Dale v R

1. [1]

   BASTEN JA: There is a procedure under Pt 3, Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) whereby a court may take into account offences other than those for which the offender is being sentenced, at the request of the offender. There are procedural formalities, compliance with which, as this Court has noted on a number of occasions, is a matter of importance. The question in the present case is whether the sentencing judge erred in taking such offences into account when certain formalities had not been complied with.

2. [2]

   The applicant, Shasta Dale, entered pleas of guilty in relation to two offences of supplying a prohibited drug (heroin) on an ongoing basis, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The offending took place in two periods, the first between 18 June and 17 July 2019 was identified as sequence 3 in the court attendance notices, and the second between 18 July and 16 August 2019 was sequence 4. In each period, the applicant was taking orders for heroin on her mobile phone and arranging for delivery of heroin to customers.

3. [3]

   Two further offences were listed on the Form 1. The first involved the supply of heroin on an ongoing basis between 17 August 2019 and 16 September 2019 (sequence 5) and the second, knowingly participate in and direct the activities of a criminal group between 18 June 2019 and 28 August 2019, contrary to s 93T(1A) of the Crimes Act 1900 (NSW) (sequence 6).

4. [4]

   On 1 April 2021 the applicant was sentenced by Judge O’Brien in the District Court to an aggregate term of 3 years 8 months imprisonment, with a non-parole period of 21 months. There was no challenge to any aspect of the sentencing, other than the complaint of non-compliance with the procedure for taking into account offences listed on a Form 1, pursuant to ss 32 and 33 of the Sentencing Procedure Act.

The form 1 procedure

1. [5]

   Form 1 is a document headed “List of Additional Charges”. It bears the notation “Clause 5” at the top of page 1, but it is in fact the form approved by the Minister for the purposes of cl 4 of the Crimes (Sentencing Procedure) Regulation 2017 (NSW). (It appears that the form was first approved under the Crimes (Sentencing Procedure) Regulation 2000 (NSW), cl 5, which was repealed in 2005.) Clause 4(1) in the current regulation simply provides that “[a] list of additional charges under s 32 of the Act is to be in the approved form.”

2. [6]

   The additional charges are identified on what is described as the “Back of Form” and in the present case included sequences 5 and 6 referred to above. The front of the form constitutes a notice directed to the offender. The offender was named and described as having been “charged with the offence of Ongoing Supply”. The form stated that the list on the back of the form “gives particulars of 2 other offences with which you have been charged but not convicted.” The form contains six other paragraphs advising the offender of the procedure and her rights. There is space for signatures of an authorised person and the accused person. There is also a space to be signed by the judge certifying that the offences on the back of the form had been taken into account.

3. [7]

   Significantly for present purposes, there were three defects in the form, namely, (i) the offender was charged with two offences of ongoing supply and the form referred only to one, without identifying which one; (ii) there was no signature of a person authorised under s 32(5) of the Sentencing Procedure Act; (iii) the certificate had not been completed by the judge as required by s 35(1)(a). It was not in doubt that the judge did take the offences into account (that was the complaint) and it was not alleged that the sentences were bad because the judge had not signed the form stating what he had done.

4. [8]

   The relevant provisions of the Sentencing Procedure Act read as follows:

5. [9]

   It is important also to have regard to the consequences of taking additional offences into account, as identified in s 35:

Procedural non-compliance

1. [10]

   The offender entered pleas of guilty to the two offences of supplying a prohibited drug on an ongoing basis, the pleas being entered in the Local Court on 10 September 2020, on the basis of a statement of agreed facts which the applicant had signed on 11 August 2020. The statement identified the lawyers who were representing her. The statement was signed by a solicitor for the Director of Public Prosecutions on 19 August 2020. As to the contents of the statement of agreed facts, it is sufficient for present purposes to note that the statement included reference to the events forming the basis of sequences 3, 4, 5 and 6, so identified.

2. [11]

   There was no dispute that the sentencing judge took into account the matters on the Form 1. Not only did he state that he did so in the judgment, but he expressly identified the elements of the agreed facts relating to each sequence identified on the Form 1. The question is whether the judge was entitled to take that step in circumstances where he was invited to do so by both the legal representatives of the Director and of the applicant. The submission that he was not so entitled turned on aspects of non-compliance with ss 32 and 33 of the Sentencing Procedure Act.

(1) failing of Director to sign

1. [12]

   There was only one element of specific non-compliance with s 32, namely the absence of a signature by or on behalf of the Director, as required by s 32(4)(c). Counsel for the applicant noted that, pursuant to s 32(6), a failure to comply with the requirements of s 32 does not invalidate any sentence, but also noted that pursuant to s 101A, such non-compliance “may be considered” by an appeal court, despite the terms of s 32(6). The question in the present case is whether the absence of a signature by or on behalf of the Director precluded the sentencing judge from taking the offences on Form 1 into account pursuant to s 33. For the following reasons, the challenge should be rejected.

2. [13]

   First, as a legal matter, the fact that failure to comply with some part of s 32 does not invalidate the sentence, should be understood to mean that the form is not invalid, so that there is no error in taking it into account. Secondly, subs 32(4)(a), long since repealed, stated that the list “must be in the form prescribed by the regulations”. The removal of that requirement reduces the significance of the form itself. Subsection (4) merely requires a list to be signed by each party.

3. [14]

   As a practical matter, the signing of the list by the offender is important, because it indicates acknowledgment by the offender not only as to the identity of the additional charges, but as to the consequences, both beneficial and detrimental, of having them taken into account. The form was signed by the offender. The fact that it was not signed on behalf of the Director was of no practical consequence. The Form 1 itself formed part of the prosecutor’s bundle of documents which became Exhibit 1 on the sentencing proceeding. That bundle also contained the statement of agreed facts which was signed by a solicitor on behalf of the Director. That statement in turn identified sequences 5 and 6 as being on the Form 1. Neither party in this Court suggested that the Director did not in fact consent to those matters being taken into account on sentencing. There was no merit in the challenge to the sentence on the basis of the non-compliance with s 32(4)(c).

(2) failure to identify the “principal offence”

1. [15]

   A second challenge arose from the failure of the form to identify with precision the “principal offence” to which the additional offences attached. It is true that, because there were two offences of ongoing supply, there was an ambiguity inherent in the form. That also meant, it was submitted, that s 33 could not be complied with until the ambiguity had been resolved.

2. [16]

   Although there was an ambiguity in the opening statement on the form, which was not resolved when the offender signed it, there is no reason to suppose that there was any material prejudice to the offender. No doubt the additional offences could have been taken into account in sentencing for either of the offences of ongoing supply, although not of course both. Each covered identical conduct, divided into two consecutive periods. With respect to the operation of s 33, the Director’s submissions expressly referred to the Form 1 in the context of sequence 3, [1] and, in the course of oral submissions, counsel appearing for the applicant stated: [2]

3. [17]

   Although the parties may well have been indifferent as to which offence the Form 1 attached, it is apparent that, as a matter of common understanding, it attached to sequence 3. In indicating the individual sentences which were regarded as appropriate, the judge expressly dealt with the matters on the Form 1 in relation to sequence 3. [3] There was no error in that approach and, to the extent that there may have been ambiguity in the form itself in failing to identify which of the two ongoing supply offences it attached to, that omission was resolved by agreement and had no practical significance. The challenge to the sentence on that basis should be rejected.

(a) identifying the issue

1. [18]

   Turning to the requirements of s 33, counsel for the applicant submitted that s 33(1) required the Court “to ask the offender” whether she wanted the Court to take further offences into account. That, it was submitted, did not happen.

2. [19]

   The judge obviously thought that it had happened because the second paragraph of the judgment commenced:

3. [20]

   While the transcript does not suggest that the judge directly put that question to the offender, it is clear from trial counsel’s submissions that the Form 1 was expressly acknowledged and was intended to be taken into account. That placed the offender at risk of an increased sentence for that offence but with the substantial advantage that she did not face separate sentences for those offences. It is likely that that outcome was negotiated before the statement of agreed facts was prepared and the pleas entered.

4. [21]

   There is a separate and related complaint that, for the purposes of s 33(2), the applicant had not admitted guilt to the further offences and had not indicated that she wanted the Court to take them into account. These last submissions assumed that the judge must personally question the offender (despite the fact that she was represented by counsel) and that the offender must personally admit guilt and give a verbal indication to the court as to her wishes.

5. [22]

   If one had regard only to s 33(2), the contended requirement of personal communication by an offender would carry little weight. Although an accused facing trial on indictment may be expected to enter pleas of not guilty personally, the same practice is not routinely applied on a committal for sentence after a plea in the Local Court; the judge may well ask counsel if the offender adheres to his or plea. In summary proceedings s 182 of the Criminal Procedure Act 1986 (NSW) provides for the entry of a written plea of guilty, accompanied by written material.

6. [23]

   At the commencement of the sentence hearing on 5 February 2021, when Ms O’Neill appeared for the applicant, the following exchange took place when the prosecutor (Ms Roatz) tendered a number of documents: [4]

(b) whether the judge erred

1. [24]

   Counsel for the applicant submitted that there was authority in this Court which supported the conclusion that the failure of the judge to put that question to the applicant personally required this Court to intervene. The first of the cases relied upon was R v Felton, [5] in the course of which, after noting that each of three offences in relation to a motor vehicle was accompanied by a Form 1 containing other matters, Howie J continued:

2. [25]

   There can be no doubt that formalities should be attended to, whenever appropriate, and the purpose of the provision is to ensure that the offender is aware of what is taking place and consents to the procedures adopted. However, it does not follow that failure to comply with a formality will form a basis for an appeal against sentence, in circumstances where there is no shred of evidence that the applicant did not consent or did not wish the further offences to be taken into account. Indeed, it is not clear that, before resentencing, Mr Felton was asked whether he wanted the further offences to be taken into account, although the Court did so.

3. [26]

   Purves v R [6] involved a failure to comply with a similar statutory scheme provided in relation to federal offences under s 16BA(1) of the Crimes Act 1914 (Cth). In circumstances where counsel for the Commonwealth Director conceded a procedural error in the sentencing proceedings, there was no discussion as to precisely what steps had been taken in the course of the sentencing, nor as to the proper construction of the statutory provision. It should be accepted, however, that, although not in identical terms to s 33, both the language and purpose of s 16BA reflect the same intention. It will be necessary to return to this case.

4. [27]

   LS v R [7] illustrated the difficulties which can arise where the judge takes it upon himself to ask questions of the offender as to his or her intentions. In LS there was confusion as to whether the Form 1 offences applied to counts 1 and 2 on the indictment, or to count 3. Contrary to the common understanding of counsel at the hearing that the Form 1 was attached to count 3, the judge asked the offender whether he wished him to take into account the offences on the Form 1 “in sentencing you for the actual offences on the indictment”. The offender said “Yes”. In this Court, Harrison J observed that “as there was only a single Form 1 document filed in relation to the applicant, the offences listed on it could only be taken into account on a single principal offence, not across multiple offences.” [8] Harrison J also observed that, contrary to the agreed position, the judge purported to take the offences into account “across counts 1 and 2, rather than only count 3.” [9] The process of oral interrogation of the offender by the judge achieved not only confusion, but error. It failed to ensure transparency, being the avowed purpose of the provision.

5. [28]

   Contrary to the submissions of the present applicant in relation to the need to identify the principal offence specifically and unambiguously in the Form 1, in LS the failure to take that step, although it would have assisted to resolve the confusion, was not treated as itself constituting irreparable error. Had the agreement of counsel that the offences were to be taken into account on count 3 only been followed, it is apparent that no error would have been upheld.

6. [29]

   Kabir v R [10] was a further case involving a federal offender. On two appearances in the District Court, Mr Kabir was represented by counsel when a “schedule” under s 16BA and a statement of agreed facts were tendered.

7. [30]

   Kabir appears to be the first case in which the failure to comply with the literal meaning of the statute was raised in circumstances where no prejudice or unfairness had arisen. As noted by Harrison J:

8. [31]

   The Commonwealth Director mounted a powerful challenge to the reasoning in Purves. She noted that the applicant in that matter had been unrepresented and that the prosecutor had conceded error. The Court had proceeded to deliver an ex tempore judgment. The Director further submitted that Purves had no precedential value because the matter had been dealt with sub silentio without argument, referring to Spence v Queensland [11] and other cases referred to therein. She further submitted that “the underlying facts of Purves are unclear and the conduct that formed the basis of the concession is not recorded in the judgment.” [12]

9. [32]

   Two matters of statutory construction were relied upon. One was that, by contrast with s 33(1), the Commonwealth provision merely conferred power on the judge to ask the relevant question, using “may ask”. That was a point of distinction from s 33. However, the second point, which applies equally to s 33 is that s 33(1), in contrast to s 33(2), does not impose a condition upon the exercise of the power. Accordingly, if it is clear that the offender admits guilt and indicates a desire to have the matters taken into account by the court (and the court considers it appropriate to do so), those factors are sufficient to engage the power to take the further offences into account.

10. [33]

    In Kabir the Director further submitted that “it does not strain the statutory language to interpret either s 16BA(1) or s 16BA(2) as allowing a legally represented person to indicate his or her wish through counsel, as regularly occurs with other procedural events in criminal proceedings.” [13]

11. [34]

    The Court in Kabir accepted those submissions. Harrison J stated:

12. [35]

    Kabir was referred to in a later case dealing with s 33, Pham v R. [14] Pham was a curious case, but it was, again, one in which there was a substantial mistake which underlay the Court’s reasoning. There was a variation between the offence with which the offender had been charged (“supply prohibited drug”) and the offence on the Form 1, clearly intended to refer to the same charge, but identified as “possess prohibited drug”. There was also a real doubt as to the offender’s signature on the Form 1. R A Hulme J noted that the signature bore the date of the hearing, although the offender had been in custody and not present in person at the hearing, and that the applicant’s signature on the Form 1 was somewhat different from that on the statement of agreed facts. [15] On being pressed by the State Director to adopt the reasoning in Kabir, R A Hulme J stated:

13. [36]

    The last sentence is important. Whether the difficulty with the identification of the offence would have been revealed by the judge asking the offender a question might be doubted; however, the other two issues raised in this Court could no doubt have been addressed and resolved by such a process. The remarkable result of upholding the ground in Pham was that he was entitled to be resentenced on the basis that the judge had taken into account a lesser offence than that for which he had been charged. How the correction of that error assisted him is obscure.

14. [37]

    The present case closely resembles Kabir. At no stage has the applicant asserted that she did not admit her guilt of the further offences, nor that she did not intend that they be taken into account. No element of prejudice has been demonstrated by the fact that the judge did not question her by asking whether she wished the Court to take into account the offences on the Form 1 in dealing with the principal offence.

15. [38]

    There is no reason to doubt the correctness of the approach adopted in Kabir with respect to the Commonwealth statute in construing s 33 of the State Act. There is no doubt that the satisfaction of the court that the offender has indicated that he or she wants the court to take the further offences into account is a precondition to the exercise of that power. However, where that intention has been otherwise unequivocally demonstrated, to read subs (1) as imposing a further mandatory condition namely the asking of a question, is, as was accepted in Kabir, a triumph of form over substance.

16. [39]

    The Sentencing Procedure Act contains many provisions formulated as directions. However, to say that the court “is to” take some step does not demonstrate any clear intention as to the consequence of failure. Each provision must be read in context. A different inference will frequently be drawn from statements in the form of a prohibition, such as that which appears in s 33(4). In the present case, the judge expressly stated in his reasons that the applicant had indicated her wish to have the matters taken into account, no doubt referring to the approach adopted by her counsel. There was no basis for doubting the correctness of that conclusion. In that circumstance, to find error on the part of the sentencing judge in failing to comply with a requirement to ask a question would be to identify an aspect of non-compliance which had no practical consequence.

17. [40]

    That is not to suggest that the obligation in s 33(1) is unimportant or should be disregarded. The purpose of s 33(1) is to reveal whether there is any misunderstanding on the part of the offender, or doubt as to his or her intention. However, from the point of view of the appeal court, there being no basis for suspecting such a misunderstanding or doubt, the omission is immaterial.

18. [41]

    The challenge based on a failure to comply with s 33(1) should be rejected.

(4) double-counting

1. [42]

   Finally, the applicant noted an apparent double-counting of the offences on the Form 1 in the process of sentencing.

2. [43]

   There was no dispute that the use in s 33(3) (and elsewhere) of the singular “principal offence” means that there can only be one principal offence in relation to a particular list of further offences contained on a Form 1. On that assumption, the further offences on the Form 1 cannot be taken into account directly in determining the length of an aggregate sentence, because the power to impose an aggregate sentence assumes that the offender is being sentenced for more than offence. [16] It follows that the further offences can only be taken into account directly in identifying the sentence which would have been imposed for the principal offence, had the judge not proceeded to impose an aggregate sentence for that offence and at least one other offence.

3. [44]

   There is no dispute that the judge took into account the further matters on the Form 1 in indicating the appropriate sentence with respect to sequence 3. (That was the principal matter of complaint on the appeal.) However, in making orders, the judge stated:

4. [45]

   That construction of the form of the order is not merely implausible, but ignores the statement by the sentencing judge as to how he came to impose the aggregate sentence. The assumption underlying the applicant’s final contention is that the judge was entitled to take the further offences into account: on that assumption, it is necessary to set out the explanation as to how the judge did so: [17]

5. [46]

   It is plain beyond doubt that the judge reached the aggregate term having taken the further offences into account in a manner which was unexceptionable and to which no exception was taken. The form of the order merely reflected that the matters on the Form 1 had indeed been taken into account in the process. It was appropriate to formulate the order in that way so that the Court’s records would demonstrate, in the applicant’s interest, that the further offences had in fact been dealt with. If this had been the subject of a separate ground of appeal (as it probably should have been) leave would have been refused on the basis that it was misconceived.

6. [47]

   It follows that the sole ground of appeal must be rejected.

Conclusions

1. [48]

   In these circumstances, the Court should grant leave to appeal, but dismiss the appeal.

2. [49]

   DAVIES J: I agree with Basten JA.

3. [50]

   BUTTON J: I agree with Basten JA.