Park v The Queen [2021] HCATrans 140 (2 September 2021)

Last Updated: 2 September 2021

[2021] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S61 of 2021

B e t w e e n -

JONG HAN PARK

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
GAGELER J
KEANE J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON THURSDAY, 2 SEPTEMBER 2021, AT 10.00 AM

Copyright in the High Court of Australia
KIEFEL CJ: The record will show that Justices Keane, Edelman and I are sitting in Brisbane, and Justices Gageler and Gleeson in Sydney, and in accordance with the protocol for remote hearing, I will announce the appearances of the parties.

MS B.J. RIGG, SC appears with MS J.S. PAINGAKULAM for the appellant. (instructed by Legal Aid NSW)

MR H. BAKER, SC appears with MS B.K. BAKER and MS K.M. JEFFREYS for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

KIEFEL CJ: Yes, Ms Rigg.

MS RIGG: May it please the Court. The construction of section 22(1) of the Crimes (Sentencing Procedure) Act preferred by Justice Fullerton in dissent in the court below adopts a plain and natural meaning of words which are unambiguous. The literal meaning, in our submission, serves the purpose of encouraging guilty pleas and the majority construction does not.

In our submission, there is no warrant for moving beyond the literal meaning of the words to ensure that sentences are not imposed which are unreasonably disproportionate to the nature and circumstances of offences because the provision of a discount of this kind is discretionary, although strongly encouraged and guided by the guideline judgment of Thomson and Houlton and because there is an express requirement in the section itself to not impose a lesser penalty because of the guilty plea if this would result in such a sentence.

There are submitted to be three bodies of sentencing principle which interact and/or have a contextual bearing on the correct construction of the phrase that it would otherwise have imposed in section 22(1). The first is the well‑established role of a maximum penalty as a yardstick in sentencing and our submissions at paragraph 37 have cited a number of the decisions of this Court since Markarian touching upon that issue.

Generally, factors that are relevant to sentencing and may be called mitigating, such as remorse or good prospects of rehabilitation or a background of disadvantage which has contributed to the commission of offence, are taken into account in an instinctively synthesised way with all other circumstances of the offence and offender to permit comparison with a maximum penalty.

Such factors enable consideration of the purposes of sentencing in individual case by reference to a figure which is used to determine the type of sentence to be imposed and, if it is to be custodial, to determine a measure of time that reflects those multifarious factors.

A reduction in sentence to reflect the objective utility of a guilty plea bears no useful direct relationship or comparison with the maximum penalty, and it is not synthesised with those other factors. It serves no purpose in the sentencing process other than to encourage guilty pleas, to improve efficiency in the criminal justice system and save resources, and that is why it is described by Justice McHugh in Markarian as a non‑sentencing purpose. The section, especially as encouraged to be applied by the guideline judgment in Thomson and Houlton, is a conscious legislative qualification to the instinctive synthesis process of sentencing.

Turning then to the second relevant body of principle, it is that which derives from the guideline judgment in Thomson and Houlton. This decision is one which is very important to understanding section 22 of the Crimes (Sentencing Procedure) Act because of the depth of analysis provided in it as to the history and purpose of the section, and the guidance provided for courts from that point on in dealing with offenders who have pleaded guilty.

Just as the section itself applied to offences dealt with summarily and on indictment, the guideline was applicable to courts dealing with State matters summarily and on indictment. Although some of the studies referred to were particular to the District Court, the experience of magistrates was also referred to, and it was stated specifically that the scepticism referred to in the District Court studies extended beyond that jurisdiction to the other jurisdictions to which the guideline was to apply.

I do propose to take your Honours, if it is suitable, to some aspects of the guideline judgment, and it appears - the first part of the judgment to which I was proposing to take your Honours appears at page 447 of the joint book of authorities.

In essence, the Chief Justice set out a detailed consideration of the preference for the instinctive synthesis method of sentencing and the qualification to this that would be involved if a guideline was issued encouraging judges to state the amount of discount provided for a guilty plea and laying down an appropriate percentage or range. His Honour dealt with that at paragraph 54 onwards. At paragraph 55 – this is at page 396 of the law report which is at page 447 of the joint book of authorities. His Honour said:

Each of these two aspects of the proposed guideline judgment would, if adopted, constitute qualifications on the approach to sentencing which has generally found favour in Australia, to the effect that it is undesirable to separately quantify any of the multifarious elements involved in the process of determining a final sentence (subject of course to express statutory provision). This Court has always recognised that the purposes of punishment include a wide range of incommensurable, and sometimes conflicting, objectives – deterrence, retribution, rehabilitation, and public condemnation – which must be brought together by a sentencing judge in what the Full Court of the Supreme Court of Victoria has aptly described as an “instinctive synthesis” –

Although Thomson and Houlton was decided prior to the cases that are cited in paragraph 37 of our submissions from Markarian onwards, it is completely consistent with that line of authority which has confirmed and explained the instinctive synthesis process of sentencing.

His Honour held that although this was the correct method of sentencing it did not:

mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined.

That is at paragraph 57. His Honour held that statutes:

may require a court to expressly indicate what sentence it would have imposed if certain events did not, or do not, occur.

Reference was made by his Honour to section 21E of the Crimes Act (Cth) which required a court to:

specify the sentence that would have been imposed if the offender had not undertaken to co‑operate with the authorities.

That is at paragraph 58. We note that section 23(4)(b) of the Crimes (Sentencing Procedure) Act (NSW), which is in the joint book of authorities, Part A at page 33, which deals with reduced sentences for assistance to authorities, similarly contains a requirement that the court:

state the penalty that it would otherwise have imposed –

The requirement for absolute clarity of the sentence that would have been imposed has particular necessity in sentences reduced for assistance to authorities because of powers to reconsider those sentences if promised assistance is not forthcoming and the absence of such a specific requirement in section 22 is not important.

What we submit is important is that such a requirement in those similar legislative provisions that also relate to advancing systemic goals supports the legitimacy of adopting as an exception to the instinctive synthesis method of sentencing a very particular and discrete reason for reduction of sentence which requires transparency in demonstration of a quantified benefit or demonstration of what the movement has been from what the sentence would have been in the absence of the factor to the sentence actually to be imposed.

The judgment in Thomson and Houlton sets out in detail the problem that the legislation – which had been in force since 1992 – was seemingly not being applied as intended and, in particular, if I could take your Honours to paragraph 112, which is on page 462 of the joint book of authorities. His Honour referred because of the existence of that problem to the need:

to ensure that offenders, and those who advise them, will know that in this State a discount for a plea is in fact given on a systematic basis and that the earlier the plea, the greater the benefit.

In Thomson and Houlton, the Crown had sought a guideline relating to all aspects of the guilty plea including remorse, whereas the public defender and defence counsel representing the respondents had sought the guideline to be limited to the utilitarian benefits of the plea, and the Chief Justice set out, commencing at paragraph 114 and 115, the:

force in the proposition that the combination of utilitarian elements with –

other aspects such as remorse, was problematic, and it was for that reason that his Honour determined to focus, in this guideline judgment, on the objective utility of the guilty plea to the administration of criminal justice. His Honour continued, in the paragraphs that followed, to explain the qualitative difference between the utilitarian value of a guilty plea, and other issues that may relate to a guilty plea in an individual case such as remorse or concern for witnesses, and the quantitative guideline thus focused on the utilitarian advantage derived by the criminal justice system. His Honour at one stage had indicated that this would not prevent a judge – this is at paragraph 113 ,if:

she or he thinks it appropriate to do so, to take another course, including quantifying a discount for all aspects of a plea.

But subsequent authority has discouraged, in New South Wales, quantification of aspects of a plea other than its utilitarian value, and that is certainly what the focus of the guideline judgment was upon. At paragraph 135 his Honour held that – this is at page 466:

the significant public interests served by encouraging early pleas are such as to justify this Court indicating to the participants in the criminal justice system the extent to which benefits will accrue for an early plea, particularly from the perspective of the utilitarian considerations.

Your Honours, in our submission the construction of section 22 advanced by the appellant is acknowledged to be a narrow and literal one, which is the description of it articulated by Justice Hulme in the court below, but the majority and minority constructions are both narrow, and Thompson and Houlton demonstrates why a narrow construction is required and that is because reduction is quantified and because, if a discount is to be provided, it is to be provided in an arithmetically transparent way. A specific discount is applied to a specific figure.

In our submission, a discount pursuant to section 22 only has a relationship with a sentence that would actually have been imposed had the offender not pleaded guilty, because it serves no purpose other than proving a visible reward in an individual case to encourage others to do the same.

It is submitted that the majority construction does not support this purpose, and the suggested advice in the respondent’s submissions that might be provided to an accused person - this is at paragraph 37 of the response - pleading guilty is submitted to be unrealistic. An accused person does not need to know, having an indictable offence dealt with summarily, that:

the sentence imposed will be at least 25 per cent less than the sentence that would have been considered appropriate -

if there was no plea and no jurisdictional limit. They need to be advised that they can generally expect to receive a lesser sentence if they plead guilty than if they do not, in the order of about 25 per cent if it is early, although it is possible that the judge or magistrate may regard the case as so serious that this discount for pleading guilty will not be provided, or not provided to that extent.

