No Stay of the Publication Order
32A question as to the Court's power to grant a stay in respect of the publication order was also highlighted by the application.
33I reject the argument by Mr Harris that the making of the publication order, insofar as the order stated that (at [178(6)]) Mr Harris "at his own expense" was to place a notice in the form attached to the judgment in the publications specified, meant that the publication order was an order "to pay money as a penalty" for the purpose of r 15 of the Criminal Appeal Rules.
34True it is that in order for the notice to be placed in the publications specified, money would have to be paid by Mr Harris in order to effect this outcome. But compliance with the order is achieved by the placing of the notice in the publications; compliance is not achieved merely by the payment of money by him. The order was not, therefore, one that can be properly characterised as an order "to pay money as a penalty". Rule 15 of the Criminal Appeal Rules does not apply.
35The prosecutor submitted that the Court of Criminal Appeal could not entertain an appeal against the publication order because it was not a "sentence" within the meaning of that Criminal Appeal Act, and therefore, this Court had no power to grant a stay in respect of an order against which no appeal lay.
36Section 2(1) of the Criminal Appeal Act defines "sentence" to mean:
"Sentence" means:
(a) any order made by the court of trial on convicting a person of an offence, including:
(i) any sentence of imprisonment (including any sentence of imprisonment the subject of an intensive correction order or home detention order and any sentence of imprisonment whose execution is suspended), and
(ii) any community service order, and
(iii) any good behaviour bond, and
(iv) any fine,
imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999, or
(b) any order made by the court of trial in respect of a person under section 10 or 11 of the Crimes (Sentencing Procedure) Act 1999 on finding the person guilty of an offence, or
(c) any order made by the court of trial in respect of a person under section 12 or 17A of the Crimes (Sentencing Procedure) Act 1999 on convicting the person of an offence, or
(ca) any order made by the court of trial, after a person's conviction for an offence, revoking a good behaviour bond and any order made by the court of trial as a consequence of the revocation of the good behaviour bond, or
(d) any order made by the court of trial imposing a limiting term of imprisonment on a person under section 23 (1) of the Mental Health (Forensic Provisions) Act 1990, and any other order or penalty made or imposed by the court of trial in respect of the person under section 23 (2) of that Act, or
(e) any order made by the court of trial in respect of a person under section 39 of the Mental Health (Forensic Provisions) Act 1990, or
(f) any direction for compensation made by the court of trial in respect of a person under section 94 (Directions for compensation for injury) or 97 (Directions for compensation for loss) of the Victims Rights and Support Act 2013, or
(g) any order for restitution made by the court of trial in respect of a person under section 43 of the Criminal Procedure Act 1986, or
(h) any order for the payment of costs made by the court of trial in respect of a person under Division 3 of Part 5 of Chapter 4 of the Criminal Procedure Act 1986, or
(i) any child protection registration order made under section 3D of the Child Protection (Offenders Registration) Act 2000, or
and the power of the Court of Criminal Appeal to pass any such sentence includes power to make any such order or direction.
37Appeals in criminal cases dealt with by the Supreme Court in its summary jurisdiction are dealt with under s 5AA of the Criminal Appeal Act. That provision relevantly states:
5AA Appeal in criminal cases dealt with by Supreme Court or District Court in their summary jurisdiction
(1) A person:
(a) convicted of an offence, or
(b) against whom an order to pay any costs is made, or whose application for an order for costs is dismissed, or
(c) in whose favour an order for costs is made,
by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.
38Section 5AB of that Act provides:
5AB Appeal in criminal cases dealt with by Land and Environment Court in its summary jurisdiction
Section 5AA applies to and in respect of a person:
(a) convicted of an offence, or
(b) against whom an order to pay costs is made, or whose application for an order for costs is dismissed, or
(c) in whose favour an order for costs is made,
by the Land and Environment Court in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA (1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to the Land and Environment Court.
39Accordingly, by reason of s 5AB, s 5AA applies to an appeal to the Court of Criminal Appeal from a decision of this Court in its summary jurisdiction.
