Criminal law: December 2024

BAP v R [2024] NSWCCA 206

Sentencing – discounts – ‘super’ call-over

In this decision the Court of Criminal Appeal (‘CCA’) has endorsed the proposition that a plea at a ‘super call-over’ may, in appropriate cases, attract a discount which is additional to the discount for the plea of guilty.

The applicant was sentenced in the District Court for three child sexual assault offences, with three more taken into account on a Form 1. The charges related to conduct when the applicant was variously aged 17, 21-22, and almost 24 years old.

He pleaded guilty at a ‘super call-over’, which is an innovation of the District Court in which, during a one to two week call-over, the Court lists all State (and some Commonwealth) matters which have a trial date in the next several months. The Crown allocates significant resources and senior staff to the cause of identifying any alternative pleas that can be offered, an individual judge is allocated to hear the matters, and the defence lawyers are all directed to attend (typically in person) to discuss the matter with the Crown and their client (who is typically also in person). Usually the judge conducting the call-over will also be the sentencing judge. The aim is to reduce the number of trials and, at least to that extent, there is an obvious benefit to the Court system as well as the accused and the community.

In the present case, the sentencing judge afforded the applicant a 10 per cent discount for his plea of guilty. He was sentenced to 10 years, with a non-parole period of 6 years. He appealed on grounds including that the judge failed to consider section 22A of the Crimes (Sentencing Procedure) Act 1999 (which provides a discretion to reduce a penalty in indictable matters where there has been a facilitation of the administration of justice by the offender). The appeal was brought notwithstanding no submission had been made on the applicant’s behalf that, because the plea was entered at a super call-over, the applicant had facilitated the course of justice in some way beyond the utilitarian value of the guilty plea, such as to warrant an additional benefit or discount.

The Court (Yehia J, with whom Wright and Cavanagh JJ agreed) observed that ‘super call-overs’ are a highly effective way of managing the high volume of work in the District Court by reducing the matters that proceed to trial. That requires engagement from both prosecution and defence. In a particular case, the resolution of a matter may demonstrate an accused person’s facilitation of the administration of justice, over and above the utilitarian value of the plea. Each case must be decided upon its own facts and circumstances (at [61]).

In the present case, however, no such submission was raised in the District Court, and no additional factors were identified on the appeal which would lead to the conclusion that there was facilitation of the administration of justice beyond the utilitarian value of the plea and remorse (at [62]). This particular ground was duly refused, but the appeal was allowed on other grounds (not discussed here), and the applicant was resentenced to 7 years and 6 months, with a non-parole period of 4 years and 6 months.

Since it seems likely that super call-overs will continue for the foreseeable future, practitioners should consider whether in a given case the facilitation of justice may warrant an additional discount – noting also that the possibility of such an additional discount may offer some incentive for the plea in the first place.

Vamadevan v The King [2024] NSWCCA 223

Sentencing – intensive correction orders – federal offenders

In a decision that creates a crisp distinction between offenders committing federal offences as distinct from NSW State-based offences, the CCA held that, whilst Intensive Correction Orders (‘ICOs’) are available for federal offenders, section 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply. For those offenders, community safety will not be the ‘paramount consideration’.

The applicant pleaded guilty to a variety of Commonwealth offences relating to phone calls in which he made degrading sexual comments to 46 victims over a period of a little more than four years. He also occasionally threatened violence and made comments about the victims’ children. At sentence in the District Court, he urged the sentencing judge to impose an ICO, but was instead sentenced to 2 years full-time imprisonment, with a recognizance release order enabling his release after 1 year and 3 months. He appealed on grounds relating to the asserted failure of the judge to correctly apply the law as it applies to ICOs in federal matters. The Crown conceded two of the appeal grounds; a concession the CCA accepted. In resentencing the applicant, the CCA – who had sat a five-judge bench for the occasion (Bell CJ, Payne JA, N Adams, Chen, and Rigg JJ) – produced a unanimous judgment correcting the law.

