Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75 Hearing dates: 17 April 2020 Date of orders: 24 April 2020 Decision date: 24 April 2020 Before: Basten JA at [1]; Macfarlan JA at [6]; White JA at [33] Decision: Summons dismissed with costs. Catchwords: JUDICIAL REVIEW – application for judicial review of District Court decision resentencing applicant on an appeal from the Local Court – whether unreasonable for District Court to have taken into account specific deterrence – Minister for Immigration and Citizenship v Li – whether District Court failed to consider alternatives to custodial sentence and whether sentence of imprisonment should be served by way of an ICO Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) District Court Act 1973 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 Lazarus v Independent Commission Against Corruption (2019) 367 ALR 274; [2019] NSWCA 100 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 R v J C E [2000] NSWCCA 498; 120 A Crim R 18 R v Pickett [2010] NSWCCA 273 R v Saldaneri [2001] NSWCCA 480 R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 You, Jae Bok v R [2020] NSWCCA 71 Category: Principal judgment Parties: Garry Henry Hay (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: Mr G D Wendler (Applicant) Mr D Kell SC / Ms E Jones (First Respondent) Submitting appearance (Second Respondent) Solicitors: Michael Vassili Barristers and Solicitors (Applicant) Office of the Director of Public Prosecutions (First Respondent) File Number(s): 2019/399349 Decision under review Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 27 September 2019 Before: Payne DCJ File Number(s): 2018/296119 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: I agree that the summons for judicial review must be dismissed, for the reasons given by Macfarlan JA. The applicant must pay the respondent's costs in this Court. Two further matters should be addressed. 2. The first matter is to note that the applicant was in custody when he commenced the proceedings in this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). Accordingly, pursuant to s 69C(3), he did not obtain the benefit of a statutory stay of his sentence under s 69C(2). He sought, but was refused, bail pending determination of this proceeding. [1] There is no call to adjust the term of the sentence imposed in the District Court. 3. The second matter concerns ground 3, being a failure to consider how the applicant's term of imprisonment was to be served. Although a custodial sentence, it could be served by way of an intensive correction order in the community. As Macfarlan JA explains, the sentencing judge (Payne DCJ) did give consideration to this matter. Three further observations are appropriate. First, even had she dismissed this as a possible alternative sentence without addressing it, it was not explained why that would constitute a jurisdictional error, as opposed to an error of law within jurisdiction. 4. Secondly, although the transcript of the hearing before the District Court was admitted in evidence without objection in this Court, its relevance in determining whether a jurisdictional error occurred should not be assumed. Relevance may depend on purpose. As noted by Jordan CJ in Ex parte Lovell; Re Buckley, [2] referring to the form of statutory prohibition then contained in the Justices Act 1902 (NSW), a power to place before the court depositions of evidence "is to enable the depositions to be looked at upon habeas corpus or certiorari for the purpose of supporting the conviction, not for the purpose of quashing it." An analogous approach should be adopted with respect to use of the transcript. As I noted in You, Jae Bok v R, [3] "judicial error is not to be imputed by importing something said in the course of an exchange with counsel into the written judgment." On the other hand, if an ambiguous term is used in the judgment, it may be appropriate to rely upon the transcript to demonstrate that the judge was using the term consistently with a correct application of the law, so as to support the order, not to undermine it. 5. Thirdly, there seems, in any event, no ambiguity in the use of the phrase "a full-time custodial sentence"; it, or a variation of it, is commonly used by lawyers and courts engaged in sentencing to refer to actual imprisonment, as opposed to an intensive correction order which is served in the community. 6. MACFARLAN JA: By summons filed on 19 December 2019 the applicant, Mr Garry Hay, seeks judicial review of a sentence imposed by the District Court on appeal from the Local Court. The appeal was brought against the sentence imposed on the applicant in relation to his convictions of 6 offences under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The offences were each that he "did stalk/intimidate [a named victim] with the intention of causing [the victim] to fear physical or mental harm". Following pleas of guilty entered by the applicant at an adjourned hearing in the Local Court, Magistrate Stewart imposed an aggregate sentence of 2 years and 6 months imprisonment with a non-parole period of 1 year 8 months. On 27 September 2019 Payne DCJ allowed his appeal to the extent of reducing the non-parole period to 1 year 6 months. 