40Part 2 of the Crimes (Sentencing Procedure) Act 1999 ("the CSPA") applies to "Penalties that may be imposed". These penalties relevantly concern custodial sentences (Div 2), non-custodial alternatives (Div 3), fines (Div 4) and non-association and non-association and place restriction orders (Div 4A). The Part does not expressly refer to publication orders.
41An issue arises, therefore, whether the words "imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999" in paragraph (a) to the definition of "sentence" in s 2(1) of the Criminal Appeal Act, are words of limitation that exclude the publication order from the definition of "sentence" in that Act. If so, it is arguable that the Court of Criminal Appeal has no power to entertain an appeal against the making of the publication order.
42Again, neither party were able to assist the Court in the resolution of this question by the provision of any relevant authorities.
43Although, as is apparent from the reasons below it ultimately does not matter, I am inclined to accept the submission of the prosecutor that a publication order does not fall within the definition of "sentence" in the Criminal Appeal Act.
44Commencing with the text of the definition of that term in s 2(1) of the Criminal Appeal Act (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]; Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469 at [14]; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39]; Certain Lloyd's Underwriters Subscribing to Contract No 1H00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131 at [23], [40], [68] and [88]; Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal [2012] HCA 36; (2012) 243 CLR 379; X7 v Australian Crime Commission [2013] HCA 29 at [25] and Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179 at [22]-[23]), the examples given in subparagraphs (i) to (iv) of the definition appear to be illustrations of the orders that may be made by the court at first instance that are imposed under Pt 2 of the CSPA. Deleting that subordinate clause from the definition of "sentence" results in a definition that can only be construed as being restricted to "any order made by the court of trial on convicting a person of an offence...imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999". This, as stated above, does not include a publication order.
45A contextual analysis of the definition of "sentence", having regard to the scope and purpose of both the Act, ss 5AA and 5AB and the definition of the term (Alcan at [47]; Cross at [23]-[24]; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 quoted in Baini at [42]), does not derogate from this view insofar as the further meanings given to the term in paragraphs (b) to (i) of the definition are careful to refer only to orders made under the criminal legislation expressly referred to therein. In my view, no objective legislative intention is evinced permitting a more inclusive and plenary definition of that term. Rather, the term "sentence" is to be construed exclusively in terms of the orders made under the stipulated enactments.
46But in my opinion this is not necessarily the end of the matter. The making of a publication order can be considered to be an aspect of the sentence imposed on a defendant such that it is embedded in the quantification of the nominated fine. In order for the Court to consider whether or not the penalty imposed on Mr Harris is manifestly excessive (ground 16 of the draft grounds of appeal), the publication order must therefore be regarded as an element of the fine, and, albeit indirectly, is accordingly amenable to review by way of appeal under s 2(1)(a)(iv) of the Criminal Appeal Act as part of any review of the fine. Were it otherwise, the Court of Criminal Appeal would not be able to properly form the opinion under s 6(3) of the Act that some other sentence, whether more or less severe, was warranted in law and should have been passed.
47Consequently, I do not accept the prosecutor's submission that this Court has no power to stay the making of the publication order on the ground that the Court of Criminal Appeal has no jurisdiction to entertain an appeal against the making of the publication order.
48It is therefore unnecessary for me to determine whether an alternative power resides in this Court to stay the publication order pursuant to s 23 of the Land and Environment Court Act 1979, or to extend the time for compliance with the order until after the determination of the appeal, in the manner carried out in Tauszik, pursuant to either r 36.5 of the UCPR or r 7.3 of the LEC Rules.
49In any event, adopting the reasons below, I would be disinclined to extend the time even if I am wrong in my conclusion that the Court has the power to stay the operation of the publication order.
50Mr Harris relied on an affidavit sworn by him on 12 August 2013, in which he stated that if he was required to comply with the publication order before the appeal was determined "it would have an adverse impact on my reputation, which will render any appeal against that order nugatory".
51In response, the prosecutor relied on two affidavits by Mr James Weavers, affirmed 14 and 22 August 2013, respectively. Mr Weavers is a paralegal employed in the Crown Solicitor's Office of New South Wales who has assisted with the carriage of this matter on behalf of the prosecutor.
