Comer v R [2025] NSWCCA 164

Comer v R [2025] NSWCCA 164 · Read the judgment on AustLII

Catchwords: Sentencing – related offences

In this decision the Court of Criminal Appeal has considered what it means for an offence to be a ‘related offence’ under for the purposes of summary offences being sentenced together with indictable offences.

The applicant was sentenced in the District Court after pleading guilty to a number of offences including firearm and drug supply offences. There were also three offences placed on a certificate under s 166 of the Criminal Procedure Act 1986. The s 166 certificate procedure provides that where an offender is committed to the District or Supreme Court for trial or sentence, the prosecutor may include any summary ‘back up’ offence (not raised in this case) to be dealt with at the end of the proceedings. Likewise (and more relevantly to this summary), any ‘related offence’ can be dealt with by the higher court, which sentences the offender as though exercising summary jurisdiction. ‘Related offence’ is defined in s 165 of the Criminal Procedure Act as involving a summary offence or indictable offence capable of being dealt with summarily (i.e. a Table 1 or Table 2 offence) ‘that arises from substantially the same circumstances as those from which the first indictable offence has arisen’. In the current appeal, of the three offences which had been included on the s 166 certificate, the applicant asserted (on appeal, for the first time) that the District Court had lacked the jurisdiction to deal with them because they did not, in fact, come within the definition of ‘related offence’.

The Court consisted of N Adams J, with Sweeney J agreeing. Coleman J agreed with the principles set out by N Adams J and agreed in part and dissented in part in respect of one of the two offences in issue (i.e. his Honour took a different view of the application of the principles to the facts of this case).

As N Adams J pointed out, it is notable that the s 166 procedure has been available in various forms since 1990, and yet there has never been any judicial consideration of the meaning of ‘related offence’ (at [85]).

As quoted above, the definition mentions ‘the first indictable offence’. However, the section does not require the prosecutor to specify that first indictable offence, unlike (for example) a similar procedure under s 33 of the Crimes (Sentencing Procedure) Act 1999 relating to so-called ‘Form 1’ matters, in which the section requires the certificate to specify the offence to which the certificate attaches. In the absence of any statutory requirement to identify the ‘first indictable offence’, it is not usually done. Although procedurally it might assist a sentencing judge to have the ‘first indictable offence’ specified, normally there is no challenge to the jurisdiction, so it is unnecessary (at [86]-[87]). Following a review of the legislative history (at [89]-[104]), her Honour observed that the legislative purpose of each of the amendments made over the years has been to broaden the jurisdiction of the District and Supreme Courts to deal with related offences, in the interests of efficiency and convenience (at [105]). Similarly, the few appellate decisions that looked at the s 166 certificate procedure (reviewed at [106]-[110]) have all confirmed that the purpose of the relevant provisions is to achieve efficiency in the administration of justice in dealing with less serious offences when more serious offences are charged, to avoid wastage of time and inconvenience to the parties (at [111]).

The question, then, is what is required before an offence can be said to arise from ‘substantially the same circumstances as those from which the first indictable offence has arisen’. It is significant that the word ‘substantially’ has been included in the drafting (at [114]). Taken in the context of the definition of s 165, it should be taken to mean 'in substance’ or ‘essentially’. It qualifies the need for the related offence to arise from the same circumstances, and its inclusion lends support to an interpretation that incorporates flexibility as to the identity of the relevant circumstances (at [117]). The word ‘circumstances’ in the context of which the first indictable offence ‘has arisen’ is to be considered broadly, qualified by the word ‘substantially’ (at [119]).

In summary, the following principles were set out (at [124]):

There may often be no ‘bright line’ for determining whether a court has jurisdiction to consider a ‘related offence’; each case will turn on its own facts;

The provision should not be read such as to impose limitations which are not found in the statutory language;

The word ‘circumstances’ includes factors such as time, place, manner, and other details that accompany the event of the first indictable offence but does not include elements;

The word ‘substantially’ is quantitively imprecise, susceptible of ambiguity and ‘calculated to conceal a lack of precision’. Its inclusion in the definition qualifies the text that follows it. ‘It must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case’ …;

A temporal element can be important in identifying whether an offence is a related offence but is not determinative;

The fact that an offence leads soon afterwards to the detection of the first indictable offence might be insufficient on its own to establish a related offence, but it could be a relevant factor in combination with other factors, depending on each case;

There is no need for either the related offence or the first indictable offence to have occurred first in time;

The purpose of the provision is to achieve efficiency in the administration of justice and reduce wastage of time and inconvenience to the parties. The purpose compels a broad construction; and

The legislative history of the provision demonstrates an intention on each occasion to broaden the jurisdiction of the District or Supreme Court to deal with the related offence(s). This is a further basis to construe the provision broadly.

Her Honour observed that an offender cannot consent to jurisdiction if none exists, and since there may be cases where there is no ‘bright line’ distinction as to whether an offence is truly a ‘related offence’, it may be prudent for the prosecutor in such cases to consider alternative approaches such as the use of the Form 1 procedure to avoid any later challenges to jurisdiction (at [143]).

As mentioned above, Coleman J, in separate reasons, agreed with N Adams J as to the proper construction of the term ‘related offences’ and more generally her Honour’s analysis of the legal issues (at [147]-[149]). His Honour suggested that it is preferable that the s 166 certificate should specify the ‘first indictable offence’ to which it relates, so that it there can more readily be a consideration whether the ‘related offence’ arises from substantially the same circumstances (at [150]). His Honour observeed that in many cases the placing of one or more offences on a s 166 certificate is a matter agreed between the prosecution and the defence in the course of negotiating whether there will be a plea to some or all of the charges brought. There may be a number reasons why one or another of the parties may wish an offence to be on a s 166 certificate – but just because the parties agree to treat offences in this way does not mean that the court has jurisdiction to deal with them as related offences, unless they fall within the definition in s 165 of the Criminal Procedure Act (at [153]).

N Adams J (who, with Sweeney J made up the majority on this point) held that both the relevant offences were ‘related offences’ within the definition. Coleman J (dissenting on this point) considered that one of the offences did not meet the definition.

As a matter of practicality, the most prominent change to come out of this decision is a likely change by the prosecution to the pro forma certificate used for s 166 certificates. Notwithstanding the (relatively low-key) exhortation by N Adams J to an increased use of the Form 1 procedure in marginal cases, this seems unlikely: placing a charge on a Form 1 does not result in a separate conviction, and moreover avoids additional consequences which more often attach to summary offences, like licence disqualification. It seems that the most important thing is for practitioners to be prepared, in marginal cases, to be prepared on sentence to justify (using the principles set out above) how a particular summary offence is a ‘related offence’ in respect of an indictable offence before the Court for sentence.