KIEFEL CJ: Ms Rigg, of course, a client who is an accused person would be told that if they plead guilty the matter would be dealt with in the Local Court at a lower jurisdictional level, and that that is of benefit to them, would they not?

MS RIGG: Yes, that is right, your Honour, if there is not an election being made by the prosecutor or by the accused person.

KIEFEL CJ: Yes, so that would be put forward as the benefit which would accrue under the regime which has been in place since Doan. That would be the only benefit, as you would see it, to accrue to them.

MS RIGG: In our submission, the benefit of the discount under section 22 should still accrue as well. The choice of jurisdiction that is made, generally by the prosecuting authorities, is made for a range of reasons, one consideration being the jurisdiction available to the Local Court, and the comparative seriousness of the particular case and circumstances of the offender, although not all of those circumstances can be known in advance until evidence and submissions is put forward.

EDELMAN J: Ms Rigg, do you accept that, putting aside the specific factor of pleas of guilty, that it is open or appropriate for, say, a magistrate in sentencing to commence consideration of what the sentence, or the range of possible sentences might be, at a point which is above the jurisdictional limit?

MS RIGG: Yes, yes, your Honour.

EDELMAN J: So, your submission is effectively that a provision such as section 22 or its predecessors effected a change to that basic sentencing principle?

MS RIGG: If it existed prior to the enactment in 1992, if that general sentencing principle existed prior to that, then yes, it is a legislative change to that, your Honour.

EDELMAN J: Well, the principles are stated pretty clearly in the Court of Criminal Appeal decision in Doyle (1987) 30 A Crim R 1, in the judgment of Justice Shepherdson at page 3, and there are other authorities that are referred to by the respondent which predate 1990.

MS RIGG: Yes. The appellant accepts as correct the principle that is articulated in 2000 in Doan, which draws back reference to some of those early authorities. Our submission is that, as Justice Fullerton decided, that case does not deal with the question that is currently before the Court, that is, when the court applies a discount that is to be provided for the utilitarian value of the plea.

EDELMAN J: But what your submission does do is it means it replaces that general sentencing principle with a new sentencing principle that requires a starting point not of a maximum sentence or of an upper point in the range of possible sentences, but a starting point being a jurisdictional limit.

MS RIGG: Our suggested starting point for the application of the discount is the sentence that the court would otherwise have imposed, and in a case where the court has taken the maximum penalty into account, in the instinctive synthesis process, and arrived at a sentence or a figure beyond the jurisdictional limit as the one that is appropriate, taking that process into account, then it would be the jurisdictional limit to which the discount is applied.

But the maximum penalty still has that fundamental role, in our submission, of commencing and providing the yardstick for the instinctive synthesis of all the relevant factors of the offence and offender that are taken into account, but not the very specific section 22 discount which is purely for the utility of the guilty plea.

GLEESON J: Ms Rigg, is the approach to sentencing that you are describing in some way reflected in the sentencing procedures statute in the order of the provisions? It seems - this might be an oversimplification, but as I am reading the statute, section 21A identifies the aggravating, mitigating and other factors, the application of that is the instinctive synthesis. Then sections 22, 22A and 23 talk about a different exercise which is taking into account the guilty plea, the facilitation of the administration of justice and assistance to law enforcement authorities. Is that the way it works?

MS RIGG: Yes, that is right. Those three specific provisions are referred to as well in section 21A. They are referred to in subsection (3) under the heading of what is called “Mitigating factors”, at points (k), (l) and (m), but in 21A(3) they are referred then specifically to be taken into account as provided for by those other sections. It is then the terms of those other sections and the purposive construction of their introduction and the contextual understanding of how they have been applied and guidance provided in Thomson and Houlton that is important, in our submission.

GLEESON J: Well, just looking at that, (3)(k), (l) and (m) suggests that maybe I was wrong, that maybe those three factors are part of the instinctive synthesis.

MS RIGG: In our submission, they are not because they are required to be – and that is why the passages that I have taken the Court to from Thomson and Houlton are important, because the Chief Justice very specifically distinguished between factors that are relevant to the offence and the offender and are instinctively synthesised, and this other consideration of this count purely for a pragmatic social policy reason which is disconnected from anything to do really with the circumstances of the offence or the offender that would be instinctively synthesised.

Although it is not necessary to cite it, in our submission, the other two provisions are similar although assistance to authorities does incorporate more normal sentencing purposes than does a plea of guilty, the utilitarian value of a guilty plea, because a discount for assistance to authorities might include things such as harshness of custody and the like which bear more upon the circumstances of the offender than applies in relation to the section 22 discount.

EDELMAN J: Ms Rigg, can I just understand your submission that, as I understand it, for all of the mitigating factors other than a plea of guilty or perhaps assistance with authorities, the court starts with the maximum penalty as the maximum penalty reveals the range of sentences, and then discounts from that, but in relation to the plea of guilty or assistance to authorities, one starts with a lower jurisdictional limit if the jurisdictional limit is lower, and then discounts from that in relation just to those factors.

MS RIGG: Yes, your Honour, because it is a discount specifically relevant to the sentence the court would otherwise ‑ ‑ ‑

EDELMAN J: How do those two exercises go on at the same time?

MS RIGG: Sequentially, the first position is really for the judicial officer to consider all of the circumstances of the offence and the offender and relevant sentencing purposes and principle but not a discrete discount for the utility of a guilty plea in comparison with the maximum – that is, the actual statutory offence creating maximum penalty, so here five years. That assists the court in coming to work out what the sentence is that would otherwise have been imposed because if it is higher than the jurisdictional limit the court then realises that the sentence that would actually have been imposed had this very offender pleaded not guilty would have been the jurisdictional limit.

The court then exercises a discretion as to whether to discount that for the guilty plea. It is not automatic, it is a discretion to be exercised. So, for example, hypothetically in a case where a judicial officer had thought, in light of the maximum penalty and the particular circumstances of the case, that a sentence very much greater than the jurisdictional limit would have been appropriate, it may very well be a case where the judicial officer determines not to provide a 25 per cent discount for the utility of the plea or, alternatively, something in the order of 10 per cent or something less than 25 per cent to balance the competing policy objectives that the courts require to take into account in deciding whether or not a reduced penalty is unreasonably disproportionate to the nature and circumstances of the offence.

GAGELER J: Ms Rigg, is there any passage in the reasoning in Thomson that squarely addresses what it is that the 10 to 25 per cent discount is to be applied to?

MS RIGG: Your Honour, no, other than using the terms of the section. The terms of the section then in existence are quoted a number of times in the judgment but there is no specific reference to the type of consideration that applies in this case, that is, whether – there are the relevant passages that I have gone through that relate to the distinction between this discount and the instinctive synthesis of other factors.

KIEFEL CJ: At the time of Thomson and Houlton, Ms Rigg, was it already accepted that the jurisdictional limit was imposed last in the sentencing process?

MS RIGG: Well, interestingly, the decisions in the cases of Doan and Thomson and Houlton were argued and delivered almost simultaneously with one another. The decision in Thomson and Houlton was handed down six days prior to the decision in Doan, so they were both argued and decided in 2000.

KIEFEL CJ: Yes, I see that, and Chief Justice Spigelman was a member of the court in Doan.

MS RIGG: Yes, and Justice Grove was a member of the court in Thomson and Houlton as well.

KIEFEL CJ: If one takes Thomson and Houlton as relevantly stating a principle that one should deal separately with how the guilty plea is being addressed in the sentencing process, what do you say is missing in the process which took place here because the sentencing judge did identify the percentage which would have applied, all things being equal, and dealt with the jurisdictional question later, but, relevantly, did identify what discount would have been given from the sentence which would have been imposed. So that satisfies the requirements of Thomson and Houlton, does it not?

MS RIGG: In our submission, it does not because the sentence that would have been imposed had the appellant not pleaded guilty would have been two years’ imprisonment on his Honour’s reasoning. So accepting that his Honour was able to use – or was required to use the five‑year maximum penalty as the yardstick and take into account all the circumstances of the case, his Honour came to a figure of two years and eight months the court below has accepted, but that is not the sentence that would have been imposed had the appellant pleaded not guilty.

Because of the jurisdictional limit, two years would have been imposed, and that is why our submission is it is if a discount is to be provided, it needs to be provided to the sentence that actually would have been imposed, had the person pleaded not guilty.

KEANE J: Ms Rigg, you have said a couple of times, perhaps paraphrasing, but perhaps intending to state the effect of section 22, as if it were speaking of a lesser penalty that would actually have been imposed. It does not actually say that, does it? It is “than it would otherwise have imposed”. Why would not one read that as being, would otherwise have imposed in accordance with this Act?

