Kabir v R [2020] NSWCCA 139

Kabir v R [2020] NSWCCA 139 · Read the judgment on AustLII

Catchwords: Commonwealth sentencing schedules – whether the offender needs to be personally asked

The Court of Criminal Appeal (‘CCA’) has found that requiring an offender to verbally answer whether they want offences taken into account on a s 16BA schedule would be a triumph of form over substance; it should usually be enough in Commonwealth matters (at least) if their lawyer confirms the offender’s wishes.

The applicant was a registered tax agent. As a result of being a franchisee in a network offering taxation and accountancy services, he had access to a client database, and he got financial information from that database to lodge false tax returns and divert the money to himself. Relevantly for this summary, he was also charged for his conduct in having another man open bank accounts, organising for more false tax returns to be diverted to that man, and diverting the correspondence to a PO box opened up in that man’s name. All this latter conduct was taken into account via a schedule pursuant to s 16BA Crimes Act 1914 (Cth), which is the Commonwealth equivalent of the Form 1 with which practitioners may be more familiar. When he pleaded, the sentencing judge invited the applicant to come to the microphone and arraigned him; he pleaded guilty. His Honour then identified that there was a further matter to be taken into account on a schedule, and his counsel confirmed that to be the case. The applicant was not asked personally at any stage of the sentencing proceedings whether he wanted the matters on the schedule to be taken into account, although on appeal he did not complain about the way that the list judge had dealt with the matter, and the applicant acknowledged that he had signed the s 16BA schedule document. On the other hand, the fact that the applicant was not asked personally was at least arguably inconsistent with the authority of Purves v R [2019] NSWCCA 227 (‘Purves’) [reported in these pages in October 2019], and the applicant therefore argued on appeal that he must be remitted to be resentenced in the District Court. In Purves, the applicant had been self-represented on the appeal. He did not raise any issue about the s 16BA certificate himself; it was raised by the Crown. The CCA there had held that the appeal must be allowed because the judge did not make the statutory inquiries and therefore the applicant did not state that he wished the additional offences taken into account.

In this case, however, the Crown submitted that Purves had no precedential value. The object of s 16BA (like that of the equivalent NSW-based provision) is to ensure that the offender is aware of what is happening and consents to the procedures that may have a significant impact on his or her freedom. The Crown went on to submit that it does not strain the language of the section to interpret it as allowing a legally-represented person to indicate his or her wish through counsel, as they do with other procedural events in criminal proceedings. The Commonwealth provision is not expressed in mandatory terms (it provides that the Court ‘may’ ask), which is to be contrasted with the NSW-based language (which provides that ‘the court is to ask’).

The CCA here (Harrison J, Hoeben CJ at CL, and Wilson J agreeing) accepted with those and other submissions by the Crown (at [47]). The Court should be slow to encourage the triumph of form over substance. The legislation carries with it the risk of adverse consequences, and it is therefore obviously important that an offender’s admission of guilt and the associated giving of consent should take place with appropriate certainty. The important thing about s 16BA is that the offender has both admitted guilt to the offences on the schedule and wishes them to be taken into account. The section is predicated upon that admission being made and the wish being communicated. There is no reason why the Court cannot legitimately arrive at the appropriate level of satisfaction based upon the words or conduct of an offender’s legal representative (at [48]-[50]). It followed that this (and the other grounds of appeal, not discussed in this summary) were dismissed.

The result appears to be that, at least in the case of Commonwealth s 16BA schedules, there is now normally no reason why an offender needs to be asked personally to acknowledge their guilt. This will probably be a relief to practitioners, since the complexity of the question the judge has to ask seems to cause quite a lot of unnecessary confusion amongst offenders.