7. In this Court, the applicant accepts that to obtain judicial review of the District Court decision, it is necessary for him to establish jurisdictional error (see s 176 of the District Court Act 1973 (NSW) and Lazarus v Independent Commission Against Corruption (2019) 367 ALR 274; [2019] NSWCA 100 at [3]-[4]). 8. The grounds upon which the applicant relies are that, on re-sentencing the applicant, the District Court: 1. unreasonably took into account specific deterrence; 2. failed to consider possible alternatives to full-time custody; and 3. failed to consider and determine the manner in which the applicant's sentence of imprisonment was to be served. The factual circumstances 1. In 2017 and 2018 the applicant was a tenant of premises owned by Housing New South Wales ("HNSW"), a government instrumentality. He considered that his complaints to HNSW about the behaviour of a neighbour were not taken seriously nor properly investigated by a particular HNSW senior employee ("the victim"). As a result, the applicant sent to the victim five anonymous letters, as well as a Facebook message to her husband using a false name. These communications constituted the offences of which the applicant was convicted. 2. They occurred on 4 January 2017, 18 August 2017, 8 September 2017, 29 May 2018, 29 June 2018 and 24 July 2018. As accepted in the applicant's written submissions to this Court, the communications contained "derogatory, obscene and humiliating language directed at [the victim's] imagined private sex life and her physical appearance". As well, they contained repeated threats to cause the victim harm and to stalk her. As a result of the communications, the victim suffered severe emotional distress, impacting on her work and her marriage. The applicant was identified as the sender of the communications from DNA found on the letters. When interviewed by the police, he denied writing the subject letters and the Facebook message. The Local Court proceedings 1. In the Local Court, the applicant pleaded not guilty to the charges against him and the hearing of them proceeded on 18 June 2019. At the resumed hearing on 18 July 2019, he changed his pleas to guilty. Counsel then addressed on sentence. The applicant's counsel asked his Honour to consider dealing with the matter by way of Community Correction Orders. On the following day, his Honour however imposed the sentence to which I have referred (see [6] above). Having regard to s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Act"), his Honour stated that, having considered all possible alternatives, no penalty other than imprisonment was appropriate. His Honour also stated that in his view an Intensive Correction Order ("ICO") would not fulfil the purposes of sentencing to which regard was to be had in sentencing the applicant (see s 3A of that Act). The District Court appeal 1. The applicant's appeal to the District Court was brought as of right under s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW). Pursuant to s 17 of that Act, an appeal against sentence is by way of rehearing of the evidence given in the Local Court proceedings, although fresh evidence may be given in the appeal proceedings. The applicant gave such evidence, including that he had no intention to hurt the victim. That evidence was challenged in cross-examination by reference to the content of some of the applicant's communications. In his evidence the applicant repeated what he had said in a letter apologising to the victim. In the letter he acknowledged that what he had done was wrong and asserted that he would not re-offend. 2. His counsel acknowledged in submissions that the "s 5 threshold" had "definitely" been passed. This was a reference to s 5(1) of the Sentencing Act referred to in [11] above. Counsel asked her Honour to deal with the earlier three offences by way of a Community Correction Order ("CCO") and the last three by an Intensive Correction Order ("ICO"). 3. ICOs may be made under s 7(1) of the Sentencing Act where the court has sentenced an offender to imprisonment. The making of an ICO does not render the sentence not a sentence of imprisonment. The sentence therefore remains a custodial sentence. Separate from custodial sentences are "Non-custodial alternatives" for which Division 3 of Part 2 of the Sentencing Act provides. One such alternative is a CCO (see s 8). 