and Local Courts that are exercisable by those courts in relation to their criminal jurisdiction, and any other functions conferred or imposed on it by the Act or any other Act.
The long title of the Act is: "An Act to provide for the establishment of the Drug Court of New South Wales, for the referral of drug offenders to the Drug Court, and for the supervision of drug programs by the Drug Court; and for other purposes."
The objects of the Act are stated in s 3(1) as follows: "(1) The objects of this Act are: (a) to reduce the drug dependency of eligible persons and eligible convicted offenders, and (b) to promote the re-integration of such drug dependent persons into the community, and (c) to reduce the need for such drug dependent persons to resort to criminal activity to support their drug dependencies." By subs (2) of s 3: "(2) This Act achieves its objects in relation to eligible persons by establishing a scheme under which drug dependent persons who are charged with criminal offences can be diverted into programs designed to eliminate, or at least reduce, their dependency on drugs." "Eligible person" is defined in s 5. As there is no issue that the appellant was an eligible person, it is not necessary to elaborate.
By s 6(2) a court before which a person is charged with an offence or to which a person appeals against a sentence imposed by some other court has a duty to ascertain whether the person appears to be an eligible person and, if so, to ascertain whether the person is willing to be referred to the Drug Court to be dealt with for the offence; if so, it is the duty of the court to refer the person to the Drug Court to be dealt with for the offence.
By s 7A the Drug Court is empowered to deal with a person under that section if satisfied of each of a series of matters specified in subs (2). Relevantly, one of those matters is: "(e) that the person accepts the conditions imposed by this Act and the conditions that the Drug Court proposes to impose on the person (whether immediately or at some later date) as a consequence of his or her conviction and sentence under this section." On satisfaction of those matters the Drug Court may deal with the person under s 7A by convicting the person and (with some presently immaterial modifications spelled out in subs (4)) sentencing under the Sentencing Procedure Act (subs (3)). This sentence is known as an "initial sentence" (s 4). By subs (5)(a) the court must, within 14 days of sentencing, make an order imposing the conditions that the person has accepted (under subs (2)(e)) and, by subs (5)(b), make an order suspending execution of the sentence for the duration of the person's program. Subsection (7) specifies conditions of the kind the Court may impose. Section 8A states the statutory conditions of a program. A person who has been dealt with under s 7A is, within the meaning of the Act, a "drug offender" (s 4(1)).
By subs (8) of s 7A a person who is convicted and sentenced by the Drug Court under s 7A may, at the same or any later time, be convicted and sentenced for any other offence to which he or she has pleaded guilty (other than specified offences, not presently relevant), without referral under s 6. The requirements of subs (5) apply to such a sentence.
By s 11(1) the Drug Court may terminate a drug offender's program in any one of three circumstances. That which is presently relevant is that: "(a) … the Drug Court is satisfied on the balance of probabilities that, having regard to the objects of this Act, the drug offender has substantially complied with the program."
By s 12, on termination of a drug offender's program, the Drug Court must reconsider the initial sentence (or initial sentences), and determine the final sentence, which it may do either by making an order setting aside the initial sentence and sentencing under Pt 2 of the Sentencing Procedure Act, or by confirming the initial sentence. By subs (4) the final sentence may not be greater than the initial sentences.