MS RIGG: Your Honour, in our submission, it should be read the same way in relation to these particular proceedings, or proceedings where indictable matters are dealt with summarily, as for all other proceedings where one looks at, specifically, the sentence that the court would have imposed absent the guilty plea.

KEANE J: But why, as – we have been speaking, or you introduced the case by speaking about the meaning, the literal meaning of this provision. Why is not its clear meaning in its context a lesser penalty than it would otherwise have imposed in accordance with this Act? Is that not what it means?

MS RIGG: It does mean that, your Honour.

KEANE J: If you accept that, if you accept that is what it means, then our attention is confined to this Act, as was the Court’s in Thomson. Thomson was concerned to explain the effect of this Act. This Act contains principles of sentencing. That is what it is concerned with. It is not expressed to be subject to the provisions of the Criminal Procedure Act.

MS RIGG: Your Honour, however, the two Acts necessarily, in our submission, interact in working out what is the sentence that would otherwise ‑ ‑ ‑

KEANE J: The Criminal Procedure Act does not purport, in any respect, to alter the operation of this Act. It just does not.

MS RIGG: No, it is not submitted that it does, but it is submitted that the two interact, and both provisions need to be taken into account by the judicial officer exercising summary jurisdiction in respect of an indictable matter, but both need to be taken into account.

KEANE J: So, on that submission, where it says:

a lesser penalty than it would otherwise –

have imposed, it really means than it would otherwise have imposed in accordance with this Act and the Criminal Procedure Act?

MS RIGG: That is the effect of what it means in this ‑ ‑ ‑

KEANE J: You are not advancing a literal interpretation any more?

MS RIGG: The interpretation is submitted to be, or accepted to be, literal, insofar as those particular words are said to be referable to the sentence that would have been imposed otherwise by the court, as distinct from the interpretation that was given to the phrase by the majority, which moves away completely from that particular phrase.

GLEESON J: Perhaps what you are doing, looking at the reference to the court, noting that a court includes a local court, and then construing the Act as though it is referable to the Local Court which has its jurisdictional limit - perhaps that is what you are proposing?

MS RIGG: Yes, in a sentencing exercise such as this they are both relevant factors that need to be taken into account in working out what the penalty is that would otherwise have been imposed absent the guilty plea.

KIEFEL CJ: Ms Rigg, if the argument that you have taken up following the minority in the Court of Criminal Appeal, you must accept differs from how the matter has been treated for some time, and if there is a potential ambiguity in whether section 22 should be read in accordance with the Crimes (Sentencing Procedure) Act or with both it and the Criminal Procedure Act, are we in the territory, given the length of time in which the matter has been approached consistently by sentencing and intermediate appellate courts in New South Wales, where this matter really, if there is to be a change, it should be left to the Parliament to adjust?

MS RIGG: Your Honour, in our submission, no. Firstly, it is not accepted that the – the earliest clear indication of this particular sentencing process that was found to be open in the Court of Criminal Appeal in Lapa, which is a 2008 decision, being applied in local courts in this State was in June 2012 and that is in the submission of the chief magistrate of the Local Court to the New South Wales Law Reform Commission. That is included in the joint book of authorities.

KIEFEL CJ: Yes, but I am sorry, Lapa itself was decided in 2008 and has never been doubted, has it?

MS RIGG: Well, in our submission, there is simply no reference to it ever being applied, other than one Western Australian case of Wiltshire v Mafi which refers to it.

EDELMAN J: Ms Rigg, Wiltshire v Mafi applies decisions on the same type of provision in Western Australia deriving back to 1993. The Court of Appeal refers to a long line of decisions starting from 1993 and identifies two anomalous decisions which went the other way and said that those decisions are plainly wrong.

MS RIGG: Yes, your Honour, but the statutory framework in Western Australia, so section 8 of the relevant sentencing legislation there, has been interpreted in Western Australia to require considerations of remorse and recognition – acceptance of responsibility and willingness to facilitate the course of justice as the relevant considerations. The section has not isolated out the objective utility of a guilty plea in the same way as has occurred in Thomson and Houlton.

As Chief Justice Spigelman said in Thomson and Houlton, after reviewing differences and - some similarities and some differences between the States, his Honour stated that the States are well entitled to pursue social policy objectives in slightly different ways, and New South Wales had clearly legislatively indicated an intention to pursue the social policy of people pleading guilty strictly for the utilitarian value. So, in our submission ‑ ‑ ‑

EDELMAN J: Could you just remind me of the terms of section 8, because in applying Lapa, the Court of Criminal Appeal in Western Australia obviously did not seem to think that there was a significant difference, but what aspects of section 8 are different from New South Wales?

MS RIGG: Your Honour, there are two factors, so far as we are aware. The first is that there was, at the time, as I understand in section 7 of the Western Australian legislation, an express prohibition against taking a failure to plead guilty into account as a factor of aggravation. It was really the case law applying section 8(2) at this time which indicated that the mitigating factors of the plea that it indicates remorse, shows acceptance of responsibility and a willingness to facilitate the course of justice.

In Wiltshire v Mafi, so this is at page 481 of the joint book of authorities, there is reference to the decision of Moody v French [2008] WASCA 67; (2008) 36 WAR 393, and it has been going back with cases such as that which explain how section 8(2) was taken into account in the way that I have just referred to. Section 8 of the Sentencing Act (WA) was, of course, the relevant provision that was considered by this Court in Cameron in 2002, as well.

Those three factors are described in the course of the judgments of this Court in that case, that is, as referring to the remorse, the acceptance of responsibility and willingness to facilitate the course of justice. But by contrast, the New South Wales provision is very squarely focused on the objective utility of the plea, and there was, in fact, a decision which followed from this Court’s decision in Cameron. It is not included on our list of authorities, but it is a decision of Sharma [2002] NSWCCA 142; (2002) 54 NSWLR 300, where, in light of this Court’s decisions in Wong in 2001 and Cameron in 2002, the Crown queried whether there was a need to overrule Thomson and Houlton.

Chief Justice Spigelman again presided in that case, in Sharma, and found there was no need to overrule Thomson and Houlton, and reaffirmed that there did not need to be, in New South Wales, in light of this clear legislative intent of section 22, there did not need to be subjective elements such as willingness to facilitate the course of justice. It was a strict, objective, utilitarian value as to a guilty plea that was of importance in this state.

So, in our submission, to go back to the point about Wiltshire v Mafi applying Lapa, because of the existence of some differences in the terms of the relevant legislation and the way that it is approached, the very specific way it is approached in New South Wales in light of Thomson and Houlton, that particular case is of limited assistance.

GAGELER J: Ms Rigg, could I just ask this - Lapa, I do not think, dealt with section 22 at all.

MS RIGG: No.

GAGELER J: I think there was a case in the Court of Criminal Appeal decided around the same time as the case with which we are concerned, where Justice Simpson expressed a different view.

MS RIGG: Yes, that is right, your Honour.

GAGELER J: And I cannot find it.

MS RIGG: It is Hanna, it is called Hanna. It is in the joint book of authorities at 315, and her Honour applied the decision of the majority in this case because.....obliged to do so but would come to a different view had her Honour not have been bound by the decision in this case. In fact, the same reasoning process was described by her Honour at paragraph 85, which is at 328 of the joint book of authorities, as exposing:

fundamental jurisdictional error in the sentencing process. The sentences that would have been imposed exceeded the jurisdiction of the Local Court.

So it was precisely the same process as occurred in the case with which we are concerned.

GAGELER J: Is there anything in her Honour’s reasoning that we should take into account?

MS RIGG: Her Honour in addition to the terms of section 22 considered the terms of section 53A of the Crimes (Sentencing Procedure) Act because, as here, there was an aggregate sentence imposed. Similar words are used – this is at paragraph 81 of her Honour’s judgment – her Honour at that point onwards looked at the terms of both of those provisions and her Honour at paragraph 84 additionally made this point:

It might have been otherwise had the judge considered that, to allow a reduction under s 22(1) would result in “unreasonably disproportionate” sentences as contemplated by s 22(1A) and determined that he would not therefore reduce the sentences. But the statement in the sentencing decision contradicts any proposition that that is what he did.

That relates to a similar proposition, as advanced here by the appellant, which is that a judicial officer is well able to, once determining what is the sentence that would otherwise have been imposed, decide in a given case that it would result in an unreasonably disproportionate sentence to not reduce it. But where that decision is not made it really is the sentence that would have been imposed absent the guilty plea that needs to have the discount applied to it.

GAGELER J: Just so I understand where that reasoning goes, her Honour seems to be taking the view that the same words in the two sections should be given the same meaning. Your submissions as to section 22 then possibly, probably, would feed into an analysis of section 53A, would they not?

MS RIGG: Yes, your Honour, as her Honour ‑ ‑ ‑

GAGELER J: Have you given any attention to what the consequence would be for section 53A?

MS RIGG: Not beyond that that is articulated by Justice Simpson in Hanna. That is a supportive one offered to the two provisions being reached that way.

GAGELER J: It may be a provision that has a wider application than section 22.

