70Mr Barrow submitted that the Applicant had been committed for trial on a more serious charge (under s.35(2)), but pleaded guilty ultimately and was sentenced for the less serious offence under s.35(4) Crimes Act 1900.
71Mr Barrow noted that all offences under s.35 are capable of summary disposal and, in that event, the jurisdictional limit in the Local Court was two years' imprisonment. He acknowledged that the Applicant had a significant criminal history, and that the decision of the prosecution to elect to proceed in the District Court on the s.35(2) offence was likely to have been influenced by the criminal history.
72He submitted, however, that offences under s.35(2) are more commonly dealt with on indictment, with a lesser proportion of s.35(4) offences being dealt with in that way. Reference was made to Judicial Commission sentencing statistics, which pointed to the numbers of matters dealt with in the District Court or the Local Court for these two offences.
73Although acknowledging that no submission had been made in the District Court inviting the sentencing Judge to take into account on sentence the possibility of summary disposal of the s.35(4) offence, it was submitted that this was a factor which should have been taken into account and which should have resulted in some mitigation of penalty. In circumstances where the sentencing Judge made no mention of this factor, Mr Barrow submitted that error had been demonstrated.
74The Crown submitted that the circumstances of the Applicant's offence and his criminal history for offences of violence were such that the matter was appropriately being dealt with in the District Court. In any event, the Crown submitted that the sentence actually imposed was less than the jurisdictional limit available to the Local Court if the matter had been dealt with summarily.
Sentence Grounds of Appeal Where the Point Was Not Taken Below
75Judges sitting in this Court have noted that grounds of appeal of this type are regularly and increasingly arising for consideration. The principle relied upon is a common law principle, and not one identified in s.21A Crimes (Sentencing Procedure) Act 1999.
76Very frequently, the ground is relied upon in this Court, although no submission was made in the District Court that the possibility of summary disposal was a matter which ought be taken into account in mitigation of penalty. In such cases, of course, the sentencing Judge does not have the benefit of considered submissions from the parties, including a submission from the Crown as to why the relevant charge or charges came to be prosecuted on indictment in the District Court.
77The submission advanced frequently on appeal (as in the present case) is that the sentencing Judge failed to have regard to what is said to have been a relevant factor, in circumstances where the Judge had not been invited to have regard to that factor in the first place at the sentencing hearing.
78This Court has held that a failure by a sentencing Judge to mention that a matter could have been dealt with in the Local Court cannot of itself constitute error: R v Jammeh [2004] NSWCCA 327 at [28] (Buddin J, Wood CJ at CL and Shaw J agreeing); R v Pickett [2004] NSWCCA 389 at [32] (Buddin J, McColl JA and Howie J agreeing).
79This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108. If material error is demonstrated, before the Court would proceed to resentence the Applicant, the Court must form a positive opinion that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 720-721 [79]. It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15].
80There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]. It might be thought that defence counsel would have ample opportunity to consider whether an argument concerning possible summary disposal should be made in the District Court, given that the acceptance of a plea of guilty to a lesser charge usually follows charge negotiations, as occurred in this case. The fact that a less serious charge is to proceed (and its consequences) would be at the forefront of counsel's thinking.
81The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29].
82In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may "render a serious injustice" if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance.
83It is difficult to see how the possibility of summary disposal lies in this category. In reality, as will be seen, the possibility of summary disposal as a mitigating factor is to be confined to a rare and exceptional set of circumstances where the offender is being sentenced in the District Court for an offence which may be seen as a clear summary offence which ought otherwise have been prosecuted in the Local Court. In such circumstances, it might be thought that the argument is so obvious that defence counsel at first instance will advance a submission in the District Court to that effect. If that does not occur, then this may be a very practical barometer as to whether such an argument was realistically available in the circumstances of the case in the first place.
Statutory Provisions Permitting Prosecution of Local Court Offences onIndictment
84With these preliminary remarks, it is appropriate to refer to statutory provisions which may see offences, ordinarily prosecuted as summary offences in the Local Court, being prosecuted on indictment.
85Generally speaking, there is a hierarchy of criminal offences in this State:
(a)offences which may be prosecuted solely on indictment in the Supreme or District Courts;
(b)offences which may be prosecuted on indictment, or summarily in the Local Court, depending upon certain factors;
(c)offences which may be prosecuted solely as summary offences in the Local Court (putting to one side, for present purposes, summary offences which may be prosecuted in the Supreme or District Courts, the Land and Environment Court and the Industrial Relations Court).