The background facts

The relevant facts will be best understood if set out chronologically.
The appellant committed the first of the 10 offences on 18 October 2015. He entered a terrace house in Phillip Street, Sydney that operated as a small business and which, the Crown accepted, may not have been fully secured. An employee who was initially in the premises, but who was unaware of the appellant's presence, left while the appellant remained therein. The appellant then searched the premises and removed a number of items including computers and a camera and accessories. The value of the property stolen was in excess of $4,000. Later the appellant disposed of the camera and accessories at a second-hand store in the city. He subsequently redeemed them, but they have not been recovered.
On 23 February 2016, using a metal object from a damaged letterbox, the appellant attempted to break into an automatic teller machine ("ATM"). He was in possession of mail from the damaged letterbox. He was arrested at the scene and was subsequently charged under s 195(1)(a) of the Crimes Act 1900 (NSW) with two counts of intentionally destroying or damaging property (the ATM and the letterbox), one count of being armed with intent to commit an indictable offence (Crimes Act, s 114(1)(a)), and larceny (of the mail) (Crimes Act, s 117).
The offences against s 195(1)(a) exposed the appellant to maximum penalties of imprisonment for 5 years; the offence against s 114(1)(a) exposed him to a maximum penalty of imprisonment for 7 years; and the larceny exposed him to a maximum penalty of imprisonment for 5 years.
Pursuant to s 6 of the Act the appellant was referred to the Drug Court in relation to the offences of 23 February 2016. On 28 April 2016 Senior Judge Dive imposed an aggregate (fixed term) sentence of imprisonment for 8 months, the execution of which, in accordance with s 7A(5)(b) of the Act, he ordered to be suspended to enable the appellant to take part in a program under the Act. This was, within s 4(1) of the Act, an "initial sentence" and came to be referred to as "the first initial sentence".
Subsequently, it appears, the appellant was charged, in relation to the events of 18 October 2015, with an offence against s 112(1)(b) of the Crimes Act, of being in a dwelling house, stealing property and breaking out. That offence is subject to a maximum penalty of imprisonment for 14 years. He was also charged with disposal of stolen property pursuant to s 188(1) of the Crimes Act, in respect of which a maximum penalty of imprisonment for 10 years is applicable. These matters, too, were referred to the Drug Court and came before Senior Judge Dive on 3 November 2016. Senior Judge Dive acknowledged that these offences had been committed before the commencement of the appellant's Drug Court program. He recorded a conviction in respect of each offence and imposed an aggregate sentence of 15 months, to be served partially cumulatively upon the previously imposed sentence of 8 months. He indicated that the effect of the accumulation would be to add 10 months to the original 8 month sentence, so that the appellant was subject to a sentence of imprisonment for 18 months. Senior Judge Dive again (in accordance with s 7A(5)(b)) ordered that execution of the sentence be suspended to permit the appellant to participate in the program he had already commenced. This sentence was called a "further initial sentence".
The appellant successfully completed the program. On 11 December 2017 he returned to the Drug Court for final sentence in accordance with s 12 of the Act.
On the offence of damaging the ATM, and the Phillip Street offence (of being in a dwelling house, stealing property and breaking out), Senior Judge Dive set aside the initial sentences and imposed, under s 9 of the Sentencing Procedure Act, a bond, a condition of which was that the appellant be of good behaviour for 9 months. He dealt with all remaining offences under s 10A of the Sentencing Procedure Act, meaning that, while he convicted the appellant, he imposed no other penalty. The orders under s 10A were a final disposal of the offences to which they related.
Nine days later, on 20 December 2017, the appellant broke into and entered the Parramatta Mosque. He spent an hour walking around the mosque, rummaging through various cupboards and shelves. He stole a number of items and damaged property. Much of his activity was captured on CCTV.
On 27 December 2017, the appellant broke into and entered a car dealership in Parramatta and stole and damaged property therein. He stole property to the value of $18,407.96.
On 10 January 2018 the appellant attended the "Wayback Drug and Alcohol Centre" at Harris Park, where he was a regular participant, under the care of a Dr Caplehorn. Dr Caplehorn provided him with a prescription for his usual medication. Two days later, the appellant presented at a pharmacy with a prescription for a different medication. The prescription was written on a form from a prescription pad that belonged to Dr Caplehorn. The appellant had himself completed the detail on the prescription form.
The s 9 bond was still current at the time of the commission of all of these offences, and their commission constituted a breach of the condition that the appellant be of good behaviour.
On 17 February 2018 the appellant was arrested and interviewed by police. He said that he had been "on a drug fuelled bender". He said that he did not know where the Parramatta Mosque was. With respect to the prescription, he said that he had been given a blank prescription form by a male (who he declined to name) and that they had agreed that he would fill out the prescription and obtain the medication which they would then share between them.
On that day the appellant was charged with:

