Park v R

BATHURST CJ: I have had the advantage of reading the judgments of Fullerton J and R A Hulme J in draft. Their Honours disagree on an issue raised in relation to ground 2 of the grounds of appeal, namely, that the sentence was manifestly excessive. They also disagree on the ultimate outcome of the appeal.

The issue which divides their Honours relates to the indicative sentence imposed in respect of the offence the subject of count 6 (“offence 6”; otherwise referred to as “sequence 7” in the court below). That offence “take and drive conveyance” contrary to s 154(1)(a) of the Crimes Act 1900 (NSW) (the Crimes Act) was before the sentencing judge by way of a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) (the Criminal Procedure Act). The sentencing judge correctly noted that the maximum penalty which he could impose in these circumstances was one of 2 years with a fine of 20 penalty units which was less than the maximum penalty prescribed for the offence (5 years) which would have been available had the offence been tried on indictment.

In relying on the various indicative sentences which his Honour determined to be appropriate, he stated that in respect of each offence he applied a discount of 25 per cent for an early plea of guilty. In relation to offence 6, he determined an indicative sentence of 2 years imprisonment. That necessarily implied a pre-discount sentence of 2 years and 8 months.

Essentially, Fullerton J has concluded that the approach taken by the sentencing judge was not permitted by virtue of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act). R A Hulme J has taken a contrary view.

As Fullerton J has pointed out at [103], s 168(3) of the Criminal Procedure Act provides that when a court is sentencing a person for a related offence (an offence certified pursuant to s 166(1)(b) of the Criminal Procedure Act), the sentencing court “has the same functions, and is subject to the same restrictions and procedures, as the Local Court”. She also pointed out that s 260(2) and Table 2 to Schedule 1 of the Criminal Procedure Act provides that the offences in the Table are to be dealt with summarily by the Local Court unless the prosecutor has elected to proceed on indictment.

Section 260 of the Criminal Procedure Act is in the following terms:

Section 267 provides for the maximum penalty for offences listed in Table 1 of Schedule 1 to the Act. So far as relevant, it provides as follows:

Section 268 makes similar provision for offences listed in Table 2 of Schedule 1.

The availability of the summary procedure in respect of particular indictable offences has a long history. Provisions providing for summary disposal of certain offences were contained in the Crimes Act as originally passed: Crimes Act ss 476-478. Section 476 empowered justices to dispose of certain offences summarily if the Justice or Justices thought it was proper to do so and the accused consented. It was also necessary that the subject matter of the charge, or charges, or the value of the property involved did not amount to more than 20 pounds.

Section 477 set out the offences to which s 476 applied, being various forms of larceny with the exception of the offence of attempting to commit suicide, whilst s 478 dealt with punishment in the following terms:

The provisions were the subject to a number of amendments in the succeeding years. The only one which needs to be noted is the amendment to s 476 of the Crimes Act by s 11 of the Crimes and Other Acts (Amendment) Act 1974 (NSW). This Act inserted the following provision into the Crimes Act as s 476(7)(a):

This is the first occasion in which the distinction which appears in s 267 between the maximum penalty which can be imposed and the maximum penalty provided by law was inserted into the legislation. It is a distinction of some significance as will appear from the cases to which I refer below.

No explanation for the change in terminology was provided for in the Second Reading Speech or Explanatory Memorandum.

The relevant provisions of the Crimes Act ultimately were replaced by the provisions of the then Part 9A of the Criminal Procedure Act. The provisions were inserted into that Act by the Criminal Procedure Amendment (Indictable Offences) Act 1995 (NSW). The relevant sections were ss 33C, 33J and 33K. There is no relevant difference between these sections and the current ss 260, 267 and 268 of the Criminal Procedure Act.

Schedule 1 of the Criminal Procedure Act which contains Tables 1 and 2 was inserted into the Act in 1995. Since that time, a considerable number of additional offences have been added to those tables. It is unnecessary to specify them save to state that they cover the period from the time the Tables were inserted up to and including 2018.

Section 22 is in the following terms:

The predecessor to s 22 was s 439 of the Crimes Act which was inserted into that Act by the Crimes Legislation (Amendment) Act 1990 (NSW) which commenced on 1 February 1992. It was in the following terms:

As can be seen, s 22 is largely in the same terms as s 439. However, it differs to the extent that it provides that the Court “may accordingly reduce the sentence that it would otherwise have passed” in contrast to s 22 which provides that the Court “may accordingly impose a lesser penalty than it would otherwise have imposed”.

Section 22 replaced s 439 when the Sentencing Procedure Act commenced on 3 April 2000. Significantly, it was amended in 2017 by the Justice Legislation Amendment (Committal and Guilty Pleas) Act 2017 (NSW) which commenced on 30 April 2018. Subsection (5) was inserted which, for relevant purposes, limited the operation of the section to offences dealt with summarily.

As has been stated on a number of occasions, the task of statutory construction must begin and end with a consideration of the text. The statutory text must be considered in context, including the legislative history and extrinsic material. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, the plurality (Kiefel CJ, Nettle and Gordon JJ) stated the principle in the following terms (citations omitted):

In the present case, the purpose of s 22 of the Sentencing Procedure Act may shortly be stated as providing an incentive to a person to plead guilty, whilst not resulting in a sentence which is unreasonably disproportionate to the offence.

In R v Young (Court of Criminal Appeal (NSW), 27 October 1993, unrep), Allen J, with whom Smart and Dunford JJ agreed, in dealing with what his Honour considered to be a series of lenient sentences imposed in the Local Court, remarked that “[i]t is not the function of Local Courts to give less than appropriate sentences because the matters are being dealt with in the Local Court rather than in the District Court or the Supreme Court”. Although the decision was cited by Grove J in R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 (‘Doan’) at [36] in considering the appropriate course to take in sentencing in cases where the jurisdictional limit applied, it is difficult, with respect to his Honour, to see its relevance in dealing with that issue.

Doan was not a case involving a plea. Rather, as I pointed out, it involved, in the context of a parity argument, the approach to be taken in sentencing in circumstances where the jurisdictional limit imposed on the Local Court applied. In that case, Grove J in considering the then ss 20 and 27 of the Criminal Procedure Act (the predecessors to ss 260 and 267) stated at [35] (Spigelman CJ and Kirby J agreeing):

It is apparent from his Honour’s remarks and the authorities he cited in support, R v Doyle [1988] 2 Qd R 434; (1987) 30 A Crim R 379; Canino v Venning (1993) 113 FLR 327 at 330; (1933) 66 A Crim R 92 and Hansford v His Honour Judge Neesham [1995] 2 VR 233, that he was rejecting an approach to sentencing for Table offences which treated the jurisdictional limit of 2 years as the maximum penalty for the offence in question and the corollary that in sentencing for those offences, the penalty of 2 years is reserved for the worst class of case. The alternative approach which his Honour found to be correct involves consideration of the appropriate penalty having regard to among other things the statutory maximum penalty for the offence in question and adjusting the sentence to take account of the jurisdictional limit. This necessarily involves consideration of whether if permitted a sentence above the jurisdictional limit was otherwise appropriate. If so, the Court is to impose a sentence not exceeding the actual jurisdictional limit.

Doan was considered briefly in Ly v Jenkins (2001) 114 FCR 237; [2001] FCA 1640 which involved the question of whether the Federal Parliament had power to confer jurisdiction on the Local Court to deal summarily with offences under the Copyright Act 1986 (Cth). In the course of his judgment, Sackville J with whom Kiefel J (as her Honour then was) agreed at [118], described the effect of Doan as imposing a “jurisdictional maximum and not a maximum penalty for any offence triable within the jurisdiction”.

Lapa v The Queen [2008] NSWCCA 331; (2008) 192 A Crim R 305 did concern a plea. Similarly to the indicative sentence in the present case, an indicative sentence of 2 years after a discount of 25 per cent for an early plea was determined. The starting point was therefore a sentence of 2 years and 8 months. The Court rejected the submission that the approach resulted in the jurisdictional limit of the Drug Court being exceeded. Hidden J, with whom McClellan CJ at CL and Hulme J agreed, stated at [17] that by parity of reasoning to Doan, it was open to determine a starting point of the sentence above the 2 year jurisdictional limit. It should be noted that both Doan and Lapa have been followed by the Court of Appeal of Western Australia, Wiltshire v Mafi [2010] WASCA 111; (2010) 211 A Crim R 326 at [29].

