Sentencing on Backup and Related Charges
In Collins v R [2010] NSWCCA 13, C. was charged with intimidation with the intention of causing a person to fear physical harm. He was sentenced in the District Court with five other offences that he pleaded guilty to in the Local Court.
The Local Court matters were dealt with in the District Court pursuant to section 166 of the Criminal Procedure Act, permitting related or back-up offences to be placed on a certificate and transferred to the court where a person has been committed for trial or sentence.
In sentencing or otherwise dealing with a person for a backup or related offence, the District Court has the same functions (and is subject to the same restrictions and procedures) as the Local Court (under section 168 (3)). This is to restrict a sentencing judge’s power by limiting the maximum penalty applicable in the Local Court and to restrict powers to accumulate such sentences to a maximum of 3 years.
As a result, the sentence that was imposed by the District Court for the related offences were determined erroneously because the court should have calculated it whilst considering section 168 (3). For that reason alone, the defendant could be resentenced.
As an aside in C-P v R [2009] NSWCCA 291 C-P pleaded guilty to two (2) charges of armed robbery and a charge of being an accessory after the fact to an offence of aggravated car jacking. The sentencing judge also took into account eight other charges that were placed on a Form 1, including threatening a hotel manager at gun point and robbery of approximately $38,000, concealing a further armed robbery at a hotel where a patron was shot in the stomach, knowingly deal with the proceeds of crime and the theft and use of a car.
The defendant pursued a severity appeal. His Honour McClellan CJ at CL stressed the need for sentencing courts to exercise the supervisory role pursuant to s33 (2)(b) of the Crimes (Sentencing Procedure) Act 1999.
The Prosecutor has the responsibility to determine the offences to be listed on the Form 1, taking into consideration the seriousness of the offences as well as the number of offences to be listed. The Prosecution Guidelines emphasises the decision to place offences on a Form 1 “should be based on principle and reason, not administrative convenience or expedience alone.”
His Honour stated it was important for courts to supervise the use of the Form 1 Procedure. When an inappropriate arrangement has proffered and because of it “a court would be denied the opportunity to impose a proper sentence, the discretion under s33 (2)(b) should be invoked and the court should decline to accept the Form 1.”
It was found the inclusion of both an armed robbery offence and the concealing robbery offence on a Form 1 was inappropriate.
