Park v R [2020] NSWCCA 90
Park v R [2020] NSWCCA 90 · Read the judgment on AustLII
Catchwords: Sentencing – jurisdictional limit of the Local Court – sentences before discount
If you think the question of Local Court sentencing jurisdiction has been settled for about 20 years, prepare to be unsettled. In this decision, by the barest of majorities, the CCA has endorsed the existing position – but it has been found to be ‘arguable’ that the way we have been approaching this for the last 20 years may have been wrong.
The applicant was convicted of a range of conduct including sex offences, choking with intent to commit an indictable offence, common assault, and intimidation. There were more offences on Forms 1. Relevantly for present purposes, there were two offences on a certificate under s166 of the Criminal Procedure Act, and the one that is really central was an offence of taking and driving a conveyance, which carries an overall maximum penalty of 5 years. A s 166 certificate allows related summary offences to be dealt with in the District Court, and essentially requires the sentencing judge to sentence the offender as though they are being sentenced in the Local Court. That also comes with the jurisdictional sentencing limits of the Local Court: generally speaking, 2 years per offence, to a cumulative maximum of 5 years.
The sentencing judge indicated that he proposed to allow a discount of 25% to ‘the sentence that would otherwise have been imposed’ – those words, adopted from s 22 of the Crimes (Sentencing Procedure) Act (‘the Sentencing Act’) were at the core of this appeal. The sentence actually imposed by the judge was one of 2 years, meaning that the starting sentence before discount must have been 2 years and 8 months. The applicant appealed on two grounds, of which this summary only deals with a limited part of one ground: as part of arguing that the overall sentence imposed was manifestly excessive, the applicant argued that the sentencing judge had been in error by commencing with a sentence that exceeded the jurisdictional maximum penalty for the offence.
By majority (R A Hulme J, Bathurst CJ agreeing in a separate judgment; Fullerton J dissenting) the CCA dismissed this ground of appeal.
The judgment of R A Hulme J identified this appeal point raises a matter of considerable importance in relation to summary sentencing matters, and is encountered daily in the Local and District Courts (at [167]). As flagged above, the question is what is meant by the concept of a sentence which ‘would otherwise have imposed’, which is language adopted from s 22 of the Sentencing Act. R A Hulme J considered that those words are a reference to the sentence a court considers appropriate having regard to the maximum penalty and all of the facts and circumstances of the case. That sentence may then be discounted for the plea of guilty. Once the assessment has been made and the discount applied, the final question is whether a jurisdictional limit applies. If it does and the sentence would otherwise exceed that limit, then the sentence must be reduced to that limit (at [174]). His Honour’s analysis then proceeds to consider the legislative history, as well as longstanding authority – in particular, the well-known case of R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 (‘Doan’). After running through a range of examples(at [185] to [195]), ultimately his Honour expressed the view that although s22 (or its predecessor) has not regularly been referred to in decisions including Doan, it cannot be assumed that for the last 20 years the courts have been ignorant of the terms of the provision (at [196]).
Bathurst CJ, in additional reasons directed to resolving the disagreement between R A Hulme and Fullerton JJ, commenced with the words of the legislation, and particularly the history of the provisions (at [5] to [19]). Applying principles of statutory construction, his Honour determined that the purpose of s 22 can be summarised as providing an incentive for a person to plead guilty, whilst not resulting in a sentence which is unreasonably disproportionate to the offence (at [21]). In his Honour’s view, the words ‘than it would otherwise would have imposed’ should be construed as referring to the penalty which would have been imposed but for the jurisdictional limit. That is so because it is consistent with the purpose of the provision (at [30]).
However, Bathurst CJ also accepted that the contrary conclusion reached by Fullerton J is arguable. That said, on the assumption that her Honour’s approach was correct, the Chief Justice found he would not have been able to be satisfied to the requisite degree to overturn the relevant previous decisions – bearing in mind the large number of cases which have been affected by the sentencing approach as summarised above in the judgment of R A Hulme J (at [33]).
There is not space here to go into the dissenting opinion of Fullerton J in detail. Broadly, her Honour applied settled principles of statutory construction – but came to a different conclusion about what they meant (at [140]).
Broadly, the practical impact of the approach adopted by Fullerton J would be that the jurisdictional limit would become a hard upper limit before discounts. It suffices to say that, given the acknowledgment by Bathurst CJ that the contrary position expressed by her Honour was ‘arguable’, there may very well be a live question to be resolved here. In the meantime, Doan remains good law.