52In his first affidavit, Mr Weavers deposed that had Mr Harris sought to comply with the publication order, the relevant notice directed by the Court to be published would have had to have been provided to The Land by 9 August 2013 and the The Riverine Grazier by 12 August 2013. That is to say, prior to the application to the duty judge made on 14 August 2013.
53In his second affidavit Mr Weavers deposed that enquiries had been made revealing that, as a consequence of publicity surrounding the conviction and sentence of Mr Harris, articles about the decision had appeared in The Weekly Times (with an estimated circulation of 168,000 readers), The Daily Advertiser (with an average weekly readership of 162,000 people) and the Cowra Community News (with an average weekly readership of 2,000 to 3,000 people). Copies of these articles were attached to Mr Weavers' second affidavit. It is fair to say that they reflected adversely on Mr Harris.
54More problematic, the articles appearing in The Daily Advertiser and the Cowra Community News appeared to be based on a media release from the NSW Department of Primary Industries dated 19 July 2013, which contained several inaccuracies that were contrary to findings made in the judgment. These were: first, that the offence was committed at a time of a severe water shortage; and second, albeit by way of imputation, that Mr Harris had tampered with the meter for the purpose of stealing water. Both are wrong.
55As a consequence of the publication of the judgment on the internet and the publication of these articles, the prosecutor submitted that Mr Harris' reputation had already suffered damage, and therefore, that a refusal to stay the publication order would not render nugatory the subject matter of the appeal.
56In response to the material contained in Mr Weavers' affidavits, Mr Harris submitted that:
(a)first, it could not be assumed that the published articles would reach the same audience as The Land and The Riverine Grazier. Therefore, further harm to Mr Harris' reputation would occur by reason of compliance with the publication order;
(b)second, because the notice the subject of the publication order was in the form of a Court order, it would carry more weight in the eyes of the public than the content of the articles published to date and therefore be potentially more damaging; and
(c)third, compliance with the publication order would only serve to perpetuate the factual errors in the media release repeated in, and reinforced by, the published articles.
57I do not accept, as a matter of inference, the latter two submissions made by Mr Harris. If anything, the publication of the Court ordered notice would assist in correcting the errors contained in the published articles insofar as there is neither a mention of a severe water shortage at the time of the commission of the offence, nor is a reason given for Mr Harris' commission of the offence.
58In respect of the first reason, I found the evidence given by Mr Weavers in his second affidavit to be persuasive. While I accept that it cannot be assumed that the readership of the various publications is the same, it is nevertheless clear that harm to Mr Harris' reputation has in all likelihood already been inflicted.
59Mindful of the factors contained in Alexander and subsequent authorities, the Court refuses to exercise its discretion to grant a stay of the publication order. This is because:
(a)first, Mr Harris agreed that there ought to be an advertisement, the only matter of controversy being that he sought the inclusion of the additional sentence explaining his reason for committing the offence. Although I am prepared to find that at least some of the proposed grounds of appeal are arguable, I do not accept that Mr Harris' prospects of success on appeal are such that the Court of Criminal Appeal will quash the making of the publication order in its entirety. The best outcome that Mr Harris can hope for is the inclusion of the additional sentence in the notice, which is unlikely to repair the reputation damage caused by the commission of the offence to which, it must be recalled, Mr Harris has pleaded guilty;
(b)second, it follows that the subject matter of the appeal will not be rendered nugatory if no stay of the publication order is granted. Having said this, it must be acknowledged that no prejudice would flow to the prosecutor if a stay of the order was granted; and
(c)third, in my opinion, the public interest warrants compliance with the publication order insofar as the order is necessary to achieve the required element of general deterrence, which is an aspect of Mr Harris' punishment (Environment Protection Authority v Pannowitz [2005] NSWLEC 175 at [69]).
60Finally, I note that although Mr Harris did not act to place the notices in the specified publications in the time required by the order, I accept his explanation for not doing so, namely, that he needed to obtain advice, including advice from senior counsel, as to the prospects of successfully appealing the sentence and, it may be presumed, obtaining a stay of the orders.