The High Court in Stanley v Director of Public Prosecutions (NSW) (2023) 296 ALJR 107 set out the three-step process that a court must undertake in arriving at a final order of imprisonment:

1. first, ‘a determination that the threshold in s 5(1) … is met’. That is, a determination that no sentence other than a sentence of imprisonment is available;
2. secondly, a ‘determination of the appropriate term of the sentence of imprisonment’; and
3. thirdly, ‘where the issue arises, consideration of whether or not to make an ICO’. (at [59] of Stanley; at [9] of the present decision).

In a given case, an ICO might not be available because of the length of the sentence, or because of the particular offence in issue. Assuming the power to make an ICO is enlivened, the sentencing court must then address the requirements in the Crimes (Sentencing Procedure) Act 1999  (‘the NSW Sentencing Act’) relevant to the imposition of such an order (at [66] of Stanley; [12] of the present decision).

Section 66 of the NSW Sentencing Act requires, amongst other things, that the court must make community safety the ‘paramount consideration’. That is, the NSW parliament ‘subordinated’ other factors to that consideration, so that community safety will usually have a decisive effect on the decision to make or refuse an ICO, unless the evidence is inconclusive (Stanley at [73] and [76], this decision at [16]).

However, when a NSW court makes an ICO in relation to a federal offender, as permitted under s 20AB of the Crimes Act 1914 (Cth) (‘Commonwealth Crimes Act’), the order is made under s 20AB(1) itself and not under the NSW Sentencing Act (at [19]). Critically, when determining whether to make an order under s 20AB(1), s 16A of the Commonwealth Crimes Act governs the making of that order (at [20]). That section sets out a range of matters to which a court is to have regard when passing a federal sentence. Other High Court authority holds that all those factors are to be taken into account, and that conclusion is inconsistent with the command in s 66 of the NSW Sentencing Act to give community safety paramount importance (at [22]-[24]). It is not possible to reconcile the application of s 16A of the Commonwealth Crimes Act with s 66 of the NSW Sentencing Act (at [26] and [51]).

The Commonwealth parliament plainly did not intend that all state and territory provisions which govern the exercise of a power to impose a particular type of sentencing order are to be applied in federal sentencing (at [44]).

It follows from that (and other analysis not mentioned in this summary) that the NSW ICO regime is available to be applied to a federal offender, but s 66 of the NSW Sentencing Act does not apply in considering whether or not to impose an ICO upon a federal offender (at [56]).

The steps a court must undertake before imposing an ICO on a federal offender are:

1. first, the sentencing court must be satisfied ‘after having considered all other available sentences’ that ‘no other sentence is appropriate in all the circumstances of the case’ other than a sentence of imprisonment (s 17A(1)).
2. secondly, the sentencing judge must ‘impose a sentence … that is of a severity appropriate in all the circumstances of the offence’ (s 16A(1)).
3. thirdly, if none of the disentitling provisions contained in the NSW Sentencing Act (including the identified provisions of the Crimes Act and the Criminal Code) apply, then the sentencing court may consider whether or not to impose an ICO. In doing so, the sentencing judge is obliged to consider the matters in s 16A of the Commonwealth Crimes Act and not s 66 of the NSW Sentencing Act. The sentencing court must, ‘in addition to any other matters’, take into account such of the matters in s 16A(2) of the Commonwealth Crimes Act ‘as are relevant and known to the court’ (at [57]).

This means that federal offenders are treated differently from offenders committing a NSW-based offence. But that is only because s 66 of the NSW Sentencing Act distorts equality of treatment amongst federal offenders in a potentially significant way, since offenders sentenced in NSW would be sentenced in accordance with ‘paramount’ considerations that would not be applicable if they were sentenced in other states (at [58]). There were three earlier decisions of the NSW CCA in which the Court came to a different conclusion on the topic of reconciling s 66 with the federal sentencing regime; those decisions were wrong (at [60]-[61]).

For a variety of reasons which are not presently important, the applicant’s victory on two (conceded) grounds was, however, pyrrhic: no lesser sentence was warranted in law and so the appeal was dismissed.

Thomas Spohr is a barrister at Samuel Griffith Chambers.