Sidhom v Robinson

CITATION : Sidhom v Robinson [2007] NSWLEC 408

Advanced Arbor Service Pty Limited v Strathfield Municipal Council [2006] NSWLEC 485; Attorney-General (NSW) v X (2000) 49 NSWLR 653; Dinsdale v The Queen (2000) 202 CLR 321; Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98; CASES CITED: House v The King (1936) 55 CLR 499; Murray Irrigation Ltd v ICW Pty Ltd [2006] NSWLEC 23; Thorneloe v Filipowski (2001) 52 NSWLR 60; Walden v Hensler (1987) 163 CLR 561; Williams v The Queen (1986) 161 CLR 278

9 The Local Court in this case made orders, first, convicting Mr Sidhom, second, fining him $500 and, third, directing he pay the prosecutor's costs in a fixed sum and court costs in a fixed sum. Whilst the second order falls within the type of order in paragraph (a) of the definition of sentence in s 3 of the Crimes (Appeal and Review) Act and the third order falls into the type of order in paragraph (e) of that definition of sentence, the first order convicting Mr Sidhom does not fall within any of the types of orders specified in s 3 of the Crimes (Appeal and Review) Act. A conviction cannot be an order made "as a consequence of [the Local Court] having convicted a person of an offence", so as to fall within the type of orders in paragraph (a). A conviction is not an order under s 10 of the Crimes (Sentencing Procedure) Act. An order under s 10(1) would involve there being no conviction because the Court makes one of the types of orders in s 10(1)(a)-(c) "without proceeding to conviction". Accordingly, a conviction cannot be an order of the type in paragraph (b) of the definition of sentence. Finally, a conviction does not fall within any of the other types of orders in paragraphs (ba)-(f) of the definition of sentence. 10 Hence, an appeal against a sentence of the Local Court only involves as its subject matter those orders that are of the type specified in the definition of sentence in s 3(1) of the Crimes (Appeal and Review) Act 2001 and the Land and Environment Court's power to set aside or vary the sentence of the Local Court (under s 48(1)(a) and (b), expanded by s 3(3)) only allows the court to set aside or vary the orders of the Local Court in so far as they are also of the type of order specified in the definition in s 3(1). As I have noted, none of these types of orders include the conviction itself. 11 As a consequence, Mr Sidhom, being a person who has been convicted by the Local Court following his plea of guilty, cannot in any appeal as of right against the sentence, seek to set aside the conviction. Rather, that relief is available only in an appeal against conviction. However, where a person has been convicted following a person's plea of guilty, such appeal is not as of right (see s 31(1A)) but rather is by leave only and then only on a ground involving a question of law alone (s 32(1) of the Crimes (Appeal and Review) Act 2001. Whether appeal involves a question of law alone. 12 As I have noted an appeal against conviction by a person who has been convicted by a Local Court following the person's plea of guilty, is restricted to a ground that involves a question of law alone. This excludes, obviously, questions of fact but it also excludes questions of mixed fact and law: see Williams v the Queen (1986) 161 CLR 278 286-287, 301-302 and 314. 13 The respondent's grounds of appeal do not allege that the Local Court failed to take into account relevant considerations under s 10(3) or s 21A(3) of the Crimes (Sentencing Procedure) Act in the exercise of the discretion under s 10(1) of the Crimes (Sentencing Procedure) Act, but only that the Local Court did not give (proper) weight to these matters. 14 The attribution of weight to relevant considerations is an essential part of the exercise of the discretion under s 10(1) of the Crimes (Sentencing Procedure) Act. The weight to be given to each relevant consideration is a decision of fact. Misattribution of relative weight to relevant considerations, by itself, does not necessarily involve error of law: Attorney General (NSW) v X (2000) 49 NSWLR 653 at 666 and Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98 (6 February 2006) at [7]. 15 Hence, it is not open to this Court to allow an appeal against a conviction (which appeal is restricted to questions of law alone) on the basis that, in this Court's opinion, the Local Court misattributed relative weight to relevant considerations. A question of law alone would not be involved. 16 The result of the Local Court's exercise of the discretion under s 10(1) of the Crimes (Sentencing Procedure) Act, namely the decision to record a conviction and to impose a fine rather than to not record a conviction and dismiss the charge, is not so unreasonable or plainly unjust as to raise a question of law: see House v The King (1936) 55 CLR 499 at 505 and Dinsdale v The Queen (2000) 202 CLR 321 at 324[3]-325[4]. 17 Mr Sidhom submits that, having regard to the objective gravity of the offence and to his personal circumstances, a substantial wrong has occurred as a result of the Local Court's decision. The circumstances to which Mr Sidhom refers are certain of the matters listed in s 21A(3) and s 10(3) of the Crimes (Sentencing Procedure) Act 1999. 18 In relation to s 21A(3), the matters referred to by Mr Sidhom are: "(a) the…damage caused by the offence was not substantial": the pumping only occurred for a short period of time (between ten to fifteen minutes) and whilst any harm done in a marine park is to be avoided, the damage was not substantial in this case; "(b) the offence was not part of a planned or organised criminal activity": there is no evidence to suggest that the behaviour of Mr Sidhom was part of any organised criminal activity; "(e) the offender does not have any record…of previous convictions": Mr Sidhom has no prior convictions; "(f) the offender was a person of good character": the evidence supports the contention that Mr Sidhom is and was a person of good character; "(g) the offender is unlikely to re-offend": Mr Sidhom is now fully aware of the restriction that applies in a sanctuary area in a marine park and the evidence clearly demonstrates that he will not re-offend; "(i) the offender has shown remorse for the offence…": Mr Sidhom has demonstrated significant remorse; and "(k) a plea of guilty by the offender": Mr Sidhom pleaded guilty at the first available opportunity. 19 The matters in s 10(3) referred to by Mr Sidhom are: "(a) the person's character, antecedents, age…": Mr Sidhom is a person of good character, has no antecedents and is fifty years of age; "(b) the trivial nature of the offence": Although Mr Sidhom does not suggest that the offence is trivial, nevertheless he submits that it is not simply the nature of the offence that needs to be considered but also the actual circumstances in which the offence is committed: Walden v Hensler (1987) 163 CLR 561 at 577. In this case, Mr Sidhom acted contrary to the law for a short period of time (10 to 15 minutes) in circumstances where when he became aware of or concerned about what was occurring he desisted and left the area in question.

"(c) the extenuating circumstances in which the offence was committed": Mr Sidhom did not realise the area in question was a restricted area and when he became aware or became concerned (after two separate people had said something) he stopped and immediately left the area. This is an extenuating circumstance relevant to the moral culpability of Mr Sidhom: see Murray Irrigation Ltd v ICW Pty Ltd [2006] NSWLEC 23 (21 January 2006) at [31] - [35]; and

(2007) 154 LGERA 169

(2000) 49 NSWLR 653

(2000) 202 CLR 321

(1936) 55 CLR 499

(2001) 52 NSWLR 60

(1987) 163 CLR 561

(1986) 161 CLR 278