A similar conclusion was reached in Mundine v R [2017] NSWCCA 97. That case like the present involved an indicative sentence for an offence being dealt with on a s 166 certificate. In that case, the sentencing judge had determined the appropriate sentence was 2 years and 3 months after a discount of 25 per cent for a plea of guilty. He was held to be in error not because of the starting point from which he assessed the discount but rather that having reached the indicative sentence of 2 years and 3 months, he erred in not reducing the sentence to 2 years to bring it in within the jurisdictional limit. Basten JA at [19] stated that the jurisdictional limit applied “only to the sentence actually imposed, not to the starting point prior to the discount for the plea”. Adamson J explained the position as follows at [92]:

In resentencing, Adamson J with whom the other members of the Court agreed, imposed individual sentences for each offence rather than an aggregate sentence. For the offence the subject of the s 166 certificate, she stated that after a discount of 25 per cent, the appropriate sentence was 2 years and 6 months which she reduced to 2 years to take account of the jurisdictional limit.

In the present case, it does not appear to be suggested that the sentencing approach adopted in relation to Table offences is incorrect as distinct from suggesting that it cannot be used in circumstances where the appropriate discount for a plea of guilty was required to be taken into account. The sentencing approach is consistent with the distinction drawn in ss 267(2) and 268(1A) of the Criminal Procedure Act between the sentence the Local Court can impose and the maximum term of imprisonment provided by law for the offence.

It would be anomalous and lead to incoherence if a different approach was to be taken to sentencing for Table offences in circumstances where a discount for a plea of guilty falls to be considered. Section 22 of the Sentencing Procedure Act should be read in the context of the appropriate manner of sentencing for Table offences and the expression “than it otherwise would have imposed” should be construed as referring to the penalty which would have been imposed but for the constraint resulting from the jurisdictional limit. That approach seems to me to be consistent with the purpose of the provisions to provide discounts for the pleas whilst ensuring that a sentence disproportionate to the gravity of the offence is not imposed. In many cases, Table offences if dealt with on an indictment would attract a significantly greater penalty than the jurisdictional limit. It would, in my opinion, be contrary to the requirement that the discount not result in a sentence disproportionate to the gravity of the offence, to discount from the jurisdictional limit as distinct from what the judge would otherwise consider to be the appropriate starting point.

Further, even if the expression in s 22, “a lesser penalty than it would otherwise have imposed” should be read as referring to the penalty imposed as a consequence of the exercise of the jurisdictional limit, the approach taken by the sentencing judge in the present case did not infringe the provision. If, as in the present case, the discount for the plea reduced the sentence from its notional starting point to the jurisdictional limit it would simply follow that no lesser penalty was imposed. The information required by subsection (2) was simply that the effect of the discount did not bring the sentence below the jurisdictional limit. Similarly, if a starting point was such that after discount the sentence was below the jurisdictional limit, a lesser penalty has been imposed although the sentence would be greater than if the discount had been applied to the jurisdictional limit as a starting point.

For these reasons, I agree with the conclusion of R A Hulme J on this issue.

I accept that the contrary conclusion reached by Fullerton J is arguable. However, even if I had considered that view correct, I would not overturn the two previous decisions of this Court which have reached a contrary conclusion. It would not be possible, in my view, to reach the requisite degree of satisfaction to warrant overruling them: see Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193 at [32]; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [84]-[85]. Further, it is important to bear in mind the approach set out in those cases has been accepted as correct by judges and magistrates in a large number of cases and the legislature has not sought to intervene, notwithstanding the fact that it has added a considerable number of offences to the Tables and at least partly revised s 22 for the purpose of limiting its operation to summary proceedings: c/f John v Federal Commissioner of Taxation (1989) 169 CLR 417 at 438-439; [1989] HCA 5; Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [297]-[298]. In these circumstances, I do not think these cases should be overruled unless the Court concluded they were plainly wrong. As I indicated, I am not of that view.

It must be emphasised that the conclusion I have reached is based on the assumption that what was said in Doan, that the jurisdictional limit was not to be treated as the maximum penalty for any particular offence, is correct. In the context of legislation which imposed both maximum and minimum penalties, this approach has not been followed but rather that the maximum and minimum penalties have been treated as providing the range within which the seriousness of the offence is to be assessed. Thus, in Bahar v R (2011) 45 WAR 100; [2011] WASCA 249, McLure P, with whom the other members of the Court, agreed made the following comments:

However, the matter was not raised in the appeal.

Subject to what I have written, I agree with the orders proposed by R A Hulme J and with his Honour’s reasons.

FULLERTON J: The applicant seeks leave to appeal an aggregate sentence of 11 years’ imprisonment with a non-parole period of 8 years imposed by Bennett SC DCJ on 6 November 2018 in the District Court.

The applicant entered pleas of guilty in the Local Court on 18 April 2018 to the following five offences which were committed to the District Court for sentence:

When indicating the sentence for two of the five offences, a further three offences were taken into account on separate Form 1s:

A further two offences of taking and driving a vehicle without the consent of the owner, contrary to s 154A(1)(a) of the Crimes Act, were dealt by way of a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) as related offences under s 166(1)(b)(ii). A charge of stealing property from a dwelling house, contrary to s 148 of the Crimes Act, was taken into account on a Form 1 in respect of one of the offences of take and drive conveyance.

The following table summarises (by offence date) the maximum penalty for each of the seven offences which attracted indicative sentences in the aggregate sentencing process (being the five offences committed for sentence from the Local Court and the two offences referred to the Court as related offences under s 166 of the Criminal Procedure Act). The table also provides for the standard non-parole periods which applied to sentences indicated for the offences committed on 16 April 2017, being the s 61J(1) and s 61(1) offences (offences 10 and 11 in the table). The indicative sentence for each of the seven offences is also specified.

The applicant relies upon two grounds of appeal:

On 20 March 2017, Ms Misovic parked a Jeep Cherokee, which belonged to her partner, at the World Square Shopping Centre car park in the Sydney CBD some time after 6.20pm. At about 9pm she noticed that the keys were missing from her handbag and that the Jeep had been stolen. CCTV footage revealed the Jeep being driven out of the car park at 7.47pm.

On 25 March 2017, police attended the applicant’s residence at a guesthouse in Strathfield. They found a board with the residents’ names and corresponding vehicle registration numbers. Beside the applicant’s name was the registration number for the Jeep.

On 1 April 2017, the applicant crashed the Jeep into the rear of another car. The Jeep was later located by the police and forensically examined. The applicant’s DNA was located on the driver’s headrest.

On 25 March 2017, at about 3.40pm, the applicant went to the kitchen in the guesthouse at Strathfield and took a knife from near the sink. You Hyun Kim saw the applicant walk past the manager’s office carrying the knife. Mr Kim confronted the applicant, alleging that he had taken his knife. The applicant pushed Mr Kim while still holding the knife. He then grabbed him by the front of his shirt and pushed him against the wall, before releasing him and walking away.

The applicant returned a short time later, still holding the knife, and confronted Mr Kim in the foyer outside the security office. He again grabbed him by the shirt and tried to pull him back up the stairs. Mr Kim resisted. They argued. The applicant then pushed Mr Kim’s chest with sufficient force that he stumbled to the front veranda area. Shortly after, the applicant returned to his room and Mr Kim returned to his room.

Mr Kim contacted police about the assault. There was closed-circuit television at the guesthouse which recorded the incident.

Later that evening, the applicant called Mr Kim and asked him why he had contacted the police. He asked Mr Kim if he was intending to remain at the guesthouse. The applicant said, “I'm watching you. You shouldn't have involved the police. People disappear”.

At about 2.40am on 2 April 2017, Ms Kim, another resident of the Strathfield guesthouse, awoke and walked upstairs to use the toilet. She entered the bathroom, which comprised a shower and basin and a separate toilet at the far end of the room, separated by a door.

Ms Kim sat on the toilet for a short time. As she was about to stand, the applicant stepped into the toilet cubicle and placed his right hand over her mouth, simultaneously pushing her backwards. She screamed and the applicant ran from the room.

In early April 2017, the applicant moved from the guesthouse at Strathfield into a share house in East Lidcombe, sharing a bedroom with a Mr Kang.

On 16 April 2017, at about 7am, while Mr Kang was in the shower, the applicant stole his keys (a car key, a house key and a room key), his wallet containing identification documents, his credit cards, a laptop computer and a mobile phone charger. Using the stolen car key, the applicant took Mr Kang’s Honda CR-V.

