Review of the Criminal Law 2007
Review of the Criminal Law 2007
by Justice Howie
Sentencing
Suspended sentences
1 There has been some consideration of suspended sentences by both the legislature and the courts. The Crimes and Courts Legislation Amendment Act 2006 made amendments to the provisions relating to suspended sentences principally to overcome decisions of the Court of Criminal Appeal that had restricted the power of a court when dealing with the breach of a suspended sentence. A court is no longer required to fix the non-parole period when the sentence to be suspended is imposed [1]. Rather the court when revoking the order suspending the sentence fixes the non-parole period [2]. Further there is now an appeal to the District Court from an order revoking a good behaviour bond [3].
2 In DPP v Cooke[4] the principles to be applied when determining whether to revoke a good behaviour bond given under s 12 were considered. That was a case where the offender had committed a further offence while subject to a suspended sentence. The judge determined that the sentence for the further offence should be a further suspended sentence and as a result took no action on the breach of the bond. There was both a Crown appeal and an application for prerogative – type relief. The Court held the judge acted erroneously in the manner in which he exercised the jurisdiction under s 98(3). That section requires a court to revoke a bond given under s 12 unless the breach was trivial or there were good reasons to excuse the breach. The Court considered the decision of Hidden J in DPP v Burrows[5].
3 The following principles can be distilled from the decision:
(i) as a general rule a breach of the bond should result in the offender serving the sentence that was suspended;
(ii) the focus should be on the conduct breaching the bond in determining whether the breach was trivial or could be excused;
(iii) the issue is not whether there are good reasons for not breaching the bond;
(iv) there may be good reasons found in extenuating circumstances surrounding the breach;
(v) the subjective circumstances of the offender are generally irrelevant as to whether the bond should be breached;
(vi) the need for rehabilitation by supervision or otherwise is not a good reason to excuse the breach;
(vi) it would be a rare case where the court would take into account, if at all, the impact of the breach upon the offender;
(vii) the penalty to be imposed for the further offence is irrelevant to whether the bond should be revoked;
(viii) the issue whether to breach the bond should be determined before the sentence is imposed for the further offence.
4 In the course of my judgment, with which the other members of the Court agreed, I stated:
23 ………………….There is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison. Notwithstanding what has been stated about the reality of the punishment involved in a suspended sentence, if offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved.
24 As King CJ pointed out, it should not be forgotten that before suspending a sentence the court must have reached the view that nothing but a sentence of imprisonment was appropriate to punish the offender for that crime: see R v Zamagias [2002] NSWCCA 17. The suspended sentence is not an alternative to a bond and should not be treated as such. The suspension of the sentence of imprisonment was an act of mercy designed to assist the offender’s rehabilitation or for some other purpose to benefit the offender on the understanding that, if the offender did not fulfil the conditions of the bond, the sentence would be imposed. Therefore, generally speaking, there can be no unfairness in requiring the offender to serve the sentence when the obligations under the bond have been breached.
5 This decision dealt only with the principles to be considered where there has been a breach of a bond in connection with a suspended sentence. They arise mainly because of the policy and philosophy behind suspended sentences and the words of the section dealing with a breach of a s 12 bond. In respect of the breach of other bonds the principles set out in R v Morris[6] apply. There it was held:
In many, and probably in the majority of, cases where leniency is extended to an offender by the courts availing themselves of those options, there is a significant contribution to the rehabilitation of the offender and no recurrence of criminal activity, at least during the period when the offender's conduct is by reason of the court's order kept under review. There is therefore a considerable community interest in maintaining the integrity of those sentencing options.
However (if leniency extended in such fashion is abused, there is a very real risk that the whole regimen of non-custodial sentencing options will be discredited both in the eyes of those members of the community who might otherwise have continued to support them and in the eyes of magistrates and judges; and there is a substantial risk that courts, of their own motion but also reflecting in a general way community opinion, may become increasingly reluctant to extend to offenders those lesser sentencing options which the legislature has provided. It is therefore extremely important that breaches of non-custodial sentencing orders be brought promptly to the notice of the sentencing court and there be dealt with swiftly and, generally speaking, in a manner which will demonstrate how seriously such breaches are regarded and must be regarded in the community interest.) Of course, there may be circumstances where the breach of recognizance is merely technical or may be seen as trivial or may readily be excused in the light of particular circumstances affecting the offender at the time of the breach. Absent such considerations, the consequence of a breach of a recognizance ought usually be the imposition of a sentence which, while not exceeding the appropriate range for the offence in question, is determined with a real awareness of the fact that it comes to be imposed following such a breach. It may not, of course, exceed that sentence which is appropriate to the objective circumstances; but it should usually reflect the fact that by his rejection of the trust placed in him by the previous sentencing court, the offender will have shown a lack of remorse and cast doubt upon his prospects of rehabilitation.