break, enter and steal at the Parramatta Mosque (Crimes Act, s 112(1)(a), an offence carrying a maximum penalty of imprisonment for 14 years);
intentionally or recklessly damaging property valued at $12,130 at the Parramatta Mosque (Crimes Act, s 195(1)(a), carrying a maximum penalty of imprisonment for 5 years);
break, enter and steal in the Parramatta car dealership (Crimes Act, s 112(1)(a));
intentionally or recklessly destroying or damaging property at the car dealership (Crimes Act, s 195(1)(a));
receiving and attempting to dispose of property (a blank doctor's prescription) knowing it to have been stolen (Crimes Act, s 188(1), carrying a maximum penalty of imprisonment for 10 years);
making a false document (doctor's prescription) intending it to be used to induce some person to accept it as genuine and thereby to obtain property belonging to another (Crimes Act, s 253(b)(i), carrying a maximum penalty of imprisonment for 10 years);
use a false document (doctor's prescription) knowing it to be false, intending to induce some person to accept it as genuine and thereby to obtain property belonging to another (Crimes Act, s 254(b)(i), carrying a maximum penalty of imprisonment for 10 years). These may conveniently be referred to as "the additional charges".

On his arrest the appellant was taken into custody in the Metropolitan Remand and Reception Centre ("MRRC") at Silverwater. On 20 February 2018 he was escorted to the audio-visual link ("AVL") suite located within the MRRC. While in a holding yard he smashed the telephone piece of the AVL, removed a wire from it and began cutting his left forearm. On 26 February he was charged with intentionally or recklessly destroying/damaging property of NSW Corrective Services (Crimes Act, s 195(1)(a)). I will refer to this as the "Silverwater offence".
Pursuant to s 98 of the Sentencing Procedure Act, the appellant was called upon to appear before the Drug Court in relation to his breaches of the s 9 bond.
At that time, ss 98(2) and 99(1) of the Sentencing Procedure Act relevantly provided: "98 Proceedings for breach of good behaviour bond … (2) If it is satisfied that an offender appearing before it has failed to comply with any of the conditions of a good behaviour bond, a court: (a) may decide to take no action with respect to the failure to comply, or (b) may vary the conditions of the bond or impose further conditions on the bond, or (c) may revoke the bond. … 99 Consequences of revocation of good behaviour bond (1) If a court revokes a good behaviour bond: (a) in the case of a bond referred to in section 9, it may re-sentence the offender for the offence to which the bond relates, or …"

The sentencing proceedings

The appellant entered pleas of guilty to all of the additional charges. He came before Judge Barnett, a judge of the Drug Court. The relevant facts were put before Judge Barnett by way of two "Facts Sheets" prepared by police following the arrest of the appellant, and were not contested by him or on his behalf. Those Facts Sheets are the basis for the outline of the facts of the offences above.
The appellant was legally represented. He gave oral evidence, and was cross-examined. In the course of cross-examination, he claimed that he did not know that the first premises that he had broken into were a mosque.
Also before the court was a report of a psychologist, Ms Clara Fritchley. Ms Fritchley recorded a somewhat dysfunctional family history. The appellant was born in Egypt, in 1966, and was 49 years of age at the time of the first of the offences under consideration, 52 at the time of the last. He had long-standing drug issues, which accounts for his referral to the Drug Court. He had some criminal history dating back to when he was 19 years of age, but was not charged with any offences between 1995 and 2009, when he relapsed into drug use and criminality.
Judge Barnett did not deal with the appellant under s 7A, or any other provision of the Act. Rather, as permitted by s 24(1), he exercised the criminal jurisdiction of the Local Court.

