Hanna v R

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.