Two things need to be borne in mind by any court which is called upon to sentence an offender in circumstances where that offender is called before the court by reason of such a breach. The first and fundamental is that that offender comes to be punished not for the breach but, following the breach, for his other original offence in respect of which the recognizance was imposed. Secondly, in assessing the appropriate punishment for that original offence, the court must not ignore whatever penalty, whether by way of imprisonment or otherwise, may have been imposed by it or by some other court in respect of the conduct constituting the breach. The principle of totality clearly applies to the sentences to be imposed in respect of the breach and thereafter in respect of the original offence.
Discounts
6 In R v MAK and MAK [7] it was held that there should be no separate and quantified discount given for remorse either over and above, or in combination with, the discount for the plea of guilty. Although there was a suggestion in the guideline judgment in Thomson and Houlton[8] that a single discount could be given for plea, contrition, and witness vulnerability, it was held to be no longer appropriate to do so since the introduction of s 21A of the Crimes (Sentencing Procedure) Act [9]. Remorse is a factor relevant to a number of mitigating considerations such as likelihood of further offending and prospects of rehabilitation and, therefore, to take it into account in those matters as well as making it the subject of a separate quantified discount was to double count the factor.
7 Discounts for assistance has been a matter of some controversy in that there can be identified different approaches to applying the discount in the Court of Criminal Appeal reflective of different approaches being taken at first instance. The current situation is that generally there should not be a separate discount for assistance where there is a discount being given for a plea of guilty. The matter was comprehensively considered in SZ v R [10] Buddin J stated:
52 I acknowledge, as did Latham J in Sukkar (supra), that there will be cases in which a combined or composite discount of more than 50% is called for. There may well be a case in which the assistance proffered is of a quite extraordinary kind. Alternatively there may be a case in which the offender is entitled to an additional discount, in accordance with the principles enunciated in R v Ellis (1986) 6 NSWLR 603, on account of having disclosed information which was otherwise unknown to the authorities. Indeed, composite discounts in excess of 50% have been allowed on several occasions when this Court has proceeded to re-sentence following a successful appeal by an offender. See, for example, R v NP (supra); R v OPA [2004] NSWCCA 464 and R v AMT [2005] NSWCCA 151.
53 However, in light of the authorities to which I have referred and particularly given the statutory mandate contained in s 23(3) of the Act, it is my opinion that a combined discount exceeding 50% should be reserved for an exceptional case. Counsel for the applicant went so far as to suggest that a combined discount of 75%, comprising a discount of 25% for the plea of guilty to which would be added a further 50% for assistance to authorities, may be available in an appropriate case. In view of the matters to which I have referred, I regard such a submission as being simply untenable. Apart from any other consideration, the aggregation of discrete discounts is at odds with the observations of Gleeson CJ in Gallagher (supra) which are recited in the extract from El Hani (supra) which appears at par 31 of this judgment. See also R v NP (supra) at pars 30 and 47.
8 In the same case I pointed out that once a discount of 25 per cent for a plea of guilty was thought appropriate, the opportunity to discount a sentence for assistance was accordingly reduced. If a discount for assistance was given in addition to the discount for a plea at a rate of say 50 per cent, that might have been appropriate before Thomson and Houlton, the result must be a sentence that was manifestly inadequate and in breach of s 23(3) of the Crimes (Sentencing Procedure) Act.
9 The result, therefore, is that a combined discount of more than 50 per cent for plea and assistance will be exceptional. Where the offender will not be serving the sentence in harsher conditions, then the discount will be generally no more than 40 per cent R v Sukkar [2006] NSWCCA 92 at [5].. The Court will generally assume that the offender is not going to serve the sentence in harsher conditions and it is for the offender to show the contrary.
10 In Lewins v R [2007] NSWCCA 189 the Court was highly critical of a judge who gave a separate and quantified discount for assistance based upon voluntary disclosure of offences. In that case the judge gave a discount for a plea of 25 per cent, then a discount for assistance of 50 per cent and then what was called an Ellis discount of 50 per cent. The result was that the notional starting sentence was discounted by about 82 per cent. Then special circumstances were found and the non-parole period reduced to 50 per cent of the head sentence. The resulting sentence was described as “an affront to the community and tends to bring the criminal justice system into disrespect”.
Concurrent or cumulative sentences
11 There are a number of cases in the Court of Criminal Appeal where it has been held that there was an error in the fact that the sentencing judge has made sentences for separate offences concurrent. There are few cases where the error is in cumulating sentences. Making sentences concurrent where there is no good reason to do so often results in the overall sentence being inadequate. In Nguyen v R [2007] NSWCCA 14 reference was made to the apparent insufficient understanding of the principle of totality as it is reflected in the structuring of sentences.