The jurisdiction of the Local Court

Each offence for which the appellant was to be sentenced was an indictable offence. In s 3 of the Criminal Procedure Act 1986 (NSW) "indictable offence" is defined as: "… an offence (including a common law offence) that may be prosecuted on indictment." Chapter 5 of the Criminal Procedure Act makes provision for certain indictable offences to be dealt with summarily. Schedule 1 contains two Tables of indictable offences that may be so prosecuted. Section 259(2) provides that, subject to any provisions in Ch 5, all offences listed in Tables 1 and 2 are indictable offences (there appear to be no contrary provisions in Ch 5.)
By s 7 of the Criminal Procedure Act offences that are required or permitted to be dealt with summarily are to be dealt with in the Local Court.
Table 1 of Sch 1 identifies indictable offences that are required to be dealt with summarily unless either the prosecution or the accused person elects to have them dealt with on indictment (s 260(1)); Table 2 identifies offences required to be dealt with summarily in the Local Court unless the prosecution elects to have them dealt with on indictment (s 260(2)). Included in Table 1 are offences against s 112(1) of the Crimes Act (break, enter and commit any indictable offence) where the value of the property the subject of the indictable offence does not exceed $60,000, and offences against s 195 (destroying or damaging property) where the value of the property involved exceeds $5,000.
By s 267(2) and s 268(1A) of the Criminal Procedure Act the maximum term of imprisonment that the Local Court may impose for offences listed in either Table 1 or Table 2 of Sch 1 is 2 years or the maximum term provided for the offence, whichever is the shorter.
Each of the offences with which the appellant was charged was an offence listed in either Table 1 or Table 2 and carried a maximum term longer than 2 years. Accordingly, the maximum sentence that, exercising the jurisdiction of the Local Court, Judge Barnett could have imposed with respect to any individual offence was imprisonment for 2 years.
However, s 53A(1) of the Sentencing Procedure Act permits a court, when sentencing an offender for more than one offence, to impose an aggregate sentence with respect to all or two or more of the offences. By s 53A(2)(b) the court must indicate the sentence that would have been imposed for each offence had individual sentences been imposed instead of an aggregate sentence.
Section 53B provides: "For the avoidance of doubt, the Local Court may impose an aggregate sentence of imprisonment that does not exceed 5 years."

The sentencing decision

In light of the issues raised on the appeal, it is necessary to refer to some observations and findings made by Judge Barnett in the final sentencing decision on 29 June 2018. The first concerns the evidence given by the appellant, in cross-examination, that he did not know that the premises which he broke and entered on 20 December 2017 were a mosque. Judge Barnett was, at least, sceptical about this evidence, saying: "I find it very difficult to accept the offender's evidence that he did not know the premises were a mosque, particularly given the amount of time he was in those premises."
The judge quoted at some length from the psychologist's report. He acknowledged the appellant's early pleas of guilty and said: "Now the offender pleaded guilty at an early opportunity and confirmed those pleas at the sentencing hearing and he was convicted of all the matters then and I will take this plea into account as a sign of the offender's contrition and as having a high utilitarian value." He did not quantify any reduction attributable to the pleas of guilty in the indicative sentences.
He twice observed that the appellant obtained "a substantial benefit" by having the matters dealt with in the exercise of the Local Court jurisdiction, having regard to the maximum penalties provided and the two year jurisdictional limit of the Local Court. He then said: "So I intend, in relation to these two matters [the Parramatta Mosque offences], to indicate a sentence in each case at the maximum of jurisdiction."
Although he did not expressly, under s 98(2)(c) of the Sentencing Procedure Act, revoke the s 9 bond, Judge Barnett did so by implication. On the two offences the subject of the bond (the ATM and the Phillip Street offences), under s 99(1)(a) of the Sentencing Procedure Act, he resentenced the appellant. Pursuant to s 53A of the Sentencing Procedure Act, he imposed an aggregate sentence of imprisonment for a fixed term of 6 months commencing on 14 December 2017. Pursuant to s 53A(2)(b) he indicated that, if sentencing for the two offences separately, he would have imposed, on the offence of damaging the ATM, a sentence of imprisonment of 4 months, and, on the Phillip Street offence, a sentence of imprisonment for 6 months.
On the additional charges (those committed after the completion of the drug program) and the Silverwater offence, Judge Barnett imposed an aggregate sentence of imprisonment for 4 years with a non-parole period of 2 years and 6 months commencing on 17 February 2018. He again, in compliance with s 53A(2)(b), specified the separate sentences that he would have imposed. In respect of each of the two offences committed at the Parramatta Mosque (break, enter and steal, and damage property) he indicated sentences of imprisonment for 2 years. This equated to the maximum sentence he could have imposed if sentencing separately for the offences. In relation to the Silverwater offence, he indicated a sentence of imprisonment for 12 months. In relation to the five remaining offences he indicated sentences of imprisonment for 18 months. There is thus, in the aggregate sentence imposed in relation to these offences, a very significant degree of concurrence.