4. Counsel then addressed about what should occur if her Honour considered that "nothing other than a full-time custodial sentence" was appropriate. It is clear from the context in which counsel used this expression that she was referring to a sentence of imprisonment that was not the subject of an order that it be served by way of an ICO. 5. In response, the Crown stated that the offence of intimidation "is a very, very nasty offence" and that not only was "substantial general deterrence" called for but also "substantial specific deterrence". The Crown further submitted that her Honour would not be satisfied that, "even now", the applicant appreciates the gravity of what he did and "whilst there might be some remorse and he certainly claimed remorse, I think there's still a lack of insight". Counsel then submitted that "full-time custody" was called for and, consistently with that submission, her Honour indicated that she was not considering an ICO. The Crown then repeated the need for specific deterrence to be taken into account and for a full-time custodial sentence. 6. In her sentencing judgment, Payne DCJ noted that the applicant's criminality had extended over a period in the order of 18 months and continued: "The Crown fairly said that his record goes back to 1988 and at that time he would have only been aged twenty-four years. After that he has no relevant record. He is now fifty-five years of age, having been born on 10 February 1964. He was on a disability support pension. His relatives require his assistance. Balanced against that is the requirement for specific and general deterrence. … In my view the Crown is correct, nothing other than a full-time custodial sentence is appropriate. However, in my view there can be some small moderation of the allowance for special circumstances given his age, the period of good character and the requirement of reintegrating him back into the community … " Determination of Ground 1 – specific deterrence 1. In asserting that the District Court judge committed jurisdictional error by unreasonably taking specific deterrence into account in re-sentencing, the applicant relied upon the decision of the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. It is unnecessary for present purposes to refer to what was said in that case as to the circumstances in which a challenged decision will be unreasonable and will, as a result, be vitiated by jurisdictional error. It is sufficient to say that, for the following reasons, no formulation of the concept of legal unreasonableness for which that case may provide an arguable basis supports the view that Payne DCJ acted unreasonably in taking specific deterrence into account in sentencing the applicant. 2. Specific deterrence is an important objective of sentencing. It appears second in the list of the purposes of sentencing stated in s 3A of the Sentencing Act. It also figures prominently in the oft-quoted statement in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 476 of the purposes at common law of criminal punishment, namely, "protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform". 3. It is inevitable that in these circumstances a sentencing judge's mind will, and indeed should, turn to the question of specific deterrence. Whilst in some cases specific deterrence may have little or no weight (see for example R v Pickett [2010] NSWCCA 273 at [73]-[78], [82] and [85]), ordinarily specific deterrence is a matter that a sentencing judge takes into account in his or her "instinctive synthesis" (see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [37]-[38], [51] and [66]). The weight to be given to it, as with other matters, is for the sentencing judge to determine (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]). 4. In the present case there was an ample basis for the District Court judge to conclude that there was a need for specific deterrence of the applicant. In particular, the serious nature of the offences in question and the extended period over which they were committed entitled the judge to form that view. Moreover, the applicant's deceit in making the communications anonymously and in denying responsibility when interviewed by the police, when taken with his late pleas of guilty, rendered it reasonable for the judge not to be satisfied that the applicant might not re-offend. Further, the contents and belated proffering of the applicant's letter of apology, when taken with his oral evidence, were such that it was open to the judge to accept implicitly the Crown's submission that, whilst the applicant claimed to be remorseful, he still lacked insight into his wrongdoing. 5. I add that the applicant's case before this Court did not include a complaint that the reasons given by the judge were deficient. As the Crown pointed out, if that complaint had been made, it would have been necessary to hear argument from the parties about the sufficiency of the reasons and the circumstances in which a deficiency of reasons might constitute jurisdictional error. Determination of Ground 2 – alternatives to imprisonment 1. As stated in [11] above, in the Local Court, Magistrate Stewart stated that he had considered all alternatives to imprisonment but considered that no other penalty was appropriate. His Honour thus expressly recorded that he had fulfilled his obligation under s 5(1) of the Sentencing Act to satisfy himself about that. 2. In the District Court, Payne DCJ did not make such an express statement but it is apparent from her Honour's judgment, when read in light of the transcript of argument, that she considered and rejected alternatives to full-time custody. Her Honour was asked to consider CCOs in respect of some of the offences and ICOs in respect of the others (see [13] above) but she rejected both in favour of full-time custody, that is, imprisonment not to be served by way of an ICO (see [17] above). 