Citation: Hart v Attorney-General for New South Wales [2016] NSWCCA 71
Court: Court of Criminal Appeal, NSW
Date: 2 May 2016
Judge(s): Hoeben CJ at CL, Harrison J, Davies J (unanimous)
Background
The appellant was a barrister admitted to the NSW Bar in 1986. Between 2008 and 2009, he acted for three clients facing drink-driving charges in various Local Courts. Intercepted telephone calls and other evidence revealed that he made repeated false statements to courts and to a police prosecutor to have matters transferred to courts where he believed a favoured magistrate would deliver a more lenient outcome for his clients.
On 22 August 2014, the appellant was sentenced on five counts of perverting the course of justice, with a further five counts taken into account on a Form 1. The sentencing judge imposed an aggregate term comprising a non-parole period of one year and ten months and an additional term of eleven months. The appellant sought leave to appeal, filing his notice well out of time due to prison transfers and the refusal of Legal Aid to act on any appeal.
The Crown did not oppose the extension of time application, and the Court proceeded to consider all seven grounds of appeal.
Legal Issues
- Whether the sentencing judge erred in finding the appellant would have benefited financially from the offending, where the Crown had not asserted this and it was not an available inference
- Whether an "Ellis discount" (a sentencing reduction for cooperation with an investigation later found to be conducted without lawful authority) should have been applied, given the High Court's subsequent ruling in ICAC v Cunneen that ICAC lacked jurisdiction to investigate the appellant
- Whether the sentencing judge gave adequate weight to the appellant's health issues
- Whether the principle of parity required comparison with a similar case, DPP v Paul
- Whether the sentencing judge misapplied the principles in Pearce v The Queen regarding the structuring of sentences for multiple offences
- Whether the sentence should have been a fixed term rather than a term with a non-parole period and parole
- Whether the 10% discount for late guilty pleas was insufficient
Decision
Financial benefit finding: The Court accepted that the sentencing judge should not have found financial benefit as a relevant consideration where the Crown had not raised it. However, the Court found that this error had no material effect on the sentence actually imposed. The offending was serious on its face, and the error did not distort the outcome.
Ellis discount: The appellant argued that admissions made during an ICAC inquiry should have attracted an Ellis-style discount, particularly after the High Court found in ICAC v Cunneen that ICAC had exceeded its jurisdiction. The Court rejected this ground. The admissions were made at a time when ICAC's conduct was considered lawful, and the subsequent Validation Act retrospectively restored that jurisdiction. No relevant jurisdictional deficiency ultimately existed in a way that would engage the Ellis principle.
Health, parity, Pearce, and fixed term: The Court found no error in the treatment of the appellant's health concerns, which had been considered by the sentencing judge alongside other subjective matters. The parity argument involving DPP v Paul failed because the cases were factually dissimilar. The Court found no misapplication of Pearce principles, and rejected the contention that a fixed term was warranted, finding no special circumstances had been established beyond those already reflected in the sentence structure.
Discount for late plea: The guilty pleas were entered on the Friday before a trial listed to commence the following Monday, against the background of a strong Crown case. The Court held that a 10% discount was a proper exercise of the sentencing judge's discretion in those circumstances and declined to interfere.
Orders Made
- Time extended for the appellant to file the Notice of Application for Leave to Appeal to 1 October 2015
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- An Ellis discount (for cooperation with an investigation later found to exceed lawful authority) was not available where retrospective validation legislation had restored the relevant jurisdiction, leaving no operative legal deficiency to attract the reduction.
- A sentencing error (here, finding financial benefit without evidentiary foundation) will not automatically warrant resentencing if it had no material effect on the sentence imposed.
- The Court of Criminal Appeal confirmed that a 10% discount for a guilty plea entered the Friday before trial, in a strong Crown case, fell within the proper exercise of sentencing discretion.
- Parity arguments require close factual comparison; a superficially similar case will not ground a parity claim where the underlying facts differ in material respects.
- No special circumstances were established merely by the fact of multiple counts and a complex sentence structure, and the imposition of a standard non-parole period with parole was upheld.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)
- Independent Commission Against Corruption Act 1988 (NSW)
- Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW)
Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518
- Duncan v Independent Commission Against Corruption [2015] HCA 32
- Hampton v R [2014] NSWCCA 131
- Independent Commission Against Corruption v Cunneen [2015] HCA 14
- Kentwell v The Queen [2014] HCA 37
- New South Wales Bar Association v Hart [2006] NSWADT 97
- Pearce v The Queen [1998] HCA 57
- R v Nykolyn [2012] NSWCCA 219
- R v Pham [2005] NSWCCA 94
- R v Thompson [2005] NSWCCA 340
- The Council of the New South Wales Bar Association v Hart [2009] NSWADT 252
- Tsakonas v R [2009] NSWCCA 258