The appeal

By a combination of ss 5AA(1) and 5AF(1) of the Criminal Appeal Act an appeal from the sentences lies as of right. An issue arose, however, concerning the constitution of the Court.

The constitution of the Court

At the outset, counsel for the Crown contended that s 5AF(3)(b) requires that, in the present circumstances, the Court is to be constituted by a single judge. Section 5AF(3) provides: "5AF Appeals by offenders against sentences imposed by the Drug Court … (3) The power of the Court of Criminal Appeal to hear and determine an appeal under this section is to be exercised- (a) in relation to an appeal against a sentence for an indictable offence - by such 2 or 3 judges of the Supreme Court as the Chief Justice may direct, or (b) in relation to an appeal against a sentence for a summary offence - by such single judge of the Supreme Court as the Chief Justice may direct unless the judge, on the application of either party or of his or her own motion, considers that the appeal raises matters of principle or it is otherwise in the interests of justice for the appeal to be dealt with by the full Court of Criminal Appeal and notifies the Chief Justice accordingly, in which case the appeal is to be heard and determined by such 3 or more judges of the Supreme Court as the Chief Justice may direct. …"
Underlying the contention was the proposition that the offences with respect to which the appellant was sentenced were summary offences. The underlying proposition is incorrect. It places an incorrect construction on the term "summary offence" as distinct from "indictable offence". Chapter 5 of the Criminal Procedure Act, it will be recalled, provides for the summary disposal, by the Local Court, of indictable offences.
As mentioned above, by s 3 of the Criminal Procedure Act an "indictable offence" is an offence (including a common law offence) that may be prosecuted on indictment. A "summary offence" is an offence that is not an indictable offence - that is, an offence that may not be prosecuted on indictment.
Section 6 identifies offences that must be dealt with summarily. These include offences for which the maximum penalty that may be imposed is not, and does not include, imprisonment for more than 2 years; excluded from that are, relevantly, offences listed in Table 1 and Table 2 of Sch 1 of the Criminal Procedure Act, that expressly are able to be prosecuted summarily but are indictable offences.
Each of the offences for which the appellant was sentenced appears in either Table 1 or Table 2 of Sch 1. Each is, therefore, an indictable offence, and, by s 3, not a summary offence. By s 5AF(3)(a) of the Criminal Procedure Act, the jurisdiction of this Court is to be exercised by such two or three judges as directed by the Chief Justice. That is the Court as presently constituted.

The grounds of appeal

The appellant was not legally represented on the appeal. He prepared and filed written submissions and presented oral argument. His written submissions identified four grounds of appeal.