MS RIGG: Yes, that is right, and so it would not necessarily always need to have that factor taken into account because it is applied regularly in relation to the indictable matters that are dealt with other than in this particular way.

GAGELER J: Is it applied consistently with your submission?

MS RIGG: I am afraid I am unable to assist with that, your Honour. I do not have any submission as to whether section 53A is regularly applied in a consistent way or not so far as that phrase is concerned.

GAGELER J: It might be actually very important if we cannot distinguish the terminology in one provision from the terminology in the other. The consequence of your construction for both provisions really needs to be taken into account, I think.

MS RIGG: Yes. Your Honour, would it be suitable for a further submission restricted to that point, that is, whether there is a consistency of application in section 53A be forwarded to the Court?

KIEFEL CJ: Would you like to provide a note to the Court on that point, Ms Rigg, perhaps within five working days, and the respondent to respond within five working days.

MS RIGG: Thank you very much, your Honour. If I could return then to the question your Honour the Chief Justice asked in relation to application of Lapa, the earliest application of that case in the Local Court that has been able to be identified by the parties is the 2012 submission made by the chief magistrate to the Sentencing Council that is dated June of 2012. This is referred to at page 789 of the joint book of authorities. His Honour stated that there were at that stage two different approaches in the Local Court:

as to how a discount should be allowed in situations where the objective criminality of the offence properly requires the imposition of a penalty that exceeds the Court’s jurisdictional limit.

His Honour indicated that one identified approach was to use the jurisdictional limit as a starting point for the discount for the plea, otherwise there was no benefit or recognition in real terms, and the other approach was to allow for a guilty plea from the point assessed as suitable after consideration of the features of the offence and the offender, even if that was beyond the jurisdictional limit. His Honour cited the Court of Criminal Appeal decision in Lapa in support of the latter of those two approaches and indicated that that was his Honour’s preferred approach of the two.

Indeed, two Local Court cases which are referred to in the judgment of Justice Hulme are decisions of the chief magistrate, although they are in 2018 after the legislative intervention in 2017. So, although there is the detailed review of powers of the Local Court that has been relied upon by the respondent, there is no reference to any practice of adopting one or the other of those two approaches that the chief magistrate described as existing as at June 2012.

KIEFEL CJ: Ms Rigg, could I interrupt you just to ask, the letter that the chief magistrate wrote was to the chair of the New South Wales Law Reform Commission and I take it to the Sentencing Committee of that Commission. Is there a standing reference to the New South Wales Law Reform Commission on sentencing, or was the chief magistrate writing with respect to a particular examination of sentencing powers?

MS RIGG: Yes, he was writing in relation to a particular examination. The two New South Wales Law Reform Commission reports that are referred in in the parties’ submission, I will just get the precise names of them, if that is suitable. The earlier in time is the 2013 report which is Report 139 entitled “Sentencing”. The relevant parts of that relied upon or referred to in the parties’ submissions appears from page 708 of the joint book of authorities and it is in relation to that inquiry in relation to sentencing that the chief magistrate of the Local Court was providing that submission.

There was then the 2014 Law Reform Commission report which is encouraging appropriate early guilty pleas which is referred to – or extracts are included from page 717 of the joint book of authorities. Importantly, in our submission, in responding to the issue of whether Parliament has endorsed any particular type of practice, there is no reference to any practice of the kind that is up for discussion.

So that, in our submission, is important in working out whether any inference can be drawn at all from parliamentary inaction in relation to this issue. The only reference that the parties have been able to locate is one reference in the chief magistrate’s submission to the Law Reform Commission for one of those, and it was not replicated then in the report itself, that is, his Honour’s reference to these two approaches being taken in the Local Court.

KIEFEL CJ: The report itself did not identify a difficulty created by the case law?

MS RIGG: No, the Law Reform Commission report did not refer to any difficulty, it did not refer to either of those two practices in any terms at all.

KIEFEL CJ: And did not refer to Lapa?

MS RIGG: There was a footnoted reference to Lapa in one of the reports, where Doan was quoted. It is the sentencing – at page 570, your Honours, of the joint book of authorities, this is the 2010 Sentencing Council report which looks at the jurisdiction of the Local Court. There is a footnote, which is footnote 14, which refers to Lapa. So, after quoting from parts of the decision of the Court of Criminal Appeal in Doan, there is a footnote that says:

See also Lapa v The Queen [2008] NSWCCA 331, [15] [17], in which the NSW Court of Criminal Appeal held that it was open to the Drug Court to determine a starting point of sentence greater than its jurisdictional limit of two years, even though the maximum sentence that could ultimately be imposed was two years.

Even in relation to that footnote, there was no explanation that this related to discounts for the utilitarian value of guilty pleas, and there was nothing otherwise in the report suggesting that this approach should be, or ever had been, applied in the Local Court. There was just no mention of any such sentencing practice.

In the two Law Reform Commission reports, that is the 2013 and the 2014 reports, there was no reference to Lapa at all, other than in that submission that was made by the chief magistrate, which has not been replicated or referred to in the court.

KIEFEL CJ: Yes, thank you.

MS RIGG: Thank you, your Honour.

EDELMAN J: Ms Rigg, just in relation to other jurisdictions then, as I understand your submission is that the reason why “it would otherwise have imposed” is interpreted differently from the way you would interpret it in relation to the New South Wales provision, in Western Australia, South Australia and Queensland, is because in none of those States is the guilty plea confined to utilitarian considerations. It includes other matters such as remorse and so on.

MS RIGG: Yes, your Honour. That is, in our submission, an important distinction.

EDELMAN J: So the words “would otherwise have imposed” have a different meaning if the guilty plea has broader purposes?

MS RIGG: That may well be right, yes. It is particularly because of the strict focus on the objective utility of the plea that, in our submission, it requires attention to be drawn to the sentence that would actually have been imposed absent that plea.

A similar issue was taken up by the Court of Criminal Appeal in the case of Borkowski. This is in the joint book of authorities at 278 and following. It was an indictable matter dealt with on indictment, so the particular issue that arises in this case does not apply, but it is a case which emphasises, again, that what is required in relation to section 22 is to really work out the sentence that would actually have been imposed absent the guilty plea, and in particular, parts of the judgment of Justice Howie at page 288 of the joint book of authorities are important. We have referred to aspects of that in the submissions.

So, his Honour was critical of the sentencing judge referring to remorse as warranting a discount, because remorse is something that is not a discount. The section 22 discount for the utility of the plea is a discount, whereas remorse is something that is just taken into account in working out what the otherwise appropriate sentence would be. In particular, paragraph 33 bears out that proposition, your Honours.

Your Honours, I was proposing earlier to just refer, in a little more detail, to the decision of the Court of Criminal Appeal in Doan, because it has received prominence in the respondent’s submissions and in the majority judgment. The Chief Justice in this case indicated at paragraph 23 that Doan was not a case involving a plea. It actually was, but the plea was not important, and the discount for the utilitarian value of the plea was not important at all in what was actually decided in Doan, and the appellant relies upon the determination by Justice Fullerton in this case at paragraphs 100 and 132, that Doan was not determinative of this case, and was deciding a different issue.

Doan was a case, your Honours, where the appellant made a complaint of disparity in relation to a co‑offender dealt with summarily for identical offences, they being indictable offences capable of being dealt with summarily, and they were essentially stealing and escape offences, which carried 10‑year imprisonment maximum penalties, and whereas Mr Doan was sentenced to two years imprisonment for escape and 18 months for a number of assaults, his co‑offender was given six‑month sentences for escape and assault, and a 12‑month sentence for the stealing.

The sentencing judge who sentenced Mr Doan found the cases of the two men essentially indistinguishable, but the sentences imposed on the co‑offender, Mr Papadatos, were manifestly inadequate, and the sentencing judge indicated that he proposed to sentence Mr Doan at the bottom of the available range to reflect that situation. Mr Doan’s appeal was upheld on the basis that the sentencing judge had failed to consider the loss of a chance that the matters might have been dealt with in the jurisdictionally limited Local Court and also on a failure to achieve the aim of sentencing towards the bottom of the available range.

In the course of dealing with the complaint of disparity, and this appears, your Honours, at paragraph 13 of the judgment, which is page 119 of the law reports, or 307 of the joint book of authorities, in the course of dealing with the complaint of disparity and with the grounds regarding failure to take into account the matters which were found to have been inadequately taken into account, it arose for determination whether the sentencing judge was correct in assessing the sentences imposed upon the co‑offender as manifestly inadequate, and the Court of Criminal Appeal thought the sentencing judge was correct to do so.

Even in resentencing Mr Doan, sentences of imprisonment in the order of 16 months, nine months, and six months were imposed, and the co‑offender’s sentences were well below the jurisdictional limit, and even for Mr Doan, where there was no jurisdictional limit, in resentencing, the sentences were sufficiently below the jurisdictional figure of two years that, even if the starting point prior to discount for plea had been articulated, it would have been below two years.

