(2014) 245 A Crim R 351
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
[1992] HCA 29
Muldrock v The Queen (2011) 244 CLR 120
[2011] HCA 39
Putland v The Queen (2004) 218 CLR 174
[2004] HCA 8
R v Cramp [2004] NSWCCA 264
R v Loewenthal
Source
Original judgment source is linked above.
Catchwords
(2014) 245 A Crim R 351
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146[1992] HCA 29
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39
Putland v The Queen (2004) 218 CLR 174[2004] HCA 8
R v Cramp [2004] NSWCCA 264
R v LoewenthalEx parte Blacklock (1974) 131 CLR 338[1974] HCA 36
R v Murphy (1985) 158 CLR 596[1985] HCA 50
R v Oti (1990) 19 NSWLR 561
R v Yates (1991) 102 ALR 673(1991) 56 A Crim R 29
Solomons v District Court of New South Wales (2002) 211 CLR 119[2002] HCA 47
Williams v The King (No 2) (1934) 50 CLR 551
Judgment (7 paragraphs)
[1]
The applicant accepted that any leave to appeal is in relation to the aggregate sentences and not the indicative sentences. However, it was submitted that the indicative sentences can reveal error in relation to the aggregate sentences.
[2]
Determination
In relation to all of the sequences on the table the starting point is that the maximum penalty for each offence was 14 years' imprisonment and in relation to all but sequence 15, there was a standard non-parole period of seven years. Only in respect of sequence 62 was there an indicative sentence that equalled or exceeded the standard non-parole period. In every case the indicative non-parole period lay below the standard non-parole period. Sequence 62 had two further counts of sexual intercourse without consent on a Form 1. The offending was determined to be objectively serious.
The starting points for all of the indicative sentences were entirely consistent with the assessment of objective seriousness, although some might be considered to be lenient. The majority of the sequences in the table had Form 1 documents attached, with one or more additional offences taken into account. In relation to sequences 57, 60, 62 and 65, the Form 1 offences were all further instances of sexual intercourse without consent. Sequences 41 and 42 involved penile vaginal intercourse to ejaculation. Sequence 55 involved anal intercourse to ejaculation. All acts of oral intercourse resulted in the applicant ejaculating into the mouths of the victims. Some of the acts of intercourse involved force being applied to the victims.
The applicant coerced and deceived the victims, sometimes threatening them, sometimes overbearing their wills and vitiating their consent. In most cases there was planning and repetition of behaviour for the sexual pleasure of the applicant.
It cannot be said that any of the indicative sentence starting points were not open to her Honour when regard is had to all of these matters. Indeed, counsel for the applicant accepted at the hearing of the appeal that she could not submit that the indicative sentences were not within the sentencing judge's discretion, nor could she submit that the indicative sentences were outside the appropriate range. Those starting points do not indicate any error in relation to the aggregate sentences imposed for the various groups of offences.
I would reject this ground.
[3]
Ground 6: Her Honour imposed a sentence that was manifestly excessive, and a lesser sentence is warranted at law.
[4]
Submissions
The applicant submitted that the overall effective sentence and the partial accumulation of the sentences was disproportionate to the offending and is a crushing sentence that will leave him with a sense of hopelessness and will destroy any expectation of a useful life after release. The applicant submitted that he was young man, and will be ineligible for release until he is aged approximately 43. He submitted that in that way the sentence is unreasonable or plainly unjust.
[5]
Determination
The principles relevant to the finding of manifest excess are well known and do not need to be restated. They have recently been set out in a number of cases including Hughes v R [2018] NSWCCA 2 at [86] and Kerr v R [2016] NSWCCA 218 at [113]-[114].
The offending took place over a period of almost ten years. There were 14 different victims. From December 2011 the applicant was a serving police officer. The planning for many of the offences was extensive. The applicant deceived his victims and overbore their wills. His behaviour was coercive and predatory. It was all done for his sexual pleasure. Blackmail was involved in most of the offences.
The maximum penalties for the offences and the standard non-parole periods were required to be considered. The total of the indicative sentences was almost 70 years' imprisonment. It is apparent from the way her Honour structured the sentences that there was a very substantial degree of concurrence of the individual sentences and the indicative sentences.
Her Honour specifically adverted to the applicant's relatively young age, and to the need to avoid a crushing sentence. She said:
The offender is now aged 30 almost 31, and as I have said has been in custody on remand since 31 May 2017. He is still young, therefore, and as general principle is open to be rehabilitated. The sentence imposed on him should not be so crushing that it prevents him from taking advantage of whatever might be available in the prison system while he serves the balance of his non-parole period, so that he emerges in a rehabilitated state.
Her Honour also considered at length the fact that the applicant's time in custody would likely be spent on some form of limited association or protection, and she considered that would be more onerous for him.