Ground 1

Ground 1 is expressed as follows: "The sentencing Judge erred in his application of the sentences in sequences 7 & 8 [these were the two Parramatta Mosque offences] with reference to sequences 9 & 10 [these were the Parramatta car dealership offences], considering the offences in sequence 9 and 10 are more aggr[a]vated."
The appellant made two points in relation to this ground. The thrust of the first, as I understand it, was that the indicated sentence (2 years) for the break and enter offence at the mosque was "not justified by the facts". He supported his submission by reference to the value of the property stolen, which, he said, was $3,120. He contrasted this with $60,000, a figure drawn from Table 1 of Sch 1 to the Criminal Procedure Act, identifying as an indictable offence to be prosecuted summarily (if no contrary election is made by either party) offences of the kind in question where the value of the property involved is $60,000 or less. The point he sought to make was that an offence involving the theft of property to the value of $3,120 was well below the threshold that would have required the offence to be dealt with on indictment.
Two responses may be made to this submission. The first is that there was no evidence of the value of the property taken from the mosque. There was nothing in the Facts Sheets presented to the court to that effect. The figure of $3,120 was drawn from the Court Attendance Notice which attributed that value to the property stolen from the mosque. That, it may be accepted, represents what the appellant pleaded guilty to. In the absence of an agreed or proved fact that the property was of greater value, that ought to be treated as the value of the property stolen. The appellant is correct in asserting that the value of the property involved in that offence fell well short of the upper limit of the value of property that brings a s 112(1) offence within Table 1 and therefore able to be prosecuted summarily.
The value of the property stolen, however, is only one consideration in the assessment of the objective seriousness of the offence, and of the appropriate penalty to be imposed. It is not, of itself, sufficient to denote that the indicative sentence was excessive.
The second point made by the appellant under Ground 1 drew attention to what he called the "disparity" between the individual sentences indicated in relation to the break and enter offence at the Parramatta Mosque, and the break and enter offence at the car dealership. The value of the property stolen from the car dealership was stated in the Facts Sheets, and exceeded $18,000. The appellant contrasted that with the $3,120 value attributed to the property stolen from the mosque.
In respect of the mosque offence, a sentence of 2 years was indicated; in respect of the car dealership offence, a sentence of 18 months was indicated. The appellant argued that, since the offences were "the same in nature", the variation, or disparity, in the indicated sentences, having regard to the value of property stolen, could not be explained or justified. The mosque offence should have been treated as less serious than the car dealership offence.
Up to this point, the proposition may be accepted. But (although he did not so state) it was open to Judge Barnett to take the view that breaking into and stealing from a place of worship is an offence of greater seriousness, and one calling for greater punishment, than breaking into and stealing from commercial premises.
The salient response to the appellant's submissions is, however, that the appeal is against the aggregate sentence imposed; no appeal lies against an indicated sentence. That is not to say that, in some circumstances, indicated sentences may not expose error in the aggregate sentence, or in the sentencing exercise by which it is reached. That arises under Ground 2 of the appeal.
I am not able to conclude that the "disparity" in the indicated sentences in respect of these two offences points to any error in the aggregate sentence. I would reject Ground 1 of the appeal.

