New South Wales Supreme Court CITATION : Ahio v DPP (NSW) [2008] NSWSC 565 HEARING DATE(S) : 6 May 2008 JUDGMENT DATE : 11 June 2008 JURISDICTION : Common Law Division JUDGMENT OF : Hislop J DECISION : (1) The time in which to appeal or seek leave to appeal is extended to 4.00 pm on 4 March 2008. (2) Leave is granted pursuant to s 53(1) of the Crimes (Appeal and Review) Act, 2001 to appeal to this court against sentence on grounds that involve a question of mixed law and fact. (3) Set aside the sentence in respect of the offence of maliciously inflicting grievous bodily harm and remit the matter to the Downing Centre Local Court for redetermination of sentence, if possible by the second defendant, in accordance with the directions of this Court. (4) Each party to bear his or her costs of this appeal. CATCHWORDS : CRIMINAL LAW - sentence - extra-curial punishment. Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 LEGISLATION CITED : Crimes (Appeal and Review) Act, 2001 Supreme Court Act, 1970 Security Industry Act, 1997 CASES CITED : R v Daetz (2003) 139 A Crim R 398 Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305 Michael Ahio (Plaintiff) PARTIES : Director of Public Prosecutions (NSW) (1st Defendant) Her Honour Magistrate Haskett (2nd Defendant) FILE NUMBER(S) : SC 15516/07 I. McLachlan (Plaintiff) COUNSEL : C.A. Webster (1st Defendant) Submitting appearance (2nd Defendant) Bannister, Kyriacou Nasser Lawyers (Plaintiff) SOLICITORS : Solicitor for Public Prosecutions (1st Defendant) Crown Solicitor (2nd Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 1815/07 LOWER COURT JUDICIAL OFFICER : Magistrate Haskett LOWER COURT DATE OF DECISION : 8 May 2007 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HISLOP J Wednesday 11 June 2008 15516/07 MICHAEL AHIO v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) & ANOR JUDGMENT Introduction 1 On 21 March 2007 the plaintiff was found guilty by the second defendant in the Downing Centre Local Court of the offence of assault, contrary to the Crimes Act, 1900, s 61, and of the offence of maliciously inflicting grievous bodily harm, contrary to the Crimes Act, 1900, s 35(1)(b). 2 On 8 May 2007 the second defendant sentenced the plaintiff by placing him on a good behaviour bond for a term of 12 months pursuant to the Crimes (Sentencing Procedure) Act, 1999, s 9, in respect of the first offence and placing him on a good behaviour bond for a term of two years, pursuant to s 9, in respect of the second offence. Her Honour also imposed a fine of $800 in respect of the second offence. 3 The circumstances giving rise to the offences may be shortly stated as follows: the plaintiff was a licensed security guard employed by a hotel in the Manly area. On 29 August 2004 he was driving his employer's courtesy van when it apparently "nudged" two pedestrians as it drove slowly along a part pedestrian/driveway area. The plaintiff alighted from the van. He commenced to punch the male pedestrian a number of times about the head, causing him to sustain a black eye and fall to the ground, twisting and fracturing his right ankle as he did so. The second pedestrian, the first pedestrian's wife, became involved and was pushed by the plaintiff. The plaintiff struck the male pedestrian because of his mistaken belief that the male pedestrian had deliberately kicked the van and damaged it. In fact, the male pedestrian had struck the van with his hand and the van had sustained no damage. The first offence related to the female pedestrian, the second to the male pedestrian. 4 The plaintiff, by summons filed in this court on 31 October 2007, sought to appeal (or obtain leave to appeal) against conviction and sentence in respect of each offence pursuant to the provisions of the Crimes (Appeal and Review) Act, 2001 ("the Appeal Act"), Pt 5, Div 1. The summons also sought orders under s 69 of the Supreme Court Act, 1970 but these orders were not pursued at the hearing. Incidental orders as to the extension of time were also sought in the summons. 5 On 4 March 2008 the plaintiff filed an amended summons limiting the appeal to the sentence for the second offence. Background 6 The plaintiff was aged 42 at the time of the offences. He had no prior convictions and produced favourable character references. He apparently worked two jobs, one as a storeman and the other as a security guard in the evenings. In respect of the latter employment, the plaintiff required a licence under the Security Industry Act, 1997 ("SIA"). 