Ilic v R [2020] NSWCCA 300

Ilic v R [2020] NSWCCA 300 · Read the judgment on AustLII

Catchwords: Sentence – Commonwealth matters – Form 1 vs s16BA schedule

The Court of Criminal Appeal (‘CCA’) (McCallum JA, Wright J agreeing; Garling J also agreeing, though for slightly different reasons) has held that Commonwealth matters are not capable of being placed on a Form 1 (as distinct from a schedule pursuant to Crimes Act 1914 (Cth) s16BA).

The lead judgment by McCallum JA opens on a lighter-than-usual note upon which it is not possible to improve by summarising it: ‘Offenders in New South Wales can be undiscriminating as to whether they commit State or federal offences. Sometimes they do both, which complicates the sentencing task. The applicant in the present case provides a good example. On a day when he was found dealing with proceeds of crime (a State offence), he was in possession of a prohibited weapon, prohibited drugs and false identification (all State offences) but also two signal jammers (a federal offence).’ (at [1]). The sentencing judge was invited to take the Commonwealth offences into account on a Form 1. Her Honour identified that, in juridical terms, the question is whether the provisions of Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act are picked up and applied as federal law by s 68(1) or s 79 of the Judiciary Act 1903 (Cth) (at [3]). Following a tangent during which her Honour pointed out that the document we all know as ‘Form 1’ has actually been repealed and we are essentially using a zombie form (see [14]), her Honour went on to determine that although provisions like those in that division are theoretically capable of being picked up as federal law (at [32]), the Form 1 provisions are not in fact picked up by the Judiciary Act. In her Honour’s view that was for two reasons, both hinging on inconsistency with Commonwealth law. First, the prohibition under the Commonwealth law on fixing a single non-parole period in respect of both federal and State sentences (at [41]). Secondly, the intention that a Commonwealth offence should not be disposed of contrary to the determination of a Commonwealth prosecutor (at [44]). For his part, Garling J agreed with the ultimate conclusion that the provisions are not picked up, but preferred to base his opinion on the inconsistency of law between the Form 1 provisions on the one hand, and the s 16BA procedure in the Commonwealth Crimes Act 1914, on the other (at [60]-[61]).

Both the judgments (but particularly that of Garling J) described the appeal as surprising (having been raised by an offender), and openly expressed the view that no better outcome was likely when the matter was ultimately determined according to law. Nevertheless, error having been established, the matter was remitted to the District Court for resentencing.

It follows that practitioners should ensure that if there are any Commonwealth charges to be disposed of as part of a charge negotiation, those Commonwealth charges are placed on a s 16BA certificate, not on a Form 1.