Ground 2

Ground 2 of the appeal is formulated as follows: "The sentencing Judge erred in his application of the sentences under the parameters of jurisdiction allocated to the Local Court." The ground as formulated is not self-explanatory.
The argument propounded by the appellant on this ground was directed to the indicated sentences of 2 years in respect of the two charges arising out of the Parramatta Mosque offences. The interesting (and, to me, ultimately persuasive) argument was that, since those indicated sentences were (and were expressly intended to be) set at the maximum of the Local Court jurisdiction, in the context in which they were stated, the indicated sentences must have exceeded jurisdiction. That was because they incorporated some reduction in recognition of the appellant's pleas of guilty.
The appellant's argument proceeded under the misapprehension that the indicated sentences were sentences "imposed". That betrays a misunderstanding of the effect of s 53A of the Sentencing Procedure Act and the nature of aggregate sentencing. However, as was accepted in the Crown's submissions, error in the approach to indicated sentences may point to error in the (aggregate) sentence ultimately imposed.
To explain why, in my opinion, Ground 2 should succeed it is necessary to state some preliminary matters, some of which will be repetitive: 1. Judge Barnett was exercising the jurisdiction of the Local Court; 2. each of the Parramatta Mosque offences was an indictable offence, and each was contained in Table 1 of Sch 1 of the Criminal Procedure Act, meaning that it was required to be dealt with summarily unless an election to the contrary was made by either the prosecution or the appellant; 3. in respect of each offence, by reason of s 267(2) of the Criminal Procedure Act, the maximum sentence that could have been imposed in the exercise of Local Court jurisdiction was imprisonment for 2 years.
Section 22 of the Sentencing Procedure Act obliges a sentencing court, when sentencing for an offence to which an offender has pleaded guilty, to take into account the fact of the plea of guilty, and the timing and the circumstances in which the offender indicated an intention to plead guilty, and empowers the court to impose a lesser penalty than it otherwise would have imposed. Section 22 does not oblige the court to reduce the sentence it otherwise would impose; but, by subs (2), a court that does not do so must so indicate to the offender and make a record of its reasons for not doing so. The precise terms of s 22(1) are important. They are: "(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account - (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and (c) the circumstances in which the offender indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed." (italics added)
By subs (1A), a lesser penalty imposed under s 22 must not be unreasonably disproportionate to the nature and circumstances of the offence.
It is preferable, although not mandatory, that the court quantify the reduction in sentence: R v Shenton [2003] NSWCCA 346; R v Grbin [2004] NSWCCA 220; Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4.
The reduction should generally be in the range of 10-25%, depending on the circumstances, particularly the utilitarian value of the plea, to which the most useful guide is the point of time in the proceedings in which the plea was signalled or entered: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309.
It is now well established that, where a court is sentencing under s 53A of the Sentencing Procedure Act (that is, imposing an aggregate sentence), the s 22(1) reduction in sentence (commonly referred to as a "discount") is to be applied, not to the aggregate sentence, but to the indicated (or "indicative") sentence: Elsaj v R [2017] NSWCCA 124; PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61; Berryman v R [2017] NSWCCA 297.
In Berryman this Court (Leeming JA, Bellew and Lonergan JJ) discussed the various decisions to this effect, together with a contrary view expressed by Basten JA in PG, and endorsed the prevailing view: [29]-[31]. For present purposes, it cannot be doubted that it is the indicated sentences that must (if a s 22 reduction is to be applied) be reduced.
In this case the judge did not quantify the reduction he allowed to the appellant in respect of any of the offences, including the Parramatta Mosque offences. But his statement of his intention to take the pleas into account as a sign of contrition and, particularly, as "having a high utilitarian value" should be taken as an indicator that he intended to allow such a reduction and that that reduction would be at, or towards, the top of the R v Thomson; R v Houlton range, that is, 25%. (In fact, given that the indicated sentences were at the top of the sentencing jurisdiction, quantification is of little importance.)
Both s 22(1) and s 53A of the Sentencing Procedure Act refer to the sentence[s] "that [the court] would otherwise have imposed" (s 21) and "the sentence that would have been imposed" (s 53A). That leaves no opportunity, where a sentence reduction is to be allowed, for sentencing at the maximum of the jurisdictional limit. To do so would mean that the sentence that the court "would otherwise have imposed" (for the purposes of s 22(1)) was beyond the jurisdiction of the court when exercising Local Court jurisdiction.
For the purposes of s 53A of the Sentencing Procedure Act, the indicated sentences are those "that would have been imposed for each offence"; by reason of the pleas of guilty they are reduced from those which "would have been imposed" (s 53A(2)). It follows that the sentences that "would have been imposed" (for the purpose of s 53A) for those offences were longer than 2 years, that is, in excess of the 2 year jurisdictional limit applicable in the Local Court.
To put it another way, perhaps more clearly: the sentences that would have been imposed for the purposes of s 53A included a reduction, for the purposes of s 22(1), in the sentences "that [the court] would otherwise have imposed". Since the sentences that "would have been imposed" (had an aggregate sentence not been imposed) were at the outer limit of the jurisdiction of the Local Court, a reduction for the purposes of s 22(1) meant that the sentences that "would otherwise have been imposed" but for that reduction exceeded the jurisdictional limit.
It might have been otherwise had the judge considered that, to allow a reduction under s 22(1) would result in "unreasonably disproportionate" sentences as contemplated by s 22(1A) and determined that he would not therefore reduce the sentences. But the statement in the sentencing decision contradicts any proposition that that is what he did. He stated a clear intention to allow a reduction, and to impose a lesser sentence than he otherwise would have.
As I have already emphasised, no appeal lies against the indicated sentences. But the indicated sentences perform an important role in the sentencing exercise, and provide transparency in the selection of the aggregate sentence imposed. Although the error affected only two out of the eight indicated sentences in relation to this aggregate sentence, they expose a fundamental jurisdictional error in the sentencing process. The sentences that would have been imposed exceeded the jurisdiction of the Local Court.
These reasons were prepared before the publication of the judgments of this Court in Park v R [2020] NSWCCA 90. The issues that there arose and were determined are essentially identical to those I have discussed above. The majority of the court came to a conclusion contrary to that which I have expressed above.
While I retain my preference for a literal approach to the construction of s 22(1) and s 53A of the Sentencing Procedure Act, a preference I share with Fullerton J, convention dictates that that preference yield to the precedent resulting from the majority judgments in Park and the authorities that provide the foundation for those judgments. In particular, I accept and adopt the reasons given by the Chief Justice at [33] for not departing from earlier authorities. See also, in a different context, the judgment of Spigelman CJ in R v Togias [2001] NSWCCA 522; 127 A Crim R 23 at [13]-[17].
Absent the authority of Park I would have upheld this ground of appeal. Adherence to precedent demands a contrary conclusion. Ground 2 must be rejected.