Nothing in the applicant's subjective features excused or even explained his offending in an exculpatory way, or in any way which modified or reduced his moral culpability. Her Honour accurately summarised the position concerning his offending in her Remarks when she said:
He abused his position as a police officer. He abused the trust of his friends. He abused the trust of his partners. He abused the trust of the friends of his partners. He used multiple identities. He created multiple identities. He did all of this for no other reason than to engage in sexual behaviour. The sentences must send a very strong message of general deterrence. He also needs a sentence which reflects a degree of specific deterrence. He must be punished for this appalling behaviour over a period of ten years, and be denounced. The denunciation is even more important in relation to those offences committed by him when he was a serving police officer. There is a saying that "..from those to whom much is given, much is expected." That applies to those in positions of authority, like police officers. Much is expected of those to whom much is given. He failed, miserably, in that regard and he failed as a human being in the way he treated, abused, manipulated and callously dealt with all of the victims of these offences.
When regard is had to all of these matters, it cannot be said that the overall effective sentence, or any of the sentences, individual or aggregate, are plainly unjust or unreasonable.
I would reject this ground.
[6]
Conclusion
Strictly speaking, error has only been demonstrated in relation to the sentences for sequences 27, 37 and 55, being the sequences which had Commonwealth offences taken into account on a Form 1 document. However, it will be necessary for the Crown to consider how those Form 1 offences, being sequences 25, 36 and 52 should now be dealt with. They will need to be attached to one of the sequences where a Commonwealth offence was the principal offence. That in turn will impact on the sentence or sentences in respect of those sequences. In the circumstances, the better course is to allow the appeal and to quash all the sentences generally to give the sentencing judge the maximum flexibility in the resentencing exercise.
Although the sentences in relation to sequences 1, 20 and 21 have expired, it is appropriate that the judge who re-sentences the applicant has maximum flexibility to do so. It is also appropriate that the sentences for all the offences should be imposed at the one time.
It would obviously be desirable for the matter to be remitted to Judge Tupman, who was entirely conversant with the detail of the material. However, it will be for the District Court to determine arrangements for the re-sentencing exercise.
Accordingly, I propose the following orders:
Leave to appeal granted.
Appeal allowed.
Quash the sentences imposed by Judge Tupman in the District Court on 27 September 2019.
Remit the proceedings to the District Court for sentence.
GARLING J: I agree with the orders proposed by Davies J and with his reasons for those orders. The following remarks are in addition to the reasons of Davies J.
This application for leave to appeal, seeks an order that this Court quashes the sentences imposed on the applicant by Tupman DCJ, and then to remit the matter to the District Court so that the applicant can be sentenced again.
In the complex and most difficult sentencing judgment with which Tupman DCJ was confronted, as the judgment of Davies J clearly shows, the applicant has no, and could not have any, grounds for any successful complaint about the sentences which were actually imposed. That is except for the error of law dealing with whether three Commonwealth offences could be taken into account by the sentencing Judge using the NSW Form 1 procedure when imposing sentences for NSW offences.
Two of the three Commonwealth offences taken into account were for conduct contrary to s 474.17(1) of the Criminal Code 1995 (Cth) namely, using a carriage service to menace harass or offend. These offences carry a maximum penalty of three years imprisonment. The third offence was for conduct contrary to s 474.19(1) of the Criminal Code namely, using a carriage service to solicit child pornography which carries a maximum penalty of 15 years.
The principal offences to which these three offences were (wrongly) attached were for conduct contrary to s 61I of the Crimes Act 1900 (NSW). That offence carries a maximum term of 14 years imprisonment with a standard non-parole period of 7 years.
On the basis of the agreed facts which were tendered to the sentencing judge, the three Commonwealth offences were of much less seriousness than the principal offences to which they were attached.
Having regard to the complexity of the sentences which were imposed, the way in which the sentencing judge aggregated some but not all of the sentences, and the way in which Her Honour assessed concurrency and, in particular, the totality of the applicant's criminality, I very much doubt whether the overall effective sentence which the applicant is obliged to serve - 20 years with a non-parole period of 15 years, will be in any way altered when he comes to be re-sentenced. The result of this is that the practical utility of this appeal is entirely elusive.
In those circumstances, it is, to say the least, most regrettable that this Court is required now to quash three of the ten separate sentences which were imposed because the applicant asked the sentencing Judge, no doubt on the advice of his counsel, and with the active agreement of the prosecution, to take into account three Commonwealth offences of significantly less criminality than the principal offences to which they were attached. Particularly is this so when two of the ten sentences which were imposed by the sentencing judge were for other Commonwealth offences to which these three offences could have been attached by following the procedure fixed under s16BA of the Crimes Act (Cth).
I accept that there is no course open for this Court but to make the orders proposed by Davies J. I also agree with Davies J when he notes the desirability of the re-sentence being undertaken by Tupman DCJ.
