Issued: 10 February 2022
(Park v The Queen [2021] HCA 37).
A court must determine an appropriate sentence, including applying any discount for a guilty plea, before having regard to any jurisdictional limit.
The appellant received an aggregate sentence of 11 years’ imprisonment with a non-parole period of eight years for multiple offences, including an offence for taking a Jeep without the owner’s consent, contrary to s. 154A(1)(a) of the Crimes Act 1900, to which the appellant pleaded guilty (the offence).
Under s. 22(1) of the Crimes (Sentencing Procedure) Act 1999 (Sentencing Act), a court must take into account the timing and circumstances of a guilty plea and may impose a lesser penalty than the court 'would otherwise have imposed', because of the guilty plea. This provision applies to a sentence for an offence dealt with summarily and to prescribed indictable offences.
The statutory maximum penalty for the offence was five years’ imprisonment, however the sentencing court was bound by a jurisdictional limit of two years’ imprisonment.
To reflect the appellant’s plea of guilty, the Court imposed a sentence of two years’ imprisonment for the offence, after applying a 25% discount to the term that would otherwise have been imposed.
The NSW Court of Criminal Appeal dismissed the appellant’s appeal against sentence.
In an appeal to the High Court of Australia, the appellant argued the sentence was not one the Court 'would otherwise have imposed', because before the Court applied the 25% discount, the sentence was two years and eight months, which exceeded the jurisdictional limit.
The High Court unanimously dismissed the appeal and held that:
Section 22(1), read in context, has the effect that the sentence a court 'would otherwise have imposed', is the appropriate sentence determined in accordance with the Sentencing Act, without regard to any jurisdictional limit.
Any jurisdictional limit is applied after the judge or magistrate has determined the appropriate sentence.
Jurisdictional limits relate to the sentencing court itself, not to the task of identifying and synthesising relevant factors to determine an appropriate sentence.
This interpretation of s. 22 of the Sentencing Act is consistent with a general rule that a court exercising summary jurisdiction has regard to the maximum penalty for the offence as the starting point for sentencing, not to any lower jurisdictional limit.
Where a guilty plea must be taken into account on sentencing under s. 22(1) of the Sentencing Act and the sentencing court is subject to a jurisdictional limit, prosecutors should submit that the court is to first determine the appropriate sentence, including applying any discount for the plea, then consider the jurisdictional limit when imposing the sentence.
Johanna Geddes, A/Director
johanna.geddes@cso.nsw.gov.au
02 9497 9251
Paris Donnelly, Senior Solicitor
paris.donnelly@cso.nsw.gov.au
02 9497 9220
The CSO’s Regulatory & Environment practice group specialises in advising and representing agencies in relation to regulatory compliance and prosecutions, statutory interpretation advice in the environment and natural resources context, as well as criminal law, evidence and procedure.
16 Nov 2022