12 It is important to bear in mind that the question of the structure of sentences will be determined generally by the application of the principle of totality. In R v MMK [2006] NSWCCA 272, 164 A Crim R 481 the Court stated:
13 In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality.
13 In many cases the problem is caused by the sentencer giving too much weight to the fact that the offences were part of the same course of criminal conduct. In Cahyadi v R [2007] NSWCCA 1 this was said about the issue:
27 ………. there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.
14 The latest consideration of the issue was in R v Harris [2007] NSWCCA 130. That was a Crown appeal against sentences imposed upon the offender for two aggravated break and enter offences committed on the same day and in the same street. One of the errors found in the sentencing was that the judge imposed concurrent sentences on the two offences. It was held:
38 Offences of the nature of those committed by the Respondent each involve their own loss or damage, in part in the sense of physical damage and goods taken and in part in the unease, disquiet, and feeling of violation such offences engender. With rare exceptions, each involves a different victim or group of victims and a separate exercise of an offender’s will. Even an offender who decides to spend his day breaking and entering makes separate decisions as he goes along a street, considering which houses are occupied, which may be entered undetected and which are likely to [be] most productive of gain. Similarly in the case of car stealing or use. Although the offences may all share the same motivation, such as an offender’s need for money or goods with which to indulge a drug addiction, each involves its own separate criminality. Putting aside cases where there is a significant difference in the nature of the offences, an offender’s criminality is greater by reason of committing three offences rather than one or two.
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42 Nor is it an adequate reason for complete concurrency that a group of offences such as breaking, entering and stealing may be of the same type or committed as part of one criminal spree. As the Court has sought to point out, implementation of a decision to commit another offence will generally involve more loss and damage, and more victims. When it does, there is also a greater entitlement of the community to retribution.
43 Of course at times there will be good reason for complete concurrency. One is where some offences are little more than incidents of, or incidental to, others. Thus had the possession of the jemmy been charged rather than placed on a Form 1, and there been no other evidence as to its use beyond what I have stated, it would not have been inappropriate to make that sentence wholly concurrent with the sentence for the offence in which it was used. Were an offender charged with break, enter and steal also charged with having custody of the same goods, it would be a rare case where anything other than concurrent sentences for those offences would be appropriate.
Later criminality
15 In R v MAK and MSK[17] the Court considered the relevance of prior convictions for offences that occurred after the offence for which sentence was being passed. In that case the offender had previously been sentenced after trial for offences of sexual assault occurring later than the offence for which he was being sentenced. The Judge stated that he was taking into account that the offender had no prior convictions at the time of the offence. It was held that this was an error as there was no relevance in the fact that the accused had no prior convictions in light of the fact that he had committed other offences of a similar nature a short time later. Those prior convictions deprived the offender of the leniency that otherwise might have been shown to him by reason of the fact that he had no prior record. The later offending showed that the conduct for which he was being sentenced was not an aberration but was the start of a course of conduct that resulted in the later offending.
16 The Court also stated:
61 We appreciate that less regard might be paid to later offending because at the time of the offence for which sentence is to be passed the offender has not been subject to the "formal condemnation of the law" or been given "the warning as to the future which the conviction experience implies"; see McInerney [18] at 113 applied in R v Bui (2002) 137 A Crim R 220 at [27]. But in the circumstances of this case and given the seriousness of the conduct for which he was before Hidden J we do not think that the fact that MAK had not been convicted of sexual assault offences when he committed the offences against TW or TA was a basis for treating as a mitigating factor the absence of any criminal record.
Domestic violence offences
17 In R v Hamid [19] the Court of Criminal Appeal considered the relevant principles in sentencing for offences of domestic violence. After reviewing a number of decisions both in this and other States and the relevance of Pt 15A of the Crimes Act, Johnson J stated:
86 In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important. These principles flow from statements of this Court and are fortified by the enactment of Division 1A of Part 15A of the Crimes Act 1900 including the statutory objects recited in s.562AC.
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88 This is not to say that promotion of rehabilitation of the offender is not an important factor. It remains necessary to provide individualised justice in the circumstances of the particular sentencing decision. Nevertheless, the factors to which reference has been made above assume particular significance in the case of a domestic violence offender who has committed a series of offences over an extended period of time against different victims.
Application of totality to fines
18 The High Court judgment of Pearce[20] has been taken as laying down a principle in relation to sentencing for multiple offences whereby the court is first to fix the appropriate sentence for each offence and then, having regard to totality, determine how to structure the sentences. The consideration of this approach in relation to fines was considered in EPA v Barnes[21]. There the offender was sentenced in the Land and Environment Court for two offences arising from two occasions when he dumped waste on a deserted property. In respect of the first count he was fined $4,000 and on the second $500. The prosecutor appealed.