So the principle that arises in this case just did not arise in Doan, but the matter of principle which did arise was set at paragraph 24 of the judgment. So, the submission was advanced that upon a true construction the words of the Criminal Procedure Act limiting the term of imprisonment able to be imposed in the Local Court to two years:

were not merely jurisdictional but performed the same function as the specification of a maximum penalty in a statute –

The central issue was described as:

whether the statutory provision of a maximum available penalty of two years in s 27(2) of the Criminal Procedure Act has the effect of making a higher prescribed statutory maximum for a particular offence irrelevant to a sentence determination by a magistrate exercising the jurisdiction of the Local Court.

It was this issue that Justice Grove determined adversely to the appellant’s contention that 10 years was an irrelevant figure and two years was the true maximum penalty reserved for the worst case, and inferentially that the co‑offender Mr Papadatos’ sentences were not manifestly inadequate when six months was compared against that maximum of two years reserved for a worst case.

It is in that setting that the court determined that the true construction of the relevant provisions of the Criminal Procedure Act was that what had been prescribed was a jurisdictional limit and not a maximum penalty. In our submission, that is what was decided by the Court of Criminal Appeal in Doan. The individual appeal was upheld, and the central issue of principle decided was that it was the maximum penalties of 10 years’ imprisonment set by the offence‑creating provisions which carries the role of the maximum penalty, not the jurisdictional limit of two years.

In the course of articulating the decision, Justice Grove did say at paragraph 35:

In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit.

In our submission, that one sentence does not indicate that the ratio of the case was anything more broad reaching than we have articulated, which is explaining that it is the offence‑creating maximum which takes the role of a maximum penalty, not the jurisdictional limit.

That one sentence, in our submission, was just a less formal way of explaining the determination that the figure used for the role of the maximum penalty was 10 years, not two years. It might be expressed slightly differently now to the effect that the central component of sentencing of using a maximum penalty as a comparison to all the circumstances of the offence and the offender and taking into account the purpose of sentencing, relevant sentencing principle, and an understanding of comparable cases would be done as against 10 years, not two years.

In our submission, the sentence was clearly not intended to be a binding analysis of whether there are any steps at all whatsoever in the sentencing process aside from that central task of comparing the offence and offender as they relate to the purpose of sentencing to a maximum penalty. His Honour did not mention at all how or when any discount for the objective utility of the guilty plea is taken into account and did not need to do so in that particular case.

In our submission.....understanding what was actually decided in Doan is important insofar as it is referred to in the judgment of Justice Hulme in the court below as longstanding authority. In our submission, it is but that is as to the central issue of the role of the maximum penalty to be filled by the offence‑creating provision, not a procedural jurisdictional limit.

So, in the appellant’s submission the respondent has really begged the question a number of times in the respondent’s submissions, such as at paragraphs 21 and 24 and 25, in contending that we are seeking that established principle not be applied or be departed from. The parties simply have different submissions as to how the principle articulated in Doan is to be applied and, in our submission, it is to be applied, as we went through earlier, which is that the maximum penalty is the one figure that is taken into account for the purposes of the instinctive synthesis process, but then the jurisdictional limit is what needs to be taken into account as well in working out what the sentence is that would have been imposed before deciding whether to apply a discount for the plea of guilty.

EDELMAN J: Ms Rigg, does the process then work something like this, that suppose you have a maximum penalty as in Doan of 10 years and a jurisdictional limit of, say, two years. The sentencing judge would start out, work out the range of sentences, supposing the starting point for the particular offence is six years, and then discount it having regard to all the mitigating factors to, say, four years, then stop that process and start again having regard to the plea of guilty at the two‑year jurisdictional limit and then discount that for the plea of guilty. Is that the way it would work?

MS RIGG: In our submission, no, because the first part of that is not a matter of finding a sentence appropriate for something such as the objective circumstances of the offence and then discounting it. The only concept requiring discounting is for the utility of the guilty plea. So a court might, for example, taking into account all the circumstances of the offence and the offender as against the maximum of 10 years, and principles of sentence and purposes of sentencing, find the figure of four years appropriate. But then it is the two years - because that would not have been imposed- it is two years to which consideration is given as to whether a discount for the utilitarian value of the plea.

EDELMAN J: So the exercise of working out what the appropriate penalty is, is entirely redundant if that appropriate penalty is more than the jurisdictional limit. One just then at the second stage goes to the jurisdictional limit and discounts for any appropriate amount for the plea of guilty.

MS RIGG: It is not redundant, in our submission, because the court retains a discretion as to whether to apply the discount for the utility of the guilty plea and the court is expressly prohibited from reducing it if it would result in a sentence which is unreasonably disproportionate to the nature and circumstances of the offending.

So a court which has thought that a sentence significantly higher than the jurisdictional limit would be appropriate, but for the jurisdictional limit and a guilty plea may very well determine not to apply such a discount. So, it is in that sense not redundant. It is the same process as if the person had pleaded not guilty, just the jurisdictional limit marks the boundary of what the sentence would be if the person pleaded not guilty and the court then just determines, taking into account all the relevant circumstances and the policy objective behind the Act, whether to discount it for the utility of the guilty plea.

GAGELER J: Ms Rigg, may I ask you a question about your submission concerning Lapa.

MS RIGG: Yes.

GAGELER J: Was it a case that concerned the application of section 22, even though section 22 is not mentioned in terms in the judgment?

MS RIGG: Yes, it did, your Honour.

GAGELER J: What do you mean by the sentence in paragraph 5 of your reply where you just say:

The decision in Lapa stood in 2008 only for the proposition that it was open to the judge to take the course taken in that case.

Are you saying that for some reason the decision is confined to its own facts? Is that what you are saying?

MS RIGG: No, that is not the submission that is made. However, that submission is made in relation to the respondent’s suggestion of drawing inferences of statutory construction from later parliamentary inaction in relation to Local Court provisions. Where Lapa was not articulated as authority that set out the correct or only approach to be undertaken, but rather simply that it was open to the judge to have done so in that case, the respondent really should be able to point to clearer indications that it has that there was ever any subsequent following of Lapa by other courts, and it is in that ‑ ‑ ‑

GAGELER J: So the consequence of your submission is that Lapa was wrongly decided, is it not?

MS RIGG: Yes, that is right, your Honour, but in circumstances where the court – as Justice Fullerton said in this case, there was no consideration given in the course of the judgment to the terms of section 22 and, as we have also said, that the terms of the section were not considered, the policy of the section was not considered; all the relevant factors that are set out in the guideline judgment were not considered at all.

There was a passing reference to Thomson and Houlton, only to explain what was meant by “before discount”, so that means 25 per cent. The very important policy issues set out in that judgment, and the guidance given to the Court, was not articulated in Lapa. What was done was – it was found that by parity of reasoning with Doan, this section 22 discount could be taken into account prior to the application of the jurisdictional limit, and that is why the particular issue in Doan is submitted to be important, because, in our submission, there is not parity of reasoning to treat the discount for the utility of a guilty plea, the objective utility of a guilty plea, just as though it is another subjective circumstance considered in mitigation. It is jurisprudentially different from those other considerations, in our submission.

GLEESON J: Ms Rigg, can I ask you a question about section 23(4)(b)?

MS RIGG: Yes.

GLEESON J: That requirement to state the penalty that the court would otherwise have imposed, is that intended, in your submission, to reinforce the utilitarian purpose of the imposition of a lesser penalty, or is it for a transparency purpose, or is it for some other reason?

MS RIGG: In our submission, a heightened transparency and clarity is required where the discount is for assistance to authorities, because of the ability of a court to reconsider the sentence if the assistance has not been forthcoming. Similarly, there was a provision in the Crimes Act (Cth) that I referred to earlier, that the Chief Justice noted in Thomson and Houlton as justifying the ability of legislature to require singling out of one component, which is transparently reduced.

That particular extra provision, for extra clarity, in section 23 is, in our submission, not important in its absence then in section 22. It is a particular need that is based upon the ability to resentence where someone has not given assistance that has been promised. But the terms of it do, in our submission, being a similar section related to the advancement of a systemic goal, they do support, in our submission, the construction, because the court has to specifically state the sentence that it would have imposed but for the assistance.

GLEESON J: What I am trying to understand there is, does that mean that there is something - if it is simply a transparency purpose then it would not be so odd for the Local Court to state a penalty that it would have imposed, that being a penalty that it was not able to impose because of its jurisdictional limit, whereas if the purpose of stating the penalty was to demonstrate that the offender had had the benefit of this particular provision, then it might be significant. It would be redundant unless the offender could see some difference between the maximum jurisdictional limit and the penalty, the lower penalty.

MS RIGG: Your Honour, in our submission, the court would not, in stating the penalty that it would otherwise have imposed, state a penalty that is beyond jurisdiction because - as in the argument in relation to section 22, a sentence beyond jurisdiction if this section was being applied by a court exercising summary jurisdiction is not a sentence the court would otherwise have..... The existence of that confirms, in our submission, that the court would not state a sentence beyond jurisdiction as one it would otherwise have imposed. It, in fact, reinforces the interpretation that we have advanced in relation to section 22.