86There are statutory mechanisms for a pure summary offence to be dealt with by the Supreme or District Courts, where the summary offence is related to an indictable offence which is before the higher Court or is a back-up offence: ss.165-169 Criminal Procedure Act 1986; Director of Public Prosecutions v Sinton [2001] NSWCA 179; 51 NSWLR 659 at 662 [9]ff; R (Cth) v Petroulias (No. 36) [2008] NSWSC 626; 73 ATR 83 at 119 [215]-[217]; Huynh v R [2008] NSWCCA 216 at [67] - [72].
87Further, summary offences may be included on a Form 1 in the Supreme or District Courts: s.33(4)-(6) Crimes (Sentencing Procedure) Act 1999.
88Prior to the enactment of the scheme which introduced Table 1 and Table 2 offences, the mechanism for determining whether indictable offences ought be disposed of summarily before a Magistrate, or should proceed on indictment by way of trial or sentence, was to be found in s.476 Crimes Act 1900.
89The operation of s.476 was explained in Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 at 219C-D, where Gleeson CJ (Clarke JA agreeing) said:
"S476 provided that specified offences, although indictable offences, could be tried summarily in certain circumstances where the defendant consented and the magistrate thought it proper. From the point of view of a defendant, one of the principal inducements to giving such consent was that the penalties available to be imposed by a magistrate following a summary hearing were significantly less than the maximum penalties following a trial before a jury. One of the matters that would ordinarily be relevant to a magistrate's decision as to whether it was proper to deal summarily with an offence, in circumstances where the defendant consented, was the appropriateness of the available penalties in such circumstances. If a defendant were willing to forego a right to trial by jury, and the magistrate were satisfied that, in the light of all relevant considerations, including the matter of penalty, it was an appropriate case for summary disposition, then the matter could be dealt with in that way."
90The statutory scheme involving s.476 Crimes Act 1900 was abolished with the enactment, of the Criminal Procedure (Indictable Offences) Act 1995. That scheme, which introduced Table 1 and Table 2 offences, was considered by this Court in R v Bartalesi (1997) 41 NSWLR 641 and, more particularly, in R v Doan [2000] NSWCCA 317; 50 NSWLR 115.
91The statutory scheme since 1995 has removed from the discretionary determination of the Local Court, the decision as to whether an offence capable of being dealt with summarily or on indictment ought proceed in that way. The decision is vested, in different ways, in the parties to the criminal proceedings.
92Indictable offences listed in Table 1 are to be dealt with summarily unless the prosecutor or the person charged with the offence concerned elects to have the offence dealt with on indictment: s.258(a) Criminal Procedure Act 1986. Offences listed in Table 2 are to be dealt with summarily unless the prosecutor elects to have the offence concerned dealt with on indictment: s.258(b).
93All offences under s.35 Crimes Act 1900, including ss.35(2) and 35(4), are Table 1 offences: Clause 2, Schedule 1, Criminal Procedure Act 1986.
94If no election for indictable prosecution is made with respect to a Table 1 or Table 2 offence, the offence is to be dealt with summarily as if it were a summary offence: s.261. If an election is made for indictable prosecution, the offence is to be dealt with on indictment: s.262.
95Section 263 provides for the time for making an election. That a charged person's criminal record is relevant to the process of election is reinforced by s.265 Criminal Procedure Act 1986, which requires the prosecution to serve upon the person charged with a Table 1 offence, a copy of his or her criminal record.
96It might be thought that the provision of the criminal record to a person charged with a Table 1 offence is intended to assist that person to consider whether indictable election should be sought, and to be in a position to make submissions to the prosecution on the question whether the prosecution should elect for indictable disposal of the matter.
97Section 267 makes provision for the maximum penalties available where Table 1 offences are dealt with summarily, and s.268 makes similar provision concerning Table 2 offences.
98The maximum term of imprisonment that the Local Court may impose for any offence under s.35 Crimes Act 1900 is imprisonment for two years: s.267(2). However, this provision prescribes the jurisdictional limit of the Local Court, and not the maximum penalty for any offence triable within that jurisdiction: R v Doan at 123 [35].
99Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for a worst case: Re Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) [2002] NSWCCA 515; 137 A Crim R 196 at 203-204; [27]; R v El Masri [2005] NSWCCA 167 at [30].