19 It was held that there was no error in the approach taken by the judge who properly applied the principle of totality. It was stated:
49 ……… the totality principle clearly had application. Her Honour was sentencing for two offences. It was not simply a matter of fixing a fine for each offence. Her Honour was obliged to review the aggregate and consider whether it was just and appropriate, as a reflection of the criminality overall. That may require some moderation of the sentences imposed in respect of each offence.
50 ………………. Where there are multiple offences, each punishable by a custodial sentence, the totality principle may find expression through the complete or partial accumulation of sentences, or through making all or some of the sentences concurrent (cf Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624 (para 45)). However, there is obviously no room for partial accumulation or concurrence in the case of fines. If the sentencing Judge believed that the totality principle required an adjustment to the fines which may otherwise be appropriate, the amount of each fine had to be altered, applying the sentencing principles suggested in Johnson v The Queen (2004) 205 ALR 346.
Cannabis offences
In R v Nguyen and Cannistra[22] the Court of Criminal Appeal stressed the seriousness of offences involving cannabis. McClellan CJ at CL said:
54 Although in former years some people accepted marijuana as a "recreational drug" and believed that it did not have the addictive qualities and potential to damage the health of users which can occur with "hard drugs", this assumption has more recently been called into serious question. It is now recognised that marijuana can have very serious consequences for users with destructive potential for the lives of young persons. The legislature has recognised this damaging potential by providing a maximum penalty of twenty years for the present offence. When an enterprise thirty times larger than the minimum number of plants which constitutes the offence is identified the principals must anticipate that, unless there are significant mitigating factors, the maximum penalty will be imposed.
Parity
20 A question was raised about resolving the issue of parity between a juvenile and an adult. The general rule is that where the co-offenders are dealt with in two different jurisdictions the issue of parity does not arise. Parity requires like sentences when everything else is alike. Being sentenced in different jurisdictions means that all things are not equal obviously because there are different sentencing options available, different principles apply and there are different policy considerations between the sentencing of an adult and that of a juvenile. But the issue of parity is a discretionary consideration in determining the appropriate sentence and a general rule will not always apply.
21 Clearly one of the important considerations will be the age difference between the juvenile and the adult. If it is significant and if the adult is taking advantage of the child, then no allowance will be made when sentencing the adult. It might even be an aggravating factor that the adult is committing an offence by using a child. On the other hand, if the age gap is not significant and there is no real way to distinguish the two in the criminality involved, then some mitigation might be made of the sentence of the adult.
22 This occurred in R v Govinden[23]. There the age gap was about a year and the co-offenders had been at school together. Further the criminality of the child was greater than the adult as he was the instigator of the offence. The more serious offender received a non-custodial sentence in the Children’s Court and the question was whether the adult should have received a sentence of full time custody. The Court took into account the issue of parity in the particular circumstances of that matter. A different approach was taken in R v Ho [24] where it was considered that the sentence given to the juvenile was manifestly inadequate.
23 The most that can be said is that the sentence imposed upon the juvenile is not irrelevant [25] but its effect upon the sentencing of the adult will vary depending upon the particular facts and circumstances.
24 In Tatana v R[26] it was held that generally disparity does not arise from different findings on special circumstances between co-offenders [27]. However, it was held that parity might require a finding of special circumstances to be made in the case of a co-offender in order to avoid an apparently unjust and unjustified result. In that case the less serious offender was to serve longer in gaol because of a failure to find special circumstances in his case. It was stated:
33 It seems to me that a permissible means of avoiding this unacceptable situation would have been for Acting Judge Boulton, when confronted with that result, to have considered whether the need to preserve a proper parity with the co-offenders itself gave rise to special circumstances justifying a reduction in the non-parole period. Although matters giving rise to special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 will be, generally speaking, subjective considerations personal to the particular offender, they are not limited to such factors. As has already been noted, special circumstances may be found when sentences are being made cumulative in order to retain an appropriate ratio between the overall term and the overall non-parole period. In my opinion, the need in a particular case to preserve proper parity between co-offenders may itself amount to special circumstances enabling a principled avoidance of a situation of manifest unfairness arising from a too literal application of conventional sentencing principles and the requirements of s 44. Such a use of the concept of special circumstances will need, always, to be justified by the special requirements in a particular sentencing context.
34 This is not to suggest that disparity will generally arise simply because the application of s 44 to particular offenders has resulted in different sentences between co-offenders: Do is against that proposition. But this is an exceptional case where the subjective factors favourable to the co-offenders were insufficient to justify the fact that the applicant would spend longer in custody even though he was being sentenced for significantly less criminality. In the end it is a matter of degree and balance. The applicant clearly has a justifiable sense of grievance with the outcome of the two different sentencing proceedings. In order to avoid that outcome Acting Judge Boulton ought to have found that parity with the co-offenders amounted to special circumstances justifying a reduction in the otherwise appropriate non-parole period. However, proper sentencing principles and the findings made by Acting Judge Boulton limit the extent to which the non-parole period can be reduced to address parity.
