Sentencing for Appellant Charged with Multiple Offences
Park v The Queen [2021] HCA 37 (10 November 2021)
The appellant was sentenced in District Court of New South Wales for multiple offences including taking a conveyance without consent of the owner. The offence was dealt with as a "related offence" under s 165. The sentencing judge awarded a 25% discount in consideration of the guilty plea for the offence. The parties dispute whether sentences that the court "would otherwise have imposed" can exceed the jurisdictional limit.
Facts:
On 6 November 2018, the appellant was sentenced in the District Court of New South Wales to an aggregate sentence of imprisonment of 11 years, with a non-parole period of eight years, for multiple offences including an offence of taking a conveyance without the consent of the owner contrary to s 154A(1)(a) of the Crimes Act 1900 (NSW) ("the offence"). The maximum penalty for the offence was five years' imprisonment. The offence was dealt with as a "related offence" within the meaning of s 165 of the Criminal Procedure Act and the appellant pleaded guilty to the offence.
The sentencing judge applied a 25% discount to the sentence that would have otherwise been imposed to reflect the utility of the appellant's early plea of guilty. The appellant opposed such decision, arguing that on the plain and natural meaning of s 22, the sentencing court is empowered to "impose a lesser penalty" and if a court seeks to exercise the s 22 power in the offender's favour, it must impose a penalty that is less than it could (and therefore would) otherwise impose in passing sentence. As all members of the Court of Criminal Appeal inferred, but for the appellant's guilty plea, his Honour's indicative sentence would have been two years and eight months' imprisonment, being a sentence in excess of the jurisdictional limit since the combined operation of ss 168(3) and 268(1A) was to impose a jurisdictional limit upon the District Court of two years' imprisonment in sentencing the appellant for the offence ("the jurisdictional limit").
The appellant's appeal against sentence and concerning the correct interpretation of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was dismissed by the Court of Criminal Appeal. The majority concluded that if that sentence exceeded a jurisdictional limit, it was then necessary to reduce it to be within the limit. In dissent, Fullerton J considered that s 22(1) obliges a sentencing court to apply the discount allowed for the plea of guilty to a sentence that the court would in fact have imposed but for the guilty plea and, where there is a jurisdictional limit for a particular offence, the court is to have regard to that limit when applying the discount. The appellant argued that the majority of the Court of Criminal Appeal erred in interpreting the phrase "it would otherwise have imposed" in s 22, and contended that Fullerton J's interpretation in dissent was correct.
Issue:
Whether or not the sentence that the court "would otherwise have imposed" can exceed the jurisdictional limit.
Applicable law:
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 22(1) - provided that the sentencing court may impose a lesser penalty than it would otherwise have imposed but for a plea of guilty.
Crimes (Sentencing Procedure) Act 1999 (NSW) 53A - requires a court to state an indicative sentence for each offence not exceeding the court's jurisdictional limit for the offence when it imposes an aggregate sentence for multiple offences.
Criminal Procedure Act 1986 (NSW) ss 168(3), 268(1A) - imposes a jurisdictional limit upon the District Court of two years' imprisonment in sentencing the appellant for the offence ("the jurisdictional limit").
Park v The Queen [2020] NSWCCA 90 - concluded that the sentencing judge proceeded in "the orthodox and correct fashion" in assessing the appropriate sentence for the offence within the context of the prescribed maximum penalty, synthesising all relevant facts and circumstances with any discount for the guilty plea then applied.
R v Thomson (2000) 49 NSWLR 383 - states that the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10‑25% discount on a sentence.
Wiltshire v Mafi (2010) 211 - followed the majority's approach by the Court of Criminal Appeal in 2008 in Lapa v The Queen.
Mundine v The Queen [2017] NSWCCA 97 - concluded that the jurisdictional limit did not apply prior to the discount for a plea of guilty.
R v Doan [2000] NSWCCA 317 - where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit.
R v Nykolyn [2012] NSWCCA 219 - provides that the indicative sentences required by s 53A(2)(b) assist in explaining how the aggregate sentence was arrived at.
Analysis:
The appellant argued that, on the plain and natural meaning of s 22, the sentencing court is empowered to "impose a lesser penalty" which is "[a] lesser penalty imposed under this section". If a court seeks to exercise the s 22 power in the offender's favour, it must impose a penalty that is less than it could (and therefore would) otherwise impose in passing sentence. Where the sentencing court is subject to a jurisdictional limit (apart from the maximum penalty imposed for the offence), the court's capacity to "impose a lesser penalty" will necessarily be affected by the jurisdictional limit. Contrary to the appellant's submission, a jurisdictional limit is not a matter required to be taken into account "in determining the appropriate sentence for an offence" in accordance with s 21A.
A jurisdictional limit relates to the sentencing court, not to the task of identifying and synthesising the relevant factors that are weighed to determine the appropriate sentence. The maximum penalty for an offence is a matter that is almost always required to be taken into account to determine the appropriate sentence. Any jurisdictional limit is not inconsistent with the purpose of s 22, which encourages guilty pleas without mandating discounts and while ensuring that sentences are not "unreasonably disproportionate to the nature and circumstances of the offence".
Conclusion:
The Court held thats 22(1) does not oblige a sentencing court to apply the discount allowed for the plea of guilty to a sentence that the court would in fact have imposed but for the guilty plea. Where there is a jurisdictional limit for a particular offence, the court is not required to have regard to that limit when applying the discount. The Court concluded that the indicative sentences required by s 53A(2)(b) adequately assist in explaining how the aggregate sentence was arrived at. The Court ordered to dismiss the appeal.