On 17 April 2017, the police approached the applicant. He falsely represented that he was Mr Kang by presenting the stolen identification documents. The Honda CR-V was subsequently located. A profile matching the applicant’s DNA was found on examination of the vehicle.

As at April 2017, another person (a woman), also with the surname Kang, resided in a three-bedroom unit in Concord, together with a male flatmate. In early April 2017, Ms Kang’s flatmate advised her that he intended to find a person to sublet his room for a month.

At about 10.30am on 16 April 2017, Mr Kang’s flatmate told her that someone would come to the unit to inspect the room and asked that she let the person inside. Ms Kang was in bed, home alone. She met the applicant at the front door. She confirmed that he was there to inspect the room and permitted him to come inside.

The applicant asked to see all three bedrooms. Ms Kang was standing outside the master bedroom when the applicant called out. She walked into the master bedroom but did not see the applicant before he put his right arm around her neck. He pulled her tightly against his body. She was struggling to breathe. She thought that she had blacked out momentarily, but quickly regained consciousness. The applicant forcefully dragged her into a corner of the room between the bed and an en suite bathroom. As he did this, she bit his fingers in an attempt to get him to release her. The applicant said, “Do you want to die?”. She asked, “Are you going to kill me?”. He said, “No, I’m not going to kill you. Let’s do it quickly and then I’ll leave”.

The applicant pushed Ms Kang up against the wall and used one of his hands to cover her mouth and nose. He began to forcibly remove her clothing by pulling her top over her head, undoing her bra and trying to pull her pants down. The applicant grabbed her breasts and put his hand all over her stomach and body, saying, “I want to touch it”.

The applicant then slid his hand down inside the front of her pants and grabbed her genitalia so that his hand was pressed up against her vagina for a short time.

He removed his hand and removed all clothing from the lower half of his body and lifted up his shirt to his armpits, exposing his chest. He said, “Touch my penis”. At this stage his penis was flaccid. He repeatedly said, “Massage it. If you don’t do it properly, you will die”. He said, “I want to ejaculate quickly and I want to leave”. She did as he demanded, and sucked on his chest and massaged his penis with her hand for about five minutes.

The applicant said, “Do it in your mouth” and pushed Ms Kang down with one hand on each shoulder. She put the applicant’s penis in her mouth and performed fellatio for about 15 minutes.

The applicant then sat on the bed and said, “Suck my chest and do penis massaging with your hands, do it simultaneously”. She did as instructed. He then pushed her on both shoulders and told her to continue performing oral sex. When on the floor on her knees, Ms Kang put the applicant’s penis in her mouth again and used both hands to perform oral sex on him as instructed. He ejaculated into her mouth and then said, “Get into the bathroom”. She did as instructed.

Ms Kang stayed in the bathroom for about two minutes, before climbing over the divide on the balcony and alerting her neighbour to what had happened to her. The neighbour called the police.

Police arrived about 20 to 30 minutes later. Ms Kang was taken to Royal Prince Alfred Hospital and examined. An oral swab revealed a DNA profile matching the applicant.

Photographs of Ms Kang showed abrasions and marks on her face, chin, shoulder, upper back and lower back.

Police found tissues in the en suite bathroom which tested positive for semen. The semen matched the applicant’s DNA profile.

In dealing with offences 10 and 11, each of which attracted standard non-parole periods, the sentencing judge found the objective gravity of each offence as falling in the mid range. He made no findings as to the objective seriousness of the other offences. He did not consider ss 21A(2) or (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

His Honour also noted the need for what he described as “some accumulation in the aggregate sentence that I intend to impose” which I take to mean some notional accumulation of the indicative sentences in arriving at an aggregate sentence. In that connection he noted that over the course of the applicant’s offending (which commenced within weeks of his arrival in Australia and extended over a period of about a month), five separate people were implicated with the nature of the applicant’s offending varying across what his Honour described as “the spectrum of events”.

His Honour accepted that in applying totality principles in the fixing of the aggregate sentence there would need to be what he described as “a measure of concurrence in the choking offence” (offence 7) “and the two sexual assault offences” (offences 10 and 11) even though each offence involved distinct criminality and each was objectively serious.

The author of the pre-sentence report interviewed the applicant on 23 August 2018 noting that he had been in custody since April 2017. The author also consulted with Australian Border Force given the applicant’s status as a visiting foreign national at the time of the offending, and referred to assessments undertaken by a Community Corrections NSW psychologist and psychiatrist who had assessed the applicant.

The psychiatrist reported that there was no current evidence that the applicant was suffering from any major psychiatric disorders and that his claim of historical mental health treatment was unable to be substantiated.

The psychologist assessed the applicant’s future risk of sexual offending according to STATIC-99R as above average such that, should a custodial sentence be imposed, a referral to a Community Corrections Senior Psychologist for further risk assessment, risk management and intervention options was recommended.

The author of the pre-sentence report also noted that the applicant had limited insight into his sexual offending.

The applicant tendered a psychiatric report from Dr Chew dated 4 October 2018 and a psychological report from Mr Fordyce dated 13 August 2018.

Mr Fordyce undertook a risk assessment which confirmed the result of the earlier risk assessment by the psychologist from Corrective Services NSW of static risk factors which, in combination with the applicant’s dynamic risk factors, attracted an assessment of him being at an above average risk of sexual recidivism. Mr Fordyce also reported that the applicant displayed limited insight into his sexual offending behaviour “making it difficult to provide a comprehensive account of his criminal antecedents or potential risk situations”.

He went on to say:

He went on further to say:

Dr Chew was provided with Mr Fordyce’s report. The applicant told Dr Chew that he had been diagnosed and treated for Bipolar Affective Disorder in Korea and that he had a number of psychiatric hospitalisations where he was treated with mood stabilising medications. He also described prolonged periods of elevated moods and periods of depressed mood. Dr Chew considered that, on the basis of the applicant’s self-report of a Bipolar Affective Disorder and previous hospitalisations for mania, it was “possible” that at the time of the offending behaviour the applicant was in the manic phase. No psychiatric diagnosis was offered. Dr Chew reported that the applicant was in “a depressive phase”.

In the course of his sentencing remarks, the sentencing judge noted that the applicant was 28 years of age at the time of sentence. He also noted that the applicant had no criminal antecedents in this jurisdiction, having arrived in Australia a period of weeks prior to committing the first of what proved to be a succession of offences over subsequent weeks.

The applicant was apparently living with his parents in the USA before travelling to Australia. He is the eldest of two children and was raised in a positive family environment. He believes that his parents are intending to relocate back to South Korea and it is his wish, after his release and deportation, to join his family there. His Honour also noted the applicant had three years’ education at high school and then two years in a vocational college where he studied automotive technology. He was employed in the construction industry before undertaking compulsory military service for 21 months.

His Honour noted that enquiries made of the National Police Agency in South Korea revealed that the applicant had a record of criminal antecedents which he found difficult to interpret. He did, however, note the following:

He also noted that desertion from military duty and violation of an accident compensation security law resulted in non-custodial sentences.

The sentencing judge undertook a detailed review of the reports of Dr Chew and Mr Fordyce relied upon by the applicant but rejected the submission advanced by his counsel that they established that he had mental health issues which operated in mitigation of sentence. In particular, his Honour was not satisfied of a causal connection between any mental health condition or underlying mental illness and the applicant’s offending.

There is no challenge on the appeal to his Honour’s approach to the assessment of this evidence or the findings he made based upon that assessment.

His Honour noted that the applicant had a drug and alcohol and gambling history which he described as “of little moment”. In regard to the applicant’s attitude to his offending, the sentencing judge noted:

His Honour went further to find the applicant’s prospects of rehabilitation were poor.

The sentencing judge made the following findings on the question of special circumstances at 5-6:

And at 26-27:

Counsel for the applicant submitted that the finding of special circumstances was not meaningfully translated into a reduction of the non-parole period, where the adjustment to the statutory ratio was by a period of three months or approximately thirteen weeks. Counsel maintained that submission despite acknowledging that the finding of special circumstances was expressly limited to the hardship the applicant would likely suffer as a prisoner because of a language barrier and where his time in custody will be more onerous because he is a foreign national isolated from family support. The sentencing judge rejected the submission advanced by the applicant’s counsel in the sentencing hearing that the finding of special circumstances should also encompass the evidence of the applicant’s compromised mental health which will render his time in custody more difficult. That finding was not challenged on the appeal.