Ground 3

Ground 3 was expressed as follows: "The sentencing Judge erred in his failure to accept the testimony of the appellant regarding his knowledge of the premises being that a mosque where the evidence and facts support otherwise."
In his written submissions the appellant referred to the Facts Sheet prepared by police and provided as part of the Crown material on sentence. Recorded therein was a statement attributed to the appellant that he did not know where there was a mosque in Parramatta. When shown CCTV footage of the mosque, he acknowledged his presence. (That was not an acknowledgment that he knew the nature of the premises before he broke in.)
The appellant also referred to submissions made on his behalf in the sentencing proceeding, in which it was said by his solicitor that the address of the mosque was known to him (the solicitor) but that: "it's a mere doorway without signage, and your Honour, you'd have to have special knowledge, your Honour, to know that it's a prayer place."
In oral argument, the appellant repeated his reliance on his earlier statement to police that he did not know where there was a mosque in Parramatta. His assertion did not gain added weight by repetition.
It was open to the judge to reject the appellant's evidence that he did not know that the premises into which he had broken were a mosque. It is significant that he reached the view that he did, not by reference to the external appearance of the premises, but by reference to the time in which the appellant was inside. The effect of the finding was that, even if the appellant had not known the nature of the premises when he first broke in, he must, during the hour or more that he remained therein, have come to that knowledge.
I would reject this ground of appeal.

Ground 4

Ground 4 is expressed as follows: "Finally it is my contention that the judge did not take into account the PSYCHOLOGIST report."
I would reject this ground. It is only necessary to return to the reasons given by Judge Barnett. He made extensive reference to the psychologist's report and quoted from it at some length. There is no substance in the fourth ground of appeal and I would reject it.
The order I propose is: 1. The appeal is dismissed.
R A HULME J I agree with Simpson AJA that Grounds 1, 3 and 4 must be rejected for the reasons her Honour has provided.
I agree that Ground 2 must also be rejected but, as part of the majority of the Court in Park v R [2020] NSWCCA 90, I adhere to the views I expressed there. It follows that I am not of the view that there was any "fundamental jurisdictional error in the sentence process" as her Honour has described.
I agree with the order proposed.

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: 12 June 2020

(Crimes (Sentencing Procedure) Act 1999(NSW)

Hanna v R

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