[7]
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: 15 February 2021
Kabir v R [2020] NSWCCA 139
Kerr v R [2016] NSWCCA 218
Leeth v Commonwealth (1992) 174 CLR 455; [1992] HCA 29
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
R v Cramp [2004] NSWCCA 264
R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338; [1974] HCA 36
R v Murphy (1985) 158 CLR 596; [1985] HCA 50
R v Oti (1990) 19 NSWLR 561
R v Yates (1991) 102 ALR 673; (1991) 56 A Crim R 29
Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47
Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19
Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3234
Category: Principal judgment
Parties: Vaughan Mark Hildebrand (Applicant)
Crown (Respondent)
Representation: Counsel:
S Kluss (Applicant)
B Baker & M Kumar (Respondent)
Judgment
PAYNE JA: I have read the judgment of Davies J in draft. I agree with his Honour's proposed orders and with the reasons for dismissing grounds 1-2 and 4-6 of the appeal.
In relation to ground 3, I agree with his Honour that the decision of this Court in Ilic v R [2020] NSWCCA 300 came to the correct result. As this case, like Ilic, proceeded by way of concession by the NSW Office of the DPP (albeit in consultation with the Commonwealth DPP), I would prefer to express my own reasons for concluding that a federal offence, here under ss 474.17(1) and 474.19(1) of the Criminal Code (Cth), cannot be taken into account using the "Form 1" NSW procedure but, rather, must be considered separately or taken into account in relation to another federal offence using the procedure provided by s 16BA of the Crimes Act 1914 (Cth).
Ground 3, as amended orally and subsequently in writing after the hearing, provided:
"The sentencing judge erred in taking into account Commonwealth offences on Form 1s that were attached to State principal offences, namely:
(i) By taking into account sequence 25 (a Commonwealth offence) in sentencing the applicant for sequence 27 (a State offence) on Form 1E;
(ii) By taking into account sequence 52 (a Commonwealth offence) in sentencing the applicant for sequence 55 (a State offence) on Form 1A; and
(iii) By taking into account sequence 36 (a Commonwealth offence) in sentencing the applicant for sequence 37 (a State offence) on Form 1B."
The existence of federal and state criminal offence provisions covering the same or related conduct is a constitutional reality of our federal system. The growing catalogue of federal offences has meant, over time, a greater potential for overlap. There have been, since the 1980s, separate federal and NSW Offices of the Director of Public Prosecutions. The Acts under which each office is created give the respective Director power to present indictments and to delegate the power to sign indictments. It was common ground that the potentially overlapping nature of federal and NSW offences has meant that within the NSW Office of the DPP there are officers with a delegation from the Commonwealth DPP to sign indictments alleging the commission of a federal crime (and I infer the same is true in the Commonwealth Director's office).
It is not unusual for federal and state counts to be joined in the one indictment, whether prosecuted by the state or federal DPP: see, for example, R v Yates (1991) 102 ALR 673; (1991) 56 A Crim R 29 where the Commonwealth Director prosecuted state offences.
A court sentencing an offender convicted of at least one federal and NSW offence arising from one indictment must apply two separate sentencing regimes. Those separate regimes, however, are designed in our constitutional and legislative structure to work together. Sections 68 and 79 of the Judiciary Act 1903 (Cth) play a central role in reconciling the intertwining operation of federal and state sentencing provisions.
The exercise of reconciling federal and state sentencing regimes has not always been comfortable. For example, the introduction of the Sentencing Act 1989 (NSW), and its relationship with the Commonwealth Prisoners Act 1967 (Cth), caused particular controversy: see R v Oti (1990) 19 NSWLR 561.
Originally, procedural matters and all sentencing issues were dealt with in federal crime by adopting the procedure, including the sentencing procedure, of the state where the offence was prosecuted. Section 80 of the Constitution ensured that federal crime was prosecuted in the state with the closest connection to the alleged criminal conduct.
Over time, the structure of a separate Commonwealth sentencing regime has grown. The most significant growth in that separate structure in comparatively recent times was the introduction of Part IB of the Crimes Act. While effecting a significant change in the approach for federal sentencing, Part IB did not cover the field of sentencing: see, for example, Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370, cited with approval in Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 by Gleeson CJ at [20]-[23]. At the same time, sentencing procedures in NSW have grown more complex: see Crimes (Sentencing Procedure) Act 1999 (NSW) and, for example, Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and the numerous subsequent cases addressing "Muldrock error".
Despite federal and NSW sentencing procedures becoming more complex it is clear that s 68 of the Judiciary Act should be given a construction to allow people charged with federal and state crime to be dealt with as far as possible harmoniously with state offenders in the state where they are prosecuted, as s 80 of the Constitution requires.
In Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47, McHugh J made the following pertinent observations at [59]:
"[59] In Australian Securities and Investments Commission v Edensor Nominees Pty Ltd I said:
'courts exercising federal jurisdiction should operate on the hypothesis that s 79 will apply the substance of any relevant State law in so far as it can be applied. The efficacy of federal jurisdiction would be seriously impaired if State statutes were held to be inapplicable in federal jurisdiction by reason of their literal terms or verbal distinctions and without reference to their substance. In Railway Co v Whitton's Administrator, decided thirty years before our Constitution was enacted, the Supreme Court of the United States declared: "Whenever a general rule as to property or personal rights, or injuries to either, is established by State legislation, its enforcement by a Federal court in a case between proper parties is a matter of course, and the jurisdiction of the court, in such case, is not subject to State limitation." Subject to the proviso that the nature of some State and Territory statutes may make them inapplicable to proceedings in federal jurisdiction, that statement of the Supreme Court is a sound guide as to the effect of s 79 of the Judiciary Act'." (Citations omitted)
In Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8, Gleeson CJ held at [4] that:
"[4] Section 68 of the Judiciary Act provides, so far as presently relevant, that the laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for their trial and conviction on indictment, shall apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by the section. The operation of related provisions of s 68 concerning appeals was recently considered by this Court in R v Gee. The background to the section is the obvious circumstance that State and Territory laws concerning the matters to which the section relates may differ. The necessary consequence is that, in certain respects, those differences will apply as between federal offenders, depending upon where they are tried. In the present case, the sentencing judge was exercising jurisdiction conferred by s 68(2). Northern Territory laws respecting the procedure for trial and conviction on indictment were at least potentially picked up and applied as federal law by s 68(1). Sentencing laws come within that description. In Leeth v The Commonwealth, Mason CJ, Dawson and McHugh JJ referred to an observation by Dixon J that s 68 disclosed a policy 'to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State' and that it was 'no objection to the validity of such a provision that the State law adopted varies in the different States'. They continued:
'Thus the administration of the criminal law of the Commonwealth is organised upon a State by State basis and there may be significant differences in the procedures applying to the trial of a person charged with an offence against a Commonwealth law according to the State in which he is tried. And if a person is convicted of a federal offence and sentenced to a term of imprisonment, he will ordinarily serve that term in a State prison in the State in which he is convicted. Prison systems differ significantly from State to State, but that is something which, in relation to federal offenders, is contemplated by s 120 of the Constitution'". (Citations omitted)
There is a concept of inconsistency which underlies and qualifies the extent to which state sentencing provisions are picked up and applied as surrogate federal laws by s 68 of the Judiciary Act. In Putland, Gleeson CJ explained at [7] that:
"[7] The laws of a State or Territory to which s 68(1) refers apply 'so far as they are applicable'. Although there is not in s 68, as there is in s 79 of the Judiciary Act, an express qualification to the operation of the provision by the use of the words 'except as otherwise provided by the Constitution or the laws of the Commonwealth', in the context of a problem such as the present there is little, if any, functional difference between the two forms of qualification. The meaning of 'otherwise provided' was considered in Northern Territory v GPAO. Relevantly for present purposes, s 52 of the Sentencing Act would not be picked up and applied by s 68 if a Commonwealth law expressly or by implication made contrary provision, or if there were a Commonwealth legislative scheme relating to the sentencing of the appellant which was 'complete upon its face' and can 'be seen to have left no room' for the operation of s 52 … ." (Citations omitted)
Thus, inconsistency for the purposes of s 68 of the Judiciary Act is not limited to direct textual inconsistency.
The issue in the present case arises in the context of separate federal and NSW regimes for taking other offences into account. Section 16BA of the Crimes Act provides, relevantly:
16BA Taking other offences into account
(1) Where a person is convicted of a federal offence or federal offences, and the court before which the person is convicted is satisfied that:
(a) there has been filed in the court a document in, or to the effect of, the form prescribed for the purposes of this section;(b) the document contains a list of other federal offences, or offences against the law of an external Territory that is prescribed for the purposes of this section, which the person convicted is believed to have committed;
(c) the document has been signed:
(i) by the Director of Public Prosecutions;
(ii) for and on behalf of the Director of Public Prosecutions, by a person authorized by the Director of Public Prosecutions, by instrument in writing, to sign documents under this subsection; or
(iii) by a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable federal offences;
and by the person convicted;
(d) a copy of the document has been given to the person; and
(e) in all the circumstances it is proper to do so;
the court may, with the consent of the prosecutor and before passing sentence on the person, ask him or her whether he or she admits his or her guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted.
(2) Subject to subsection (3), if the person admits his or her guilt in respect of all or any of the offences specified in the list and wishes to have them taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted, the court may, if it thinks fit, in passing sentence on him or her for the offence or offences of which he or she has been convicted, take into account all or any of the offences in respect of which the person has admitted his or her guilt.
…
Section 16BA (formerly numbered as s 21AA) was introduced in 1982: see the Crimes Amendment Act 1982 (Cth). The provision was renumbered to s 16BA in 1990: see the Crimes Legislation Amendment Act (No. 2) 1989 (Cth).
The NSW "Form 1" procedure is established by Part 3 Div 3 (ss 31-35A) of the Crimes (Sentencing Procedure) Act. Section 32(1) provides:
32 Prosecutor may file list of additional charges
(1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.
Section 33 provides:
33 Outstanding charges may be taken into account
(1) When dealing with the offender for the principal offence, the court is to ask the offender whether the offender wants the court to take any further offences into account in dealing with the offender for the principal offence.