KIEFEL CJ: Ms Rigg, that might be a convenient time for the Court to take its morning break.

MS RIGG: Thank you, your Honour.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

KIEFEL CJ: Yes, Ms Rigg.

MS RIGG: May it please the Court. The final point we wish to make in relation to Doan is to emphasise that the application of a quantified discount, if it is to be provided to advance a systemic goal which is disconnected from the purposes of sentencing and requires a contrast, is clearly something that cannot be done prior to the application of the jurisdictional limit, because that jurisdictional limit is a fundamental component of determining the sentence that would have been imposed had the person pleaded not guilty.

The two decisions of the Court of Criminal Appeal prior to this one, where Doan was applied, purported to be applied in a more extended way of allowing for the discount for the plea to be taken into account prior to application of the jurisdictional limit, were the case of Lapa that has already been referred to, and then the 2017 decision of Mundine, but in the 2017 decision, the argument was – it was not recorded as even having been advanced, that there was a jurisdictional problem with taking that course.

The only recorded relevant argument was that the judge had erred in indicating a sentence above the jurisdictional limit, and that point was conceded by the Crown. It was in the task of resentencing that Justice Adamson applied the more extended use of Doan, similarly as had occurred and found open in Lapa, but without referring to the decision of the Court of Criminal Appeal in Lapa.

In our submission, because those two cases did not engage at all with the task of the construction of the legislation that was called for in this case, they were of no assistance to the Court of Criminal Appeal. The court was required to undertake that task of construction first, and without assistance from those cases, and if the construction that is contended for by the appellant is correct, then those decisions were wrongly decided, and there was also good reason for not applying them, because they did not constitute a series of cases carefully worked out as a suite or series of carefully worked out decisions.

Your Honours, I wish to speak now about the fact that the allowance for the discount is discretionary. The fact that the power to reduce is discretionary, although the requirement to consider it is mandatory, and the discretion is understood in the context of very strong encouragement provided by the guideline of judgment, is of importance in the proper construction of the relevant phrase.

The existence of this as a discretion and the specific requirements to give reasons where there is not a lesser penalty imposed that would have been imposed absent the plea, and then a lesser penalty not being unreasonably disproportionate to the nature and circumstances of the offence, means there is no need to move from the natural meaning of the relevant words, in the appellant’s submission.

On Justice Fullerton’s construction, there is a true judicial discretion to exercise once the sentence that would actually have been imposed absent the guilty plea is ascertained, and the relevant factors have a meaningful bearing, then, on whether or not to provide the offender with a lower sentence than would have been imposed had there not been a guilty plea.

In our submission, that needs to be done in an individual case, balancing the legislative intention for guilty pleas to be encouraged by reduction of penalty, the legislative intention that matters of the kind before the Court can appropriately be dealt with by two years imprisonment where there is no guilty plea, consideration of the nature and circumstances of the particular offence.

By way of contrast, if, on the majority construction, a number of components of section 22 are either inoperable or have difficulty in application, and the central aspect of the discretionary decision‑making task on this point is impeded, so, for example, if a court was of the view that, absent the guilty plea and absent the jurisdictional limit, a figure in the order of, say, three years or four years was appropriate, it is difficult to see what meaningful factors would be taken into account in deciding whether to discount that by 25 per cent, rather than seem to just happen automatically in a purported mechanistic – we would say mechanistic obedience to Thomson and Houlton.

The question then arises: if four years is discounted by 25 per cent, the three years that is then contemplated is itself not a lesser penalty that is imposed under section 22 and the two years that would actually be imposed because of the jurisdictional limit is not a lesser penalty imposed under section 22 either. So, the operation of the section as a whole and the existence of this as a meaningful discretion are important in our submission in properly interpreting the section.

Although there is no single correct sentence for any sentencing exercise, the application of a discount for a guilty plea, for the utility of a guilty plea will, in many cases, seem to the judicial officer sentencing the offender to be disproportionate to the nature and circumstances of the offence and that is because the utilitarian value of the plea is not connected with the circumstances of the offence and the offender for the purposes of sentencing.

That is why the word “unreasonably” is so important in the terms of the section and this Court’s decision in CVMB v Attorney-General of New South Wales, which we have cited in our submissions, deals with the importance of that particular phrase “unreasonably disproportionate” in the context of discounts for assistance to authorities in relation to section 23. It is a phrase which quintessentially relates to and requires, in our submission, individualised justice and it is a phrase in relation to which minds will differ and is suitable for encouraging the balancing of competing policy objectives.

On the construction of the majority, in our submission, however, the operation of the section as a whole, including the vital discretionary nature of it, is restricted and not given its full operation.

Your Honours, finally, on the issue of legislative endorsement that is relied upon by the respondent, this has been dealt with to some extent already. The decision of this Court yesterday in Director of Public Prosecutions Reference No 1 of 2019 [2021] HCA 26 - delivered yesterday, analyses in different judgments some of the relevant authorities concerning when an inference should be drawn in relation to legislative action or inaction. A number of the same cases have been referred to by the appellant in our reply.

The respondent has contended that 2017 legislative action reforming discounts for guilty pleas for most matters dealt with on indictment but not matters dealt with summarily is important. There are a number of reasons why the proposition is, in our submission, inapt. For a start, this is not a case of any former judicial interpretation of any phrase. This case is the first occasion that the Court has been called upon to provide a judicial interpretation of the relevant phrase in section 22 of the Crimes (Sentencing Procedure) Act.

As indicated, despite the extensive secondary material, there is no reference in it that can be identified to any sentencing practice of the kind that the respondent contends is well established. The one specific reference to which we have made which is the chief magistrate’s submission refers to a divergence of approach at that time. But that itself did not even appear in the reports. So there is, in our submission.....at all. In fact, it is entirely unrealistic to suggest that any practice, if any magistrates were undertaking it, was known to the legislature.

It would relate, in any event, to the construction, if available, of the 2017 legislation, particularly in relation to a provision which deals with the length of time a person should spend in custody. In our submission, there is nothing like the certitude in this line of reasoning that would be required to allow an inference to be drawn of the kind that the respondent has advanced.

After the point in 2012 to which we have made reference, the 2017 amendments relied upon by the respondent were based on 2013 and 2014 law reform reports and statistics – the 2014 law reform report was based on 2013 statistics – and there is just nothing in that material at all suggesting anything had emerged between the 2012 submissions, the chief magistrate and these later studies in 2013 establishing any type of practice at all, far less one that was brought to the attention of Parliament.

Your Honours, if I could go back just briefly to section 21A of the Crimes (Sentencing Procedure) Act, in particular this is at page 28 of the joint book of authorities. Section 21A(1) after stating the matters “the court is to take into account” and referring then to “aggravating” and “mitigating factors referred to in subsection (3)”, says this at the end of the section:

The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.

So, in our submission, that specifically then provides for the application of the Criminal Procedure Act in terms of jurisdiction to the relevant consideration of section 22. Your Honours, we have set out more detail in our written submissions on some issues, particularly in relation to extrinsic material and second reading speeches and the like, but we rely upon that which is in our ‑ ‑ ‑

KEANE J: Ms Rigg, the Sentencing Procedure Act does not require a court to take into account matters for the purpose of sentencing, it simply limits the power of that court in terms of the sentence that is imposed. It is not a consideration of the kind that is required or that is referred to in section 21A. The court just gives effect to it. It does not take it into account, it just obeys it.

MS RIGG: It is not taken into account in a synthesised way but, in our submission, in working out the sentence that would have been imposed on someone who pleaded not guilty the court needs to recognise that it would not have imposed a sentence beyond the jurisdictional limit. That is the way in which it is taken into account, in our submission, in recognising what is the nature of the sentence that would have been imposed had the person not pleaded guilty. It is not submitted that it is taken into account in any synthesised way or anything of that kind – of that nature, your Honour.

KEANE J: The point I am trying to make is that section 21A(1) says:

In determining the appropriate sentence for an offence, the court is to take into account the following matters –

That is how they are matters to be taken into account and they are in addition to other matters that are required to be taken into account for the purpose of determining sentence. Determining the appropriate sentence is a different exercise from simply obeying the law.

MS RIGG: Yes, your Honour. Our submission is that the terms of section 22 draw attention to the court’s consideration of what the sentence is that it would otherwise have imposed and that in turn requires recognition that that law would have been imposed - that is, the jurisdictional limit – had the person pleaded not guilty. That is the appellant’s submission as to how those interact with one another.

If the Court pleases, other than the additional matters we have relied upon or set out in the written submissions, those are the submissions for the appellant.

KIEFEL CJ: Yes, thank you, Ms Rigg. Yes, Mr Baker.