Counsel also submitted that in appointing the non-parole period of 8 years, the sentencing judge was influenced by the applicant’s status as a foreign national in finding that any rehabilitation that might result from a conditional release from custody would necessarily occur outside the jurisdiction. Counsel submitted this approach was contrary to law citing R v Mirzaee [2004] NSWCCA 315 at [21] and Kristensen v R [2018] NSWCCA 189 where Mirzaee was applied in circumstances where the cancellation of the offenders visa was mandatory under the Migration Act 1958 (Cth).

That submission begs the question whether the sentencing reasons, as distinct from an exchange between counsel in the course of sentencing submissions, revealed that the sentencing judge has taken the applicant’s migration status into consideration in the appointment of the non-parole period. The applicant relies upon the following exchange:

Although on the appeal the applicant’s counsel accepted that in the exchange with defence counsel his Honour acknowledged that the deportation of the applicant upon serving the non-parole period was not a matter he could take into account on the question of special circumstances, she submitted that, when, in his sentencing remarks, his Honour said, “I am satisfied that the parole period will be sufficient to meet the prospects of rehabilitation, such as they are”, he had implicitly done just that. I do not read into the sentencing remarks the implication contended for by the applicant.

The Crown submitted that the limited basis upon which the finding of special circumstances was based, coupled with the expressed concern of the sentencing judge to provide for a lengthy period in custody to reflect the totality of the applicant’s criminality, together with his assessed poor prospects of rehabilitation, was such as to warrant only a moderate alteration to the statutory ratio in the exercise of the sentencing discretion.

In circumstances where the sentencing judge expressly stated that the parole period would not be “significantly greater” than what would apply upon the strict application of s 44 of the Crimes (Sentencing Procedure) Act, and where it was not submitted by the applicant that the non-parole period which was imposed was due to miscalculation or other arithmetic error, I am not satisfied that the first ground of appeal is made out.

It is well established that to make out a ground of manifest excess when aggregate sentences are imposed, the applicant must satisfy the court that the aggregate sentence is manifestly excessive, in the sense that it is unreasonable or plainly unjust (see Hughes v R [2018] NSWCCA 2).

The applicant submitted that the aggregate sentence of 11 years with a non-parole period of 8 years was “unreasonable and plainly unjust”, in large part because the degree of notional accumulation of the seven indicative sentences reflected what was said to be a misapplication of the principles of totality.

Accepting that the indicative sentences are not themselves appealable, counsel for the applicant submitted that the severity of at least some of them, in particular the sentence of 5 years and 6 months with a non-parole period of 4 years indicated for offence 10 (aggravated sexual intercourse without consent and the reckless infliction of actual bodily harm) and the sentence of 5 years with a non-parole period of 3 years and 6 months indicated for offence 11 (sexual intercourse without consent), both offences having been committed against the same person in the same episode in her home, has led to error in the appointment of an unjustifiably high aggregate sentence.

Although at the hearing of the appeal the applicant’s counsel expressly abandoned the submission made in writing that the sentence of 2 years indicated for offence 6 amounted to a sentencing error if, in order to arrive at that sentence, the 25 per cent discount the sentencing judge expressly allowed for the applicant’s plea of guilty was applied to a head sentence of 2 years and 8 months, a starting point which exceeded the jurisdictional maximum of 2 years for that offence, R A Hulme J raised with counsel whether the operation of s 22(1) of the Crimes (Sentencing Procedure) Act had any bearing on the issue.

In the course of addressing that question, it became clear that further written submissions from both the applicant and the Crown should be filed. Directions were made accordingly. The supplementary submissions focused upon the construction of s 22(1) and its legislative history, together with secondary materials which might aid the construction of that section. The supplementary submissions also addressed a number of provisions in the Criminal Procedure Act, implicated in the sentence indicated for offence 6, including ss 267 and 268 and ss 166-168. A number of decisions in this Court where the Court has had occasion to consider the impact of a jurisdictional maximum of 2 years for offences the subject of sentence proceedings in the District Court were also cited.

For the reasons which follow, I do not regard those decisions as dictating the outcome in this case, although they are of assistance in the analysis of what is comprehended by the concept of a jurisdictional maximum penalty.

Before turning to consider the supplementary submissions of the parties in greater detail, it is necessary to consider the context in which the sentencing judge indicated a sentence of 2 years for offence 6.

That offence, a “take and drive conveyance” under s 154A(1) of the Crimes Act, was before the sentencing judge as a “related offence” on a certificate under s 166 of the Criminal Procedure Act and available to be incorporated into an aggregate sentence under s 53A (see R v Price [2016] NSWCCA 50 at [75]-[80]).

Section 168(3) of the Criminal Procedure Act provides that where the court (in this case the District Court) is sentencing a person for a “related offence, the court has the same functions, and is subject to the same restrictions and procedures, as the Local Court”.

Section 154(1)(a) of the Crimes Act deems a person who commits the offence of “take and drive conveyance” to be guilty of the offence of larceny in s 117 of the Crimes Act and liable to be indicted for that offence. On indictment that offence attracts a maximum penalty of 5 years’ imprisonment. Section 260(2) and Table 2 to Schedule 1 of the Criminal Procedure Act provides that the offence of larceny is to be dealt with summarily by the Local Court unless the prosecutor elects to have it dealt with on indictment. No election was made in this case. The maximum penalties for Table 2 offences are provided for in s 268 of the Criminal Procedure Act.

Relevantly, s 268(1A) provides that:

By operation of ss 168(3) and 268(1A) of the Criminal Procedure Act, the jurisdictional maximum of 2 years’ imprisonment for the take and drive offence was the maximum sentence the sentencing judge was entitled to indicate for offence 6 under the aggregate sentencing provisions in s 53A of the Crimes (Sentencing Procedure) Act.

The offence of stealing property from a dwelling house contrary to s 148 of the Crimes Act (offence 5 on the schedule) (in this case car keys that were used by the applicant to take and drive the conveyance) was the subject of a Form 1 attaching to offence 6. In the course of the sentencing remarks, his Honour expressed the intention of taking that offence into account in the appointment of an indicative sentence for offence 6.

When addressing the impact of the Form 1 offences generally (there were four Form 1s to be accounted for in the aggregate sentencing exercise) the sentencing judge said, “There will be an increase in the sentence that would have otherwise been imposed were the principal offences before me standing alone”. This was clearly a reference to s 33 of the Crimes (Sentencing Procedure) Act. That section provides as follows:

Earlier in the course of his sentencing remarks, when referring generally to the Form 1 offences, his Honour noted his familiarity with the statements of principle in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 where, at [42]-[44], Spigelman CJ said:

That approach was expressly adopted by Hoeben CJ at CL in the following passages in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [95]-[96]:

Finally, the sentencing judge also acknowledged that the applicant was entitled to the benefit of the utility of his early pleas of guilty and that he intended to apply a 25 per cent discount to what he described as:

Although the sentencing judge did not refer expressly to s 22(1) of the Crimes (Sentencing Procedure) Act, it would appear that by acknowledging that the 25 per cent discount would be applied to the sentence that would otherwise have been imposed for offence 6, he was deploying the language of s 22(1) when indicating the sentence for that offence.

As it applied at the time of sentence, s 22 provided as follows:

Following the passage of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) (“the 2017 Act”), s 22 was amended to read as follows (amendments italicised):

As amended, s 22 now applies only to a sentence for an offence which is dealt with summarily (including, it must be assumed, summary offences the subject of a referral to this Court or the District Court under ss 166-168 of the Criminal Procedure Act) or an offence dealt with on indictment to which ss 25A-25F in Pt 3 Div 1A of the Crimes (Sentencing Procedure) Act do not apply. Part 3 Div 1A now provides for offences dealt with on indictment to have fixed sentencing discounts for the utilitarian value of the plea referable to the timing of the plea. These provisions are part of the Early Appropriate Guilty Plea reforms implemented by the 2017 Act.

It is not necessary to refer further to those reforms and the fixed sentencing discount scheme which has replaced the approach to the calculation of a sentencing discount for the utilitarian value of a plea of guilty addressed in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 and endorsed by Bathurst CJ in R v AB [2011] NSWCCA 229. Suffice to note, however, and not unimportantly for present purposes, that express provision is also made in ss 25D(2) and (4) for the discount for a plea of guilty to be applied to “any sentence that would otherwise have been imposed” - language that both mirrors the language in s 22(1) which continues in force following the 2017 amending Act, and language which has been used in criminal and criminal procedure statutes in NSW where statutory force has been given to a sentencing discount for a plea of guilty.

