AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Local Court 15 December 2022

Police v Tabbaa

[2022] NSWLC 21

Firearms & weapons
APPROPRIATENESS OF FORM 1

Citation: Police v Tabbaa [2022] NSWLC 21
Court: NSW Local Court
Date: 15 December 2022
Judge(s): Stewart LCM

Background

Police arrested the offender in February 2022 after stopping a vehicle in Hurstville. The offender was charged with eight offences, including two counts of possessing an unauthorised pistol, two counts of possessing a loaded firearm in a public place, firearms safety offences, and a possession of ammunition charge.

The DPP was referred the matter for a possible election to proceed on indictment but declined to do so. The matter remained in the Local Court, where the offender ultimately entered guilty pleas to two counts of possessing an unauthorised pistol and one count of possessing ammunition without authority.

By agreement between the prosecution and defence, a Form 1 was prepared. A Form 1 is a procedural device under the Crimes (Sentencing Procedure) Act 1999 (NSW) that allows a court to take additional admitted offences into account when sentencing on a principal offence, without imposing separate penalties for those additional matters. The proposed Form 1 included two counts of possessing a loaded firearm in a public place and two counts of not keeping a firearm safely.

  • Whether it was appropriate, under s 33(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), to accept the Form 1 as proposed by the parties.
  • Whether the Form 1 could meaningfully affect the sentence when the appropriate sentence for the principal offence already reached or exceeded the Local Court's jurisdictional limit of two years imprisonment.
  • Whether accepting the Form 1 in those circumstances would prevent the court from imposing a sentence that adequately reflected the totality of the offender's conduct.

Decision

The magistrate began by confirming the correct sentencing approach: the Local Court must assess the appropriate sentence by reference to the statutory maximum for the offence, not the court's jurisdictional limit. The jurisdictional limit of two years only becomes relevant if the assessed sentence exceeds it, at which point the court simply cannot impose more than that limit. This principle was drawn from the NSW Court of Criminal Appeal's decision in Greaves v R [2020] NSWCCA 140 and confirmed by the High Court in Park v The Queen (2021) 273 CLR 303.

After hearing submissions from the defence, the magistrate assessed the appropriate sentence for the principal offence (possessing an unauthorised pistol, carrying a maximum of 14 years) as reaching or exceeding the two-year jurisdictional limit. In those circumstances, the Form 1 offences could have no practical effect on the sentence imposed. The Form 1 mechanism cannot increase a sentence beyond the jurisdictional cap that has already been reached.

The magistrate then turned to the court's supervisory role under s 33(2)(b). That provision gives the court a discretion to decline a Form 1 where it would be inappropriate to accept it. Relying on C-P v R [2009] NSWCCA 291 and the Attorney General's Application No. 1 of 2002, the magistrate held that accepting a Form 1 that could have no impact on the sentence would deny the court the opportunity to impose a sentence properly reflecting the totality and seriousness of the offender's conduct.

Accordingly, the magistrate was not satisfied it was appropriate in all the circumstances to deal with the Form 1 as proposed. The Form 1 was refused.

Orders Made

• The court refuses to deal with the Form 1 as presently constituted

Key Takeaways

  • A Form 1 is incapable of increasing a sentence where the appropriate sentence for the principal offence already reaches or exceeds the Local Court's jurisdictional limit of two years imprisonment.
  • Under s 33(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), courts retain a supervisory discretion to refuse a Form 1 even where the prosecution, defence, and the offender have all agreed to it.
  • Where accepting a Form 1 would deny the court any opportunity to reflect the seriousness of the totality of the offender's conduct, the discretion under s 33(2)(b) should be exercised to decline it, consistent with C-P v R [2009] NSWCCA 291.
  • The Local Court must assess the appropriate sentence by reference to the statutory maximum for the offence, not the court's jurisdictional ceiling. The jurisdictional limit is only applied after the appropriate sentence has been identified.
  • Agreement between prosecution and defence on the contents of a Form 1 does not bind the court, which must independently assess whether accepting the Form 1 is appropriate in all the circumstances.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5 and 33
- Crimes Act 1900 (NSW), s 93G
- Firearms Act 1996 (NSW), ss 7, 39, 65 and 66

Cases
- Park v The Queen (2021) 273 CLR 303; [2021] HCA 37
- Greaves v R [2020] NSWCCA 140
- C-P v R [2009] NSWCCA 291; (2009) 213 A Crim R 26
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- Cummins v R [2019] NSWCCA 163
- RL v R [2018] NSWCCA 274
- Dale v R [2021] NSWCCA 320
- Chandab v R [2021] NSWCCA 186
- El-Youseff v R [2010] NSWCCA 4
- Laspina v R [2016] NSWCCA 181
- R v Campbell; R v Smith [2019] NSWCCA 1
- R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277
- Raniga v R [2016] NSWCCA 36
- Stanford v Regina [2007] NSWCCA 73
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35