(2) The court may take a further offence into account in dealing with the offender for the principal offence -
(a) if the offender -
(i) admits guilt to the further offence, and
(ii) indicates that the offender wants the court to take the further offence into account in dealing with the offender for the principal offence, and
(b) if, in all of the circumstances, the court considers it appropriate to do so.
(3) If the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.
(4) A court may not take a further offence into account -
(a) if the offence is of a kind for which the court has no jurisdiction to impose a penalty, or
(b) if the offence is an indictable offence that is punishable with imprisonment for life.
(5) For the purposes of subsection (4) (a), a court is taken to have jurisdiction to impose a penalty for an offence even if that jurisdiction may only be exercised with the consent of the offender.
(6) Despite subsection (4) (a), the Supreme Court, the Court of Criminal Appeal and the District Court may take a summary offence into account.
This procedure for taking additional charges into account when sentencing has had a statutory basis in NSW since 1955. It was originally set out in former s 447B of the Crimes Act 1900 (NSW), which was introduced by s 4(e) of the Crimes (Amendment) Act 1955 (NSW). The procedure was derived from the non-statutory practice of the English courts: see Second Reading Speech to the Crimes (Amendment) Bill 1955 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 March 1955 at 3234); Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 per Spigelman CJ at [1].
The statutory provisions governing the authority and procedure for taking additional offences into account were later set out in former s 21, and then s 161, of the Criminal Procedure Act 1986 (NSW). They are now contained in Part 3 Div 3 (ss 31-35A) of the Crimes (Sentencing Procedure) Act which I have set out above.
Form 1 was formerly contained in Sch 1 to the Crimes (Sentencing Procedure) Regulation 2000 (NSW). The prescribed "Form 1" was repealed by the Crimes (Sentencing Procedure) Amendment (Forms) Regulation 2004 (NSW) which, in the case of certain forms, replaced the requirement to use the "prescribed form" with a requirement to use the "approved form". "Approved form" was defined to mean a form approved by the Minister.
Clause 4 of the Crimes (Sentencing Procedure) Regulation 2017 (NSW) now provides that a list of additional charges under s 32 of the Act is to be in the "approved form". As no form has been approved for the purpose of that section, the position is governed by the transitional provisions in Part 14, cl 54 of Sch 2 to the Crimes (Sentencing Procedure) Act, the effect of which is to provide, relevantly, that a form "to the effect of" Form 1 may be used for the purpose of s 32 until such time as regulations are made under s 103(2) of the Act (which authorises the making of regulations requiring any document required by the Act to be in a form approved by the Minister). As McCallum JA explained in Ilic at [14], technically, the present requirement is to file the list of additional charges on a form "to the effect of" the now repealed Form 1.
Having sketched these provisions I conclude that there is no necessary inconsistency between federal and state provisions under which all outstanding charges against an offender are dealt with in one hearing by one judicial officer. So much is established by Adams v Western Australia [2014] WASCA 191; (2014) 245 A Crim R 351.
In Adams, the relationship between the Sentencing Act 1995 (WA) and the federal sentencing provisions was under consideration. The Court of Appeal of Western Australia held that provisions of the Western Australian Sentencing Act allowing all outstanding offences to be dealt with in one sitting were able to be picked up and applied by s 68 of the Judiciary Act to permit a federal offence to be dealt with under that Act. Sections 32 and 33 of the Sentencing Act relevantly provided:
32. Pending charges, offender may request court to deal with
(1) An offender who is to be sentenced by a superior court for an offence (in this Division referred to as the original offence) may request the court to also deal with any pending charges against him or her.
…
33. Pending charges, court may deal with
(1) When a list of pending charges has been prepared and served, the superior court must ask the offender -
(a) to plead to any of the pending charges listed which the offender has not previously been convicted of; and
(b) to say if he or she wants the superior court to also pass sentence for each of those pending charges that he or she is convicted of.
(2) If the State consents and the superior court considers that it is just to do so, it may, in addition to sentencing the offender for the original offence, also sentence the offender for each of the pending charges the offender is convicted of and wants dealt with.
(3) A sentence imposed by a superior court on a person for a pending charge is to be taken, for the purposes of an appeal against sentence, as being a sentence imposed following conviction on indictment.
(4) A pending charge that was not dealt with by the superior court may be dealt with by the court before which it was pending.
(5) If an offender pleaded guilty before the superior court to a pending charge but it was not dealt with by that court, the plea is not admissible in any proceedings for that charge.
The critical difference between the Western Australian provisions considered in Adams and the "take into account" provisions in NSW, however, is that the Western Australian Sentencing Act required the court to convict and sentence the offender for the federal offence involved. At [44], Buss JA, with whom Newnes JA relevantly agreed, said:
"[44] As to s 31, s 32 and s 33 [of the Sentencing Act (WA)]:
(a) s 31, s 32 and s 33 do not create a mechanism by which an offence or offences may be 'taken into account' by a court when imposing a sentence for another offence or offences of which a person has been convicted;
(b) rather, s 31, s 32 and s 33 create a mechanism for enabling an offender to be convicted and sentenced, by one judge of a superior court and at one sitting, for all outstanding charges against the offender;
(c) s 31, s 32 and s 33 require the existence of a 'pending charge'; that is, a charge, in a court of summary jurisdiction, of an offence (whether indictable or simple) for which no sentence has been imposed; and
(d) the judge must enter or record a conviction and, subject to s 39(2)(a) and s 46 of the Sentencing Act (which are not presently relevant), impose a discrete sentence for each offence."