For emphasis, I note that s 22(1) was incorporated in the Crimes (Sentencing Procedure) Act 1999 (NSW) which commenced on 3 April 2000. Section 439 of the Crimes Act (the relevant wording of s 439(1) being not materially different to the wording of s 22(1)) was repealed at that time.

At its commencement on 1 February 1992, s 439 of the Crimes Act read as follows:

As I have noted above, s 22(1) in the form in which it appeared prior to the passage of the 2017 Act applied to the applicant’s sentence proceedings as those proceedings were commenced in the Local Court prior to 30 April 2018 (Sch 2 30 of the Act). That fact has no relevant bearing in the resolution of the question raised by the sentencing judge’s approach to offence 6, since s 22(1) is expressed in the same terms before and after passage of the 2017 Act. However, because the operation of s 22, and s 22(1) in particular, after the 2017 Act is now confined to pleas of guilty where sentences are imposed in the exercise of the summary jurisdiction of the Local Court (including where the District Court or this Court is invited to deal with “backup” or “related offences” in the way provided for in ss 165-168 of the Criminal Procedure Act, including where a sentencing court imposes an aggregate sentence) and to matters on indictment to which Div 1A does not apply (see s 22(5)), the construction of s 22(1) which is central to the issue addressed in the supplementary submissions of the parties is of continuing significance.

It is not suggested by the applicant that there is any error of principle in the approach the sentencing judge took to the offence on the Form 1 (offence 5 on the table) when indicating a sentence for offence 6. Neither is it suggested that allowing a 25 per cent discount for the applicant’s plea of guilty was not open, as a matter of sentencing discretion, under s 22(1). The question that arises in the particular circumstances of this case is whether the indicated sentence of 2 years for offence 6 was arrived at after the sentencing judge applied a 25 per cent discount to an undiscounted head sentence of 2 years and 8 months, that is, whether, after an assessment was made of the objective seriousness of that offence, and after taking into account the offence on the Form 1, whether it was open to the sentencing judge to consider 2 years and 8 months an appropriate “starting point” (or undiscounted sentence) for the application of the sentencing discount, provided for as a matter of discretion, in s 22(1). If that was the basis upon which a sentence of 2 years for offence 6 was indicated, the question is whether that approach is contrary to the approach mandated by s 22(1), since 2 years and 8 months was not a sentence the sentencing judge would otherwise have imposed (or, in this case, could have indicated under s 52A(2)(b)) since that sentence exceeded the jurisdictional limit of 2 years.

The Crown submitted that, properly construed s 22(1) (as it stood both prior to and after the 2017 Act) only applies where a court is imposing sentence for an offence “on an offender who has pleaded guilty to the offence”. The Crown submitted that it would have been a sentencing error for the sentencing judge to have taken the offence on the Form 1 into account when considering an undiscounted indicative head sentence, and then to have applied the 25 per cent discount for the plea of guilty to that sentence, as that would necessarily involve affording a discount for the Form 1 offence as well as the primary offence to which the Form 1 attaches, where there has been no plea of guilty to the Form 1 offence.

In the Crown’s submission, in indicating a sentence of 2 years, the sentencing judge should be taken to have applied the discount for the plea of guilty to the sentence that he would otherwise have imposed for that offence, without any accounting for the offence on the Form 1. The Crown submitted that only after arriving at a discounted indicative sentence was the sentencing judge obliged to assess how much, if at all, that discounted sentence should be increased because of the Form 1 offence, and in making that assessment he was constrained only by the fact that the indicative sentence could not exceed the 2 year jurisdictional limit.

On that analysis, the Crown submitted it was open to this Court to find that the sentence of 2 years indicated for offence 6 was arrived at after the sentencing judge applied a 25 per cent discount to a notional starting point of 2 years (being the jurisdictional limit for that offence and, it must follow, the sentence that he would otherwise have been imposed) and from a discounted sentence of 18 months to have then “increased” the sentence to 2 years to “take account” of the offence on the Form 1.

The Crown’s submission and the Crown’s interpretation of the sentencing judge’s reasoning must be rejected if for no other reason than it is contrary to the express requirement in s 53A(2)(b) of the Crimes (Sentencing Procedure) Act to indicate a sentence for offence 6 after taking into account “such matters as are relevant under Part 3 of the Act”. Part 3 of the Act includes Division 3 which is devoted to “taking further offences into account”: Division 3 includes s 33 which, as Hoeben CJ at CL said in Abbas in the passage extracted above, calls for:

Although the offence on the Form 1 was also a Table 2 offence, that fact had no relevant bearing on the sentencing exercise since the applicant was neither being sentenced for the Form 1 offence nor was his Honour required to indicate a sentence for that offence. Additionally, there is no additional statutory or common law requirement to take into account the fact that an offender acknowledges his guilt when taking the Form 1 offence into account on sentence (see Gordon v R [2018] NSWCCA 54 at [95]).

Contrary to the Crown’s submission, the sentencing judge was required to focus on the offending comprehended by the take and drive offence and indicate a sentence for that offence, taking into account the offence on the Form 1 as part of an “instinctive synthesis” of “such matters as are relevant under Part 3 or any other provision of this Act” including, necessarily, the extent to which the sentence for offence 6 would be increased because of the offending the subject of the Form 1. In that exercise, s 33(3) of the Crimes (Sentencing Procedure) Act operated so that the indicative sentence for offence 6 could not exceed 2 years.

The Crown’s submission is also contrary to a settled line of authority in this Court decided before the 2017 Act in which s 53A(2)(b) has been interpreted as obliging a sentencing court, when indicating the separate sentences that would otherwise have been imposed on an offender who has entered a plea of guilty, to indicate that sentence (or those sentences) after application of the sentencing discount in s 22(1) of the Act (see PG v R [2017] NSWCCA 179 at [71]; Elsaj v R [2017] NSWCCA 124 at [56]).

In TL v R [2017] NSWCCA 308, Davies J (Hoeben CJ at CL agreeing, Adamson J in dissent but not on this issue) regarded the reasoning of Button and N Adams JJ in PG as justifying application of the discount for assistance in s 23 of the Act to the indicative sentence. Section 23(1), which utilises language to similar effect to s 22(1), provides:

As Davies J said at [103]:

On the assumption that the sentencing judge complied with s 53A(2)(b) in his treatment of the Form 1 offence, the applicant argued that by applying a discount of 25 per cent for the plea of guilty to the sentence that would otherwise have been imposed as required by s 22(1) to arrive at an indicated sentence of 2 years, it follows that his Honour must have used as a “starting point” a sentence of 2 years and 8 months, that is 8 months longer than the jurisdictional maximum penalty for that offence. The applicant submitted that an undiscounted sentence of 2 years and 8 months was not a sentence the court would otherwise have imposed for offence 6 were there no plea of guilty to that offence, as it would have amounted to a sentencing error were a sentence that exceeded the jurisdictional maximum of 2 years to have been imposed. In the applicant’s submission, it follows that because the sentence his Honour would otherwise have imposed “but for” the plea of guilty could not have exceeded 2 years’ imprisonment, it was a sentencing error to apply the 25 per cent sentencing discount to a sentence in excess of 2 years’ imprisonment, in this case to a sentence of 2 years and 8 months.

The Crown further submitted that, were the Court to find that the sentencing judge did apply the 25 per cent discount to a sentence of 2 years and 8 months, that was an approach in conformity with a settled line of authority in this Court which should be followed.

In R v Doan [2000] NSWCCA 317; 50 NSWLR 115 at [35] Grove J was dealing with a complaint about the disparity between the sentence imposed on the applicant and the sentence imposed on a co-offender including, but not limited to the failure of the sentencing judge to take into account that the sentence imposed on the co-offender had been dealt with in the Local Court where a jurisdictional maximum of 2 years applied. The applicant argued that the jurisdictional maximum was a de facto substitute for the statutory maximum term of imprisonment for offences dealt with in the Local Court under s 20(1) of the Criminal Procedure Act as it applied at that time (a section which is similar although not identical to the current s 268 of that Act).

