Citation: Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515
Court: NSW Court of Criminal Appeal
Date: 20 December 2002
Judge(s): Spigelman CJ; Wood CJ at CL; Grove J; Sully J; James J
Background
The Attorney General of New South Wales applied to the Court of Criminal Appeal under s37 of the Crimes (Sentencing Procedure) Act 1999 for a guideline judgment governing sentences for the offence of assaulting a police officer under s60(1) of the Crimes Act 1900. Under that provision, assaulting, stalking, harassing or intimidating a police officer in the execution of duty carries a maximum penalty of five years imprisonment, even where no actual bodily harm is caused. This is significantly higher than the two-year maximum for equivalent common assault against a civilian.
The Director of Public Prosecutions and the Senior Public Defender each appeared as statutory intervenors. The Sydney Regional Aboriginal Corporation, appearing on behalf of all six New South Wales Aboriginal Legal Services, was also granted leave to intervene, given the particular significance of the offence for Indigenous people in New South Wales.
The application was made at a time when recent legislative changes had introduced standard non-parole periods for related offences under s60(2) and s60(3), and a new statutory list of sentencing purposes and aggravating factors had just commenced operation. The overwhelming majority of s60(1) proceedings over the preceding five years had been dealt with in the Local Court, where the maximum penalty is capped at two years imprisonment.
Legal Issues
- Whether it was appropriate for the Court of Criminal Appeal to issue a guideline judgment for the offence of assault on police under s60(1) of the Crimes Act 1900
- Whether the breadth and variety of conduct captured by s60(1) made a single guideline workable
- Whether the absence of any history of Crown appeals against sentences for this offence indicated a systemic sentencing problem requiring correction
- Whether recently enacted legislative changes to sentencing law rendered the application premature
Decision
Spigelman CJ, with whom all other members of the Court agreed, refused the application. His Honour identified several distinct reasons why issuing a guideline at this time was inappropriate.
The first major concern was the extraordinary breadth of conduct captured by s60(1). The provision covers behaviour ranging from a minor push or obstruction of an officer through to serious assaults falling just short of actual bodily harm. This heterogeneity made it difficult to frame a workable guideline that would be meaningful across the full spectrum of offending rather than misleading or distorting at either end.
The second significant factor was the absence of any history of Crown appeals against sentences for this offence. The guideline judgment mechanism is not intended to operate in a vacuum; it was designed, in part, to correct demonstrated patterns of inadequate sentencing. The Court found no evidentiary foundation suggesting that sentences imposed by Local Courts for s60(1) offences had been systematically too lenient or otherwise erroneous.
Finally, the Court found the application premature because of concurrent legislative changes. New standard non-parole periods had been introduced for the related offences in s60(2) and s60(3), and a revised statutory sentencing framework listing purposes and aggravating factors had recently commenced. The Court concluded it was appropriate to allow this new regime to operate and to observe its effects before attempting to fix guidelines for s60(1), which sits at the base of the s60 hierarchy and could be influenced by emerging sentencing patterns under the higher subsections.
Orders Made
- The application for a guideline judgment was refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that the breadth of conduct captured by a single offence provision is a material consideration weighing against the promulgation of a guideline judgment, particularly where a single guideline risks being unworkable or misleading across widely varying fact situations.
- Absence of a demonstrated history of Crown appeals, or other evidence of systemic sentencing error, is relevant to whether a guideline judgment is warranted under s37 of the Crimes (Sentencing Procedure) Act 1999.
- Where major legislative changes to sentencing law have recently commenced, a guideline application may be refused as premature until the courts have had time to develop experience with the new regime.
- Refusing the application, the Court left open the possibility of a guideline judgment for s60(1) offences at a future time once the effect of the standard non-parole period scheme (applicable to s60(2) and s60(3)) and the new sentencing purposes framework became clearer.
- The participation of the Aboriginal Legal Services as intervenors reflected the Court's recognition that the offence of assault on police has a disproportionate statistical impact on Indigenous communities in New South Wales.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35, 59, 60, 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 36, 37, 37A, 38, 39, 39A
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
- Crimes Amendment (Police and Other Law Enforcement Officers) Act 2002 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 20, 28, Schedule 1
- Crimes Act 1914 (Cth)
Cases:
- Attorney General's Application No 1 under s26 of the Criminal Procedure Act; R v Ponfield (1999) 48 NSWLR 327
- R v Jurisic (1998) 45 NSWLR 209
- R v Henry (1999) 46 NSWLR 346
- R v Doan (2000) 50 NSWLR 115
- R v Whyte [2002] NSWCCA 343
- R v Edigarov (2002) 125 A Crim R 551
- Wong v The Queen (2001) 76 ALJR 79
- R v Hamilton (1993) 66 A Crim R 575
- R v Knight [2001] NSWCCA 334
- R v Paris [2001] NSWCCA 83
- Bull v Tuckey (1986) 40 SASR 321
- Police v Cadd (1997) 69 SASR 150