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Court of Criminal Appeal 20 November 2020

Ilic v R

[2020] NSWCCA 300

Also reported as (2020) 103 NSWLR 430
Fraud & dishonesty

Citation: Ilic v R [2020] NSWCCA 300
Court: NSW Court of Criminal Appeal
Date: 20 November 2020
Judge(s): McCallum JA (primary reasons); Garling J (agreeing, with additional reasons); Wright J (agreeing)

Background

The appellant was sentenced in the District Court for two State offences of dealing with proceeds of crime. At his own request, the sentencing judge also took six additional offences into account on a "Form 1," a procedure under Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that allows outstanding charges to be factored into the sentence for a principal offence without separate convictions being recorded.

Two of the Form 1 offences were federal offences: possession of signal jammers in contravention of s 47(1) of the Radiocommunications Act 1992 (Cth). The appellant later challenged his sentence on the basis that the sentencing judge had no legal authority to include those federal offences on the Form 1 when sentencing him for a State offence.

The Crown conceded it was open to the Court to find that including the federal offences on the Form 1 was impermissible. Despite that concession, the Court needed to resolve the underlying constitutional and statutory questions before determining the appeal.

  • Whether the NSW Form 1 provisions in Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) apply of their own force to federal offences
  • Whether those provisions are "picked up" and applied as federal law by s 68(1) or s 79 of the Judiciary Act 1903 (Cth)
  • Whether any inconsistency between the State Form 1 regime and federal sentencing law under the Crimes Act 1914 (Cth) prevents the Form 1 provisions from operating in relation to federal offences

Decision

The Form 1 provisions do not apply of their own force to federal offences. The Court confirmed, applying s 12(1) of the Interpretation Act 1987 (NSW) and Solomons v The District Court of NSW (2002) 211 CLR 119, that State sentencing legislation does not extend to federal offences under its own terms.

The Judiciary Act can, in principle, pick up State sentencing law for federal offences. Sections 68(1) and 79 of the Judiciary Act operate to apply the substance of relevant State sentencing law to federal offences to the extent it can be applied. The Court held that the Form 1 provisions are theoretically capable of being picked up in this way, and that textual references to State-specific features of the criminal justice system do not automatically foreclose that analysis.

However, relevant inconsistencies prevent the Form 1 provisions from operating here. McCallum JA (with Wright J agreeing) identified two inconsistencies. First, Commonwealth law prohibits fixing a single non-parole period that spans both federal and State sentences (ss 19AJ and 16BA of the Crimes Act 1914 (Cth)), making a combined Form 1 procedure unworkable. Second, s 6(1) of the Director of Public Prosecutions Act 1983 (Cth) reflects a clear legislative intention that Commonwealth offences should not be disposed of contrary to the determination of a Commonwealth prosecutor. The NSW Form 1 procedure, which gives the State prosecutor control over the process, is inconsistent with that intention.

Garling J agreed on the outcome but rested the inconsistency on a single ground. His Honour identified the inconsistency as lying between the Form 1 procedure under Part 3 Division 3 and s 16BA of the Crimes Act 1914 (Cth), which provides its own distinct federal mechanism for taking additional offences into account. That provision leaves no room for a comparable State procedure to operate in respect of federal offences. Garling J noted that the practical utility of the appeal was, in his view, entirely illusory given the sentence imposed appeared lenient and any resentencing was unlikely to produce a different result, but he agreed an error of law had occurred and joined in allowing the appeal.

Orders Made

• The court agrees with the orders proposed by McCallum JA
• Amendment to order 4 made on 20 November 2020

Key Takeaways

  • The NSW Form 1 procedure does not apply of its own force to federal offences; State sentencing legislation operates within State boundaries and does not extend to Commonwealth offences without a further connecting mechanism.
  • Under ss 68(1) and 79 of the Judiciary Act 1903 (Cth), State sentencing provisions are capable in principle of being picked up and applied as surrogate federal law, even where those provisions contain textual references to State-specific institutions or procedures.
  • Despite that theoretical capacity, the NSW Form 1 provisions cannot operate in relation to federal offences because of relevant inconsistencies with Commonwealth sentencing law, including the prohibition on a single non-parole period spanning both State and federal sentences, and the requirement that Commonwealth prosecutors control the disposition of federal charges.
  • A separate and sufficient basis for inconsistency exists in s 16BA of the Crimes Act 1914 (Cth), which provides its own federal mechanism for taking additional offences into account and leaves no room for a State equivalent to operate alongside it.
  • Where State sentencing provisions are incompatible with federal sentencing law in this way, a sentencing judge lacks authority to take federal offences into account under the State Form 1 procedure, and doing so constitutes an error of law that warrants resentencing even where the practical consequences may be modest.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3, ss 15, 31-35A, 53A, 103(2), Sch 2 Pt 14 cl 54
- Crimes (Sentencing Procedure) Regulation 2017 (NSW), cl 4
- Crimes Act 1900 (NSW), s 193B
- Crimes Act 1914 (Cth), Part 1B, ss 16A(1), 16BA, 19AJ
- Criminal Procedure Act 1986 (NSW), s 166
- Director of Public Prosecutions Act 1983 (Cth), s 6(1)
- Interpretation Act 1987 (NSW), s 12(1)
- Judiciary Act 1903 (Cth), ss 68(1), 69, 79
- Radiocommunications Act 1992 (Cth), s 47(1)

Cases:
- Solomons v The District Court of NSW (2002) 211 CLR 119; [2002] HCA 47
- Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Director of Public Prosecutions (Cth) v Beattie (2017) 327 FLR 71; [2017] NSWCCA 301
- Woods v R [2020] NSWCCA 219
- Adams v Western Australia [2014] WASCA 191; (2014) 245 A Crim R 351
- Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Mok v Director of Public Prosecutions (NSW) (2016) 257 CLR 402; [2016] HCA 13
- Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8