In the course of considering that submission his Honour made the following observation at [35]:

In Lapa v R [2008] NSWCCA 331; 192 A Crim R 305, Hidden J (with whom McClellan CJ at CL and Hulme J agreed) treated the reasoning by Grove J in Doan at [35] as validating the approach of a sentencing judge who, when sentencing an offender for an indictable offence which attracted a jurisdictional maximum of 2 years’ imprisonment, applied a 25 per cent discount (described by Hidden J as the full utilitarian value of the plea of guilty envisaged in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383) to what Hidden J described as a “starting point of sentence above the two year jurisdictional limit”, thereby arriving at a sentence of 2 years’ imprisonment at the jurisdictional limit. His Honour appears to have reasoned that because the “starting point” was above the 2 year jurisdictional limit and not above the statutory maximum for that offence, it was not an error to apply the sentencing discount to an undiscounted sentence despite it being above the jurisdictional limit. Section 22 of the Crimes (Sentencing Procedure) Act was the statutory expression for the treatment of guilty pleas at the time of the sentence and the hearing of the sentence appeal. His Honour was not referred to it, nor did he give any consideration to it, when concluding there was no error of the very kind agitated by the applicant on this appeal.

In Mundine v R [2017] NSWCCA 97, the sentencing court engaged in an aggregate sentencing exercise which included two summary offences the subject of a s 166 certificate, being an assault occasioning actual bodily harm and contravention of an apprehended violence order, both offences committed on the same day as the commission of the offence of reckless wounding charged on indictment. One of the grounds advanced by the applicant in seeking to make good his complaint that the aggregate sentence was manifestly excessive, was that a sentence of 2 years and 3 months was indicated for the assault occasioning actual bodily harm which amounted to a sentencing error because it exceeded the jurisdictional limit of the Local Court and was in breach of s 168(3) of the Criminal Procedure Act for that reason. The Crown conceded that sentencing error but submitted that it had no relevant impact on the aggregate sentence which was ultimately imposed.

Although Adamson J accepted the Crown’s concession that it was a sentencing error for the sentencing judge not to reduce the sentence assessed at 2 years and 3 months to an indicated sentence of 2 years to comply with the jurisdictional maximum, her Honour did not identify error in the process by which the discounted sentence of 2 years and 3 months was arrived at. Her Honour reasoned as follows at [92]:

Although her Honour noted that the sentencing judge had allowed a discount of 25 per cent for each of the pleas of guilty to the offences on the s 166 certificate in the process of fixing indicative sentences, she also did not engage with the question raised on this appeal, namely whether the exercise of the sentencing discretion to reduce a sentence for a plea of guilty, directly referable under s 22(1) to a sentence the court would otherwise have imposed, must be to a sentence no higher than the jurisdictional limit of 2 years.

In the Crown’s submission, Lapa and Mundine resolve the question raised on the appeal adverse to the applicant, and that this Court should follow those decisions despite the fact that s 22(1) of the Crimes (Sentencing Procedure) Act or its predecessor in s 439 of the Crimes Act was not expressly considered in either case. In the Crown’s submission, the analysis applied by both Hidden J in Lapa and Adamson J in Mundine (both cases citing Grove J’s analysis in Doan) remain sound authority for the proposition that it is not a sentencing error for a sentencing court exercising the jurisdiction under s 22(1) to use a term of imprisonment above the jurisdictional limit for the offence as a starting point in the appointment of a discounted sentence, whether it is a summary offence in the Local Court or an offence dealt with in the District Court or the Supreme Court on a s 166 certificate. In the Crown’s submission, the only constraint on a sentencing court in those circumstances is to ensure that the sentence actually passed (or in this case the sentence indicated in an aggregate sentencing exercise) does not exceed the jurisdictional limit. Here, as the sentence of 2 years’ imprisonment indicated for offence 6 was at the jurisdictional limit but did not exceed it, in the Crown’s submission, no sentencing error is disclosed.

The applicant submitted, and I agree, that Lapa and Mundine are distinguishable because in neither was the discretion in s 439 of the Crimes Act or s 22(1) of the Crimes (Sentencing Procedure) Act to impose a lesser penalty than the court would have otherwise imposed but for the plea of guilty considered, and it is the construction of those words that provides the context for the resolution of the question that arises on this appeal.

It cannot be doubted that s 22 of the Crimes (Sentencing Procedure) Act expressly provides that after taking into consideration the mandatory considerations in ss 22(1)(a)-(c) it is open to the Court, in the exercise of its discretion, to impose a lesser penalty than it would otherwise have imposed for the offence subject of the sentence proceedings.

Applying the settled principles of statutory construction most recently considered and restated in The Queen v A2; The Queen v Magennis; The Queen v Vaziri [2019] HCA 35 (see Kiefel CJ and Keane J at [32]-[37]), an ordinary reading of s 22 allows for the following to be stated:

In my view, the proper construction of 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 an offender’s plea of guilty 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 same applies when a court is imposing an aggregate sentence where s 53A(2)(b) obliges the court to indicate the sentence that would have been imposed for each offence.

It follows that it was a sentencing error for the sentencing judge to apply the discount of 25 per cent for the applicant’s plea of guilty to offence 6 to an undiscounted sentence (or a starting point) of 2 years and 8 months and that the sentencing discretion will be need to be exercised afresh by this Court for that reason.

I turn now to consider the applicant’s submission that the sentencing discretion also miscarried in the appointment of indicated sentences for offences 10 and 11 which, together with misapplication of totality principles, has resulted in an aggregate sentence that is “unreasonable or plainly unjust”.

Although the applicant’s counsel accepted that offences 7, 10 and 11 on the table are “extremely serious”, with offence 10 having Form 1 offences of indecent assault taken into account for the purposes of indicating a sentence for that offence, she emphasised that since all three offences were committed in a single episode of offending involving a single victim, a substantial degree of notional concurrence in the imposition of an aggregate sentence was warranted. Counsel further submitted that the offending incorporating offences 7, 10 and 11, and offences 8 and 9 on the Form 1, occurred only hours after the offending the subject of offences 5 and 6 and while some accumulation was called for between both groups of offences given the distinct offending comprehended by each, that should not have been substantial.

Finally, counsel for the applicant submitted that offence 1, the first offence committed in time, attracted an unjustifiably excessive indicated sentence of 18 months against the jurisdictional maximum of 2 years’ imprisonment after application of the 25 per cent discount for the plea of guilty. While counsel acknowledged that as a matter of sentencing principle the jurisdictional limit, where it is less than the maximum statutory penalty otherwise applicable to the offence, is not reserved for the worst case, in this case, the vehicle the subject of the “take and drive conveyance” was stolen from a public place and thereafter the applicant made no attempt to conceal that fact, publishing the car registration number against his name at his temporary residence.

The Crown submitted the aggregate sentence of 11 years with a non-parole period of 8 years has not been shown to be “unreasonable or plainly unjust” having regard to the maximum penalties provided for the multiple instances of serious sexual offending against Ms Kang (being offences 7, 10 and 11) and with two of those offences attracting standard non-parole periods of 7 and 10 years, and where his Honour indicated non-parole periods significantly less than the standard non-parole periods, being 4 years and 3 years 6 months respectively. The Crown also submitted that the attack on Ms Kang was not an isolated incident of an attack against a woman in her home, although offence 4, another physical attack on a woman in her home, was charged as a common assault. The Crown submitted that the other offences of physical violence, being offences 2 and 3, were not trivial and the property offences also involved property of considerable value.

In the Crown’s submission, the circumstances of the offending, and the repetition of increasingly more serious offending over a period of weeks, required substantial weight to be given to both general and specific deterrence. The Crown submitted that where the applicant’s subjective case disentitled him to any leniency, even were the Court to find error in the sentence indicated for offence 6 and a slightly reduced sentence should have been indicated for that offence, no lesser aggregate sentence was warranted.

On resentence, the applicant relied upon an affidavit sworn by his solicitor Mr Etkind in which he deposes to having reviewed the applicant’s “gaol file”. From my review of the various annexures to his affidavit, the applicant continues to have difficulties communicating with Justice Health and, it would seem, with correctional officers, with the consequence that it has not always been easy for correctional officers to determine whether he is fully comprehending what is expected of him as a serving prisoner. It also seems that the applicant has attracted some verbal warnings but has not committed any custodial offences. Unsurprisingly, he has had no visits from family since his incarceration. Mr Etkind also draws attention to the fact that at the applicant’s request he is being detained on protection.

