Musa v R

Consideration

1. Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides relevantly as follows: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters-- (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows-- … (d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences) … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows-- … (e) the offender does not have any record (or any significant record) of previous convictions …
2. Mr Musa has one dishonesty offence from August 2016 and some traffic matters. The Crown submitted before the sentencing judge that Mr Musa's "previous record is … relevant to disentitling [him] to leniency" but expressly indicated in submissions that his "record [was] not relied on … as an aggravating feature in the sense required by this provision …"
3. The previous matters to which that submission was directed are as follows: (i) 9 August 2016: Goods in custody suspected of being stolen, contrary to s 527C of the Crimes Act 1900: bond pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 for 12 months; (ii) 27 May 2018: Special category driver driving with a special range prescribed concentration of alcohol, contrary to s 110(2)(a) of the Road Transport Act 2013: $600 fine and disqualification for 3 months; (iii) 15 October 2018: Driving a motor vehicle while disqualified, contrary to s 54 of the Road Transport Act 2013: $550 fine and disqualification for 6 months; and (iv) 21 April 2019: Driving a motor vehicle while disqualified, contrary to s 54 of the Road Transport Act 2013: $250 fine and disqualification for 9 months.
4. Counsel for Mr Musa submitted in the sentencing proceedings as follows: "Mr Musa had a minor record at the time of committing these offences…In the context of Mr Musa's upbringing and vulnerabilities, this record should not disentitle him to leniency. He should be treated as a person of good character."
5. Counsel for Mr Musa also submitted in oral argument before her Honour that the previous matters that resulted in convictions were "minor matters". The goods in custody offence is also not part of his "record of previous convictions" having been dealt with pursuant to s 10 of the Crimes (Sentencing Procedure) Act. See in this respect R v Price [2005] NSWCCA 285 at [36] as follows: "[36] In my opinion there are good reasons for interpreting s 21A(2)(d) as proposed on behalf of the applicant, that is strictly, and excluding reference to an offence in respect of which the offender has been given the benefit of a s10 order, from s 21A(2)(d). Firstly, s 21A(2)(d) is, in effect, a penal provision, which ought to be construed strictly, and beneficially to those against whom it operates. That is a conventional principle of statutory construction. Secondly, a s 10 order is intended, expressly, to permit an offender to retain the benefit of good character. To extend the meaning of 'conviction' in s 21A(2)(d) to include a finding of guilt for an offence in respect of which no conviction has been recorded would be to defeat at least part of the object of s 10. This court has held that s 21A(2)(d) involves the application of the principles stated in Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465: see R v Wickham [2004] NSWCCA 193."
6. Mr Musa submitted, and I accept, that his record of previous convictions was not significant: a limited criminal history will almost invariably be relevant to an offender's prospects of rehabilitation. Moreover, far from being an aggravating factor, Mr Musa's prior record was one that attracted the operation of s 21A(3)(e). The Crown's approach before her Honour, in terms eschewing any reliance upon the record as a relevant aggravating factor, did not thereby say anything about the extent to which Mr Musa's insignificant criminal record of previous convictions should have been taken into account by her Honour as a mitigating factor in determining the appropriate sentence for the offences.