7 Under the SIA, the Commissioner of Police is required, by s 26(1A), to: "…revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused." 8 In accordance with s 16(1)(a) of the SIA, the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: "has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or…" 9 Clause 11(c)(i) of the Security Industry Regulation 1998 (as then enacted) provided as follows: "For the purposes of section 16(1)(a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: … (c) Offences involving assault An offender under the law of any Australian or overseas jurisdiction involving assault of any description, being: (i) an offence in respect of which the penalty imposed was imprisonment, or a fine of $200 or more, or both, or…" 10 As a result of the foregoing provisions, the plaintiff's security licence was automatically revoked on 5 October 2007. It is alleged that as a result of the revocation of the licence he has and will suffer a loss of his income as a security guard in the order of $50,000 gross per annum. 11 I note the Commissioner may revoke a licence if he considers it is not in the public interest of the person to whom it is granted to continue to hold it (s 26(1)(d) of the SIA, cl 18 of the 1998 Security Industry Regulation). The appeal 12 The grounds of appeal in the amended summons are as follows: "1. …[The second defendant] failed to properly take into account the plaintiff's consequential loss of employment as a licence holder under the Security Industry Act , 1997 which arose under that Act by operation of law as a result of the particular sentence imposed by the court. 2. [The second defendant] failed to properly appreciate, and therefore failed to properly take into account, all sentencing options available to the court and their respective consequences for the plaintiff. 3. [The second defendant] erred in law in the sentencing of the plaintiff for the offence of maliciously inflict grievous bodily harm on 8 May 2007 in that her Honour's sentencing discretion miscarried." 13 The argument of counsel for the plaintiff involved a number of steps which may be summarised as follows. 14 A sentencing court may take extra-curial punishment into account on sentence. 15 In R v Daetz (2003) 139 A Crim R 398 at [62] the Court of Criminal Appeal held: "In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight." 16 In the Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305 Howie J, with whom the other members of the court agreed, said: (a) "Generally, when sentencing for a criminal offence, a court is entitled to consider all the consequences to the offender arising from the commission of that offence in determining what penalty to impose. Extra curial punishments are routinely taken into account by sentencing courts and it would be unjust to do otherwise"; (b) "Similarly, the fact that a particular sentence would have the consequence that the offender would lose his employment has been taken into account in allowing an appeal and substituting a different sentence"; (c) "[A] court can have regard to prospective penalties, those that will arise as a result of a conviction or a particular sentence, when determining what punishment should be imposed on the particular offender before the court"; (d) "Licence disqualification is such a significant matter and can have such a devastating effect upon a person's ability to derive income and to function appropriately within the community that it is a matter which, in my view, must be taken into account by a court when determining what the consequences should be, both penal and otherwise, for a particular offence committed by a particular offender"; (e) "[117] This is not to say that the sentencing discretion should be controlled by one particular factor alone, such as the offender's need for a licence or the consequences to that offender of being disqualified for a significant period. Nor can the court in fixing the sentence disregard the clear intention of the Parliament as to the effect that the commission of an offence is to have upon the offender's right or privilege to drive a motor vehicle on public streets." 17 The plaintiff's legal representative at the sentencing hearing informed her Honour that "As a result of this conviction, of course, he can no longer get a security licence, so that part of his income which is attributed to security work that he has been involved in for eight years, since 1999, has ceased." 18 The representation was erroneous. A conviction for such an offence did not automatically result in the revocation of the security licence. The automatic disqualification depended entirely on whether the penalty imposed was imprisonment or a fine of $200 or more or both (see [7], [8] and [9] above). 19 Division 1 of Pt 5 of the Appeal Act permits an appeal as of right where the ground involves a question of law only (s 52(1)) and an appeal where the ground involves a question of fact or a question of mixed law and fact, but only by leave of this court (s 53(1)). 