Purves v R [2019] NSWCCA 227

Purves v R [2019] NSWCCA 227 · Read the judgment on AustLII

Catchwords: Commonwealth sentencing procedure – s16BA – equivalent of Form 1

In this decision the CCA has held that it is essential to the procedure in s 16BA of the Commonwealth Crimes Act that the offender is actually asked, by the Court, that they want the offences taken into account on sentence.

The applicant pleaded guilty to a range of Commonwealth offences relating to child abuse or procuring child abuse material. There were also three offences to be taken into account under s 16BA of the Crimes Act 1914 (Cth), which is the Commonwealth equivalent to a Form 1 procedure. He was sentenced to 7 years and 6 months, with a non-parole period of 4 years and 6 months. He appealed, identifying a number of grounds (none of which are described or resolved in the judgment).

On the appeal, the Crown identified that there had been a procedural error in the sentence proceedings. In a blessedly short judgment, Simspson AJA (with whom Fullerton J agreed; and Bell P also agreed but with a couple of brief additional observations) outlined the procedure and the impact of failing to strictly adhere to it.

Section 16BA of the Commonwealth Crimes Act provides a procedure for taking into account offences for which the offender admits their guilt and asks that they be taken into account for sentencing on principal offences. Before embarking on the procedure, the court is required to be satisfied of a number of things, including that a list has been filed, and that it is appropriate to adopt the procedure. The procedure also requires the court to ask the convicted offender whether he or she admits guilt to the additional offences and wishes that they be taken into account. By s 16BA(2), if they respond affirmatively to each question, they can be taken into account (at [4]).

In this case, the procedure was not brought to the judge’s attention and was overlooked. The judge did not make the statutory inquiries, and the applicant did not, therefore, make the necessary admissions and did not state that he wished the additional offences to be taken into account. Nevertheless they were taken into account. The procedural step is an important one, and to take into account the additional offences in the absence of that step was an error (at [5]). For technical reasons, the error couldn’t be remedied, so that the matter was remitted to the District Court for sentence (at [6] to [7]).

The explicit requirement in s 16BA that the court must ask an offender whether they admit their guilt does not appear in the procedure provided by the NSW legislation; at least on the face of it, this decision appears to be limited to the procedure to be adopted in Commonwealth sentencing matters.

Disclaimer: The author has involvement in this defendant’s case, after it was remitted