Bazzi v R [2024] NSWCCA 35
Bazzi v R [2024] NSWCCA 35 · Read the judgment on AustLII
Catchwords: Committing s 114 offence with previous conviction for s 114 – elements of the offence – sentencing – optimistic calls for amendment
In this judgment dealing with the problematic (but relatively common) offence under s 115 of the Crimes Act, the Court of Criminal Appeal has discussed the elements of the offence, revisited the problems with sentencing for it, and called for Parliamentary intervention.
The applicant pleaded guilty to a range of property offences committee over a period of about 17 months. One of those offences was an offence pursuant to s 114(1)(d) of the Crimes Act. More importantly, she was also charged with an offence under s 115. She was sentenced to an aggregate sentence of 3 years and 1 months, with a non-parole period of 2 years. She appealed on grounds including that the sentencing judge erred by failing to apply High Court authority so as to avoid double punishment for the s 115 offence (this summary does not deal with the other grounds of appeal).
Readers will recall that s 115 of the Crimes Act creates an offence of being convicted of a s 114 offence, having previously been convicted of any indictable offence. Section 114 itself provides for a series of different offences all of which are variations of having an item (like a weapon or a housebreaking implement), or being on premises, variously with intent to commit an indictable offence. The open structure of s 114 (along with its comparatively-low 7 year maximum penalty) makes it popular for use during plea negotiations, especially as an alternative to armed robbery, or to break and enter offences. But practitioners may also have noticed that s 115 is also relatively popular among members of the constabulary, given that it is very nearly the same as a s 114 offence, but with a 10 year maximum.
Simpson AJA (Weinstein J agreeing; Button J dissenting on this ground of appeal) observed that if there had not been any other authority on the topic, she would have found that the offence under s 115 should be interpreted as providing an increased penalty for any offence under s 114 if there was a previous conviction. But previous authority and other statutory provisions contradicts that position (at [36]).
The offence created by s 115 is an offence of recidivism, with neither actus reus nor mens rea. Establishing the s 115 offence only requires proof of the two earlier offences, and no other criminal conduct (at [37]). The effect of s 115 is therefore to expose the already punished offender to a further penalty of imprisonment for up to 10 years. On its face, s 115 suggests a legislative intention that an offender who satisfies the criteria is to be punished again (at [49]). The central question raised by this ground of appeal was how an offender is to be properly sentenced for a s 115 offence, paying due regard to the facts of the offence, and without disregarding long-held and well-established concepts of justice, most recently stated in Pearce v The Queen (1998) 194 CLR 610 (‘Pearce’) (at [40]). At least some of the principles as stated in Pearce must yield to any contrary legislative intention: Pearce dealt with offences where the legislation did not mandate that the offender was to be punished twice, but the same cannot be said of s 115 (at [48] to [49]).
Other, relatively recent, authority (Darcy v R [2022] NSWCCA 54 – ‘Darcy’) suggests that Pearce still applies when sentencing for an offence pursuant to s 115 so that, essentially, a judicial officer sentences a s 115 offence by punishing only so much of the offence as has not already been reflected by the original s 114 sentence (at [52]). The majority in this case had some doubt as to whether that approach was logical; either the Pearce principles apply, or they do not. If they do, any additional penalty would result in double penalty for the foundational offences, and reducing the sentence for the s 115 offence to a nominal one does not fix the problem (at [53]-[54]). An essential part of sentencing is the determination of the objective seriousness of the offending. But for a s 115 offence (which has no actus reus), there is no concrete act or omission for which sentence is to be passed, and no additional act or omission of criminality. If the s 115 offence were to be charged separately, it would be inappropriate to impose any penalty, and it follows that it would be equally inappropriate to impose one as part of an aggregate sentence (at [57]).
Button J, in dissent on this ground, observed that the approach in Darcy (imposing only a short additional penalty for the s 115 offence) was a practical solution to the problem whenever an offender is convicted of offences contrary to both s 114 and s 115 arising from the exact same conduct. In Darcy, this was said to justify the sentence of only 2 months despite the maximum penalty for s 115 of 10 years (at [91]) – sentences which his Honour described as ‘remarkably short’ (at [93]). Having endorsed the complaints in earlier judgments in relation to the offence (at [96]-[97]), his Honour proposed a more fundamental solution that, if a conviction is to be obtained against s 114, it is very difficult to envisage the circumstances in 2024 in which it would also be appropriate for the Crown to seek a conviction to s 115 (at [98]).
For those and other reasons, the majority upheld the appeal and imposed a conviction with no other penalty (pursuant to Crimes Sentencing Procedure Act (NSW) s 10A) for the s 115 offence, and adjusted the aggregate sentence accordingly.
Section 115, was therefore described by the members of this decision as ‘unusual to the point of anachronism and anomaly’ (Button J at [86]), and ‘otherwise … unknown in this jurisdiction’ (Simpson AJA at [37]). Simpson AJA pointed out that as long ago as 1996, the NSW Law Reform Commission recommended the repeal of the offence, but no action has been taken; this was said to be an appropriate case by which to remind the legislature of the LRC recommendation (at [38]).
Practitioners who watch how Parliaments have historically responded to calls to review offences – and particularly property offences – might find themselves feeling pessimistic that if Parliament deigns to intervene the response will be favourable to defendants.