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Court of Criminal Appeal 12 June 2020

Hanna v R

[2020] NSWCCA 125

Theft & propertyPublic order & justice offences
STATUTORY INTERPRETATION PLEA OF GUILTY JURISDICTIONAL LIMIT OF LOCAL COURT APPEALS APPEAL AGAINST SENTENCE AGGREGATE SENTENCE

Citation: Hanna v R [2020] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 12 June 2020
Judge(s): Bell P, Simpson AJA, R A Hulme J

Background

The appellant was sentenced in the Drug Court of New South Wales on 29 June 2018, in the exercise of that court's criminal jurisdiction as a Local Court. He had pleaded guilty to ten offences committed between October 2015 and February 2018, including breaking and entering a mosque and a car dealership in Parramatta. Two aggregate sentences were imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): a fixed term of six months for two earlier offences, and four years with a non-parole period of two years and six months for the remaining eight.

Because each offence was an indictable offence capable of being dealt with summarily, the Local Court's maximum sentencing power was capped at two years per offence under ss 267 and 268 of the Criminal Procedure Act 1986 (NSW). The sentencing judge indicated individual sentences of two years for each of the two mosque offences, which equalled that jurisdictional limit. The judge had also stated he was treating the guilty pleas as a sign of contrition and acknowledging their utilitarian value.

The appellant, who was self-represented on appeal, brought four grounds of appeal challenging various aspects of the sentences. The central question of principle concerned whether a sentencing judge, when applying a guilty plea discount under s 22(1) of the Crimes (Sentencing Procedure) Act, could arrive at an indicated sentence equal to the Local Court's jurisdictional limit, implying the pre-discount starting point exceeded that limit.

  • Whether s 22(1) of the Crimes (Sentencing Procedure) Act 1999, which requires a court to impose a lesser penalty than it "would otherwise have imposed" in recognition of a guilty plea, permits the pre-discount starting point to exceed the Local Court's jurisdictional limit.
  • Whether the indicated sentences for the mosque and car dealership offences were manifestly excessive or disproportionate relative to one another.
  • Whether the sentencing judge erred by declining to accept the appellant's evidence that he did not know the premises he broke into was a mosque.
  • Whether the sentencing judge failed to take into account psychological evidence tendered at sentence.

Decision

Grounds 1, 3 and 4 were unanimously rejected. On the relativity of sentences (ground 1), the Court found no demonstrated error in how the judge had calibrated the individual indicated sentences across the offences. On the factual finding about the mosque (ground 3), the Court held it was open to the sentencing judge to conclude that the appellant must have recognised the nature of the premises during the hour or more he spent inside, even if he had not known when he entered. On the psychological evidence (ground 4), the Court noted the judge had in fact made extensive reference to the psychologist's report in his reasons, so no failure of consideration was established.

Ground 2 raised the question of statutory construction at the heart of the appeal. The appellant argued that, if the judge had genuinely applied a guilty plea discount under s 22(1), the pre-discount sentence must have exceeded the jurisdictional limit, making the process legally flawed. A closely analogous issue had been resolved shortly before judgment in Park v R [2020] NSWCCA 90, where Bathurst CJ and R A Hulme J held that the phrase "the penalty it would otherwise have imposed" in s 22(1) should be read as referring to the sentence the court considers appropriate having regard to all facts and circumstances, unconstrained by the jurisdictional cap. Fullerton J in Park took the contrary view, holding that the discount must be applied to the sentence the court would actually have imposed within the jurisdictional limit.

Simpson AJA had independently reached conclusions aligned with Fullerton J's literal approach, but accepted that the majority reasoning in Park should be followed as a matter of comity. Bell P expressly preferred and agreed with the majority approach in Park. R A Hulme J, having been part of that majority, adhered to his earlier views. On that basis, the Court unanimously rejected ground 2 and dismissed the appeal.

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed, consistently with the majority in Park v R [2020] NSWCCA 90, that the phrase "lesser penalty than it would otherwise have imposed" in s 22(1) of the Crimes (Sentencing Procedure) Act 1999 refers to the sentence a court considers appropriate having regard to all the facts and circumstances, not constrained by the Local Court's jurisdictional limit.
  • A sentencing judge applying a guilty plea discount may therefore indicate a pre-discount starting point that exceeds the Local Court's two-year sentencing cap; the indicated sentence after discount may still lawfully sit at or below the jurisdictional ceiling.
  • Where a judicial officer finds, based on what an offender must have observed while inside premises for an extended period, that the offender came to know the nature of those premises, that factual finding is open even if the offender claimed ignorance upon entry.
  • No error arises from a sentencing judge's treatment of psychological evidence where the judge's reasons demonstrate that the report was considered and expressly quoted from at sentence.
  • Simpson AJA's judgment illustrates that, even where a judge prefers a literal statutory construction, the convention of following a recent majority decision of the same court on an identical point of principle will ordinarily prevail.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A, 22, 53A, 53B, 98, 99
- Criminal Procedure Act 1986 (NSW), ss 267, 268, Sch 1, Tables 1 and 2
- Drug Court Act 1998 (NSW), ss 4, 7A, 12, 24
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AF
- Crimes Act 1900 (NSW), ss 112, 114, 117, 188, 195, 253, 254

Cases:
- Park v R [2020] NSWCCA 90
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
- Berryman v R [2017] NSWCCA 297
- Elsaj v R [2017] NSWCCA 124
- PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61
- R v Grbin [2004] NSWCCA 220
- R v Shenton [2003] NSWCCA 346
- R v Togias [2001] NSWCCA 522; (2001) 127 A Crim R 23