The applicant also affirmed an affidavit dated 4 October 2019 where he says he has been threatened with assault whilst on protection but that the situation has improved since he has been moved to the Hunter Correctional Centre where he is working and studying a Japanese language course and a Bible studies course. In the affidavit, he expresses guilt and sorrow for his offending and the harm that he has caused others which he says he regrets. He says he is willing to participate in sex offender courses. He says he is not taking any medication. He says he is in regular contact with his family by telephone.

The applicant’s expression of remorse, which is some indication of a gathering insight into his offending and its impact on others, is worthy of some weight on resentence. Although on the available material his prospects of rehabilitation are difficult to assess, having regard to his current work and study ethic they seem to have improved to some extent from the finding of the sentencing judge that his prospects of rehabilitation were poor.

The following table reflects the approach I propose on resentence.

I have proposed a reduced indicated sentence for offence 1 being the first offence in time. I have also proposed a reduction in the indicated sentence for offence 6 consistent in part, with the error in the sentencing judge’s approach to the indication of that sentence. Although I have reduced slightly the indicated sentence for offence 7, the sentences indicated for offences 10 and 11 remain unaltered.

Despite the objectively serious nature of the sustained sexual attack on Ms Kang, I would allow a greater degree of notional concurrency for that course of offending in the appointment of an aggregate sentence whilst allowing for some notional accumulation with the earlier offending.

I consider an aggregate sentence of 9 years with a non-parole period of 6 years and 7 months is consistent with the application of totality principles.

Having found no error in the sentencing judge approach to the question of special circumstances, the alteration to the ratio between the aggregate head sentence and non-parole period remains modest.

The orders I propose are as follows:

R A HULME J: Fullerton J has set out the details of the offences, the reasons of the sentencing judge and the sentences he imposed. Her Honour has also provided a detailed review of the submissions of the parties.

I agree with her Honour that Ground 1 of the appeal must be rejected. However, I respectfully disagree as to the disposition of Ground 2. In my view, it also should be rejected.

A finding of special circumstances is a discretionary finding of fact in respect of which this Court is slow to intervene: R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90 at [103]; R v Cramp [2004] NSWCCA 264 at [31]; Clarke v R [2009] NSWCCA 49 at [13]; Quayle v R [2010] NSWCCA 16 at [41].

It was observed in Caristo v R [2011] NSWCCA 7 at [33] that this Court is more likely to intervene on a ground asserting insufficient weight was given to a finding of special circumstances where there has been inadvertence or miscalculation that led to a non-parole period exceeding, and the parole period being less than, that which was intended by the finding of special circumstances.

The adjustment of the statutory ratio in the present case that was intended by the sentencing judge was explained as follows:

Earlier he said:

The adjustment amounted to 3 months. It was modest, but that was what the judge intended. Having regard to the matters his Honour thought were relevant to special circumstances, no greater adjustment was required. Accordingly, I agree that Ground 1 should be rejected.

I respectfully disagree with Fullerton J on the issue raised by the applicant about the sentence imposed for the take and drive conveyance offence identified in the court below as "sequence 7". (For consistency, I will refer to this as "offence 6" as her Honour has.)

This issue in relation to this offence raises a matter of considerable importance in relation to sentencing for indictable offences that are dealt with summarily. This is encountered daily in the Local Court and the District Court.

Offence 6 was before the District Court as a "related offence" pursuant to the provisions of Ch 3 Pt 3 Div 7 of the Criminal Procedure Act 1986 (NSW). [3] The offence of take and drive conveyance is an indictable offence punishable by imprisonment for 5 years but it may be dealt with summarily pursuant to s 260 of that Act. It is an offence in Table 2 of Sch 1 of the Act. The maximum penalty that may be imposed in respect of Table 2 offences when dealt with summarily, according to s 268(1A), is 2 years. This is commonly referred to as the "jurisdictional limit".

After consideration of all relevant factors, and taking into account an additional offence on a Form 1, the primary judge determined that a sentence of 2 years and 8 months was appropriate. He reduced that sentence by 25% because of the applicant's plea of guilty and arrived at a sentence of 2 years. That sentence coincided with the jurisdictional limit that applied.

Imposing a lesser sentence where an offender has pleaded guilty is authorised by s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Sub-section (1) is pertinent:

The applicant contends that the sentencing judge erred by applying the discount for the plea of guilty to the sentence the judge regarded as otherwise appropriate in all the circumstances. That sentence, 2 years and 8 months, was not one that the judge "would otherwise have imposed". The applicant says that the discount should have been applied to a sentence within the jurisdictional limit.

Fullerton J has accepted the applicant's contention of error and has concluded as follows:

There appear to be two alternative ways in which a court could assess a sentence in accordance with that construction. One approach would involve the court making an assessment upon a consideration of all relevant factors aside from the plea of guilty but in the context of the prescribed maximum penalty for the offence. If the sentence at that point exceeded the jurisdictional limit, the court would revert to that limit. It would then take into account the plea of guilty and apply a discount (assuming a discount was considered appropriate). The other approach would be for the court to assess the sentence by synthesising all relevant factors including the plea of guilty but in the context of the jurisdictional limit rather than the prescribed maximum penalty for the offence. This would entail treating the jurisdictional limit as the maximum penalty.

In my view, the term "would otherwise have imposed" in s 22(1) is a reference to the sentence a court considers appropriate having regard to the maximum penalty and all of the facts and circumstances of the case. That sentence may then be discounted for the offender's plea of guilty. Once that assessment has been made and any discount applied, there remains the question of whether any jurisdictional limit applies. A sentence will need to be reduced to the limit if it would otherwise be exceeded.

This construction is supported by long-standing authority concerning the correct approach to the assessment of sentence when a court is sentencing for an indictable offence but exercising summary jurisdiction. Such authority is not open to be overturned by a narrow literal construction being given to words used in s 22(1), or words to the same effect, that have been used by the legislature for the past 28 years.

Section 439 was inserted in the Crimes Act 1900 (NSW) with effect from 1 February 1992. It provided that a court must take into account a plea of guilty and its timing and "may accordingly reduce the sentence that it would otherwise have passed".

Section 439 was repealed at the time the Crimes (Sentencing Procedure) Act came into force on 3 April 2000. In so far as is relevant, s 22(1) was in the same terms as now, using the term, "may accordingly impose a lesser penalty than it would otherwise have imposed".

It was held in R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317, and followed in many cases since, that the jurisdictional limit does not represent the maximum penalty for an indictable offence dealt with summarily. Grove J (Spigelman CJ and Kirby J agreeing), said (at [35]-[36]):

Earlier (at [23]), Grove J referred to the then ss 20 and 27 of the Criminal Procedure Act which provided for the summary disposition of indictable offences:

These provisions are the basis for current ss 260(1) and 267(1) and (2) of the Criminal Procedure Act:

The former and the current provisions are, relevantly, verbatim. Accordingly, Grove J's "true construction" must apply to the provisions of ss 260(1) and 267(1) and (2). They must apply as well to the provisions relevant to offences in Table 2 of Sch 1 of the Criminal Procedure Act which are also, relevantly, verbatim: ss 260(1) and 268 (1) and (1A).

The effect of that "true construction" is that a court sentencing for an indictable offence in the exercise of summary jurisdiction should assess the appropriate penalty in accordance with whatever the facts and circumstances of the case require, within the context of the prescribed maximum penalty for the offence, but not impose a sentence that exceeds the jurisdictional limit. Thus, a sentence, whether or not reduced on account of a plea of guilty, may be assessed at a level higher than 2 years, in which case only 2 years should be imposed.

This analysis reflects what has in fact occurred over the past 20 years in Local Courts and on appeal in the District Court. It also has effect when "back up" or "related" offences are before the District and Supreme Courts pursuant to Ch 3 Pt 3 Div 7 of the Criminal Procedure Act.

The following cases demonstrate the continued adherence to this sentencing practice.

In the Local Court, in R v Ravasong [2018] NSWLC 5, the Chief Magistrate, his Honour Judge Henson, imposed sentence for an indictable offence of fraud with a maximum penalty of 10 years. He referred to Doan. He allowed for a reduction of sentence on account of the plea of guilty of 25%. Having regard to all relevant factors, he assessed the appropriate sentence as one of 2 years and 6 months. Having regard to the jurisdictional limit, he imposed a sentence of 2 years.

In R v Rampling [2018] NSWLC 7, Judge Henson imposed sentence for an indictable offence of recklessly inflicting grievous bodily harm for which the maximum penalty is 10 years. After taking into account all subjective matters as well as a reduction on account of the plea of guilty, his Honour assessed the appropriate sentence as one of 2 years and 6 months. He referred to Doan. He imposed a sentence of 2 years because of the jurisdictional limit.