Sentencing for multiple offences
25 In R v JRD[28] the judge had sentenced the offender for a number of offences. He did so by considering each offence separately and determining the appropriate sentence. As a consequence he imposed three sentences but suspended each. There was a Crown appeal. The Court held the discretion miscarried by this approach. It was held:
27 In my opinion this was an erroneous way of carrying out the task of sentencing the respondent. I do not believe that, in a case where the one offender is being sentenced for a number of offences, it can ever be appropriate to determine the sentence for each offence as if it were the only matter before the court. True it is that the court must decide the appropriate sentence for each offence independently and that the sentence for one offence cannot be increased simply because there happens to be other offences committed by the offender for which he or she is to be sentenced. But it does not follow that it is irrelevant to the determination of the sentence for one offence that the offender is before the court for sentence on other offences.
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29 But it is obviously relevant that the offender is before the court for sentence for more than one offence when the penalty for any individual offence is being determined. Clearly it may be a fact or circumstances relevant to the commission of a particular offence that, at or about the time when that offence was committed, the offender committed other offences. It would be relevant, for example, to a finding whether the particular offence was an isolated “fall from grace” or whether it was merely an instance of a course of criminal conduct in which the offender was involved at the relevant time.
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33 So when a court is sentencing for multiple offences and before it imposes the sentence for any one offence, it will have considered the outcome for all offences. It will have done so for at least two reasons: firstly, in order to ensure that the court imposes sentences that fall within statutory limitations, that are consistent with sentencing principles and that do not conflict with one another. Secondly it will ensure that the overall sentence imposed reflects the overall criminality of the offences before the court.
Offences
Child sexual offences
26 In CTM v R [29] the Court had to consider the effect of the repeal of s 77(3) of the Crimes Act. That section provided a defence to certain child sexual assault offences where the complainant was consenting, was over the age of 14 and the accused believed that she was over the age of 16 years. The question was whether the repeal of that section meant that the offences to which it applied were thereafter absolute liability offences or whether the common law defence applied.
27 The Court held that, after the repeal, child sexual assault offences were offences of absolute liability so far as the accused’s belief in the age of the child was concerned. The decision was based largely on a consideration of the history of sexual assault offences in this State and anomalies that would follow if the common law defence arose for some offences and not others. Although the decision was actually concerned with one offence, an offence crested at the time of the repeal of the defence provisions, it is clear that by analogous reasoning it applies to all child sexual assault offences.
Practice and procedure
Nature of appeal from Local Court
28 In Charara v R [30] the Court of Criminal Appeal considered the nature of an appeal from the Local Court to the District Court. It had generally been considered, at least by District Court judges, that an appeal against conviction was in the nature of a complete rehearing of the charge only restricted to the evidence before the magistrate. It was only with leave that the appellant could supplement the evidence in the Local Court. It was also accepted, even by eminent authors of a certain service, that the magistrate’s reasons were not part of the transcript upon which the District Court appeal was determined. However, the Court, having considered the amendments brought about by the Justices Legislation Amendment (Appeals) Act 1998, determined that the appeal to the District Court was a rehearing in the sense that Court of Appeal determines matters by rehearing.
29 The significance of this is that there is an additional burden on magistrates to give reasons for decisions to convict a defendant and in particular to make credit findings and the reason for those findings very clear. Those findings will generally bind the District Court judge where the witness has not been called in the District Court. The District Court judge does not simply determine whether the magistrate erred but has to rehear the matter by forming his or her own view on the evidence taking into account the magistrate’s reasons where appropriate: see Wood v DPP [31].
30 In Sasterawan v Morris [32] a question arose as to the authority of an officer of the Ministry of Transport to issue a court attendance notice (CAN) for three offences against s 178BB of the Crimes Act. The defendant was a taxi driver accused of altering cab charge dockets. He was convicted in the Local Court and appealed to the District Court. A case was stated to the Court of Criminal Appeal as to the validity of the CAN.
31 It was held that the CAN was valid. Basten JA stated:
17 The provisions relied on were ss 14, 172, 173 and 174 of the Criminal Procedure Act 1986 (NSW). It is convenient to commence with s 172, which provides that proceedings for an offence are to be commenced “by the issue and filing of a court attendance notice in accordance with this Division”: s 172(1). The following two sections then provided, as in force in March 2004:
“173 Commencement of proceedings by police officer or public officer
If a police officer or public officer is authorised to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division.
174 Commencement of private prosecutions
(1) If a person other than a police officer or public officer is authorised to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.”
18 The intention of ss 173 and 174 was to require that a notice, issued otherwise than by a police officer or public officer with authority to do so, must be issued by the registrar. The registrar must be satisfied that the notice discloses grounds for the proceedings, that it is in the appropriate form and that no ground for refusal, identified in the rules, is applicable: s 174(2).