7. Her Honour referred to Mr Musa's criminal history in her remarks on sentence as follows: "Criminal history It was noted by the Crown that the offender has a record of previous convictions. He was dealt with by a s 10 bond in 2016 for goods in custody and fined for special range prescribed concentration of alcohol and two offences of drive whilst disqualified. The Crown submits that whilst the previous record is not relied upon as an aggravating feature under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, it is such as to disentitle Mr Musa from leniency had his record been clear of any offences. On behalf of the offender, it is submitted that Mr Musa's record is limited and that in the context of his upbringing and vulnerabilities, this record should not disentitle him to leniency. Instead, he should be treated as a person of good character. The Court notes this is Mr Musa's first time in custody and whilst Mr Musa has no history of violence, his record does not amount to a finding of prior good character. The custodial records reveal that Mr Musa has been involved in three apparent incidents of violence in gaol. Whilst it is argued that little weight should be attached to the records, they do cause the Court to consider the need for rehabilitation of Mr Musa. They will not be used in aggravation of Mr Musa's position. I am of the view that the limited criminal history will contribute to the consideration of the offender's prospects of rehabilitation, but it would not be appropriate to exercise leniency as might have been the case had there been a fully clear criminal history."
8. Mr Musa submitted that her Honour fell into error to the extent that she failed to appreciate in the particular circumstances of this case that the words "any significant record" in s 21A(3)(e) meant that Mr Musa, who had no significant criminal record, should in fact have been treated as if he had what her Honour described as "a fully clear criminal record". In Mr Musa's submission, her Honour's remarks make it clear that she erroneously considered that his criminal record was not insignificant and that her Honour should have taken his lack of any significant record of previous convictions into account as a mitigating factor. Mr Musa contended that her Honour's remark, that "it would not be appropriate to exercise leniency as might have been the case had there been a fully clear criminal history" meant in effect that she determined that Mr Musa was not entitled to any leniency (mitigation) at all. Alternatively, to the extent that there is any doubt arising from the words used by her Honour when dealing with this aspect of the sentencing exercise, any possible ambiguity or doubt should be resolved in Mr Musa's favour.
9. The Crown submitted that it is clear from the whole of the sentencing remarks that her Honour did not consider Mr Musa's criminal history to be significant and took it into account to some degree in his favour. In particular, the sentencing judge referred to Mr Musa's "limited criminal history" and his "first time in custody" and noted that he had "no history of violence". Her Honour took Mr Musa's limited criminal history into account as one of the factors favourable to his prospects of rehabilitation, even though by reason of other factors her overall assessment of his prospects of rehabilitation was guarded.
10. While her Honour did not specifically refer in terms to s 21A(3)(e) or make an express finding that Mr Musa had no significant record of previous convictions, she was not asked by Mr Musa to do so.
11. Written submissions on Mr Musa's behalf at the sentencing hearing emphasised that his record "… should not disentitle him to leniency" and that he "should be treated as a person of good character". Counsel for Mr Musa referred, in the context of addressing his custodial record, to the fact that he had had "no involvement with the police other than those three minor matters … three driving offences, one under the influence and two disqualifications [which were] not offences of violence in any way." Counsel also submitted that it did not "appear through any of the material that violence has played a significant part in [Mr Musa's] life until this incident and then his entering into custody".
12. The Crown submitted that her Honour did not, as Mr Musa contends, find that he was not entitled to any leniency as a result of his limited criminal history. Rather, her Honour found that he was not entitled to the leniency he might have had if there had been a fully clear criminal history: he was still afforded some leniency.
13. Accepting that each case turns on its own circumstances, in support of the interpretation of her Honour's reasons that the Crown contends for, the Crown relied upon Saunders v R [2022] NSWCCA 174 as an analogous case.

Disposition

1. Section 21A(3) contains a list of mitigating factors that are to be taken into consideration in the determination of an appropriate sentence: see Meis v R [2022] NSWCCA 118 at [25]. The various circumstances described in the subsection as mitigating factors all require findings of fact followed by an evaluation of the weight, if any, to be given to the factor in question. In the present case, Mr Musa's record of previous convictions was specifically referred to in her Honour's sentencing remarks. The question in issue in this Court is whether her Honour sufficiently or adequately turned her mind to an evaluation of Mr Musa's criminal record.
2. Simpson AJA considered the relationship between s 21A(2)(d) and s 21A(3)(e) in Meis at [37]-[40] as follows: "[37] A particular difficulty in this case arises out of the requirement, in s 21A (2)(d), that the sentencing judge take into account an offender's 'record of previous convictions'. Unlike the other examples I have given, par (e) of s 21A(3) is not a complete obverse of its counterpart in subs (2) of s 21A - par (d). Section 21A (2)(d) is absolute: subject to considerations identified below, a record of previous convictions is to be taken into account as an aggravating factor. Section 21A (3)(e), on the other hand, recognises that a record of previous convictions may exist but not be significant for sentencing purposes. A factual issue may therefore arise: is a record of previous convictions to be treated as significant? If it is, subs (2)(d) comes into play (although the degree of significance remains to be determined). If the previous conviction is not to be treated as significant, the offender is entitled to the benefit of his or her record as a mitigating factor (although, again, the weight to be attributed to it depends upon all of the circumstances). [38] The applicant's argument may be seen as having two strands: the first calls for focus on the significance (or otherwise) of the previous conviction. If the previous conviction is found to be significant, the relevant provision is s 21A(2)(d) and no issue under s 21A(3)(e) arises. If the previous conviction is not assessed to have been significant, the relevant provision was s 21A(3)(e). The second strand of the argument arises only if the question is answered adversely to the offender (that the previous conviction is significant); the question then is what may properly be made of the previous conviction. [39] No attention was paid to the first question. The sentencing judge appears to have accepted that the applicable provision was s 21A(2)(d), an adoption of the Crown's submission. Despite the issue having been raised in written submissions, the sentencing judge gave no reasons for preferring the Crown's submission. [40] If it is accepted that the previous conviction was significant and therefore the sentencing judge was obliged, under s 21A(2)(d), to take it into account, a real question concerning the manner in which it was to be taken into account arises. That is because, as mentioned above, it could not be taken into account in a way that was inconsistent with common law principles."
3. In Saunders, the sentencing judge who made reference to s 21A(3)(e) concluded that "[h]aving regard to the offender's criminal history, I am satisfied that it disentitles him to the leniency that would otherwise be available to a person of good character". It was submitted on Mr Saunders' behalf that error had been established because no leniency had been given to him as a separate consideration under the paragraph (e). This Court rejected that argument.
4. Price J concluded that his Honour's finding in the court below did not amount to a finding that Mr Saunders' criminal history disentitled him to any leniency. Price J said this: "[66] Her Honour's finding was confined to a disentitlement to leniency 'that would otherwise be available to a person of good character': [R v Saunders at [46]]. The judicial discretion to allow leniency is not all or nothing and may be a matter of degree. Indeed, this was recognised in written submissions. The applicant's submission was for 'some leniency', whereas the Crown submission was confined to the applicant not being denied 'any leniency'. Neither party submitted that the applicant would be entitled to leniency available to a person of good character, which as a matter of common sense was not to be extended to the applicant as a consequence of his prior criminal history. [67] Although the Judge did not refer to s 21A(3)(e), it is plain that her Honour extended leniency to the applicant on account of his limited prior criminal history. Her Honour accepted that the applicant was otherwise of good character. Her Honour's favourable findings to the applicant included his good prospects of rehabilitation and unlikelihood of reoffending."
5. It is uncontroversial that the fact that a sentencing judge does not refer to a factor such as s 21A(3)(e) or expressly refer to the wording of the section to identify as a mitigating factor that the offender did not have a significant criminal record of previous convictions, does not necessarily mean that the sentencing judge did not take it into account as a mitigating factor: see Taylor v R [2018] NSWCCA 255 at [50]; Saunders at [67].
6. In the present case, her Honour referred in terms to Mr Musa's "limited criminal history". It is in my view difficult to understand those words as anything other than a reference to the absence of "any significant record of previous convictions". Her Honour was alive to the submission, as the extract from her remarks on sentence above reveals, that Mr Musa's record should not disentitle him to leniency. Her Honour's comparison between Mr Musa's "limited criminal history" and "a fully clear criminal history" serves to indicate that Mr Musa should be afforded some leniency, not that his criminal record should disentitle him to any leniency. So much is apparent from the fact that her Honour specifically indicated that Mr Musa's limited criminal history will operate in his favour in terms of his prospects of rehabilitation. In other words, the absence of what her Honour described as "a fully clear criminal history" did not disentitle Mr Musa to favourable consideration concerning his prospects of rehabilitation. In my view, her Honour's words should be read, in the context of her sentencing remarks as a whole, as if the word "such" were inserted before the word "leniency" in the quoted extract, rather than the word "any". I am satisfied that, read in that way in context, there is no ambiguity of the kind for which Mr Musa contends.
7. In my opinion, leave to appeal should be granted but the appeal should be dismissed.
8. WRIGHT J: I agree with Harrison J.

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