Citation: Ahio v DPP (NSW) [2008] NSWSC 565
Court: Supreme Court of New South Wales, Common Law Division
Date: 11 June 2008
Judge(s): Hislop J
Background
The plaintiff was a licensed security guard who, in August 2004, assaulted two pedestrians after mistakenly believing one had deliberately kicked and damaged his employer's van. He was found guilty in the Downing Centre Local Court of common assault and maliciously inflicting grievous bodily harm. The Local Court magistrate sentenced him to good behaviour bonds of 12 months and two years respectively for the two offences, together with an $800 fine for the more serious charge.
The fine of $800 placed the sentence within the operation of the Security Industry Act 1997 and its regulations, which triggered the automatic revocation of the plaintiff's security licence. The revocation resulted in an alleged annual income loss of around $50,000 gross, since the plaintiff had been working two jobs and relied on the security work for a significant portion of his income.
The plaintiff appealed to the Supreme Court, arguing that the sentencing magistrate had failed to properly account for the automatic licence revocation consequences flowing from the sentence imposed. The appeal was ultimately limited to the sentence for the grievous bodily harm offence.
Legal Issues
- Whether the sentencing magistrate was required to take into account the automatic revocation of the plaintiff's security licence as a form of extra-curial punishment (that is, a punishment or adverse consequence suffered outside the formal court process).
- Whether the magistrate had acted on a mistaken understanding of the law regarding the automatic revocation provisions, and whether that error caused a miscarriage of the sentencing discretion.
- Whether leave to appeal out of time should be granted, and if so, what the appropriate remedy was.
Decision
Hislop J confirmed the established principle that sentencing courts are required to consider all consequences flowing to an offender from a conviction or a particular sentence, including extra-curial punishments. This includes prospective penalties such as licence disqualifications that arise automatically by operation of law. The Court drew on the Court of Criminal Appeal's reasoning in both R v Daetz and the Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act, which had affirmed that it would be unjust to ignore such consequences.
The Court found that the magistrate had been misled by comments from the plaintiff's legal representative at sentence, which caused her Honour not to appreciate the correct legal position regarding automatic revocation. As a result, the magistrate did not accurately direct herself on the issue and failed to take a material consideration into account. This constituted an error warranting intervention.
Hislop J was careful to note that the error did not necessarily mean the sentence had to be restructured to avoid triggering the revocation provisions. The requirement was simply that the sentencing discretion be exercised with the correct facts and law in mind. Because the magistrate had access to a Probation and Parole report and testimonials that the plaintiff's representatives could not subsequently obtain, the Court considered it appropriate to remit the matter back to the same magistrate for redetermination.
Orders Made
- The time to appeal or seek leave to appeal was extended to 4:00 pm on 4 March 2008.
- Leave to appeal was granted under s 53(1) of the Crimes (Appeal and Review) Act 2001 on grounds involving a question of mixed law and fact.
- The sentence for the offence of maliciously inflicting grievous bodily harm was set aside and the matter remitted to the Downing Centre Local Court for redetermination of sentence, if possible by the same magistrate, in accordance with the Court's directions.
- Each party was ordered to bear their own costs of the appeal.
Key Takeaways
- A sentencing court must take into account all material consequences of a conviction or sentence, including the automatic revocation of a professional licence triggered by operation of law, as part of the extra-curial punishment doctrine.
- Where a sentencing magistrate acts on a mistaken understanding of the law and thereby fails to consider a material factor, the sentencing discretion miscarries and the sentence may be set aside on appeal.
- Automatic revocation under the Security Industry Act 1997 was engaged where a fine of $200 or more was imposed for an assault offence, making the quantum of any fine a legally significant sentencing decision in cases involving licensed security industry workers.
- Remitting a matter to the original sentencing judge for redetermination is an available and sometimes preferable remedy, particularly where the original tribunal had access to materials that are no longer obtainable.
- Setting aside a sentence on the basis of an error in the exercise of sentencing discretion does not predetermine the outcome on resentencing; the correction required is that the discretion be exercised on a proper legal and factual footing.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(1)(b), 61
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Crimes (Appeal and Review) Act 2001 (NSW), s 53(1)
- Supreme Court Act 1970 (NSW), s 69
- Security Industry Act 1997 (NSW), ss 16(1)(a), 26(1A), 26(1)(d)
- Security Industry Regulation 1998 (NSW), cl 11(c)(i), cl 18
Cases:
- R v Daetz (2003) 139 A Crim R 398
- Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305