19 The provisions set out above are found in Chapter 4, Part 2, Division 1 of the Criminal Procedure Act. The other relevant provision, s 14, is found in Chapter 2, Part 1 and provides:
“14 Common informer
A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.”
20 The case for the prosecutor was quite simple: she asserted that her authority to commence proceedings was derived from s 14, she being a person and a prosecution under s 178BB of the Crimes Act 1900 (NSW) not being the subject of any restriction requiring it to be instituted by any particular person or class of persons. Further, she, being a public officer, was entitled to commence proceedings by issuing the court attendance notice in her own name, pursuant to s 173.
32 As to the argument that the officer did not have authority to commence the prosecution, Basten JA held:
22 ……………….. Section 14 is unambiguous and clear in the breadth of its operation. There is no basis for reading it down to exclude from the concept of “person” those persons who may happen to be police officers or public officers. Similarly, the purpose of ss 173 and 174 is also clear. Those provisions say nothing about the source of authority to institute proceedings: each commences with the conditional, ‘if … is authorised to commence proceedings’. The purpose is to place a control on persons other than police and public officers, no doubt to ensure that members of the public are not vexed by private prosecutions which have no proper basis in law, being a control placed in the hands of a registrar. Each of ss 14, 173 and 174 is qualified to reflect the fact that some statutory offences, including some which arise under the Crimes Act, are subject to restrictions on authority to prosecute for their contravention: see, eg, Crimes Act, s.338 (perjury).
23 There is no qualification in relation to persons who may prosecute for breaches of s 178BB of the Crimes Act. Accordingly, any person may commence proceedings for such an offence, pursuant to s 14 of the Criminal Procedure Act. If the person who in fact commences proceedings is a public officer, as the prosecutor in the present case was, the procedure for issuing a court attendance notice, pursuant to s 173 of the Criminal Procedure Act, is available.
33 The Court noted that the wording in s 14 had been changed after the commencement of the prosecution by the addition of the words “under section 14 of this Act or under any other law” after the word “authorised” in s 173. It was left open whether s 16 of the Criminal Procedure Act would have cured the defect even had the officer not been authorised.
34 There has been a somewhat vexing question of the extent to which a charge is required to contain particulars of the offence alleged. The matter was recently considered in R v Lodhi[33]. There an indictment alleging terrorist offences under the Criminal Code (Cth) was held to be defective in that the charges failed to state particulars relating to the “terrorist act” alleged and that were essential factual ingredients of the charge. This was notwithstanding s 11 of the Criminal Procedure Act that in effect provides that it is sufficient if a charge is described in the words of the provisions creating the charge and s 16 which provides that certain defects will not render a charge bad.
35 In Knaggs v DPP[34] the Court of Appeal considered the validity of a CAN for an offence of assault occasioning actual bodily harm. On the form in the box for the details of the offence it stated:
“Crimes Act 1900, Section 59(1) – T2 Law Part Code 243
Assault occasioning actual bodily harm
Between 8:00 am and 5:30 pm on 24/03/2005 at Potts Point.
did assault Ann TEESE thereby occasioning actual bodily harm to her.”
36 The claimant was convicted in the Local Court and again on an appeal to the District Court. He sought prerogative type relief against both the magistrate and the judge. It was argued that the CAN was defective in that it failed to comply with s 175(3)(b) of the Criminal Procedure Act in that it failed to “briefly state the particulars of the alleged offence” in accordance with that section. It was argued that, as there are many ways in which the offence could be committed, the notice should have indicated how it was alleged the claimant had assaulted the complainant and how she was injured. According to the claimant the notice should have said:
“The accused threw a television set at the face of the said Ann Teese in the accused’s office, which struck her on her raised arms, and he then seized her just below both elbows and pushed her against a wall of the office, causing bruising and contusions to her arms and head.”
37 Campbell JA stated:
39 The requirement created by section 175(3)(b) is an imperfect obligation, in the sense that it does not make express provision for the consequences of failure to comply with it. Nothing in the statute states that proceedings purportedly commenced without complying with section 175(3)(b) will be invalid or a nullity or in any other way of no effect. Thus, it is only if there is a necessary implication to that effect that such a consequence will arise.
40 In a situation like the present, where it is not alleged that the CAN fails to identify all the elements of an offence, I do not find in the statute any necessary implication that any failure of the CAN to “briefly state the particulars of the alleged offence” should result in either the CAN, or a conviction in proceedings begun by the CAN, being void.