100Paragraph 8 of the Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales lays down guidelines for election by the prosecution for an offence to be dealt with on indictment. The guidelines are furnished pursuant to s.13 Director of Public Prosecutions Act 1986. Paragraph 8 of the Guidelines includes the following:
"...
An election should not be made unless:
(i) the accused person's criminality (taking into account the objective seriousness and his or her subjective considerations) could not be adequately addressed within the sentencing limits of the Local Court; and/or
(ii) for some other reason, consistently with these guidelines, it is in the interests of justice that the matter not be dealt with summarily (eg. a comparable co-offender is to be dealt with on indictment; or the accused person also faces a strictly indictable charge to which the instant charge is not a back-up).
... ."
101The sentencing limits of the Local Court include the jurisdictional limit for the particular offence (ss.267-268 Criminal Procedure Act 1986) and the limitation on the imposition of consecutive sentences of imprisonment in the Local Court under s.58 Crimes (Sentencing Procedure) Act 1999.
102In R v Gent [2005] NSWCCA 370; 162 A Crim R 29, consideration was given to a ground of appeal of this type in the context of a Commonwealth prosecution. After reference was made to the decision of this Court in R v El Masri, and to the provisions of s.4J(1) Crimes Act 1914 (Cth) with respect to summary disposal of federal indictable offences, with the concurrence of McClellan CJ at CL and Adams J, I said at 47 [84]-[86]:
"84An offence which, as a matter of jurisdiction, is capable of being disposed of summarily may be prosecuted on indictment in a number of circumstances:
(a)the offence may be one of a number of offences in relation to which the accused person is committed for trial but where the person is acquitted of, or the Crown does not proceed with, the more serious charge (see, for example, El Masri);
(b)the offence may be one where the Director of Public Prosecutions, in the exercise of discretion, has determined that the matter ought to proceed on indictment: s.4J(1) Crimes Act 1914 (Cth); s.260(1) or (2) Criminal Procedure Act 1986;
(c)infrequently, the offence may be one where the offender resisted summary disposal and elected for prosecution on indictment: s.4J(1) Crimes Act 1914 (Cth); s.260(1) Criminal Procedure Act 1986.
85The principles in Crombie and El Masri have particular application with respect to the first class of offences referred to in the preceding paragraph. In such a case, the offender may be in a position to contend, with some force, that he or she stands for sentence in the District Court with respect to an offence which otherwise would have been disposed of summarily in the Local Court. That is not this case.
86The Commonwealth Director of Public Prosecutions, in the present case, formed the view that this matter was appropriate to be prosecuted on indictment. That is a decision which lies within the exercise of prosecutorial discretion and in relation to which provision is made in paragraphs 5.9-5.11 of the Prosecution Policy of the Commonwealth Director of Public Prosecutions. Similar provisions exist with respect to State offences in paragraph 8 of the Prosecution Guidelines of the Director of Public Prosecutions (NSW): R v Palmer [2005] NSWCCA 349 at paragraph 10. Decisions made in the exercise of prosecutorial discretion are not readily subjected to review or appellate scrutiny by the courts: Maxwell v The Queen (1995) 184 CLR 501 at 512, 534; Hanna v Director of Public Prosecutions [2005] NSWSC 134 at paragraphs 40ff. In R v Murray [2000] NSWCCA 159, Carruthers AJ (Hulme J agreeing) said at paragraph 16:
'It is a question of discretion for the Director of Public Prosecutions whether matters such as this be proceeded within the Local Court or the District Court, and it would only be in a rare matter, I would have thought, that this Court would be prepared to express a view as to whether it was or was not appropriate for the Director to have elected to proceed in the District Court in relation to certain matters as distinct from the Local Court.'
In my view, where the Director of Public Prosecutions has elected to prosecute a matter on indictment, it would require a very clear case of inappropriate prosecution of an offence on indictment before the Crombie and El Masri principles could provide an argument in mitigation resulting from a lost opportunity for summary disposal of that offence."
103Circumstances in which a ground of appeal of this type will have real traction are best illustrated by R v El Masri. There, the applicant was committed for trial upon a charge of assault with intent to rob in circumstances of aggravation. He stood trial upon that count, with an alternative count of assault occasioning actual bodily harm. He was acquitted on the first count and pleaded guilty to the second count. The circumstances of the offence of assault occasioning actual bodily harm involved a single punch to the side of the head of the victim, with relatively minor injury resulting. The applicant had no criminal record for offences of violence. This Court took the view that the offence of assault occasioning actual bodily harm was, in truth, a summary offence which was only being dealt with in the District Court on indictment, because of the purely indictable count of which the Applicant was acquitted. It was entirely clear that the offence would otherwise have been dealt with summarily, but for the existence of the more serious charge.