20 It should be inferred her Honour proceeded to sentence on the basis the representation that at law a conviction alone would result in an automatic revocation of the plaintiff's licence was correct. In consequence it should be inferred her Honour failed to consider whether the sentence should be structured in such a manner as to adequately punish the plaintiff but avoid automatic revocation of the security licence. Thus error of law occurred in that her Honour failed to take into account a relevant matter and acted upon a wrong principle. 21 The sentencing discretion should be re-exercised by taking into account the effect of the sentence to be imposed on his security licence and the sentence so structured as to ensure the automatic revocation provisions were not attracted. 22 Sections 52(2) and s 53(4) of the Appeal Act provide that the appeal or application for leave to appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of Court. The Supreme Court Rules provide that the appeal or application for leave to appeal is to be made within 28 days of the material date, being the date on which the decision from which the appeal or application for leave to appeal is brought is announced or given (Supreme Court Rules Pt 51B, rr 5 and 6). In either case this court may at any time extend the time fixed. 23 The merits of the appeal were such that if leave to appeal was required it should be granted as should an extension of time. Although there was no evidence from the plaintiff which explained the delay in lodging the appeal or application for leave to appeal, it was apparent that the plaintiff had filed the summons promptly upon being notified of the revocation of the licence and the merits were such that an extension of time should be granted. 24 Counsel for the first defendant (the second defendant having filed a submitting appearance) stressed that her Honour had concluded this was "quite a serious offence". She had approached the matter on the basis that the plaintiff would suffer an extra curial financial loss and that a bond was being sought. She imposed a penalty after due consideration of the circumstances and sentencing statistics. It was submitted, relying particularly upon the judgment of Howie J in Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act at [117] (quoted above [15(e)]) that "one shouldn't be structuring a sentence to avoid one or other result of what would ordinarily be the court's decision as to sentencing." Conclusion 25 The Supreme Court has power under the Appeal Act to set aside the sentence, vary the sentence, set aside the sentence and remit it to the original Local Court or to dismiss the appeal. 26 In my opinion, the plaintiff was entitled to have taken into account on sentence the correct situation as to the automatic revocation of his security licence. I would infer her Honour was misled as to the correct situation by the comments by the plaintiff's legal representative and as a result she did not accurately direct herself on this question, acted upon a mistake as to the law and as a result failed to take into account a material consideration. 27 The plaintiff requires an extension of time to appeal or to seek leave to appeal. The first defendant's counsel indicated that the attitude of the first defendant was that an extension of time should be granted and leave should be granted in the event the Court considered there was merit in the substance of the appeal. In my opinion, the merits are such that it is appropriate to grant an extension of time and leave to appeal insofar as the latter is required. 28 It does not follow however that this is a matter where necessarily the sentence should be structured in such a way as to avoid the application of the automatic revocation provisions or that the original sentence cannot stand. What is required is that appropriate matters for consideration in the exercise of the sentencing discretion are taken into account. 29 The legal representatives for the plaintiff have endeavoured, unsuccessfully, to obtain copies of the Probation and Parole Service report and two testimonials tendered to the second defendant. In all of the circumstances, particularly as the second defendant has read those documents and has had the advantage of seeing and hearing the plaintiff give evidence, I consider that the appropriate course is to remit the matter to the second defendant for reconsideration of sentence. 30 Accordingly, I make the following orders: 1. The time in which to appeal or seek leave to appeal is extended to 4.00 pm on 4 March 2008. 2. Leave is granted pursuant to s 53(1) of the Crimes (Appeal and Review) Act , 2001 to appeal to this court against sentence on grounds that involve a question of mixed law and fact. 3. Set aside the sentence in respect of the offence of maliciously inflicting grievous bodily harm and remit the matter to the Downing Centre Local Court for redetermination of sentence, if possible by the second defendant, in accordance with the directions of this Court. 4. Each party to bear his or her costs of this appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.