That is, the relevant provisions of the Western Australian Sentencing Act provided that a discrete sentence was required to be imposed for each federal offence. That is a critical distinction from the NSW procedure where a federal offence is "taken into account" in sentencing for a state crime.
Turning to this case, s 68 of the Judiciary Act is a provision of broad application which must be applied in circumstances where, historically and, although to a lesser extent, still today, the administration of federal criminal law is organised on a state by state basis. Subject to inconsistency with federal provisions of the kind identified by Gleeson CJ in Putland, each state administers federal criminal law upon the same footing as state criminal law: Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19, 560 (Dixon J); R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338; [1974] HCA 36, 345 (Mason J); R v Murphy (1985) 158 CLR 596; [1985] HCA 50, 617 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); Leeth v Commonwealth (1992) 174 CLR 455; [1992] HCA 29 , 467 (Mason CJ, Dawson and McHugh JJ).
Despite the breadth of s 68 of the Judiciary Act, I have concluded that the Director's concession that there is a relevant inconsistency here was correctly made. This is because of the operation of ss 16A and 19AJ of the Crimes Act.
Section 16A of the Crimes Act relevantly provides:
16A Matters to which court to have regard when passing sentence etc. - federal offences
(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
Note: Minimum penalties apply for certain offences - see sections 16AAA, 16AAB and 16AAC.
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the offence;
(b) other offences (if any) that are required or permitted to be taken into account;
(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence - any victim impact statement for the victim;
(f) the degree to which the person has shown contrition for the offence:
(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii) in any other manner;
(fa) the extent to which the person has failed to comply with:
(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or
(ii) any obligation under a law of the Commonwealth; or
(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;
about pre‑trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
(g) if the person has pleaded guilty to the charge in respect of the offence:
(i) that fact; and
(ii) the timing of the plea; and
(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;
(h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;
(j) the deterrent effect that any sentence or order under consideration may have on the person;
(ja) the deterrent effect that any sentence or order under consideration may have on other persons;
(k) the need to ensure that the person is adequately punished for the offence;
(m) the character, antecedents, age, means and physical or mental condition of the person;
(ma) if the person's standing in the community was used by the person to aid in the commission of the offence - that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;
(n) the prospect of rehabilitation of the person;
(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.
Section 19AJ of the Crimes Act provides:
19AJ Court may only fix non‑parole periods or make recognizance release orders for federal sentences of imprisonment
This Division does not authorise a court to fix a single non‑parole period, or make a recognizance release order, in respect both of federal sentences of imprisonment and State or Territory sentences of imprisonment.
Fundamentally, s 16A requires, subject to the permission to take a federal offence into account as provided by s 16BA(1), a federal crime to attract a sentence that is stated and imposed. The matters which must be taken into account in addressing the correct sentence (albeit that they are not a code) are identified in s 16A(2). These matters overlap but are not identical to the matters required to be taken into account by Div 1 of Part 3 of the Crimes (Sentencing Procedure) Act.
In the NSW "Form 1" procedure there is no sentence which is imposed. In Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, the process of "taking into account" crimes in sentencing for other crimes was explained by Spigelman CJ as follows:
"[66] The effect of inclusion on a Form 1 is to give the offences so included a significantly lower salience in the sentencing process. There will be an obvious advantage, and hence a greater incentive to admit guilt, where the Form 1 procedure is employed. In my opinion, the issues that arise are broadly equivalent to those involved in the Crown deciding not to prosecute for the full range of offences open to it or to accept a plea to a lesser charge, albeit in the context of multiple, and often divergent, criminal offences."
The text of s 16A, together with its evident purpose, discloses an intent that for federal sentences the court has to impose a sentence or make an order that is of appropriate severity in all of the circumstances of that offence, unless "taken into account" in the way provided by Part IB of the Crimes Act, s 16BA. Taking into account a federal offence in assessing the salience of a conviction for a state offence is inconsistent with the requirement of s 16A and the structure of Part IB which permits (in s 16BA) federal offences to be taken into account, but only in relation to a conviction for a federal offence. In "taking into account" a federal offence in assessing the salience of a NSW offence, there is an inconsistency between the matters which must be taken into account for the federal offence (s 16A(2)) and the matters which must be taken into account in fixing the State sentence (Div 1 of Part 3 of the Crimes (Sentencing Procedure) Act).