MR BAKER: Thank you, your Honours. Your Honours, could I start by taking up the point that Justice Keane made, which is very much at the heart of what the respondent’s submission is, which is that the approach that is undertaken between that which is involved in the sentencing task and that which occurs when the jurisdictional limit is considered, is a different process. It occurs separately and the process that is undertaken when considering the sentencing task occurs first and the jurisdictional limit is then taken into account after that is completed.

The respondent submits that the majority of the Court of Criminal Appeal correctly took that approach when they held that the court should apply the section 22 discount to a sentence as part of that sentencing assessment and that if the result of that assessment is a sentence of two years or more, the jurisdictional limit imposed by section 268(1A) would then be the sentence imposed. So it is that the court is to apply any discount to the sentence that would otherwise have been imposed before then ensuring compliance with this separate process which is the Local Court’s jurisdictional limit.

The respondent submits that this issue on appeal cannot be resolved simply by construing section 22 of the Crimes (Sentencing Procedure) Act alone and it is necessary to construe section 22 as it operates in the context of the broader sentencing framework which includes the jurisdictional limit prescribed by that section of the Criminal Procedure Act.

When the Court of Criminal Appeal came to consider this question, as we can see in Justice Hulme’s judgment at page 113 of the core appeal book at paragraph 174, Justice Hulme looked closely at this aspect and said:

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

The respondent’s submission is that is the correct approach and that is the approach that has been applied within New South Wales for many years. As Justice Hulme goes on to say at paragraph 175:

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

So quite clearly the majority in this case were focusing on this distinct process that is involved, which sequence of events is the question within this appeal. The respondent’s submission is that they are two different tasks. There is the sentencing task which is undertaken first and then, once that task has been completed, the jurisdictional limit is considered.

It is also well established, on the respondent’s submission, that a provision that prescribes the jurisdictional limit takes effect at this final stage of the process and points to the Court of Criminal Appeal majority decision, in particular where Justice Hulme then goes on to look at the longstanding authority of Doan at 114 of the core appeal book and particularly talks, in that case it is Justice Grove, speaks about the result of the true construction of the statute provisions in New South Wales, and that is that what has been prescribed is a jurisdictional maximum, and not a maximum penalty.

In the circumstances of that case, that was the issue, was whether or not that jurisdictional limit was a maximum penalty for the consideration of the sentences, but the jurisdictional limit is something that is considered after the process, and as was found in Doan, the maximum penalty is the maximum penalty that applies to the specific offence, and if the maximum penalty is not the jurisdictional limit, it implies that a sentence can be considered as a starting point above that jurisdictional limit.

In fact, the appellant, as Ms Rigg has said, does not challenge the correctness of the CCO’s decision in Doan, and nor does he contend that the accepted approach to the jurisdictional limit is incorrect. Rather, he contends that this approach does not apply when discounting for a plea of guilty under section 22 of the Act.

The respondent’s submission is that first, when regard is had to the proper construction of these two provisions, when we turn to look at firstly section 22, the respondent submits that the use of the words “otherwise imposed” in section 22 do not signify that an approach contrary to this accepted practice should be adopted. Nor does it require the discount should be applied after the reduction of the sentence to the jurisdictional maximum.

The respondent further submits that the word “imposed” in section 22 must be read in the context of the provision as a whole. Importantly, it is to be borne in mind the text of section 22 does not require that a discount for the utilitarian value of a plea of guilty be afforded in every case where an offender pleads guilty. Rather, section 22 provides that, whilst a sentencing court must take into account various aspects of the plea, the court may accordingly impose a lesser penalty.

It is open to a court to decline to afford a discount where the application of the discount would result in a penalty that is not appropriate in all the circumstances. In other words, the text of section 22 does not indicate a legislative intention that the utilitarian purpose of saving court time should prevail over other considerations of justice such as the need for offenders to receive sentences that are proportionate to the objective gravity of their offending.

It is acknowledged that, as with section 22, when you turn to look at section 268(1A), the complete answer to the question in this appeal cannot be determined from the words of that section in deciding which sequence of the provision should be applied. The respondent submits that it is also particularly important to consider the history, purpose, and context of those provisions to determine their proper scope and it is submitted the majority of the Court of Criminal Appeal correctly took this approach.

Chief Justice Bathurst in his judgment at paragraphs 9 through to 15 in core appeal book 64 to 65, considered the context of section 22 in the framework of sentencing law in New South Wales, into which the section was inserted, and turning to consider the history of those provisions, his Honour described the “long history” - this is at paragraph 9 - that existed, noting that such a mechanism, in terms of dealing with indictable offences summarily, such a mechanism formed part of the Crimes Act when it was first enacted, and it was in 1974 that the concept of the two‑year maximum term of imprisonment was introduced.

The majority’s construction is consistent with the legislative history and purpose of these two provisions, on the respondent’s submission. In particular, the history of these provisions demonstrates the discount of pleas of guilty and the use of the summary jurisdiction for indictable offences which are complementary measures and that each serves the goal increasing efficiency in the criminal justice system of ensuring the offenders receive sentences that reflect the objective gravity of their offending.

When we turn to the legislative history of the provisions, the majority’s interpretation has the advantage of ensuring the consistency of approach with regard to sentencing between indictable offences in the higher courts and indictable offences disposed of summarily, subject to the requirement not to impose a sentence above the jurisdictional limit, which forms this final discrete adjustment separate from the exercise of the sentencing discretion.

An approach to sentencing that follows an identical approach in different jurisdictions, with the proviso that only in summary disposition the endpoint cannot exceed the jurisdictional limit, is both clear and logical. So when we approach the sentencing task by not addressing the jurisdictional limit until the final stage, there is this clear and logical situation where both in the Local Court and in the District Court both courts are going to be approaching it in that very clear and laid‑out way.

In contrast, the appellant’s construction would have impacts that are not consistent with the purpose of section 22 and with section 268(1A). It would mean that an offence sentenced on indictment in the District Court, following an early guilty plea, would attract a sentence of two years imprisonment, whereas the same indictable offence dealt with summarily would receive 18 months imprisonment, even though a sentence of two years imprisonment is within the jurisdictional limit.

Contrary to the appellant’s contention, it is not essential to the purpose of section 22 to ensure visibility of discounts for pleas of guilty when indictable offences are finalised summarily. Section 22 was not introduced in order to provide an additional incentive for offenders charged with indictable offences that are being dealt with summarily. Those offenders already have the benefit of the jurisdictional ceiling in the Local Court and the effect of these benefits is visible in the Local Court sentencing examples provided by Justice Hulme at paragraphs 185 and 186 of the core appeal book where his Honour, having referred to the longstanding authority, also goes on then to look at the various cases which demonstrate how that approach has been undertaken.

The balance that interpretation places on the respondent’s submission are unnecessary constraint on the Local Court sentencing powers by prioritising an asserted need for visible discounts at the expense of the Local Court being able to make full use of its jurisdiction to impose sentences that are appropriate to the objective and subjective characteristics of the offending and the offender, provided only that the sentence not exceed the jurisdictional limit of the two years imprisonment.

So, in summary, the respondent’s submission is that when the court looks to the text, purpose and history of the two provisions, those provisions indicate that section 22 should be approached no differently to other aspects of the process of sentencing an offender. When the court is sentencing an offender, the court would first assess the appropriate sentence for an offence within the context of the maximum penalty, synthesising all the relevant facts and circumstances and applying any discount under section 22 with any other relevant discount. If the penalty is arrived at by that process which exceeds the jurisdictional maximum, then the court must reduce the penalty to the jurisdictional limit.

If I could turn to the consideration of the jurisdictional limit and the provisions in the judicial considerations that are referred to in the majority’s judgment, the majority’s approach is applied in respect of similar provisions in Western Australia and Northern Territory, but particularly in the New South Wales decision by Justice Hulme and Chief Justice Bathurst.

They had regard to the case of Lapa which did have some prominence in this case and, in particular, the CCA rejected a contention in that case that the sentencing judge’s approach exceeded his Honour’s jurisdiction because the starting point was greater than the maximum sentence available to him.

If I can take your Honours to Lapa now, that is at joint appeal book 362 and 363. This was a case where Mr Lapa had been sentenced by the Drug Court to imprisonment for two years in respect of an indictable offence and that was being dealt with summarily. The sentence represented the jurisdictional maximum that was available for the offence when dealt with summarily.

Mr Lapa had pleaded guilty at an early stage and it was accepted the sentencing judge had afforded him a 25 per cent discount. Accordingly, as in the present case, it was accepted that the starting point of the sentence prior to the discount had been two years and eight months, which was higher than the jurisdictional maximum.

In the context of the ground of appeal, he was alleging that the sentence imposed was manifestly excessive. Counsel for Mr Lapa contended that the jurisdictional – sorry, the sentencing judge’s approach exceeded his Honour’s jurisdiction because the starting point was greater than the maximum sentence available to him. That can be found at paragraph 15 on the joint book of authorities at 362.

