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Court of Criminal Appeal 13 March 2024

Bazzi v R

[2024] NSWCCA 35

Fraud & dishonestyTheft & propertyPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE APPEAL UPHELD APPLICANT RESENTENCED CRIME APPEALS

Citation: Bazzi v R [2024] NSWCCA 35
Court: NSW Court of Criminal Appeal
Date: 13 March 2024
Judges: Simpson AJA, Button J, Weinstein J

Background

The applicant pleaded guilty in the District Court to a large number of property offences committed between January 2021 and June 2022, including larceny, obtaining property by deception, breaking and entering, and reckless damage. All offences were committed while the applicant was subject to various forms of conditional liberty, including bail and parole. On 2 December 2022, Judge Wass SC imposed an aggregate sentence of 3 years and 1 month, with a non-parole period of 2 years.

Among the charges was an offence of entering with intent to commit larceny, contrary to s 114(1)(d) of the Crimes Act 1900 (NSW). The applicant was also charged under s 115 of the same Act, which provides an additional penalty where a person who has previously been convicted of an indictable offence commits an offence under s 114.

The applicant sought leave to appeal on three grounds: that the sentencing judge had wrongly factored conditional liberty into the assessment of objective seriousness; that the judge had similarly wrongly used criminal history to assess the objective seriousness of the s 115 offence; and that the judge had failed to avoid double punishment for the elements common to the s 114 and s 115 offences.

  • Whether the sentencing judge erred by treating the applicant's status as being subject to conditional liberty as relevant to the objective seriousness of the offences.
  • Whether the sentencing judge erred by treating the applicant's lengthy criminal history as relevant to the objective seriousness of the s 115 offence.
  • Whether the sentence for the s 115 offence constituted impermissible double punishment, given that the offence shares its entire criminality with the underlying s 114 offence.

Decision

Grounds one and three: Objective seriousness and impermissible considerations

The Court (Simpson AJA, Button J, and Weinstein J agreeing) found that the remarks on sentence could not reasonably be read as anything other than the sentencing judge having taken subjective features, specifically conditional liberty and prior offending history, into account when assessing the objective seriousness of the offences. This was an error. Objective seriousness must measure the gravity of the offending itself, not the personal circumstances of the offender. Allowing adverse subjective features to inflate that assessment risks producing a sentence that exceeds what is proportionate to the crime.

The principle applied is well established: criminal history may be relevant to other aspects of the sentencing exercise, but considering it when assessing objective seriousness risks punishing an offender a second time for conduct already the subject of prior sentences. The same logic applies to conditional liberty, which is a mandatory sentencing consideration under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW) but belongs to the subjective analysis, not the objective assessment.

Ground two: Section 115 and double punishment

This ground divided the Court. Simpson AJA (Weinstein J agreeing) held that s 115 in substance creates an offence of recidivism. It has no actus reus or mens rea of its own; it is wholly dependent on the criminality of the s 114 offence already charged and on a prior conviction. Imposing a separate sentence for s 115 therefore amounts to double punishment, contrary to the principle in Pearce v The Queen (1998) 194 CLR 610. Simpson AJA held that where s 115 is charged as a separate count, no penalty should be imposed, and that it would equally be inappropriate to indicate any sentence for a s 115 offence forming part of an aggregate term. On resentence, the majority disposed of the s 115 charge under s 10A of the Crimes (Sentencing Procedure) Act 1999, meaning a conviction was recorded but no further penalty was imposed.

Button J dissented on the approach, preferring the solution previously adopted in Darcy v R [2022] NSWCCA 54 of imposing a trifling indicative sentence, while nonetheless acknowledging that the gap between the 19th-century provision and modern sentencing standards is extreme. His Honour went further in observing that, in practice, it is very difficult to envisage circumstances in 2024 where a conviction under s 114 has been obtained and it would also be appropriate for the Crown to seek a conviction under s 115. All three judges agreed that s 115 is inconsistent with contemporary sentencing standards. Weinstein J noted that the NSW Law Reform Commission had recommended repeal of s 115 as long ago as 1996 and used the occasion to remind the legislature of that recommendation.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence allowed.
  • Aggregate sentence of imprisonment imposed on 2 December 2022 set aside.
  • In lieu, the applicant sentenced to an aggregate term of imprisonment of 3 years, commencing 5 July 2022 and expiring 4 July 2025, with a non-parole period of 2 years expiring 4 July 2024.
  • The applicant to be released to parole on 4 July 2024.

Key Takeaways

  • Conditional liberty at the time of offending is a mandatory sentencing consideration, but it bears on the subjective features of the offender, not the objective seriousness of the offence. Treating it as relevant to objective seriousness is a sentencing error.
  • An offender's prior criminal history likewise does not bear on the objective seriousness of the offending. Factoring it into that assessment risks imposing additional punishment for past conduct already sanctioned.
  • Section 115 of the Crimes Act 1900 (NSW) creates, in substance, an offence of pure recidivism with no independent actus reus or mens rea. A majority of the Court of Criminal Appeal held that sentencing separately for it alongside s 114 constitutes double punishment in contravention of Pearce v The Queen, and that no penalty should be imposed.
  • All three judges on the panel described s 115 as inconsistent with contemporary sentencing standards, and Weinstein J expressly flagged the legislature's continued failure to act on the NSW Law Reform Commission's 1996 recommendation for repeal.
  • Where objective and subjective features are conflated in remarks on sentence, the Court of Criminal Appeal confirmed that the safer course is to uphold the error and resentence, even where the conflation may have been no more than a verbal slip.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112, 113, 114, 115, 117, 192, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 10A, 21A(2)(d), 53A
- Criminal Law Amendment Act of 1883 (NSW), s 110
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Court Act 1998 (NSW), s 6
- Drug Court Regulation 2020 (NSW), cl 6

Cases
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14
- Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
- Darcy v R [2022] NSWCCA 54
- R v Tillott (1991) 53 A Crim R 46
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Tepania v The Queen (2018) 275 A Crim R 233; [2018] NSWCCA 247
- Paterson v R [2021] NSWCCA 273
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- McNaughton v R (2006) 66 NSWLR 566; [2006] NSWCCA 242
- Elhassan v R [2018] NSWCCA 118
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