My additional reason for accepting the concession made by the Crown is that s 19AJ of the Crimes Act provides that the court is not authorised to fix a single non parole period or to make a single good behaviour bond in respect to both federal sentences of imprisonment and state or territory sentences of imprisonment. The purpose of s 19AJ of the Crimes Act is that offenders should receive separate non‑parole periods for federal offences and state offences. In this case, each of the offences referred to in ground 3 involved a state offence for which a head sentence and a non‑parole period was imposed. At least in a practical sense, the non‑parole period in each case encompassed a federal offence that was included on the Form 1. That also gives rise to inconsistency of the kind identified by Gleeson CJ in Putland.
Accordingly, I agree with the orders proposed by Davies J. I note that in the course of argument, counsel for the applicant submitted that in the peculiar circumstances of this case, where there can be no criticism of the sentencing judge for sentencing the offender as both parties urged her to do, "all matters should be remitted and there would be no application for bail".
DAVIES J: On 7 June 2018 the applicant pleaded guilty to 26 charges under both Commonwealth and State law, and asked for 18 additional offences to be taken into account on ten separate additional offence documents under s 33 of the Crimes (Sentencing Procedure) Act (NSW) and s 16BA of the Crimes Act (Cth).
The applicant was committed for sentence to the District Court. On 27 September 2019 he was sentenced by her Honour Judge Tupman for these offences. The offending took place over almost a ten year period from 2007 to 2016 when the applicant was aged from 19 to 28 years.
The offences are as follows:
(i) Ten charges of using a carriage service to menace or harass a person contrary to s 474.17(1) of the Criminal Code (Cth) (sequences 3, 11, 12, 23, 24, 30, 31, 32, 33 and 34). The maximum penalty for this offence is three years' imprisonment. Each of the offences relates to a separate victim;
(ii) One count of using a carriage service to solicit child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (sequence 18). The maximum penalty for this offence is 15 years' imprisonment;
(iii) Eleven charges of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) (sequences 27, 37, 39, 41, 42, 55, 57, 60, 62, 65 and 67). The maximum penalty for these offences is 14 years' imprisonment and there is a standard non-parole period of seven years. These offences relate to four individual victims;
(iv) Wilful misconduct in public office (sequence 1). This is a common law offence and the penalty is at large;
(v) Two charges of dealing with identity information with the intention of committing an indictable offence contrary to s 192J of the Crimes Act 1900 (sequences 20 and 21). The maximum penalty for this offence is 10 years' imprisonment;
(vi) Possessing a prohibited weapon without authority contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) (sequence 15). The maximum penalty for this offence is 14 years' imprisonment and there is a standard non-parole period of five years.
The offences taken into account under State or Commonwealth legislation are as follows:
(i) Using a carriage service to menace, harass or offend (sequences 4, 5, 6, 25 and 52) contrary to s 474.17(1) of the Criminal Code;
(ii) Using a carriage service to solicit child pornography (sequences 19 and 36) contrary to s 474.19(1) of the Criminal Code;
(iii) Sexual intercourse without consent (sequences 68, 58, 59, 61, 63, 64 and 66) contrary to s 61I of the Crimes Act.
(iv) Possessing ammunition without holding a licence, permit or authority (sequences 13, 14 and 17) contrary to s 65(3) of the Firearms Act 1996 (NSW);
(v) Possess or use a prohibited weapon without permit (sequences 15 and 16) contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW);
The sentencing judge imposed a number of stand-alone and aggregate sentences, having grouped the sentences generally in relation to particular victims. In due course, when summarising the facts, I will identify the sentences imposed as well as the indicative sentences where aggregate sentences were imposed. The overall effective sentence was a sentence constituting a non-parole period of 15 years commencing 31 May 2017 and expiring 30 May 2032 with a balance of term of five years expiring 30 May 2037.
The applicant filed a notice of appeal relying on the following grounds:
The sentencing Judge failed to apply the procedure mandated by s 16BA(1) of the Crimes Act (Cth).
The sentencing judge failed to consider s 16A and s 16B of the Crimes Act (Cth) with respect to the sentences relevant to s 474.17(1) and s 474.19(1).
The sentencing judge erred by sentencing an overall aggregate sentence for Commonwealth and State offences.
The sentencing judge erred in failing to take into account accumulation of sentence as a "special circumstance".
The sentencing Judge erred with respect to her assessment of the objective criminality and the indicative sentences applied post the application of the 25% discount.
Her Honour imposed a sentence that was manifestly excessive, and a lesser sentence is warranted at law.
At the hearing of the appeal, counsel for the applicant accepted that, contrary to what was asserted in ground 3, the sentencing judge had not imposed an overall aggregate sentence. Counsel sought, and was given, leave to amend ground 3. Ground 3 was amended to read:
3. The sentencing judge erred in taking into account Commonwealth offences on Form 1s that were attached to State principal offences, namely:
(i) By taking into account sequence 25 (a Commonwealth offence) in sentencing the applicant for sequence 27 (a State offence) on Form 1E;
(ii) By taking into account sequence 52 (a Commonwealth offence) in sentencing the applicant for sequence 55 (a State offence) on Form 1A;
(iii) By taking into account sequence 36 (a Commonwealth offence) in sentencing the applicant for sequence 37 (a State offence) on Form 1B;
Determination
In Hutchen v R [2015] NSWCCA 101 the applicant pleaded guilty to three offences. The sentencing judge in that case provided a separate sentence for each of the offences. For each of the offences the ratio between the non-parole period to the whole term was between 60 and 66 percent. However, the combined effect of the sentences produced a ratio of 73.3 percent. It was contended that the result was contrary to the sentencing judge's express intention of varying the statutory ratio to give the need for a longer period of rehabilitation on parole.