Ms Rigg suggested in Lapa the question of the jurisdictional maximum was not something that was explored to any great degree, and the respondent acknowledges that whilst section 22 was not mentioned, the approach is very much clear here, because when we have a look at what was said to be the jurisdictional question, the court then turned to consider the approach that Judge Dive had taken, and it was noted that:

Judge Dive said that the appellant was entitled to the full utilitarian value of his plea of guilty. No doubt that was a reference to –

the plea envisaged in Thomson.

That being so, his Honour’s starting point of sentence must have been 2 years and 8 months. Ms Francis –

who appeared for Mr Lapa:

submitted that such an approach exceeded his Honour’s jurisdiction, because that starting point was greater than the maximum sentence available to him.

The answer to that submission is to be found in a case to which the Crown prosecutor referred us, R v Doan –

The Crown has obviously referred, as we can see from there, the court to the case of Doan during the argument, and it is the Crown’s submission in that case that Doan was the answer. As we can see from the judgment, the respondent’s submission is that in Lapa there was a consideration of this issue, albeit in a much more confined way. Then, on page 363 of the joint book of authorities at paragraph 17, the court finds that:

By parity of reasoning, it was open to Judge Dive in the present case to determine a starting point of sentence above the two‑year jurisdictional limit. The only constraint imposed upon him by the relevant provision of the Criminal Procedure Act was that the sentence actually passed could not exceed 2 years. Accordingly, his Honour’s approach was not in error.

So when Lapa then was handed down in 2008, that being the law then in New South Wales, as Justice Hulme follows, this was one of two cases where the Court of Criminal Appeal considered this issue. The second one was some years later, in the case of Mundine. But the respondent’s submission is that Lapa had existed then, from 2008 onwards, as the correct approach, that the Court of Criminal Appeal had considered this issue, and it was handed down and that the Local Courts of this State would have been required to follow that approach.

In the case of Mundine a decade later, Lapa was affirmed, and in Mundine an aggregate sentence had been imposed for offences including an indictable offence dealt with summarily pursuant to section 167 with a jurisdictional limit of two years. The indicative sentence for that offence was two years, three months after a 25 per cent discount for a guilty plea, and while the CCA found that the sentencing judge erred by indicating a sentence that exceeded the jurisdictional maximum Justice Basten confirmed that the jurisdictional maximum applied only to the sentence actually imposed and not to the starting point prior to the discount for the plea. Similarly, Justice Adamson at paragraph 92 found no error in the – discerned no error in the sentencing judge’s exercise of the sentencing discretion to arrive at that figure, rather the error was not in reducing it to two years.

The respondent’s submission is that the decisions in Lapa and Mundine directly address the question of whether a court sentencing an offender for an indictable offence being dealt with summarily.....from the starting point that exceeded the maximum of the jurisdiction. Whilst the precise submissions made by the applicants in support of their contentions concerning jurisdiction and error are not recorded in the judgments in Lapa and Mundine, the respondent submits it is clear from both judgments that in each decision the CCA was clearly cognisant of the well‑understood process of applying a discount following a plea of guilty in accordance with Thomson and Houlton.

As the majority observed in this case, courts in New South Wales exercising summary jurisdiction at all levels, the Local Court, District Court and Supreme Court, have followed the decisions of Lapa and Mundine and sentenced the offenders in the matter prescribed by those decisions on a daily basis over the past two decades. So, that is in ‑ my outline of oral argument is covering the judicial consideration of the interaction of the provisions.

If I could turn to the subsequent legislative history. These decisions of Lapa and Mundine have stood since 2008 and as decisions of the New South Wales Court of Criminal Appeal they represent the law in New South Wales. The decisions have never been the subject of challenge. There is no - even a decision of the Local Court or the District Court that suggest decisions in Lapa are not being followed.

We must of course bear in mind that the decisions of the Local Court and District Court are not typically reported and so to be able to say what the Local Court and District Court are doing in that sense is difficult because we do not have a body of case law to be able to refer to. But we would assume that they would be following the Court of Criminal Appeal and the authority that has been handed down since in 2008 in Lapa.

This, on the respondent’s submission, is significant for two reasons. One, in the event the provision is found to be ambiguous, which the respondent submits it is not, it is submitted that where previous authority has not been challenged over many years and where over that time decisions, including charging decisions by the prosecutors have been made on the basis of those authorities over that period, the previous authorities should not overrule.

Ms Rigg has referred to the re‑enactment principle and in particular the assistance that we have as a result of the Director’s Reference that was handed down yesterday in which your Honours considered questions concerning the principles involved in matters like this where there is a re‑enactment presumption as was set out in the Director’s Reference.

But the respondent’s submission is when this Court has regard to the legislative history which as been set out in annexure A to the respondent’s submissions, that legislative history indicates that significant consideration has been given over that time to questions of both the jurisdictional limit and the question of early appropriate guilty pleas, and there is no express reference to Lapa, although in the second reading speech there is in the footnote that Ms Rigg has taken your Honours to at page 570 of the joint book of authorities.

If I can just make reference to one aspect of the Director’s Reference which is in paragraph 51 of the Director’s Reference in which it was found that express reference – and this is at the end of paragraph 51 of the Director’s Reference:

Express reference to a particular judicial decision in the parliamentary debates at the time of enactment may assist, although the presumption can apply despite the absence of explicit parliamentary reference to the decision in question.

This will be particularly so in respect of issues of political sensitivity and areas which are specialised and politically sensitive fields of which the criminal justice system, on the respondent’s submission, is.

So, those two joint judgments of the majority and the minority in the reference express different views were made about whether criminal law, broadly speaking, is.....political sensitivity, but what we are looking at here is the area – in the present case is much narrower. What we are looking at
is questions of efficiency and delays in the criminal justice system and how the criminal justice system can deal with backlogs in the District Court and in the court system.

The respondent submits that it could be readily inferred that the legislature through the Attorney‑General’s Department was cognisant of the issues of delay and deficiencies in the criminal justice system. If the approach in Lapa was undermining the utilitarian values for a plea of guilty and section 22 of the Sentencing Act, it would be expected that the legislature would have taken action, particularly in circumstances where jurisdiction of the Local Court and the guilty pleas are a subject of express consideration by the legislature over that period of 10 or so years.

So, in that regard, the respondent’s submission is that the history demonstrates that there is no indication that the existing sentencing practices as supported by the majority and the majority’s interpretation frustrate the purpose of promoting the efficient use of resources or otherwise cause difficulties for the administration of justice. Further, the Court may draw an inference from this legislative history that the legislature has approved the interpretation of the interaction between section 22 and section 268 as determined in Lapa.

So, your Honours, when we return to this question of the order in which the task is undertaken, the respondent’s submission is that the construction given to that by the Court of Criminal Appeal in this case is correct and that that exercise of sentencing where one takes into account the objective seriousness or the subjective facts and circumstances then turning to the question of the discount for the guilty plea that is one intact process and then after that the second step that the sentencing judge takes is to look at the sentence and if it is greater than the jurisdictional maximum to reduce that to two years. On the respondent’s submissions that construction by the majority is correct. They are the respondent’s submissions.

KIEFEL CJ: Thank you, Mr Baker. Do you have anything in reply, Ms Rigg?

MS RIGG: Thank you, your Honour. One of the submissions as stated by my learned friend was that the appellant’s submission was that in Lapa the jurisdictional limit was not explored. The submission was actually that section 22, the purpose and terms and history of section 22, was not explored. The case did look at the jurisdictional limit. It was Mundine where neither issue was explored. There was no apparent argument about the interaction between the plea and the jurisdictional limit.

My learned friend advanced a submission that courts exercising jurisdiction at all levels have sentenced for two decades in accordance with
the construction that is being advanced by the respondent, and it was submitted that when Lapa and Mundine were decided they represented the law and have never been subject to challenge and that there is no decision that says they are not being followed and we can assume they are being followed.

The judgment of Justice Hulme effectively refers to three instances where Doan is applied in the way that the majority and the respondent contend is correct. There was one 2014 unreported District Court decision of Johnson and two 2018 District Court decisions of the chief magistrate of the Local Court in Local Court sentencing first instance decisions.

As the appellant submitted in our primary submissions, it is not.....those three cases, even taking into account the two additional Court of Criminal Appeal decisions, demonstrate an established principle, and it is for that reason – because, as my learned friend has said, there is a paucity of reference to reported Local Court and District Court decisions that we have made reference to the June 2012 submission of the chief magistrate of the Local Court because that clearly states that as at that time there were two approaches being undertaken.

What this relates to, in our submission, is the real difficulty in adopting – drawing an inference in relation to something as serious as time to serve in custody that Parliament had an understanding of an alleged sentencing practice, which the respondent has only been able to point to those three instances, those three cases, to demonstrate support or following of those principles in New South Wales.

So, it is in that sense that the lead‑up in 2013 and 2014 came very soon after a point in time in 2012 when it is quite clear from the chief magistrate’s submission that the two different approaches were being undertaken in the Local Court. Those are the additional submissions for the appellant, your Honours.

KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns to 10.15 am tomorrow.

AT 12.16 PM THE MATTER WAS ADJOURNED