104A further example of a clear case where the ground succeeded is McCullough v R [2009] NSWCCA 94; 194 A Crim R 439. There, the applicant was committed for trial on a charge of aggravated breaking and entering with intent under s.112(2) Crimes Act 1900. However, that charge was not proceeded with and the applicant pleaded guilty to common assault and malicious damage to property. In delivering judgment allowing the offender's appeal against sentence, Howie J (McClellan CJ at CL and Simpson J agreeing) said at 444 [22]-[23]:
"22The Crown eventually did not proceed on the first count. This is unsurprising having regard to the offence that was alleged. Therefore the two matters arising from the incident with his brother were before the District Court only because of the charge in the first count that was not ultimately pursued. Neither the offence of malicious damage or the assault warranted a committal to the District Court. In fact both offences must be dealt with in the Local Court (where the value of the property on the malicious damage charge does not exceed $5,000) unless election is made for trial on indictment: see s 260 of the Criminal Procedure Act and the second schedule to that Act. The election would have been made in this case only because the first count had to be dealt with in the District Court. In these circumstances it is highly relevant that the offences could have, and should have in the normal course of events, been dealt with in the Local Court.
23The relevance of this fact is more than merely the sentencing limit to which a magistrate is generally restricted. That is the normal consideration given to the fact that an offence could have been dealt with in the Local Court; R v Crombie [1999] NSWCCA 297. However, the maximum penalty for an assault under s 61, when dealt with summarily is relevantly, 12 months imprisonment: s 268 of the Criminal Procedure Act. Here the Judge imposed a sentence of 9 months. Similarly for an offence of malicious damage where the value of the property does not exceed $5,000 the maximum penalty is 12 months. Here the Judge imposed a sentence of a fixed term of 19 months. There is no value stated of the damage but I cannot believe that it would be more than $5,000."
105His Honour then referred to passages from R v El Masri and R v Palmer [2005] NSWCCA 349, before concluding at 446 [26]:
"Although, unlike the situation in El Masri, the Judge in this case did indicate that the two offences could have been dealt with in the Local Court, there needed, in my opinion, to be a closer analysis of the situation because of the reduced maximum penalties that would apply, they being less than the normal jurisdictional limit in the Local Court of 2 years imprisonment. As her Honour noted, both these offences were to the lower end of the scale of seriousness. In my opinion the sentence for the malicious damage was excessive having regard to the nature of the offence and in light of the fact that it exceeded the sentence that the Local Court could lawfully have imposed had it been dealt with in that jurisdiction. The sentence for the assault was also manifestly excessive. The applicant should be re-sentenced for these two offences."
106The position with those charges was contrasted with a further charge against Mr McCullough which was appropriately before the District Court. Howie J said at 446 [27]:
"This criticism cannot be applied to the Judge's consideration of the malicious wounding offence. It was clearly appropriate for that offence to be before the District Court, and the applicant's representative did not suggest otherwise. On its face the appropriate sentence for that offence given its seriousness was more than the magistrate could have imposed. Although the Judge did not refer to the fact that this offence could, at least notionally, have been dealt with in the Local Court, there was no error in failing to refer to that fact."
107Very few cases before this Court display the exceptional circumstances which existed in R v El Masri and McCullough v R. The usual case before this Court, illustrated by the present case, involves a person who is committed for trial upon one or more indictable offences and pleads guilty, usually after charge negotiations, to a lesser indictable offence. A common feature is that the circumstances of the offence for which sentence was passed remain serious, and frequently the offender has a significant criminal history.
108These more common circumstances lead to an argument in this Court, which seeks to challenge the characterisation of the offence as one which was appropriate to be dealt with on indictment. This process leads inevitably to an examination of the circumstances of the offence and the criminal history of the offender.
109Unless this Court is able to clearly determine that the offence in question, committed by the particular offender with his or her criminal history, ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 561-562 [62]-[67].