In the District Court, Berman SC DCJ, a most experienced judge well-versed in the criminal law, dealt with an appeal against a sentence imposed in the Local Court in Wamir v R [2011] NSWDC 152. He described the practical application of the principle in Doan as follows (at [6]):

Judge Berman observed that the offence with which he was concerned had a maximum penalty of 10 years when dealt with on indictment but a 2-year jurisdictional limit when dealt with summarily. A magistrate had allowed a 25% reduction and imposed a sentence of 18 months. His Honour said (at [8]) that if the magistrate had commenced with the jurisdictional limit and then applied the discount, "then it may be inconsistent with Doan".

In R v Johnson [2014] NSWDC 91, there was a Crown appeal in respect of a sentence of imprisonment by way of home detention imposed in the Local Court in respect of four indictable fraud offences for which there was a maximum penalty of 5 years. There was a 25% reduction for the pleas of guilty. The judge imposed an aggregate sentence. He assessed the appropriate sentence for one of the offences at 3 years, reduced it by 25% for the plea of guilty, and then said he was constrained by the jurisdictional limit to indicate a sentence of 2 years.

In the Supreme Court, in Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734, Beech-Jones J considered an appeal from the Local Court in respect of offences arising under various complex provisions in road transport legislation. There was a maximum penalty for an offence to consider along with a lower jurisdictional limit that applied. His Honour said (at [84]):

Cases in this Court also indicate the approach that has been applied in courts sentencing for indictable offences but in the exercise of summary jurisdiction. There are the following examples.

In Lapa v R [2008] NSWCCA 331; (2008) 192 A Crim R 305, the Court was concerned with sentences imposed in the Drug Court. One offence was indictable with a maximum penalty of 14 years but it was dealt with in summary jurisdiction whereby there was the limit of 2 years. In the analysis of Hidden J, the effective sentence was one of 2 years (but reduced by a month to allow credit for pre-sentence custody). With 25% having been allowed for the plea of guilty, the starting point must have been 2 years and 8 months. It was contended that this exceeded the judge's jurisdiction in that the starting point was greater than the maximum sentence available to him.

Hidden J referred to Doan (Grove J at [35]) and said (at [17]):

In Mundine v R [2017] NSWCCA 97, the Court considered an aggregate sentence that had been imposed in the District Court for four offences. One of the offences was indictable but had been subject to sentencing in summary jurisdiction as it was before the District Court on a certificate pursuant to s 166 of the Criminal Procedure Act. The primary judge had allowed for a 25% reduction for the offender's pleas of guilty and indicated a sentence for this particular offence of 2 years and 3 months. It was accepted that the judge erred by exceeding the jurisdictional limit. Adamson J said (at [92]):

Her Honour held (at [93]) that the sentencing discretion miscarried by the judge's failure to have regard to the jurisdictional limit. In resentencing, her Honour applied a 25% discount for the pleas of guilty. In relation to the offence dealt with in summary jurisdiction, she said (at [109]):

There was no reference in any of these cases to s 22(1) of the Crimes (Sentencing Procedure) Act and the power it provides when a court takes into account a plea of guilty to "impose a lesser penalty than it would otherwise have imposed". Nor was there mention in Doan to s 439 that applied at the time Mr Doan was sentenced; s 22 being applicable at the time of the appeal. However, it cannot be assumed that for the past 20 years all courts that have been involved in sentencing for indictable offences in the exercise of summary jurisdiction have been ignorant of the terms of the provision.

To summarise what has been described earlier, the correct approach is to assess the appropriate sentence for an offence within the context of the prescribed maximum penalty. The assessment involves a synthesis of all relevant facts and circumstances with any discount for a plea of guilty then applied. The result is the sentence that the court would impose. If that sentence exceeds a jurisdictional limit, it must be reduced so that it is within the limit.

Aside from contending for a narrow literal construction of the provision in question there was another submission by the applicant that should be mentioned.

It was submitted that there is a pragmatic purpose intended by legislation allowing for the summary disposition of certain indictable offences; it saves time and expense in having such matters otherwise dealt with in the higher courts. The offences are selected on the basis that they generally attract sentences of 2 years or less and therefore comfortably sit within the jurisdiction of the Local Court.

It was submitted that it was a matter for the discretion of the prosecutor to agree to an offence being the subject of summary disposition. The "election" of the prosecutor is made with knowledge of the jurisdiction limit. [4] The submission was to the effect that this was tantamount to a concession that a sentence of no more than 2 years was appropriate. It was submitted that this should be taken into account by a sentencing judge.

The fallacy in this submission is that a prosecutor may acquiesce in an indictable offence being dealt with summarily because of awareness that discounts for a guilty plea, or assistance to authorities, or both, will bring the sentence down to around the jurisdictional limit. There may also be pragmatic factors weighing on the mind of the prosecutor. For example, if it was thought that an offence warranted a sentence higher than the jurisdictional limit, the prosecutor may balance that against the additional delay and expense involved.

The sentencing judge proceeded in the orthodox and correct fashion. He made an assessment that the appropriate sentence was one of 2 years and 8 months that was then reduced to 2 years because of the plea of guilty. The jurisdictional limit did not provide any impediment and so that was the sentence he indicated in respect of "offence 6".

Fullerton J has summarised the submissions of the parties on other aspects of Ground 2.

The maximum penalty for this offence is 5 years and the jurisdictional limit is 2 years. Bennett SC DCJ indicated a sentence of 18 months, with a starting point before discount of 2 years.

The offence was not short-lived. The applicant took the car on 20 March 2017 and it remained missing until he crashed it on 1 April 2017. The indicated sentence was appropriate.

The incident giving rise to these offences involved sustained threatening conduct while the applicant was armed with a knife. Fullerton J has assessed the appropriate sentence as that which the primary judge indicated. I agree with that assessment.

This offence involved a sudden and terrifying attack upon a fellow resident of a guesthouse as she was using the toilet in the middle of the night. The 12 months starting point and 9 months indicated sentence assessed by the primary judge was entirely appropriate.

These offences involved the theft of personal items while the applicant's housemate was in the shower. The personal items were significant in that they included a car key and a laptop computer as well as identification documents. The applicant then drove away in the victim's car. The maximum penalties for the offences were 7 years and 5 years respectively. The indicated sentence for offence 6 (taking into account offence 5) was 2 years after a 25% discount. The Form 1 offence was of some significance. The indicated sentence was not excessive.

These offences involved a sustained and brutal attack upon a woman in her own home. After choking the victim, the applicant asked her, "Do you want to die?" He then subjected her to a series of degrading sexual acts, culminating with ejaculation into her mouth. The circumstance of aggravation was that the victim sustained marks and abrasions on her face, shoulder and back.

The sentencing judge assessed the objective gravity of the two sexual assault offences as being in the mid-range. These offences had substantial prescribed maximum penalties (20 years and 14 years) and standard non-parole periods (10 years and 7 years). Two indecent assault offences were taken into account in relation to the aggravated sexual assault. The judge assessed appropriate starting points of 7 years 4 months and 6 years 8 months. The indicated sentences were 5 years 6 months and 5 years.

The choking offence had a maximum penalty of 25 years. A starting point of only 6 years and 8 months was reduced to 5 years.

These sentences could not have been any less. (Frankly, they could well have been more.) The applicant's counsel was correct to characterise the choking and sexual assault offences as "extremely serious" and it is unsurprising that there was no challenge to the finding of mid-range objective seriousness for the sexual assault.

The judge was alive to the application of the principle of totality, indicating there should be some concurrence in the sentences for the choking and the two sexual assault offences "even though each involves distinct criminality and each one is of itself grave". [5] While some concurrence was appropriate, the degree of notional partial accumulation should not have been slight; the indicated sentence for one of these offences would not go close to comprehending the criminality in the entire incident: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27].

His Honour was not satisfied that there was remorse. The applicant's rehabilitation prospects were poor. There were no causally related mental health issues. Aside from the pleas of guilty, the only mitigating factor appears to have been that the applicant would serve his sentence in a country in which he had no family. That was reflected in the modest finding of special circumstances.

The gravity of the offences, with little available in mitigation, called for a substantial sentencing response. I am not satisfied that the aggregate sentence was unreasonable or plainly unjust.

I propose the following orders: