Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Zreika v R [2012] NSWCCA 44
• Hearing dates: 9 February 2012
• Decision date: 28 March 2012
• Before: McClellan CJ at CL at [1]; Johnson J at [2]; Rothman J at [127]

Decision

1. Leave to appeal against sentence granted.

2. Appeal dismissed

• Catchwords: CRIMINAL LAW - sentence - plea of guilty - reckless wounding - standard non-parole period offence - whether error in approach after Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154 - no error established; CRIMINAL LAW - sentence - Judge considered imposition of intensive correction order - after adjournment, declined to do so - sentence of imprisonment passed - whether error in Judge's description of consequences if ICO breached - erroneous description used - (by majority) error not material; CRIMINAL LAW - sentence - theoretical capacity for offence to be disposed of summarily in Local Court - point not taken in District Court - approach of Court of Criminal Appeal when issue raised for first time on appeal - need for submission to be made in District Court - confined nature of arguable ground - no merit in ground - in any event, sentence imposed was less than jurisdictional limit of Local Court
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Criminal Procedure Act 1986; Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010; Crimes (Administration of Sentences) Act 1999; Criminal Procedure (Indictable Offences) Act 1995; Director of Public Prosecutions Act 1986; Crimes Act 1914 (Cth); Criminal Appeal Act 1912
• Cases Cited: Bayram v R [2012] VSCA 6; Keane v R [2011] VSCA 156; Khoury v R [2011] NSWCCA 118; Re Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) [2002] NSWCCA 515; 137 A Crim R 196; R v Dodd (1991) 57 A Crim R 349; R v Douar [2005] NSWCCA 455; 159 A Crim R 154; R v Hamieh [2010] NSWCCA 189; R v Zamagias [2002] NSWCCA 17; Romero v R [2011] VSCA 45; R v Way [2004] NSWCCA 131; 60 NSWLR 168; Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154; Ayshow v R [2011] NSWCCA 240; MDZ v R [2011] NSWCCA 243; Madden v R [2011] NSWCCA 254; Sheen v R [2011] NSWCCA 259; Aoun v R [2011] NSWCCA 284; R v Koloamatangi [2011] NSWCCA 288; R v Biddle [2011] NSWSC 1262; R v Tran [2011] NSWSC 1480; R v Muldrock [2010] NSWCCA 106; R v Mai (1992) 26 NSWLR 371; Markarian v The Queen [2005] HCA 25; 228 CLR 357; House v The King (1936) HCA 40; 55 CLR 499; Baxter v R [2007] NSWCCA 237; 173 A Crim R 284; R v Jammeh [2004] NSWCCA 327; R v Pickett [2004] NSWCCA 389; R v Visconti [1982] 2 NSWLR 104; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704; Lowndes v The Queen [1999] HCA 29; 195 CLR 665; Edwards v R [2009] NSWCCA 199; Dyer v R [2011] NSWCCA 185; Director of Public Prosecutions v Sinton [2001] NSWCA 179; 51 NSWLR 659; R (Cth) v Petroulias (No. 36) [2008] NSWSC 626; 73 ATR 83; Huynh v R [2008] NSWCCA 216; Kant v Director of Public Prosecutions (1994) 34 NSWLR 216; R v Bartalesi (1997) 41 NSWLR 641; R v Doan [2000] NSWCCA 317; 50 NSWLR 115; R v El Masri [2005] NSWCCA 167; R v Gent [2005] NSWCCA 370; 162 A Crim R 29; McCullough v R [2009] NSWCCA 94; 194 A Crim R 439; R v Palmer [2005] NSWCCA 349; Wise v R [2006] NSWCCA 264; R v Cage [2006] NSWCCA 304; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549; Bonwick v R [2010] NSWCCA 177; Dagdanasar v R [2010] NSWCCA 310; Lewis v R [2011] NSWCCA 206; Kean v R [2011] NSWCCA 136; LB v R [2011] NSWCCA 220; R v Kean [2009] NSWDC 435; R v Kean [2010] NSWDC 29; R v Abboud [2005] NSWCCA 251; Stanford v Regina [2007] NSWCCA 73
• Texts Cited: ---
• Category: Principal judgment
• Parties: Abdallah Zreika (Applicant); Regina (Respondent)
• Representation: Mr D Barrow (Applicant); Ms M Cinque (Respondent); Legal Aid NSW (Applicant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2009/255783
• Publication restriction: ---

Decision under appeal

• Citation: ---
• Date of Decision: 2011-03-11 00:00:00
• Before: Syme DCJ
• File Number(s): 2009/255783

Judgment

1 McCLELLAN CJ at CL: I agree with Johnson J and the orders he proposes. It has become common place for offenders to submit to this Court (for the first time) that when sentenced for an offence in the District Court the sentencing judge erred by failing to have regard to the possibility that the matter could have been prosecuted in the Local Court. In most cases the submission is misplaced, the circumstances of the offender or the offence making plain that it was appropriate for the matter to be dealt with in the District Court.

2 JOHNSON J: The Applicant, Abdallah Zreika, seeks leave to appeal against sentence imposed in the District Court on 11 March 2011 on a charge of reckless wounding under s.35(4) Crimes Act 1900. The maximum penalty for this offence is imprisonment for seven years and a standard non-parole period of three years is specified.

3 Following a plea of guilty, the Applicant was sentenced to imprisonment comprising a non-parole period of one year and three months commencing on 17 February 2011 and expiring on 16 May 2012, with a balance of term of eight months commencing on 17 May 2012 and expiring on 16 January 2013.

Grounds of Appeal

4 By application for leave to appeal filed 13 October 2011, the Applicant relies upon the following grounds of appeal:

(a)Ground 1 - her Honour erred in her application of Division 1A of Part IV of the Crimes (Sentencing Procedure) Act 1999 (ss.54A-D).

(b)Ground 2 - her Honour erred with regard to her decision not to impose an Intensive Correction Order ("ICO").

(c)Ground 3 - her Honour erred in failing to take into account that the offence was capable of being dealt with in the Local Court.

The Course of Proceedings in the Local Court and District Court

5 Given the relevance of the Crown's charge selection to the third ground of appeal, it is useful to refer briefly to the course of proceedings in the Local and District Courts.

6 The events for which the Applicant came to be sentenced occurred on 18 November 2009. The Applicant was arrested that day. In due course, on 5 May 2010, the Applicant was committed for trial from the Campbelltown Local Court upon a charge of recklessly causing grievous bodily harm under s.35(2) Crimes Act 1900, an offence punishable by a maximum penalty of 10 years' imprisonment with the standard non-parole period of four years.

7 On 28 May 2010, the Applicant was arraigned in the Campbelltown District Court upon an indictment containing two counts, the s.35(2) count with an alternative count of reckless wounding under s.35(4) Crimes Act 1900. The Applicant pleaded not guilty to both counts and the matter was listed for trial at that Court on 20 September 2010.

8 An offence under s.35(2) is a Table 1 offence, as is an offence under s.35(4). It is clear that the Crown elected to prosecute the Applicant on indictment: s.262 Criminal Procedure Act 1986.

9 It is apparent that plea negotiations took place between the parties between May and September 2010.

10 On 20 September 2010, the Crown presented a fresh indictment containing only the reckless wounding charge, to which the Applicant pleaded guilty. Thereafter, on 2 December 2010, the Applicant came before her Honour Judge Syme and a sentencing hearing followed.

Facts of Offence

11 An Agreed Statement of Facts was tendered on sentence from which the following facts are drawn.

12 The victim, Matthew Wallace (aged 46 years), resided with his partner and her family at Tahmoor. Shaun Brown (aged 22 years) and his father resided in an adjacent property.

13 On 16 November 2009, a heated argument developed between the Browns and Mr Wallace concerning members of Mr Wallace's family playing loud music and having late parties.

14 On 18 November 2009, the Applicant (aged 32 years) visited the Browns. The Applicant was a friend of Shaun Brown. At about 4.00 pm that day, an argument developed between the Applicant and Mr Wallace. Prior to this, the two men did not know each other. The argument turned violent and a physical fight developed between the two men on the street. During the fight, the Applicant stabbed Mr Wallace a number of times with a broken beer bottle, thereby wounding Mr Wallace.

15 There was conflicting evidence concerning the circumstances leading up to the fight and what happened during the fight itself. The versions of Mr Wallace and the Applicant were recounted in the Agreed Statement of Facts, together with the accounts of other witnesses to the incident. The Agreed Statement of Facts identified the basis of the Applicant's plea as follows:

"Given the conflicting nature of the evidence, the Crown concedes it cannot prove beyond a reasonable doubt that the fight was initiated by the offender. It is agreed that the offender is to be sentenced on the following basis:

- The offender and Mr Wallace both voluntarily engaged in a physical fight with each other on [xxx] St, Tahmoor following a verbal argument.

- There was violence on both sides.

-During the fight, the offender came to be in possession of a broken bottle, which he used to stab Mr Wallace in the right posterior and anterior chest area no more than five times thereby wounding him.

- This was not a reasonable response to the circumstances as the offender perceived them.

- During the fight Mr Wallace bit [the] offender in the right chest area.

- During the fight, both Mr Wallace and the offender sustained the injuries described in this document."

16 The Agreed Statement of Facts revealed that Mr Wallace was treated at Campbelltown Hospital following the incident. It was observed that Mr Wallace had abrasions on both knees, a one centimetre linear superficial wound on the left elbow, a two centimetre superficial wound on the posterior right shoulder, three superficial linear wounds on the right anterior chest (the longest being eight centimetres) and three angled wounds two-to-three centimetres long into fatty tissue in the right posterior chest. All wounds were cleaned and the posterior chest wounds were sutured.

17 The Applicant was also taken to Campbelltown Hospital and treated. He sustained a round red mark (consistent with a bite mark) about five centimetres in diameter on the right chest above the right nipple, a laceration to the back of his left hand, a laceration behind his right shoulder and abrasions to his right elbow and right knee.

The Applicant's Subjective Circumstances

18 The Applicant was born in July 1977. He was 32 years' old at the time of the offence and 33 years at the time of sentence.

19 The Applicant has a significant criminal history, commencing in 1996. His record contains entries for offences of dishonesty including break, enter and steal (in 1996 and 2003) and larceny (in 2003). Of greater relevance to the present case was his record for offences of violence against persons and property. It may be taken, as the Applicant's counsel conceded in this Court, that this record played a part in the Crown decision to prosecute the Applicant on indictment in this case. The Applicant's criminal history for offences of violence (and associated offences) was as follows:

Date and Court	Offence	Sentence
24 July 1996 - Campbelltown Local Court	1. Assault 2. Trespass. 3. Assault occasioning actual bodily harm. 4. Assault police. 5. Resist arrest. 6. Malicious damage.	1. and 3. - On each, fixed term of two months' imprisonment from 24 July 1996. 2. Fined $400.00. 4.-6. - On each, fixed term of imprisonment for three months from 24 July 1996.
16 July 1997 - Liverpool Local Court	1. Use offensive language in/near public place/school. 2. Resist police officer in execution of duty. 3. Enter enclosed lands of any person without lawful excuse.	1. and 3. - On each fined $300.00. 2. Fined $400.00.
20 November 1997 - Campbelltown Local Court	Destroy or damage property	Community Service Order without conditions for 150 hours, compensation of $400.00.
8 April 1998 - Campbelltown Local Court	Resist officer in execution of duty	Recognisance under s.558 Crimes Act 1900 in the sum of $500.00 for two years, fined $1,000.00.
9 July 1999 - Campbelltown Local Court	1. Intimidate police officer in execution of duty without actual bodily harm. 2. Use offensive language in/near public place/school. 3. Wilfully furnish false information. 4. Intimidate police officer in execution of duty without actual bodily harm.	1. Recognisance under s.558 Crimes Act 1900 in the sum of $1,000.00 for three years, supervision of NSW Probation Service. 2. and 3. - On each, fined $300.00. 4. Community Service Order without conditions for 100 hours.
20 March 2000 - Campbelltown Local Court	1. Common assault (first instance warrant). 2. Assault occasioning actual bodily harm (first instance warrant)	1. Rising of the Court. 2. Fined $300.00.
18 August 2000 - Sutherland Local Court	1. Assault occasioning actual bodily harm (two counts). 2. Common assault. 3. Intimidate police officer in execution of duty without actual bodily harm.	1.-3. - In each, bond under s.9 Crimes (Sentencing Procedure) Act 1999 for two years, with supervision of NSW Probation Service.
21 March 2002 - Campbelltown Local Court	1. Assault officer in execution of duty. 2. Resist officer in execution of duty.	1.-2. - On each, imprisonment for six months, suspended upon entering into a bond under s.12 Crimes (Sentencing Procedure) Act 1999 for six months, supervision of NSW Probation Service, report to Probation Service within seven days and attend programs.
15 January 2003 - Parramatta Local Court	1. Behave in an offensive manner in/near public place/school. 2. Resist officer in execution of duty. 3. Common assault.	1. Fined $300.00. 2. Imprisonment for six months suspended upon entering into a s.12 bond for six months, accept Probation Service supervision for as long as considered necessary, obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the Campbelltown Probation and Parole office within seven days. 3. Community Service Order for 200 hours.
27 January 2004 - Campbelltown Local Court	Common assault (call-up from 15 January 2003)	Imprisonment for six months commencing on 27 January 2004
21 December 2005 - Campbelltown District Court	Demand property with menaces with intent to steal	Imprisonment for two years and six months to commence 21 December 2005 and to conclude 20 June 2008 with a non-parole period of 15 months to commence on 21 December 2005 and to conclude on 20 March 2007 with conditions requiring attendance for drug and alcohol rehabilitation.

20 A presentence report and other material before the District Court indicated that the Applicant was the third of six children. He had been in a number of relationships and there was a 10-year old daughter from one of those relationships. The Applicant had been employed as an apprentice mechanic for a period prior to sentence.

The Course of the Sentencing Hearing in the District Court

21 Because of the second ground of appeal, it is appropriate to recount the course of the sentencing hearing between 2 December 2010 and 11 March 2011.

22 The Applicant gave evidence at the sentencing hearing on 2 December 2010 and a number of documents were tendered. Counsel for the Applicant made submissions on penalty, culminating in the submission that assessment of the Applicant for an ICO was appropriate.

23 Submissions were directed to s.7 Crimes (Sentencing Procedure) Act 1999 which provides that an ICO is not available if a sentence of imprisonment of two years or more was imposed. The Applicant's counsel sought an adjournment for an assessment as to suitability of the Applicant for an ICO. The Crown representative submitted that the offence was objectively serious and that the Applicant would not be eligible for an ICO (T20.18, 2 December 2010):

"It would be the prosecution's submission that the offender would not, in realistic terms, not be eligible because to be eligible, firstly, there would need to be a sentence of imprisonment of two years or less. It is the prosecution's submission that the court would not be considering such a sentence and the prosecution simply submits that because of the objective seriousness that it would fall above that two year period."

24 I pause to observe that no submission was made for the Applicant at the sentencing hearing that the theoretical possibility of the s.35(4) charge being disposed of summarily was a relevant factor on sentence.

25 Her Honour Judge Syme proceeded to deliver remarks on sentence, culminating in the following statement (ROS10):

"Taking all of those features into account, in my view, and allowing the appropriate discount for a plea, in my view, a sentence of less than two years will be considered. Mr Zreika is a person who has had his ups and downs. He is clearly a person who can be assisted notwithstanding his previous patchy response to supervision and I propose to adjourn the matter for an Intensive Corrections Order assessment."

26 The sentencing proceedings were adjourned to 4 February 2011 for that purpose. On that day, two ICO assessments dated 3 and 4 February 2011 were presented and further evidence and submissions were received. The ICO report dated 3 February 2011 assessed the Applicant as being suitable for an ICO. However, an update assessment report dated 4 February 2011, stated that further information had been provided which confirmed a change in the Applicant's circumstances. The additional information was that the Applicant's co-resident (his girlfriend's mother) had contacted the relevant officer and advised that she was no longer prepared to have the Applicant nominate her address as his place of residence whilst subject to an ICO.

27 Accordingly, the Applicant was assessed as unsuitable for an ICO due to the withdrawal of consent concerning residence. The report stated that, should the Applicant nominate a new residential address, a further assessment would be required with an adjournment being necessary for that purpose. Evidence was given by the Applicant and Mr Adam Ferre on 4 February 2011. In light of the evidence adduced, the sentencing Judge determined to adjourn the proceedings for a further ICO assessment to be undertaken. The proceedings were adjourned until 11 March 2011 for this purpose.

28 On 11 March 2011, an updated ICO assessment report dated 2 March 2011 was furnished to the Court. The report stated that, on 21 February 2011, the Applicant had advised the Service that he no longer wished to have the nominated address at Moorebank assessed for suitability for his residence and a further assessment was made of the Applicant's parents' residence at Claymore, previously assessed as unsuitable. The report stated that, based on current information, the Claymore address was now considered a suitable place for the Applicant to reside if sentenced to an ICO. It was noted, however, that the Applicant had advised that he anticipated relocating to Housing NSW accommodation in the Liverpool area within the near future and that he had been made aware that, if he was subject to an ICO, he would not be permitted to change residence until all necessary checks had been undertaken.

29 The report stated:

"The offender has been assessed as suitable for an Intensive Correction Order. However, given Mr Zreika's extensive history of violent offending and his previous poor response to supervision, this Service has serious concerns as to his ability to successfully complete any Community based sentencing option."

30 The sentencing Judge heard submissions as to the appropriate course to take in light of the ICO assessment. Her Honour raised with counsel during submissions, concerns about the Applicant's lack of stability in the context of his past record and the changing accommodation arrangements and counsel addressed on those issues (T2-4, 11 March 2011).

31 Her Honour proceeded with remarks on sentence, culminating in the imposition of the sentence referred to earlier in this judgment. The sentencing Judge referred to the history of the matter since 2 December 2010, including the updated ICO assessments. Her Honour then said (ROS3-4, 11 March 2011) (emphasis added):

"Mr Zreika has been made aware that if subject to an ICO he will not be permitted to change residences until all necessary checks have been made. In a period of about three months, a third residence proposed is while Mr Zreika may have resolved his drug issues he is certainly not leading a stable lifestyle and in my view is not a good risk nor a good candidate for an intensive corrections order. An intensive corrections order if it is made is an imprisonment sentence. If Mr Zreika fails in any part of that supervision then the term of that sentence or the balance of it must be served in full time custody. In my view I would not only perhaps be setting Mr Zreika up for failure if I made such an order, I would more importantly be making an order that I have absolutely no confidence he is going to be able to comply with. I do note that Mr Zreika advised the court that his serious offence was not committed unde [sic] the influence of any substances and I take that into account. It was committed, however, well after he resolved his drug issues. He has, as is evidenced by this offence and the other assessments, a real problem with what is often very politely termed 'anger management'. Mr Zreika has a real problem in maintaining his rage, he has a real problem in not causing serious injury to other people when he is aroused, as he believes, by somebody provoking him.

When assessing the length of the sentence that I propose to make today, I have already taken into account the mitigating circumstances as I found them to be, such as provocation. I do note also a further complication and further evidence that Mr Zreika does not have a stable lifestyle at the moment is his lack of employment. I am told that that is not due to any action on his part.

Notwithstanding the fact that Mr Zreika has been found suitable for an ICO I am not bound by such an assessment. For the reasons I have given I do not propose to make such an order. Instead I will make the order that I had considered making in the first place and that is an order for full-time custody."

32 Her Honour imposed the sentence under challenge which was backdated 22 days to take into account the Applicant's presentence custody. A finding of special circumstances was made by reference to the Applicant's "demonstrated rehabilitation so far" and his "need for further assistance in relation to rehabilitation".

 

Ground 1 - The Standard Non-Parole Period Ground

33 At the time of the Applicant's sentencing in March 2011, the relevant law concerning standard non-parole period offences was to be found in the decision of the Court of Criminal Appeal in R v Way [2004] NSWCCA 131; 60 NSWLR 168. Submissions were made to the sentencing Judge concerning an assessment of the objective seriousness of the Applicant's offence. Her Honour concluded (ROS9-10, 2 December 2010):

"This is an offence that has a standard non-parole period. I acknowledge that a standard non-parole period, and in this case it is three years, which is substantial, is not a starting point. A standard non-parole period is a reference point for a mid-range offence that goes to trial. It is a useful guidepost.

When considering how a standard non-parole period should affect a sentencing procedure, a Judge must ask and answer the following questions: Are there reasons for not imposing a standard non-parole period, and that question will be answered by considering, firstly, the objective seriousness of the offence, considered in the light of the facts, which relate directly to the commission of the offence, including those which may explain why it was committed so as to determine whether it answers the description of one that falls within an offence of mid-range seriousness of an offence for the relevant kind. The Court must also consider the circumstances of aggravation and of mitigation which are present in this case, and which apply to the particular offender.

In this case, I categorise the offence as serious although, in my view, it is of less than mid-range seriousness but above, the bottom third of mid-range seriousness, that it is above one-third of seriousness for this offence but below mid-range seriousness. I have taken into account and considered the submissions of counsel. However, considering the number of wounds imposed, the level of injuries to the victim, and the lack of any other aggravating circumstances, as I have already referred to, this is not a matter that, in my view, reaches mid-range seriousness level. It is, however, an offence which considering the objective seriousness of it, requires a custodial sentence to be imposed both to reflect the harm to the victim, and to the community, and by way of specific and general deterrence."

 

Submissions of Parties

34 Mr Barrow, counsel for the Applicant, submitted that the sentencing Judge had erred in the approach to sentence in light of the subsequent decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154. He submitted that her Honour's approach infringed the statement in Muldrock v The Queen at 1163 [28].

35 The Crown submitted that the sentencing Judge's approach did not infringe the principles expressed in Muldrock v The Queen but that, in any event, the conclusions with respect to the objective seriousness of the offence were open, as was the sentence imposed for the offence.

Decision

36 Since the decision of the High Court of Australia in Muldrock v The Queen on 5 October 2011, this Court has been called upon to consider that judgment and its practical application in sentence appeals. Sentencing Judges are being called upon to undertake a similar task at first instance in determining an appropriate sentence. Decisions in this Court include Ayshow v R [2011] NSWCCA 240, MDZ v R [2011] NSWCCA 243, Madden v R [2011] NSWCCA 254, Sheen v R [2011] NSWCCA 259, Aoun v R [2011] NSWCCA 284 and R v Koloamatangi [2011] NSWCCA 288. First-instance sentencing decisions in the Supreme Court include those in R v Biddle [2011] NSWSC 1262 and R v Tran [2011] NSWSC 1480.

37 The challenge for sentencing Judges and this Court in applying the High Court's judgment in Muldrock v The Queen is partly explained by an unusual feature of the litigation in that case.

38 As the judgment in Muldrock v The Queen indicates (at 1161, footnote 37), an application for special leave to appeal from the decision in R v Way was refused by the High Court in 2005. Thereafter, R v Way was applied repeatedly by the Courts in this State. It was never submitted by the Crown, or on behalf of an offender, that this Court should reconsider the decision in R v Way.

39 Indeed, the Crown appeal in R v Muldrock [2010] NSWCCA 106 was argued and determined by a three-judge Court, without any submission being made or suggested that the decision in R v Way should not be followed in any respect. Had it been indicated by one of the parties that this Court should depart from its decision in R v Way in any respect, given the importance and wide-spread application of that decision, it may have been expected that the Chief Justice would assemble a five-judge Bench to re-examine the earlier decision in accordance with the principles in R v Mai (1992) 26 NSWLR 371 at 380-381.

40 An examination of the judgment of the High Court in Muldrock v The Queen reveals that the Crown advanced a submission, not made before the Court of Criminal Appeal, that R v Way was wrongly decided in one respect, with the High Court accepting that submission (at 1162 [24]-[25]). Self-evidently, the High Court did not have the advantage of a considered decision of the Court of Criminal Appeal where these matters had been ventilated, nor did the High Court have the assistance of a party making submissions supportive of the decision in R v Way. In effect, there was no contradictor on this issue.

41 As a result of this course of events, State Courts have been called upon to construe the judgment of the High Court in circumstances where the High Court did not have the benefit, in the first instance, of a considered decision of this Court dealing with the same issues.

42 It is the duty of State Courts to apply the High Court's decision. However, that task is complicated by the unusual course of events, including the approach of the Crown adopted for the first time before the High Court of Australia.

43 I return to the present case. It is necessary to read fairly the entirety of the sentencing Judge's remarks on the standard non-parole period issue (at [33] above). The sentencing Judge used the standard non-parole period as a "reference point" and a "useful guide", and not as a "starting point". This is entirely consistent with the judgment of the High Court in Muldrock v The Queen.

44 That part of her Honour's remarks on sentence which posed a series of questions for consideration involves a more problematic analysis. The statement that a sentencing Court must ask "are there reasons for not imposing a standard non-parole period" does not comply with principle. However, her Honour further explained her approach.

45 The High Court did not suggest that a conventional assessment of objective offending, according to a scale of seriousness, was to be avoided: R v Koloamatangi at [18]-[19].

46 The process of instinctive synthesis to be undertaken by a sentencing court involves the sentencing judge identifying all the factors that are relevant to the sentence and then making a value judgment as to is the appropriate sentence in all the circumstances of the case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 377-378 [51]; Muldrock v The Queen at 1162 [26]. Assessment of the objective gravity of an offence has traditionally been an essential element of the sentencing process: R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118 at [71]. It is an essential element of the process of instinctive synthesis, a purpose of which is the imposition of a proportionate sentence, which adequately punishes an offender: s.3A(a) Crimes (Sentencing Procedure) Act 1999.

47 The judgment of the High Court in Muldrock v The Queen has left somewhat opaque the meaning of the term "objective seriousness": R v Koloamatangi at [19]-[21]. Nevertheless, as subsequent decisions of this Court have stated, it remains part of a sentencing Judge's function to consider the objective gravity of the subject crime and the moral culpability of the offender: Ayshow v R at [39]; Sheen v R at [169]. Her Honour's remarks on sentence perform this function, albeit using different language.

48 I am not persuaded that the sentencing Judge misused the standard non-parole period in passing sentence on the Applicant. Nor am I satisfied that error is demonstrated in her Honour's assessment of the objective gravity of the Applicant's offence. Accordingly, I would reject the first ground of appeal.

49 However, even if there was substance in the first ground in a technical way, I would be entirely unpersuaded that some lesser sentence is warranted for the purposes of s.6(3) Criminal Appeal Act 1912.

Ground 2 - Asserted Error in the Decision Not to Impose an ICO

Submissions of Parties

50 Mr Barrow accepted that the sentencing Judge was not bound to impose an ICO after requesting an assessment for the suitability of the Applicant for such a sentence. He acknowledged that the sentencing Judge exercised a discretion in this respect, and that it was necessary for him to demonstrate error in accordance with the principles in House v The King (1936) HCA 40; 55 CLR 499 at 504-505.

51 Mr Barrow submitted that the second ground of appeal should be understood as a submission that the sentencing Judge took into account a mistaken understanding of the ICO system in the observation (in the passage extracted at [31] above) that if the Applicant "fails in any part of that supervision then the term of that sentence or the balance of it must be served in full-time custody" and that the imposition of an ICO would "perhaps be setting Mr Zreika for failure if I made such an order" (ROS3, 11 March 2011).

52 Mr Barrow pointed to provisions within the Crimes (Administration of Sentences) Act 1999 which indicated that a sentence of full-time imprisonment was not an inevitable result of non-compliance with an ICO. Mr Barrow submitted that the sentencing Judge's lack of confidence in the Applicant seemed to flow largely from changes in his accommodation arrangements and that, if her Honour had had a complete understanding of how an ICO is administered, she may have been prepared to make the order and to give the Applicant the opportunity to avoid a full-time sentence of imprisonment.

53 Mr Barrow submitted that the sentencing Judge's concern that she was setting the Applicant up to fail, did not take into account the flexibility available to the Commissioner for Corrective Services and the Parole Authority in dealing with breaches of an ICO, should they occur.

54 The Crown submitted that it was for the Applicant to demonstrate that he was a suitable person to serve the sentence by way of an ICO, and that the expression of concern in the final ICO assessment report weighed heavily against the use of that sentencing option. It was submitted that it was open to the sentencing Court, in the exercise of discretion, to decline to order that the sentence be served by way of an ICO.

Decision

55 The power of a sentencing court to sentence an offender to an ICO was introduced by the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010, which commenced on 1 October 2010. The power of sentencing courts to order imprisonment by way of periodic detention ceased upon the commencement of this Act.

56 An ICO is a custodial sentence: s.7 Crimes (Sentencing Procedure) Act 1999. It is only available as a sentencing option if a court has sentenced an offender to imprisonment for not more than two years. In this case, the sentencing Judge heard submissions on the threshold question of whether a sentence of more than two years ought be imposed, and concluded that "a sentence of less than two years will be considered" (ROS10, 2 December 2010). In determining that a sentence of imprisonment should be imposed and that a sentence of less than two years' imprisonment would be considered, the sentencing Judge complied with the principles expressed in R v Zamagias [2002] NSWCCA 17 at [26], R v Douar [2005] NSWCCA 455; 159 A Crim R 154 at 165-166 [70]-[72] and R v Hamieh [2010] NSWCCA 189 at [76]-[84].

57 Accordingly, the sentencing Judge adjourned the proceedings to allow an assessment of the Applicant as to his suitability for an ICO.

58 Sections 64-73A Crimes (Sentencing Procedure) Act 1999 lay down sentencing procedures for ICOs. An ICO may not be made with respect to an offender's sentence of imprisonment unless the court is satisfied of certain matters set out in s.67 Crimes (Sentencing Procedure) Act 1999. Section 67(3) provides that a court may, for any reason it considers sufficient, decline to make an ICO despite the contents of the assessment report. The sentencing court is required to have regard to the contents of the assessment report prepared with respect to the offender: ss.65, 67(2)(a) and 70 Crimes (Sentencing Procedure) Act 1999.

59 Accordingly, a sentencing court is not bound to accept the assessment of suitability contained in the assessment report, although reasons should be given if the Court declines to make an ICO, in the face of an assessment report that states that the offender is a suitable person to serve the sentence by way of an ICO in the community: s.67(5)

60 The sentencing Judge in this case had regard to the assessment reports prepared with respect to the Applicant. The proceedings were adjourned initially to 4 February 2011, and then to 11 March 2011 for the purpose of updated assessment reports being prepared.

61 Clause 14(1) Crimes (Sentencing Procedure) Regulation 2010 provides that an ICO assessment report must take into account a number of specified matters, including any criminal record of the offender, the likelihood that the offender will re-offend, any risks associated with managing the offender in the community, the likelihood that the offender will commit a domestic violence offence and whether the offender will have suitable residential accommodation for the duration of an ICO. It is clear that the assessment reports concerning the Applicant in this case addressed these statutory criteria, together with other issues pertinent to his suitability for an ICO.

62 Breaches of an ICO are dealt with by the Commissioner of Corrective Services and the Parole Authority under ss.88-91 Crimes (Administration of Sentences) Act 1999. If the Commissioner of Corrective Services is satisfied that an offender has breached an ICO, the Commissioner can decide to impose a sanction on the offender under s.89, or can decide to take no action in respect of the breach: s.89(1). The sanctions available to the Commissioner are a formal warning or a more stringent application of the conditions of the ICO in accordance with the terms of those conditions: s.89(2). As an alternative to or in addition to imposing a sanction on the offender, the Commissioner can decide to refer the breach to the Parole Authority because of the serious nature of the breach: s.89(3).

63 The Parole Authority may, on its own motion or on the application of the Commissioner, deal with an offender's breach of an ICO by imposing any sanction that the Commissioner could impose under s.89, or by imposing a period of up to seven days' home detention on the offender as a condition of the offender's ICO or by revoking the ICO: s.90 Crimes (Administration of Sentences) Act 1999.

64 Accordingly, her Honour's observation that any breach of the ICO would lead to the sentence (or its balance) being served in full-time custody, did involve a legal misunderstanding of the powers and options available in the event of a breach of such an order. In fairness to the sentencing Judge, it should be noted that the legal representatives appearing in the District Court did not make any submission bearing upon the consequence of a breach of an ICO, then a comparatively new sentencing option.

65 In considering this ground of appeal, it is necessary to fairly read all relevant parts of the final updated assessment report before her Honour, together with all relevant parts of her Honour's remarks on sentence. The assessment report referred to problems relating to the Applicant's accommodation (and his change in accommodation). However, the assessment report assessed the Applicant as being suitable for an ICO, but then proceeded immediately to express serious concerns as to the Applicant's ability to successfully complete any community-based sentencing option. There is some tension between these two propositions.

66 In the context of an offender who was being sentenced for an offence of violence, and who had a significant history of offences of violence, this aspect of the assessment was pertinent. Although her Honour was prepared to consider an ICO as an option, by 11 March 2011, there were aspects of the Applicant's circumstances which indicated that this option may not be appropriate. It must be kept in mind that an ICO may not be made with respect to an offender's sentence of imprisonment unless the court is satisfied, amongst other things, that the offender is a suitable person to serve the sentence by way of an ICO in the community, and that it is appropriate in all the circumstances that the sentence be served by way of ICO in the community: s.67(1)(b) and (c) Crimes (Sentencing Procedure) Act 1999. An ICO was not to be imposed unless the sentencing court was positively satisfied of these matters in circumstances where, in effect, the onus lay upon the Applicant to satisfy these requirements.

67 The assessment report expressed serious concerns as to the ability of the Applicant to successfully complete any community-based sentencing option. A fair reading of her Honour's remarks on sentence suggests that her Honour foreshadowed the distinct prospect of a complete breakdown in the Applicant's response to a community sentencing option. Although it was not technically legally correct to indicate that such a position would lead inevitably to full-time imprisonment (given the discretions available to the Commissioner of Corrective Services and the Parole Authority), the realistic position was that a complete breakdown in the Applicant's response to the order (and not a minor or technical breach) would likely see him serving the sentence of imprisonment which had been imposed but allowed to be served by way of an ICO.

68 In the circumstances of this case, a passing error of this type is not material. It should not be concluded that the error may have infected the sentencing Judge's reasoning so that, without the error, some other and lesser sentence may have been imposed: Baxter v R [2007] NSWCCA 237; 173 A Crim R 284; s.6(3) Criminal Appeal Act 1912.

69 The second ground of appeal ought be rejected.

Ground 3 - Alleged Error in Failing to Take Into Account Theoretical Capacity of Offence to be Dealt With in the Local Court

Submissions of Parties

70 Mr Barrow submitted that the Applicant had been committed for trial on a more serious charge (under s.35(2)), but pleaded guilty ultimately and was sentenced for the less serious offence under s.35(4) Crimes Act 1900.

71 Mr Barrow noted that all offences under s.35 are capable of summary disposal and, in that event, the jurisdictional limit in the Local Court was two years' imprisonment. He acknowledged that the Applicant had a significant criminal history, and that the decision of the prosecution to elect to proceed in the District Court on the s.35(2) offence was likely to have been influenced by the criminal history.

72 He submitted, however, that offences under s.35(2) are more commonly dealt with on indictment, with a lesser proportion of s.35(4) offences being dealt with in that way. Reference was made to Judicial Commission sentencing statistics, which pointed to the numbers of matters dealt with in the District Court or the Local Court for these two offences.

73 Although acknowledging that no submission had been made in the District Court inviting the sentencing Judge to take into account on sentence the possibility of summary disposal of the s.35(4) offence, it was submitted that this was a factor which should have been taken into account and which should have resulted in some mitigation of penalty. In circumstances where the sentencing Judge made no mention of this factor, Mr Barrow submitted that error had been demonstrated.

74 The Crown submitted that the circumstances of the Applicant's offence and his criminal history for offences of violence were such that the matter was appropriately being dealt with in the District Court. In any event, the Crown submitted that the sentence actually imposed was less than the jurisdictional limit available to the Local Court if the matter had been dealt with summarily.

Sentence Grounds of Appeal Where the Point Was Not Taken Below

75 Judges sitting in this Court have noted that grounds of appeal of this type are regularly and increasingly arising for consideration. The principle relied upon is a common law principle, and not one identified in s.21A Crimes (Sentencing Procedure) Act 1999.

76 Very frequently, the ground is relied upon in this Court, although no submission was made in the District Court that the possibility of summary disposal was a matter which ought be taken into account in mitigation of penalty. In such cases, of course, the sentencing Judge does not have the benefit of considered submissions from the parties, including a submission from the Crown as to why the relevant charge or charges came to be prosecuted on indictment in the District Court.

77 The submission advanced frequently on appeal (as in the present case) is that the sentencing Judge failed to have regard to what is said to have been a relevant factor, in circumstances where the Judge had not been invited to have regard to that factor in the first place at the sentencing hearing.

78 This Court has held that a failure by a sentencing Judge to mention that a matter could have been dealt with in the Local Court cannot of itself constitute error: R v Jammeh [2004] NSWCCA 327 at [28] (Buddin J, Wood CJ at CL and Shaw J agreeing); R v Pickett [2004] NSWCCA 389 at [32] (Buddin J, McColl JA and Howie J agreeing).

79 This Court is a court of error. The jurisdiction of the Court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law: R v Visconti [1982] 2 NSWLR 104 at 108. If material error is demonstrated, before the Court would proceed to resentence the Applicant, the Court must form a positive opinion that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 720-721 [79]. It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672 [15].

80 There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]. It might be thought that defence counsel would have ample opportunity to consider whether an argument concerning possible summary disposal should be made in the District Court, given that the acceptance of a plea of guilty to a lesser charge usually follows charge negotiations, as occurred in this case. The fact that a less serious charge is to proceed (and its consequences) would be at the forefront of counsel's thinking.

81 The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29].

82 In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may "render a serious injustice" if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance.

83 It is difficult to see how the possibility of summary disposal lies in this category. In reality, as will be seen, the possibility of summary disposal as a mitigating factor is to be confined to a rare and exceptional set of circumstances where the offender is being sentenced in the District Court for an offence which may be seen as a clear summary offence which ought otherwise have been prosecuted in the Local Court. In such circumstances, it might be thought that the argument is so obvious that defence counsel at first instance will advance a submission in the District Court to that effect. If that does not occur, then this may be a very practical barometer as to whether such an argument was realistically available in the circumstances of the case in the first place.

Statutory Provisions Permitting Prosecution of Local Court Offences onIndictment

84 With these preliminary remarks, it is appropriate to refer to statutory provisions which may see offences, ordinarily prosecuted as summary offences in the Local Court, being prosecuted on indictment.

85 Generally speaking, there is a hierarchy of criminal offences in this State:

(a)offences which may be prosecuted solely on indictment in the Supreme or District Courts;

(b)offences which may be prosecuted on indictment, or summarily in the Local Court, depending upon certain factors;

(c)offences which may be prosecuted solely as summary offences in the Local Court (putting to one side, for present purposes, summary offences which may be prosecuted in the Supreme or District Courts, the Land and Environment Court and the Industrial Relations Court).

86 There are statutory mechanisms for a pure summary offence to be dealt with by the Supreme or District Courts, where the summary offence is related to an indictable offence which is before the higher Court or is a back-up offence: ss.165-169 Criminal Procedure Act 1986; Director of Public Prosecutions v Sinton [2001] NSWCA 179; 51 NSWLR 659 at 662 [9]ff; R (Cth) v Petroulias (No. 36) [2008] NSWSC 626; 73 ATR 83 at 119 [215]-[217]; Huynh v R [2008] NSWCCA 216 at [67] - [72].

87 Further, summary offences may be included on a Form 1 in the Supreme or District Courts: s.33(4)-(6) Crimes (Sentencing Procedure) Act 1999.

88 Prior to the enactment of the scheme which introduced Table 1 and Table 2 offences, the mechanism for determining whether indictable offences ought be disposed of summarily before a Magistrate, or should proceed on indictment by way of trial or sentence, was to be found in s.476 Crimes Act 1900.

89 The operation of s.476 was explained in Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 at 219C-D, where Gleeson CJ (Clarke JA agreeing) said:

"S476 provided that specified offences, although indictable offences, could be tried summarily in certain circumstances where the defendant consented and the magistrate thought it proper. From the point of view of a defendant, one of the principal inducements to giving such consent was that the penalties available to be imposed by a magistrate following a summary hearing were significantly less than the maximum penalties following a trial before a jury. One of the matters that would ordinarily be relevant to a magistrate's decision as to whether it was proper to deal summarily with an offence, in circumstances where the defendant consented, was the appropriateness of the available penalties in such circumstances. If a defendant were willing to forego a right to trial by jury, and the magistrate were satisfied that, in the light of all relevant considerations, including the matter of penalty, it was an appropriate case for summary disposition, then the matter could be dealt with in that way."

90 The statutory scheme involving s.476 Crimes Act 1900 was abolished with the enactment, of the Criminal Procedure (Indictable Offences) Act 1995. That scheme, which introduced Table 1 and Table 2 offences, was considered by this Court in R v Bartalesi (1997) 41 NSWLR 641 and, more particularly, in R v Doan [2000] NSWCCA 317; 50 NSWLR 115.

91 The statutory scheme since 1995 has removed from the discretionary determination of the Local Court, the decision as to whether an offence capable of being dealt with summarily or on indictment ought proceed in that way. The decision is vested, in different ways, in the parties to the criminal proceedings.

92 Indictable offences listed in Table 1 are to be dealt with summarily unless the prosecutor or the person charged with the offence concerned elects to have the offence dealt with on indictment: s.258(a) Criminal Procedure Act 1986. Offences listed in Table 2 are to be dealt with summarily unless the prosecutor elects to have the offence concerned dealt with on indictment: s.258(b).

93 All offences under s.35 Crimes Act 1900, including ss.35(2) and 35(4), are Table 1 offences: Clause 2, Schedule 1, Criminal Procedure Act 1986.

94 If no election for indictable prosecution is made with respect to a Table 1 or Table 2 offence, the offence is to be dealt with summarily as if it were a summary offence: s.261. If an election is made for indictable prosecution, the offence is to be dealt with on indictment: s.262.

95 Section 263 provides for the time for making an election. That a charged person's criminal record is relevant to the process of election is reinforced by s.265 Criminal Procedure Act 1986, which requires the prosecution to serve upon the person charged with a Table 1 offence, a copy of his or her criminal record.

96 It might be thought that the provision of the criminal record to a person charged with a Table 1 offence is intended to assist that person to consider whether indictable election should be sought, and to be in a position to make submissions to the prosecution on the question whether the prosecution should elect for indictable disposal of the matter.

97 Section 267 makes provision for the maximum penalties available where Table 1 offences are dealt with summarily, and s.268 makes similar provision concerning Table 2 offences.

98 The maximum term of imprisonment that the Local Court may impose for any offence under s.35 Crimes Act 1900 is imprisonment for two years: s.267(2). However, this provision prescribes the jurisdictional limit of the Local Court, and not the maximum penalty for any offence triable within that jurisdiction: R v Doan at 123 [35].

99 Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for a worst case: Re Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) [2002] NSWCCA 515; 137 A Crim R 196 at 203-204; [27]; R v El Masri [2005] NSWCCA 167 at [30].

100 Paragraph 8 of the Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales lays down guidelines for election by the prosecution for an offence to be dealt with on indictment. The guidelines are furnished pursuant to s.13 Director of Public Prosecutions Act 1986. Paragraph 8 of the Guidelines includes the following:

 

"...

An election should not be made unless:

(i) the accused person's criminality (taking into account the objective seriousness and his or her subjective considerations) could not be adequately addressed within the sentencing limits of the Local Court; and/or

(ii) for some other reason, consistently with these guidelines, it is in the interests of justice that the matter not be dealt with summarily (eg. a comparable co-offender is to be dealt with on indictment; or the accused person also faces a strictly indictable charge to which the instant charge is not a back-up).

... ."

101 The sentencing limits of the Local Court include the jurisdictional limit for the particular offence (ss.267-268 Criminal Procedure Act 1986) and the limitation on the imposition of consecutive sentences of imprisonment in the Local Court under s.58 Crimes (Sentencing Procedure) Act 1999.

102 In R v Gent [2005] NSWCCA 370; 162 A Crim R 29, consideration was given to a ground of appeal of this type in the context of a Commonwealth prosecution. After reference was made to the decision of this Court in R v El Masri, and to the provisions of s.4J(1) Crimes Act 1914 (Cth) with respect to summary disposal of federal indictable offences, with the concurrence of McClellan CJ at CL and Adams J, I said at 47 [84]-[86]:

"84An offence which, as a matter of jurisdiction, is capable of being disposed of summarily may be prosecuted on indictment in a number of circumstances:

(a)the offence may be one of a number of offences in relation to which the accused person is committed for trial but where the person is acquitted of, or the Crown does not proceed with, the more serious charge (see, for example, El Masri);

(b)the offence may be one where the Director of Public Prosecutions, in the exercise of discretion, has determined that the matter ought to proceed on indictment: s.4J(1) Crimes Act 1914 (Cth); s.260(1) or (2) Criminal Procedure Act 1986;

(c)infrequently, the offence may be one where the offender resisted summary disposal and elected for prosecution on indictment: s.4J(1) Crimes Act 1914 (Cth); s.260(1) Criminal Procedure Act 1986.

85The principles in Crombie and El Masri have particular application with respect to the first class of offences referred to in the preceding paragraph. In such a case, the offender may be in a position to contend, with some force, that he or she stands for sentence in the District Court with respect to an offence which otherwise would have been disposed of summarily in the Local Court. That is not this case.

86The Commonwealth Director of Public Prosecutions, in the present case, formed the view that this matter was appropriate to be prosecuted on indictment. That is a decision which lies within the exercise of prosecutorial discretion and in relation to which provision is made in paragraphs 5.9-5.11 of the Prosecution Policy of the Commonwealth Director of Public Prosecutions. Similar provisions exist with respect to State offences in paragraph 8 of the Prosecution Guidelines of the Director of Public Prosecutions (NSW): R v Palmer [2005] NSWCCA 349 at paragraph 10. Decisions made in the exercise of prosecutorial discretion are not readily subjected to review or appellate scrutiny by the courts: Maxwell v The Queen (1995) 184 CLR 501 at 512, 534; Hanna v Director of Public Prosecutions [2005] NSWSC 134 at paragraphs 40ff. In R v Murray [2000] NSWCCA 159, Carruthers AJ (Hulme J agreeing) said at paragraph 16:

'It is a question of discretion for the Director of Public Prosecutions whether matters such as this be proceeded within the Local Court or the District Court, and it would only be in a rare matter, I would have thought, that this Court would be prepared to express a view as to whether it was or was not appropriate for the Director to have elected to proceed in the District Court in relation to certain matters as distinct from the Local Court.'

In my view, where the Director of Public Prosecutions has elected to prosecute a matter on indictment, it would require a very clear case of inappropriate prosecution of an offence on indictment before the Crombie and El Masri principles could provide an argument in mitigation resulting from a lost opportunity for summary disposal of that offence."

103 Circumstances in which a ground of appeal of this type will have real traction are best illustrated by R v El Masri. There, the applicant was committed for trial upon a charge of assault with intent to rob in circumstances of aggravation. He stood trial upon that count, with an alternative count of assault occasioning actual bodily harm. He was acquitted on the first count and pleaded guilty to the second count. The circumstances of the offence of assault occasioning actual bodily harm involved a single punch to the side of the head of the victim, with relatively minor injury resulting. The applicant had no criminal record for offences of violence. This Court took the view that the offence of assault occasioning actual bodily harm was, in truth, a summary offence which was only being dealt with in the District Court on indictment, because of the purely indictable count of which the Applicant was acquitted. It was entirely clear that the offence would otherwise have been dealt with summarily, but for the existence of the more serious charge.

104 A further example of a clear case where the ground succeeded is McCullough v R [2009] NSWCCA 94; 194 A Crim R 439. There, the applicant was committed for trial on a charge of aggravated breaking and entering with intent under s.112(2) Crimes Act 1900. However, that charge was not proceeded with and the applicant pleaded guilty to common assault and malicious damage to property. In delivering judgment allowing the offender's appeal against sentence, Howie J (McClellan CJ at CL and Simpson J agreeing) said at 444 [22]-[23]:

"22The Crown eventually did not proceed on the first count. This is unsurprising having regard to the offence that was alleged. Therefore the two matters arising from the incident with his brother were before the District Court only because of the charge in the first count that was not ultimately pursued. Neither the offence of malicious damage or the assault warranted a committal to the District Court. In fact both offences must be dealt with in the Local Court (where the value of the property on the malicious damage charge does not exceed $5,000) unless election is made for trial on indictment: see s 260 of the Criminal Procedure Act and the second schedule to that Act. The election would have been made in this case only because the first count had to be dealt with in the District Court. In these circumstances it is highly relevant that the offences could have, and should have in the normal course of events, been dealt with in the Local Court.

23The relevance of this fact is more than merely the sentencing limit to which a magistrate is generally restricted. That is the normal consideration given to the fact that an offence could have been dealt with in the Local Court; R v Crombie [1999] NSWCCA 297. However, the maximum penalty for an assault under s 61, when dealt with summarily is relevantly, 12 months imprisonment: s 268 of the Criminal Procedure Act. Here the Judge imposed a sentence of 9 months. Similarly for an offence of malicious damage where the value of the property does not exceed $5,000 the maximum penalty is 12 months. Here the Judge imposed a sentence of a fixed term of 19 months. There is no value stated of the damage but I cannot believe that it would be more than $5,000."

105 His Honour then referred to passages from R v El Masri and R v Palmer [2005] NSWCCA 349, before concluding at 446 [26]:

"Although, unlike the situation in El Masri, the Judge in this case did indicate that the two offences could have been dealt with in the Local Court, there needed, in my opinion, to be a closer analysis of the situation because of the reduced maximum penalties that would apply, they being less than the normal jurisdictional limit in the Local Court of 2 years imprisonment. As her Honour noted, both these offences were to the lower end of the scale of seriousness. In my opinion the sentence for the malicious damage was excessive having regard to the nature of the offence and in light of the fact that it exceeded the sentence that the Local Court could lawfully have imposed had it been dealt with in that jurisdiction. The sentence for the assault was also manifestly excessive. The applicant should be re-sentenced for these two offences."

106 The position with those charges was contrasted with a further charge against Mr McCullough which was appropriately before the District Court. Howie J said at 446 [27]:

"This criticism cannot be applied to the Judge's consideration of the malicious wounding offence. It was clearly appropriate for that offence to be before the District Court, and the applicant's representative did not suggest otherwise. On its face the appropriate sentence for that offence given its seriousness was more than the magistrate could have imposed. Although the Judge did not refer to the fact that this offence could, at least notionally, have been dealt with in the Local Court, there was no error in failing to refer to that fact."

107 Very few cases before this Court display the exceptional circumstances which existed in R v El Masri and McCullough v R. The usual case before this Court, illustrated by the present case, involves a person who is committed for trial upon one or more indictable offences and pleads guilty, usually after charge negotiations, to a lesser indictable offence. A common feature is that the circumstances of the offence for which sentence was passed remain serious, and frequently the offender has a significant criminal history.

108 These more common circumstances lead to an argument in this Court, which seeks to challenge the characterisation of the offence as one which was appropriate to be dealt with on indictment. This process leads inevitably to an examination of the circumstances of the offence and the criminal history of the offender.

109 Unless this Court is able to clearly determine that the offence in question, committed by the particular offender with his or her criminal history, ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 561-562 [62]-[67].

110 Grounds of appeal, as asserted by the present Applicant, have been considered in a number of recent decisions of this Court, including Bonwick v R [2010] NSWCCA 177, Dagdanasar v R [2010] NSWCCA 310, Lewis v R [2011] NSWCCA 206, Kean v R [2011] NSWCCA 136 and LB v R [2011] NSWCCA 220. The frequency of appeals which raise this ground tends to emphasise the fact that the issue is well known as a potential factor to be taken into account on sentence, so that this Court should apply a rigorous approach in requiring offenders to take the point at first instance, before being permitted to raise it in this Court.

111 The ground of appeal can only be meaningful if this Court determines that the total sentence for the particular offence should not have exceeded the jurisdictional limit of the Local Court. It might be thought that a ground asserting manifest excess is capable of covering the same ground, if the position is that clear in the particular case.

112 Unless it is plainly wrong that the offence is in the District Court, it is difficult to see how an offender can succeed on a ground of appeal which claims that a relevant factor has not been taken into account by the sentencing Judge.

113 In support of the present appeal, the Applicant relied upon statements in Kean v R and, in particular, by Adams J (at [37]). I do not consider that anything said in that case assists the Applicant.

114 However, I wish to make some observations about that decision. It appears to be based upon an incomplete understanding of the statutory scheme described earlier in this judgment.

115 The history of the District Court proceedings against Mr. Kean may be traced in the decisions of his Honour Judge Berman SC, the most experienced Judge who tried and sentenced him: R v Kean [2009] NSWDC 435; R v Kean [2010] NSWDC 29. Mr. Kean was sentenced after trial for an offence of aggravated break, enter and steal, and after pleading guilty to stealing a Mercedes Benz motor vehicle, and a further count of break, enter and steal, with an offence of take and drive conveyance being taken into account on a Form 1 on the last count.

116 Mr. Kean had a very lengthy criminal history, involving some 30 prior burglary offences. He was on parole at the time of the aggravated break, enter and steal and on bail at the time of the break, enter and steal offence.

117 No submission was advanced before the District Court that the theoretical possibility of summary disposal of some counts ought operate in the offender's favour on sentence: Kean v R at [34].

118 Adams J observed at [34] that it "is not clear why, apart from convenience, these counts [stealing the Mercedes Benz vehicle and the break enter and steal offence] were dealt with in the District Court". His Honour continued, at [37], that it "seems clear that, if the matter had come before the District Court as an administrative convenience, the fact that it could have been dealt with in the Local Court and, in the normal course, is a matter of significance". (The catchwords for Kean v R include the words "concurrent jurisdiction of the Local and District Courts - for convenience all matters heard in the District Court").

119 His Honour concluded (at [37]), that the fact that the matter was not raised by counsel, and not referred to by the sentencing Judge, indicated that "it was overlooked". Adams J proceeded to refer to the circumstances of the offence, and the offender's significant criminal history for offences of dishonesty, before concluding (at [40]) that "were it not for the applicant's criminal record, it would in my view have been necessary, in respect of count 3 [stealing the Mercedes Benz vehicle] and the CAN offence [break enter and steal], to give significant weight to the fact that they could have been dealt with in the Local Court".

120 With respect, it is erroneous to conclude that the two nominated offences were before the District Court as a matter of "administrative convenience". They were Table 1 offences and were before the District Court following an election for indictable disposal of the matters. The fact that the offender was a recidivist burglar (with some of his offences committed in breach of conditional liberty) was a likely explanation for an election for prosecution on indictment, in addition to the seriousness of the offences in question.

121 In my view, the decision in Kean v R ought be understood as one confined to its own facts, and should not be regarded as a decision which assists the determination of other appeals.

The Present Case

122 In the present case, the Applicant's offence was an appropriate crime to be prosecuted on indictment in the District Court. It is clear that the Crown took that view and advanced a submission in the District Court that a sentence of imprisonment for more than two years was appropriate on the s.35(4) offence. An examination of the circumstances of the offence, involving the use of a broken bottle to stab the victim five times, considered against the background of the Applicant's history of offences of violence, undermines entirely his argument that the sentencing Judge failed to have regard to a relevant factor on sentence in a manner which warrants the imposition of a lesser sentence.

123 In any event, the sentence imposed in the District Court did not reach the jurisdictional limit of the Local Court. It is difficult to see how this ground of appeal could work in the Applicant's favour in these circumstances, even if it was made out.

124 In my view, no error has been demonstrated, let alone an error that would lead this Court to impose a lesser sentence. I would reject the third ground of appeal.

Conclusion

125 I am not persuaded that the Applicant has made good any of his grounds of appeal. Even if error had been demonstrated, however, I am not persuaded that a lesser sentence is warranted for the purpose of s.6(3) Criminal Appeal Act 1912. In truth, the sentence imposed upon the Applicant was a moderate one given the circumstances of the offence and his history of offending.

126 I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.

127 ROTHMAN J: I have read the reasons for judgment of Johnson J and the orders his Honour proposes. I am indebted to him for his analysis. It is therefore not necessary for me to deal at all with the facts, nor with submissions of the parties. I wish, however, to make some comment on the issues.

Ground 1: Misuse of the standard non-parole period

128 Ground 1 of the appeal must fail. In that regard, I agree with [48] of the reasons of Johnson J. It is necessary to make some further short comment.

129 In particular, I do not agree that application of the reasons for judgment in Muldrock is "complicated" by the failure of the parties to submit to this Court that Way was wrongly decided. It is always, of course, better if all submissions are put at each level of the judicial hierarchy and failure to do so may be a basis, in appropriate cases, for refusal of leave or rejection of the grounds of appeal (see for example Rule 4 of the Criminal Appeal Rules).

130 However, I do not agree that either the failure to rely upon the incorrectness of Way in this Court, or the concession as to the incorrectness of Way in the High Court, explains "the challenge for sentencing judges and this Court in applying" Muldrock. In my view, the reasons for judgment in Muldrock speak for themselves. I therefore do not associate myself with the comments of Johnson J at [37] to [42].

131 As earlier stated, I agree that the sentencing judge has not disclosed error in accordance with the principles expressed in Muldrock, in the manner in which her Honour has dealt with the standard non-parole period.

Ground 2: error in the understanding of an ICO

132 I agree with Johnson J at [55] to [63] and his analysis of the Crimes (Administration of Sentences) Act. I would add only that s 91 of that Act permits a judicial member of the Parole Authority, on application of the Commissioner of Corrective Services, to order the suspension of the ICO in urgent circumstances. The Parole Authority may revoke the ICO under s 90(1)(c) of the Act, pursuant to Division 1 of Part 7 thereof: s 163. Clearly, this remedy is for a breach in the worst category, or repeated breaches, particularly, given the other remedies available.

133 I also agree with Johnson J at [64] that her Honour was in error when describing the effect of any breach: see [51] infra. It is unfortunate that her Honour was not assisted by the parties below with a proper analysis of the effect of a breach of an ICO. Nevertheless, as a consequence, her Honour's exercise of discretion miscarried.

134 Her Honour declined to make an ICO in circumstances where her Honour misunderstood the effect of making such an order, or its implementation, if any breach were to occur. In other words, her Honour, with great respect, took into account an irrelevant consideration, namely, a legal consequence of breach that was otherwise than in accordance with the Act. Alternatively, her Honour failed to take into account a relevant consideration, namely the operation of an ICO and the consequences of breach. Further, error of law is disclosed. Such an error is not immaterial.

135 I agree with Johnson J at [68] that it should not be concluded that her Honour, if made aware of the correct effect of any breach of an ICO, would have decided differently, but no one but her Honour would know what, in those circumstances, she would have done.

136 Further, it would seem that if this Court were contemplating an ICO it would be preferable for a current assessment to be available, particularly because s 67 of the Crimes (Sentencing Procedure) Act makes suitability for such an order a precondition to its issue.

137 In those circumstances, and because I understand this judgment would then be issued in dissent, I would otherwise have allowed the appeal, set aside the sentence and remitted the matter to her Honour to deal with the sentence in accordance with law pursuant to s 12(2) of the Criminal Appeal Act. I note, however, that parole is to commence in two months and it is unlikely that such an order would provide the applicant with any advantage, and therefore would agree that no order giving effect to this ground be made.

Ground 3: Failure to take into account the possibility that Charge could have been dealt with in the Local Court

138 I agree that this ground of appeal should fail. With respect to Johnson J, I agree with his analysis at [84] to [94]. I also agree with the conclusions and comments at [95] to [102]. Further, I would adopt and apply the comments of his Honour (with whom McClellan CJ and Adams J agreed) in R v Gent at [84] et seq, recited at [102] infra.

139 It will be rare for this Court to grant an appeal based on a ground such as this. In R v Abboud [2005] NSWCCA 251 at [42] to [43] (with the concurrence of Grove and Howie JJ) I said:

"It was suggested to his Honour below that his Honour was entitled to take into account that the matter before him could have been taken in the Local Court and his Honour took that into account. ...

It is not absolutely clear how it was that his Honour took that into account. It is even less clear that it is even appropriate to take it into account at all. Unless it can be said that the election by the prosecuting authority was inappropriate or unreasonable, the matter is before the District Court and must be dealt with in accordance with the sentencing principles otherwise applicable."

140 The general approach was reiterated by me in Stanford v Regina [2007] NSWCCA 73 (McClellan CJ at CL and Hulme J agreeing) at [50] in which I said:

"A court may have regard on sentence, in a matter dealt with by the court on indictment, to the fact that the matter could have been dealt with by way of summary disposal: R v Sandford (1994) 72 A Crim R 160 at 195. The obverse is also true; a court may choose, for good reason, not to have regard to that fact. In this instance the prosecuting authority chose to have the matter dealt with in the District Court. The exercise of that power was correct and cannot be the subject of criticism. So much is conceded by the applicant. The criminality of the offence in question was too serious to be dealt with by the Local Court. In those circumstances, the sentencing judge is required to deal with the matter in accordance with ordinary principle. The sentencing judge is required to have regard to any standard non-parole period, the maximum sentence that may be imposed and the general principles applicable either under the common law or statute to the fixing of the sentence. The jurisdictional limit for a sentence, if the matter were to have been processed in the Local Court, is not a constraining element (or any element) in those circumstances: R v Crombie [1999] NSWCCA 297 at [14]-[16]; R v El Masri [2005] NSWCCA 167 at [29], [30]. This ground of appeal fails."

141 I do not understand anything said by Adams J in Kean v R as inconsistent with the foregoing. Adams J does not, in fact, find that the charges were dealt with in the District Court as a matter of "administrative convenience". His Honour expressed the view that it was not clear why the counts were dealt with in the District Court and commented on the approach to be taken "if the matter" were dealt in that way for that reason. Unfortunately, as pointed out by Johnson J, the "catchwords" of the published reasons seem to refer to such a finding. I agree with Johnson J that "administrative convenience", simpliciter, is not a valid basis for a charge to be dealt with on indictment, which can be effected only on one of the bases prescribed by the statute.

142 This factor (namely, that the charge could have been dealt with summarily) is not a mandatory consideration in sentencing. It may, from time to time, be relevant. Non-consideration of the factor may in some case be an error of principle, but that will occur rarely. I do not need otherwise to restrain or restrict the matters to which a sentencing judge may have regard, nor comment on whether "exceptional circumstances" are necessary for an appeal to succeed on this ground. In this case, the ground must fail.

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Decision last updated: 30 March 2012