Resolution
19Section 180 of the Act provides that offences under the Act are to be prosecuted in the Supreme Court in its summary jurisdiction or in the Local Court. Subsection 2 sets the jurisdictional limit of the Local Court in the same way that ss 267 and 268 of the Criminal Procedure Act 1986 set the jurisdictional limit of the Local Court for indictable offences dealt with in that court.
20In Doan, Grove J (Spigelman CJ and Kirby J agreeing) said of the then equivalent provisions to ss 267 and 268 in the Criminal Procedure Act :-
35 The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a "worst case".
21An observation to the same effect was made by Price J in Roads and Traffic Authority of NSW v Fletcher International Exports Pty Ltd. Referring to a magistrate's approach to sentencing for an identical offence, his Honour said :-
55 The maximum penalty which has been legislated by Parliament was not irrelevant to his Honour's sentencing task. The maximum penalty serves as a yardstick or as a basis of comparison between the case before the Court and the worst possible case: Markarian v The Queen (2005) 79 ALJR 104 at [31].
22The necessity to assess the objective gravity of an offence by reference to the maximum penalty, not the jurisdictional limit, has more recently been confirmed by this Court (per Johnson J, McClellan CJ at CL and Rothman J agreeing) in Zreika v R [2012] NSWCCA 44 at [98] and [99].
23Accordingly, the first question in the stated case should be answered "yes".
24His Honour's construction of s 60 of the Act appears to ignore the express terms of the provision in three material respects.
25First, the policy objectives of the provision are spelt out in s 60(1). The legislature intended that courts be made aware of the general implications and consequences of breaches of mass limits when imposing penalties for offences under the Act. Thus, the factors enumerated in subsection 2 are consequences that usually flow from the commission of such offences. To put it another way, they are circumstances that are inherent in the commission of these offences. His Honour wrongly regarded them as aggravating circumstances analogous to those enumerated in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999.
26Second, the determination of the level of the fine requires the court to take into account the classification of the breach and the factors enumerated in subsection 2 that correspond to that classification.
27Third, subsection 5 confirms that there is no obligation on the prosecution to adduce evidence of any of the relevant factors. Thus, the terms of the provision put beyond doubt that the factors are not aggravating in the sense that the term is generally understood in sentencing practice.
28Accordingly, the answer to the second question in the stated case is "yes".
29Having regard to these conclusions, it is not necessary to answer the third question posed by his Honour.
30The time within which to file the proceedings under s 5B of the Criminal Appeal Act 1912 expired on 20 June 2012. There were delays experienced in obtaining a transcript of the proceedings before his Honour and in settling the stated case. The appellant is granted an extension of 76 days within which to file the appeal
31I propose the following answers and orders :-
(1) The questions posed by the stated case are answered :
a) Yes
b) Yes
c) Unnecessary to answer.
(2) The penalty imposed by Toner SC DCJ on 23 May 2012 is quashed.
(3) Remit the matter to the District Court to be dealt with in accordance with these reasons.
32BUTTON J : I agree with Latham J.
33GROVE AJ : I agree with Latham J.
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 May 2013