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10
Court of Criminal Appeal 17 April 2012

Lavorato v Regina

[2012] NSWCCA 61

Also reported as (2012) 82 NSWLR 568
Public order & justice offences
COSTS APPEAL PROCEDURE APPEAL SENTENCING PROCEDURE

Citation: Lavorato v Regina [2012] NSWCCA 61
Court: Court of Criminal Appeal, New South Wales
Date: 17 April 2012
Judges: Basten JA; RS Hulme J; Schmidt J

Background

The applicant was the secretary/manager of a registered club. He was charged with three offences under s 11(2) of the Liquor Act 2007 (NSW) arising from staff serving alcohol in glass containers after midnight, in breach of the club's licence conditions. He did not commit the acts personally. The Local Court convicted him and fined him $600 on each count, having declined his application for dismissal without conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The applicant appealed against sentence to the District Court. Syme DCJ dismissed the appeal, again rejecting the submission that s 10 should have been applied. The District Court judge was then invited to state questions of law for determination by the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW).

Six questions were ultimately stated, each directed at whether Syme DCJ had erred in law in declining to deal with the matter under s 10, including whether she had failed to consider relevant facts, failed to make required findings, failed to consider mandatory mitigating factors under s 21A, and whether s 10 was even available for strict liability offences.

  • Whether the District Court judge erred in law by failing to consider facts and submissions relied on by the applicant in the s 10 application.
  • Whether the failure to make factual findings and engage with submissions amounted to an error of law.
  • Whether the failure to consider mitigating factors specified in s 21A of the Crimes (Sentencing Procedure) Act 1999 constituted an error of law.
  • Whether s 10 is available to a person charged with a strict liability offence under the Liquor Act 2007.
  • Whether the questions stated were appropriately formulated and, separately, whether an extension of time to file the stated case should be granted.
  • Whether the proceedings constituted "an appeal" for the purposes of a costs order under s 17 of the Criminal Appeal Act 1912.

Decision

The three judges delivered separate reasons, producing a divided but outcome-determinative set of answers. Basten JA considered several questions inappropriate to answer on procedural grounds, particularly where the issues had not been properly proffered for determination in the District Court, or where the questions were framed in a form previously criticised as obscuring mixed questions of fact and law. His Honour answered the remaining questions in the negative, declining to find reversible errors of law.

RS Hulme J and Schmidt J both found errors of law on the majority of questions. By majority, questions 3(a), 4, 5 and 6 were answered in the affirmative: the District Court had erred in law by failing to consider relevant facts and submissions, failing to make the required factual findings, and failing to address the mandatory mitigating factors in s 21A. Questions 1, 2, and 3(b) were answered in the negative by majority.

On the availability of s 10, Hulme J and Schmidt J held, by majority, that a person charged with a strict liability offence under s 11(2) of the Liquor Act 2007 is not excluded from applying for dismissal under s 10. The section expressly grants such an applicant the right to have an application heard and determined on its merits, and the regulatory character of the offence does not, of itself, preclude the exercise of the discretion in their favour.

The Court also addressed procedural aspects of the case stated mechanism. It confirmed that no question not proffered for determination in the District Court can form the basis of a stated case, that findings in the stated case should not depart from those made in the judgment, and that questions framed as "did I err in law in deciding that..." are a problematic formulation that the Court has criticised on prior occasions.

Orders Made

  • Question 3.1 in the stated case answered "no"; all other questions answered "yes."
  • Orders of the District Court set aside.
  • Matter remitted to the District Court for disposal in accordance with law.
  • The Crown to pay the applicant's costs of the stated case.

Key Takeaways

  • Section 10 of the Crimes (Sentencing Procedure) Act 1999 is available to a person charged with a strict liability regulatory offence; the nature of such an offence does not automatically exclude the applicant from having the discretion exercised in their favour.
  • A failure by a sentencing court to consider relevant facts and submissions, make required factual findings, or address mandatory mitigating factors under s 21A can constitute an error of law sufficient to ground relief on a stated case.
  • Under the case stated procedure in s 5B of the Criminal Appeal Act 1912, no issue that was not proffered for determination before the District Court can form the basis of a stated case in the Court of Criminal Appeal.
  • Where a case is stated following a final judgment, it is inappropriate for the stated case to identify findings of fact beyond those made in the judgment itself.
  • Formulating stated questions as "did I err in law in deciding that..." is a form the Court of Criminal Appeal has repeatedly criticised; questions are better framed to ask whether identified facts were capable of supporting a particular conclusion, or whether a conclusion was open on those facts.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5B, 10, 17
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 4, 10, 21A
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17, 20
- Liquor Act 2007 (NSW), ss 11, 150
- Director of Public Prosecutions Act 1986 (NSW), s 9
- Supreme Court Act 1970 (NSW), s 69
- Criminal Appeal Rules, r 29

Cases:
- Robinson v Woolworths Ltd [2005] NSWCCA 426; 64 NSWLR 612
- Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547
- Talay v R [2010] NSWCCA 308
- Muin v Refugee Review Tribunal (No 3) [2000] HCA 49; 174 ALR 681
- Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58
- Hoffenberg v The District Court of New South Wales [2010] NSWCA 142
- Kirk v Industrial Relations Commission [2010] HCA 1; 239 CLR 531
- McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367