38 In relation to s 12 of the Criminal Procedure Act, a section that allows for short form of charges, his Honour stated:
44 Each of section 12(1), (2) and (3) uses (through differing grammatical cognates) two different notions – that of stating the offence, and that of describing the offence. Those verbs are precisely the ones used in section 175(3)(a) and (b). As well, section 12(1) and section 175(3)(b) both contain the notion of brevity or shortness. In section 175(3)(b), “briefly” is an adverb that qualifies the requirement to “state the particulars of the alleged offence”. I recognise that section 12(1) is concerned with stating or describing the offence itself, while section 175(3)(b) creates an obligation to state “the particulars of” the offence. Even so, it seems to me that section 12(1) can cast light upon the degree of specificity with which an offence needs to be described and particularised in the CAN. That light is cast in an imprecise way, through creating an impression that the shade of meaning to be attributed to the general words of section 175(3)(a) and (b) is at the less elaborate rather than the more elaborate end of the spectrum of meanings that those general words can bear. The way one gains this sort of impression about shades of meaning falls well short of a rigorous logical process. However, alertness to nuances of meaning and shades of language is a legitimate part of the task of construing the statute as a whole, and having regard to the scope and object of the whole statute. It is one part, though in the present case is not a sufficient part, of deciding whether there is any necessary intendment in the Criminal Procedure Act that a CAN that does not comply with section 175(3)(b) is invalid.
39 Campbell JA considered the line of authority that was concerned with the provisions of particulars in an information including John L Proprietary Ltd v The Attorney-General for the State of New South Wales[35] and Stanton v Abernathy [36] and then stated:
83 It follows that, under the law that applied before the introduction of section 175 Criminal Procedure Act, a failure to supply particulars in an information did not invalidate any proceedings commenced by that information. As the apparent intention of the legislature in enacting section 175(3)(b) was not to alter the pre-existing state of affairs under the Justices Act concerning the contents of informations, this consideration of the pre-existing law leads to the same conclusion as I have arrived at from a construction of the relevant provisions of the Criminal Procedure Act considered in isolation.
40 The issue was more recently considered in Rockdale Beef P/L v Industrial Relations Commission [37]. The case concerned charges under the Occupational Health and Safety Act. The judge dismissed one of the charges and ruled that it would be an abuse of process to proceed with the other. Ultimately the matter came before the Court of Appeal where declarations were sought, one being that one of the charges was defective in that it failed to plead an essential element of the offence. After referring to the relevant provisions of the Criminal Procedure Act and decided cases on the issue of whether the failure to state an ingredient of an offence was a defect curable under s 16, Basten JA, with whom Mason P agreed, stated:
122 At a time when the trial court lacked an express power to amend an information, there was an important distinction to be drawn between the provision of particulars (which could be ordered) and amendment of the information itself. That distinction is no longer of importance and s 16(2) should not be read down as if it were. Rather, the relevant principle is that there may be defects which are capable of remedy and defects which are not. The appropriate classification should be considered on a principled basis, and not by use of labels, seeking to distinguish between “essential legal elements” and “essential factual particulars”. Cases where an objection in relation to the specification of an essential element of an offence has been upheld, in circumstances where a legislative regime exists, equivalent to that under the Criminal Procedure Act, were not identified in the course of the present proceedings. None of the cases discussed so far was such a case. However, an example, referred to by Sperling J in Taylor, was Ex parte Thomas; Re Otzen (1947) 47 SR(NSW) 261. That case involved an offence under the National Security Regulations, by supplying a declared service at a price exceeding the maximum permitted under the regulation. The Full Court held that the charge of supplying bottled beer together with corkage for an undivided remuneration (at a rate above the maximum rate) was not an offence under the regulation. Jordan CJ stated (p 263):
“It was sought to get over this by appeal to s 65 of the Justices Act, 1902, and a contention that there had been a mere variance. But it has been decided over and over again that a person cannot be convicted upon an information that does not charge an offence, and that s 65 does not meet such a case: Ex parte Lovell … . The proper course, when this occurs is to amend the information so as to make it allege an offence known to the law and triable before the magistrate; and for the magistrate then to allow any adjournment reasonably necessary to give the defence an opportunity of meeting the charge.”
To the same effect, Davidson J stated (p 265):
“The further contentions were submitted first, that there was merely a variance which was cured by reason of ss 65 and 115 of the Justices Act; … .
As to the first of these points, however, the section relied upon does not warrant a conviction for an offence that does not exist and the magistrate stated the effect of his order in the precise terms of the information: Ex parte Lovell … . If it had really been intended to rely upon proof of a sale, there should have been an amendment and then if desired by the defendant an adjournment to enable him to raise his defence completely to that charge.”
Street J agreed with the Chief Justice.
123 These remarks are inconsistent with the proposition that a failure properly to plead the elements of an offence necessarily rendered the information invalid. Indeed, the power of “amendment” itself may be inconsistent with such a conclusion. Accordingly, so long as a defect can be remedied by amendment, the informations are not “void” in the sense that the “defects cannot be removed by amendment or otherwise put aside”, adopting the terminology of Mahoney JA in Boral Gas at 518C-D, nor are the proceedings based on them a nullity.