Justice Hoeben (with whom Adams and McCallum JJ agreed) said:
[28] There is no general rule that just because an overall sentence does not reflect a finding of special circumstances, a sentencing judge must, having found special circumstances in respect of individual counts, make a further adjustment to the ratio in respect of the total accumulated sentence. Each case depends upon its own particular facts.
[29] In a case such as this, where the express purpose for the finding of special circumstances was to satisfy the need for a long period of rehabilitation including residential rehabilitation, it is not only the ratio of the non-parole period to the head sentence which is important, but the actual periods involved are equally, if not more important (R A Hulme J in Caristo v R [2011] NSWCCA 7 at [41]). Here, the parole period of 1 year and 4 months is not particularly long in the context of the need for long term rehabilitation, including a residential component.
[30] This issue was comprehensively examined by Hamill J (with whom Johnson J and I agreed) in Sabongi v R [2015] NSWCCA 25. That was a case where the finding of special circumstances was based on a need for extended rehabilitation and on the fact that there was an accumulation of sentences. Hamill J referred to the observation of R A Hulme J in CM v R [2013] NSWCCA 341 at [40] where his Honour said:
"40 Where there is no adjustment of the 3:1 ratio of non-parole period to parole period reflected in the overall term, it may either reflect what the sentencing judge specifically intended, or it may be the result of inadvertence or miscalculation. …"
[31] By way of elaboration of that principle, Hamill J said:
"82 Where a sentencing Judge makes clear that they are aware that the total sentence is in accordance with the "statutory ratio", it is rare that this Court would intervene. In Houri v R the court declined to intervene in a case where an adjustment in respect of one sentence resulted in a sentence wherein the non-parole period was marginally greater than 75% of the overall term. R A Hulme J said at [34]:
"I do not believe that there was any inadvertence or miscalculation by the Judge. She imposed individual sentences and partially accumulated them to achieve the precise result that she said she intended. In the first passage quoted above she said that in the overall total sentence 'the statutory ratio will not reduce substantially'. In the second passage she noted that 'the total non-parole period is very close to the statutory ratio when one has regard to the total sentence, and that is what I intend in passing sentence'."
83 Similarly in AB v R the Court declined to intervene when the sole basis of the finding of special circumstances was "by reason of the accumulation of sentences".
84 Conversely, in cases where the finding of special circumstances was more broadly based then the accumulation itself and where the sentencing Judge has not clearly indicated their awareness of the fact that the total effective sentence will remain in accordance with (or close to) the "statutory norm" the court has intervened: see R v LWP; R v Thornberry; R v Keen; R v Street; R v Heron v R; M v R."
[32] On my reading of his Honour's reasons in this case, there is no indication of his Honour's awareness that the total effective sentence would remain close to the "statutory norm". In those circumstances, I am satisfied that error has occurred in the sense that the combined effect of the total sentence has not given effect to his Honour's intention when making his finding of special circumstances. This ground of appeal has been made out.
The sentencing judge said in her Remarks:
To the extent that is necessary for me to indicate reasons for doing so, I accept that there are limited special circumstances here. One is that there will be a degree of partial accumulation of all of the sentences; the second is that this is his first time in custody; and the third is that his non parole period, at least to some extent, will be served in slightly more onerous circumstances than it might be for others, but to a very limited extent.
This principle in Hutchen is relevant here because the challenge is to the ratio of the overall effective sentence in the light of what her Honour there said. However, it is clear that her Honour was mindful of the matter because, having identified all of the aggregate sentences her Honour said this:
If each of these was then accumulated on the other, it would, on my calculation, be a little more than 31 years, which also is excessive to represent the total criminality. The total criminality represented by all of these offences should give rise to an overall sentence of 20 years, with an overall non parole period of 15 years.
Whilst I am conscious that this equates to the statutory ratio of 75% for a non parole period, where many of the indicative or other sentences imposed have indicated a lower non parole period; and whilst I have indicated some special circumstances, in my view, nothing less than a non parole period of 15 years would be sufficient to deal with the objective criminality and the period on parole of 5 years is more than sufficient to deal with the supervision and needs of the offender, once he is released.
By contrast with what was found in Hutchen, where there was no indication of his Honour's awareness in that case that the total effective sentence would remain close to the statutory norm (see at [32]), the sentencing judge in the present case expressly referred to the matter and determined that nothing less than a non-parole period of 15 years would be sufficient. That determination is a justification for not reducing the statutory ratio: R v Cramp [2004] NSWCCA 264 at [34].