3. What a sentencing judge need state on this topic is very much dependent on the circumstances (see R v J C E [2000] NSWCCA 498; 120 A Crim R 18 at [19] and R v Saldaneri [2001] NSWCCA 480 at [18]). Particularly in light of the applicant's counsel's concession that the "s 5 threshold" had "definitely" been passed, there was no need for her Honour to say any more than she did. 4. Finally, in his written submissions, the applicant's counsel asserted that the judge had adopted the Crown's "attitude to punishment, without scrutiny and obedience to the terms of s 5 of the Sentencing Act". There is however no reason to think that her Honour accepted the Crown's submission without applying an independent mind to its merits. 5. In these circumstances this ground of review should be rejected. Determination of Ground 3 – how the applicant's term of imprisonment was to be served 1. In his written submission in support of this ground, the applicant's counsel submitted that "[t]he two forms of custody/punishment are full-time incarceration in a correctional facility and full-time incarceration outside a correctional facility i.e. an intensive correction order – s 7 Sentencing Act". He then referred to "Non-custodial alternatives", including Community Correction Orders. It seems that counsel was contending that, when the sentencing judge said in her judgment that "nothing other than a full-time custodial sentence is appropriate" her Honour was neglecting the possibility that the applicant might be ordered to serve his sentence by way of an ICO. Presumably the basis for this submission was an implicit assertion that the expression "a full-time custodial sentence" refers to a sentence of imprisonment, whether or not it is to be served by way of an ICO. 2. It is clear however that her Honour used the expression a "full-time custodial sentence" to distinguish a sentence of imprisonment that was not to be served by way of an ICO from one that was. This can arguably be inferred from the terms of the judgment but the inference is put beyond doubt when regard is had to the transcript of the submissions to her Honour on sentence. Recourse to the transcript is permissible at least in a case "where an ex tempore judgment is given in brief terms immediately following submissions in which it is apparent that the judge is relying upon an understanding reached in the course of submissions" (You, Jae Bok v R [2020] NSWCCA 71 at [20] per Basten JA). As well, in considering the terms of ex tempore sentencing judgments the following remarks of Johnson J in R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 at [34] must be borne in mind: "In doing so, it is necessary to keep in mind that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing on 3 February 2012. This course had the undoubted advantage that those present in Court could hear immediately the sentence which was passed and his Honour's reasons for passing that sentence. A consequence of this approach, which is understandable in a busy court, is that remarks on sentence may not be 'as robustly structured as they might otherwise have been' (Simpson J in Simkhada v R [2010] NSWCCA 284 at [24]) and may 'lack the order and precision of language that can be incorporated into a judgment after the luxury of time for consideration, refinement of expression, and polishing' (Simpson J in Rotner v R [2011] NSWCCA 207 at [57])." 1. In the present case her Honour delivered the judgment immediately after the conclusion of addresses, on a day when the transcript reveals that she had other matters listed before her. She commenced her reference to a "full-time custodial sentence" with a statement that the Crown's submission was in her Honour's view correct. The transcript shows that the Crown's submission was that the applicant be sentenced to "full time custody" without an order that his sentence of imprisonment be served by way of an ICO. 2. In these circumstances, it is clear that the judge considered and rejected the possibility of the applicant's term of imprisonment being served by way of an ICO. Accordingly, this ground of review should be rejected. Orders 1. As none of the grounds upon which the applicant relies has merit, the summons for judicial review should be dismissed with costs. 2. WHITE JA: I agree with Macfarlan JA and with the additional observations of Basten JA. ********** Endnotes 1. Hay v Director of Public Prosecutions (NSW) [2020] NSWSC 219. 2. (1938) 38 SR (NSW) 153, 171. 3. [2020] NSWCCA 71 at [19]. 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. Decision last updated: 24 April 2020