P -v- AMIR SHAHZAD [2009] NSWLC 20

Local Court of New South Wales

CITATION: P -v- AMIR SHAHZAD [2009] NSWLC 20

JURISDICTION: Criminal

PARTIES:

FILE NUMBER:

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION: 12/07/2009

MAGISTRATE: Chief Magistrate G L Henson

CATCHWORDS: Sentencing Remarks, Breach of Bond

LEGISLATION CITED: Crimes Act 1900 – Section 178BA(1) Section 21A of the Crimes (Sentencing Procedure) Act 1999.

R –v- Doan (2000) 50 NSWLR at [35] R –v- McNaughton [2006] NSWCCA 242 Tsakonas –v- R [2009] NSWCCA 258 Veen (No 2) (1988) 164 CLR 465 R –v- Walker [2005] NSWCCA109 R –v- Cicekdag (2004) 150 A Crim R 299 CASES CITED: Siganto –v- R (1998) 194 CLR 656 at 663-4 R –v- Thomson & Houlten (2000) 49 NSWLR 383 R –v- Dib [2003] NSWCCA117, R –v- Harmouche [2005] NSWCCA 398 R –v- Stamboulis [2006] NSWCCA 56 R –v- Borkowski [2009] NSWCCA 109 R –v- Pierce (1998) 194 CLR 610 at [45] R –v- MAK [2006] NSWCCA 381 at [18]

TEXTS CITED:

REPRESENTATION:

ORDERS:

1. The offender is charged with 5 counts of obtaining a financial advantage by deception. Each charge is brought pursuant to Section 178BA(1) of the Crimes Act 1900. The maximum penalty for an offence contrary to the provisions of Section 178BA of the Crimes Act 1900 is 5 years imprisonment.

2. The law is well settled that within the Local Court regard must be had to the maximum penalty identified by Parliament. The creation of a sentencing ceiling of two years for an individual offence within this jurisdiction is not an indication of the maximum penalty that is appropriate for the offending behaviour. As the Court said in R –v- Doan (2000) 50 NSWLR at [35] "the result of the true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. 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. The implication of the argument .. that in lieu of the prescribed maximum penalties exceeding two years imprisonment a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment … be reserved for a "worst case".