41 After referring to the decision in Knaggs Basten JA stated:
130 That history demonstrates that it has long been sufficient to describe the nature of an offence by use of the statutory language: see ss 145A of the former Justices Act 1902 (NSW) and Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 174 (Jordan CJ, Davidson and Halse Rogers JJ agreeing) and now s 11. However, it does not follow that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified. For example, some may be necessarily implied from what is described, for the purposes of s 16(1)(b).
131 The fact that s 16(2) (and its predecessors) has been held not to apply in relation to necessary particulars, does not mean that it has no effect in relation to a statement as to the nature of the offence. In Knaggs, Campbell JA noted that the deficiencies in a court attendance notice could be “so gross that as a matter of construction s 16(2)(a) would be read as not applying to them”: at [48]. That may be conceded, in circumstances where doubt is left as to the precise offence which is sought to be charged; but that is not this case. Where an offence is identified, in terms which admit of no uncertainty or ambiguity, it would be to ignore the purpose and intended effect of s 16(2) to find that proceedings had not been validly commenced because a phrase had been omitted which described a particular element of the offence which was in substance an extended description of the circumstances in which the section operated, rather than an additional element. In other words, the allegation that a person had control of plant used by people at work, the plant being identified as a drag chain conveyor, is not advanced by saying that the plant was controlled in the course of a business. However, if that were a defect and a matter of substance, it nevertheless fell within the literal terms of s 16(2).
132 More broadly, whether a defect is of a kind that might not be covered by s 16(2)(a) must be judged by reference to the purpose of the statutory requirements not complied with and the likely effect of the non-compliance in relation to the purpose for which the notice is given. If the notice could be read as not clearly identifying the offence charged, or at least “the nature of” that offence, in some material respect, the defect might be outside the scope of the remedial provision. The effect of s 16(2) may be seen to weaken the mandatory statutory requirement with respect to notice, by removing a basis of invalidity. However, its operation will not depend on the good faith of the prosecutor, but on the effect of the notice. The test for validity will differ from that applied in relation to privative clauses: see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [19]-[20] (Gleeson CJ) and [57]-[60] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). On the other hand, the construction to be given to s 16(2) will involve reconciliation between its terms and those of a provision imposing a requirement with which there has been defective compliance: c.f. Plaintiff S157 at [69] and [77].
42 It should be noted that the Chief Justice was in the minority on this point and followed Lohdi. His Honour was of the view that the missing words amounted to a failure to plead an essential legal ingredient and was not saved by either s 11 or s 16(2) of the Act. He was of the opinion that the Industrial Court had no jurisdiction to hear the charge.
43 The situation would appear to be that s 16(2) can apply to save a charge even if there was a failure to state all the essential legal ingredients of the offence provided that an amendment of the charge would not result in a new charge being alleged or where there is no uncertainty or ambiguity or where certain ingredients can be inferred from what is stated in the charge. But there will be situations where the charge is so defective, for example where it is not obvious what offence is being alleged, where s 16(2) cannot be relied upon.
1. Crimes (Sentencing Procedure) Act s 12(3) which states Part 4 of the Act does not apply.
2. Ibid s 99(1)(c)(ii)
3. Ibid s 99(5)
4. [2007] NSWCA 2
5. [2004] NSWSC 433.
6. (NSWCCA unreported, 14 July 1995)
7. [2006] NSWCCA 381; 167 A Crim R 159.
8. (2000) 49 NSWLR 383.
9. [2006] NSWCCA 381 at [41], 167 A Crim R 159.
10. [2007] NSWCCA 19
11. R v Sukkar [2006] NSWCCA 92 at [5].
12. [2007] NSWCCA 189
13. [2007] NSWCCA 14
14. [2006] NSWCCA 272, 164 A Crim R 481
15. [2007] NSWCCA 1
16. [2007] NSWCCA 130
17. [2006] NSWCCA 381; 167 A Crim R 159
18. (1986) 42 SASR 111
19. [2006] NSWCCA 302, 164 A Crim R 179
20. (1998) 194 CLR 610
21. [2006] NSWCCA 246
22. [2006] NSWCCA 389
23. [1999] NSWCCA 118
24. (NSWCCA, unreported, 28 February 1997)
25. R v Colgan [1999] NSWCCA 292 at [15].
26. [2006] NSWCCA 398
27. See R v Do [2005] NSWCCA 209
28. [2007] NSWCCA 55
29. [2007] NSWCCA 131
30. [2006] NSWCCA 244, 164 A Crim R 39
31. [2006] NSWCA 240.
32. [2007] NSWCCA 185
33. [2006] NSWCCA 121, 199 FLR 303
34. [2007] NSWCA 83
35. (1987) 163 CLR 508
36. (1990) 19 NSWLR 656
37. [2007] NSWCA 128.
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