Citation: [2002] NSWCCA 518; (2002) 56 NSWLR 146; 137 A Crim R 180
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 applied to the Court of Criminal Appeal under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a guideline judgment. The subject matter was the "Form 1" procedure, a long-standing mechanism by which a court sentencing an offender for one offence (the "principal offence") may also take into account other offences the offender admits to but which have not been charged on the indictment.
The Senior Public Defender and the Director of Public Prosecutions both intervened in the proceedings, each making submissions. No individual offender's sentence was under review; the application was prospective, aimed at clarifying how courts should administer Division 3 of Part 3 of the Act.
The Form 1 procedure has existed in one form or another since well before the 1999 Act, having been carried through successive statutes and derived originally from a non-statutory English practice. The application was granted in part, with Spigelman CJ delivering the principal judgment with which all other members of the Court agreed.
Legal Issues
- Whether, when a court takes further offences into account under the Form 1 procedure, it is in any sense "sentencing" the offender for those further offences, or whether it is sentencing only for the principal offence
- What the proper scope and limits of the court's discretion under s 33(2)(b) of the Crimes (Sentencing Procedure) Act 1999 is (the requirement that the court consider it "appropriate" to take a further offence into account)
- Whether a sentencing court retains a genuine discretion to decline to take further offences into account on a Form 1, and in what circumstances that discretion may be exercised
Decision
Spigelman CJ confirmed that when a court takes a further offence into account under the Form 1 procedure, it does not impose any sentence or penalty for that further offence. The court sentences the offender only for the principal offence. The further offences on the Form 1 are relevant context in the sentencing exercise, but no separate penalty is imposed for them and the maximum penalty applicable remains that of the principal offence.
The Court recognised that the Form 1 procedure confers a genuine discretion on the sentencing judge, expressed in s 33(2)(b), to decline to take further offences into account if the circumstances make it inappropriate to do so. This discretion is not merely formal. A sentencing judge may, for example, decline to proceed on a Form 1 basis where doing so would result in a sentence so manifestly inadequate, unduly narrow, or artificial that it would bring the administration of justice into disrepute.
The Court was careful not to define exhaustively when that discretion should be exercised. The broader task of ensuring an indictment adequately reflects the totality of an offender's admitted criminality rests primarily with the Crown in exercising its prosecutorial discretion. The Form 1 procedure is broadly analogous to the Crown declining to prosecute for the full range of available offences or accepting a plea to a lesser charge, though it arises in the context of multiple and often divergent criminal conduct.
The Court also noted that institutional interests, such as higher case disposal rates, do not constitute a proper basis for invoking the Form 1 procedure and should not be treated as equivalent to the public interest.
Orders Made
• The application of the Attorney General for a guideline judgment should be upheld to the extent of the reasons provided.
Key Takeaways
- A court taking further offences into account under the Form 1 procedure does not impose any sentence for those offences; the sentence imposed relates only to the principal offence, and the applicable maximum penalty is that of the principal offence alone.
- Under s 33(2)(b) of the Crimes (Sentencing Procedure) Act 1999, the sentencing court retains a genuine discretion to decline to take further offences into account where doing so would be inappropriate in all the circumstances.
- One recognised, though non-exhaustive, basis for exercising that discretion is where proceeding on a Form 1 basis would produce a sentence that is manifestly inadequate, unduly narrow, or artificial in a way that could bring the administration of justice into disrepute.
- Primary responsibility for ensuring an indictment adequately reflects an offender's admitted criminality rests with the Crown, whose decisions on charging will be informed by the principle that Form 1 offences attract no separate penalty.
- Institutional benefits, such as increased case disposal rates for enforcement agencies or courts, do not constitute the "public interest" for the purpose of the Form 1 procedure and should not influence the decision to use it.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 31, 32, 33, 34, 36, 37, 38, 39
- Criminal Procedure Act 1986 (NSW), s 21 (predecessor provision)
- Crimes Act 1900 (NSW), s 447B (earlier predecessor provision)
- Statute Law (Miscellaneous Provisions) Act No 1 1987 (NSW)
Cases:
- Maxwell v The Queen (1995) 184 CLR 501
- The Queen v De Simoni (1981) 147 CLR 383
- The Queen v Olbrich (1999) 199 CLR 270
- Murrell v The Queen (1985) 4 FCR 168
- R v AEM Snr [2002] NSWCCA 58
- R v Barton (2001) 121 A Crim R 185
- R v Bavadra (2000) 115 A Crim R 152
- R v Harris (2001) 125 A Crim R 27
- R v Lemene (2001) 118 A Crim R 131
- R v Morgan (1993) 70 A Crim R 368
- R v Perese (2001) 126 A Crim R 508
- R v Anderson [1978] AC 964
- The Queen v White (1981) 28 SASR 9