110Grounds of appeal, as asserted by the present Applicant, have been considered in a number of recent decisions of this Court, including Bonwick v R [2010] NSWCCA 177, Dagdanasar v R [2010] NSWCCA 310, Lewis v R [2011] NSWCCA 206, Kean v R [2011] NSWCCA 136 and LB v R [2011] NSWCCA 220. The frequency of appeals which raise this ground tends to emphasise the fact that the issue is well known as a potential factor to be taken into account on sentence, so that this Court should apply a rigorous approach in requiring offenders to take the point at first instance, before being permitted to raise it in this Court.
111The ground of appeal can only be meaningful if this Court determines that the total sentence for the particular offence should not have exceeded the jurisdictional limit of the Local Court. It might be thought that a ground asserting manifest excess is capable of covering the same ground, if the position is that clear in the particular case.
112Unless it is plainly wrong that the offence is in the District Court, it is difficult to see how an offender can succeed on a ground of appeal which claims that a relevant factor has not been taken into account by the sentencing Judge.
113In support of the present appeal, the Applicant relied upon statements in Kean v R and, in particular, by Adams J (at [37]). I do not consider that anything said in that case assists the Applicant.
114However, I wish to make some observations about that decision. It appears to be based upon an incomplete understanding of the statutory scheme described earlier in this judgment.
115The history of the District Court proceedings against Mr. Kean may be traced in the decisions of his Honour Judge Berman SC, the most experienced Judge who tried and sentenced him: R v Kean [2009] NSWDC 435; R v Kean [2010] NSWDC 29. Mr. Kean was sentenced after trial for an offence of aggravated break, enter and steal, and after pleading guilty to stealing a Mercedes Benz motor vehicle, and a further count of break, enter and steal, with an offence of take and drive conveyance being taken into account on a Form 1 on the last count.
116Mr. Kean had a very lengthy criminal history, involving some 30 prior burglary offences. He was on parole at the time of the aggravated break, enter and steal and on bail at the time of the break, enter and steal offence.
117No submission was advanced before the District Court that the theoretical possibility of summary disposal of some counts ought operate in the offender's favour on sentence: Kean v R at [34].
118Adams J observed at [34] that it "is not clear why, apart from convenience, these counts [stealing the Mercedes Benz vehicle and the break enter and steal offence] were dealt with in the District Court". His Honour continued, at [37], that it "seems clear that, if the matter had come before the District Court as an administrative convenience, the fact that it could have been dealt with in the Local Court and, in the normal course, is a matter of significance". (The catchwords for Kean v R include the words "concurrent jurisdiction of the Local and District Courts - for convenience all matters heard in the District Court").
119His Honour concluded (at [37]), that the fact that the matter was not raised by counsel, and not referred to by the sentencing Judge, indicated that "it was overlooked". Adams J proceeded to refer to the circumstances of the offence, and the offender's significant criminal history for offences of dishonesty, before concluding (at [40]) that "were it not for the applicant's criminal record, it would in my view have been necessary, in respect of count 3 [stealing the Mercedes Benz vehicle] and the CAN offence [break enter and steal], to give significant weight to the fact that they could have been dealt with in the Local Court".
120With respect, it is erroneous to conclude that the two nominated offences were before the District Court as a matter of "administrative convenience". They were Table 1 offences and were before the District Court following an election for indictable disposal of the matters. The fact that the offender was a recidivist burglar (with some of his offences committed in breach of conditional liberty) was a likely explanation for an election for prosecution on indictment, in addition to the seriousness of the offences in question.
121In my view, the decision in Kean v R ought be understood as one confined to its own facts, and should not be regarded as a decision which assists the determination of other appeals.
The Present Case
122In the present case, the Applicant's offence was an appropriate crime to be prosecuted on indictment in the District Court. It is clear that the Crown took that view and advanced a submission in the District Court that a sentence of imprisonment for more than two years was appropriate on the s.35(4) offence. An examination of the circumstances of the offence, involving the use of a broken bottle to stab the victim five times, considered against the background of the Applicant's history of offences of violence, undermines entirely his argument that the sentencing Judge failed to have regard to a relevant factor on sentence in a manner which warrants the imposition of a lesser sentence.
123In any event, the sentence imposed in the District Court did not reach the jurisdictional limit of the Local Court. It is difficult to see how this ground of appeal could work in the Applicant's favour in these circumstances, even if it was made out.
124In my view, no error has been demonstrated, let alone an error that would lead this Court to impose a lesser sentence. I would reject the third ground of appeal.