High Court Confirms Jurisdictional Limit Not a Factor in Determining Sentence

On 10 November 2021, the High Court handed down an interesting decision in the case of Park v The Queen [2021] HCA 37 where it rejected the argument that a jurisdictional limit is a matter required to be taken into account in determining the appropriate sentence for an offence.

The appeal concerned the correct interpretation of section 22 of the Crimes (Sentencing Procedure) Act) 1999 (NSW) which prescribes how the District and Local Courts are required to take into account an offender’s guilty plea in passing sentence. The relevant part of section 22 states “in passing sentence for an offence on an offender who has pleaded guilty, a court may impose a lesser penalty than it would otherwise have imposed.” The maximum discount for pleading guilty is 25%.

In November 2018, the appellant, Jong Han Park, was sentenced in the District Court for multiple offences, including taking a conveyance without the owner’s consent. The maximum penalty for that offence is five years imprisonment.

However, as it was a “related offence” the sentence the District Court could impose was affected by s 186(3) of the Criminal Procedure Act which provided that it was “subject to the same restrictions and procedures as the Local Court.” The maximum prison term that the Local Court can impose is 2 years, meaning the District Court was subject to the same jurisdictional limit.

In sentencing Park, Judge Bennett imposed an aggregate sentence but was required to indicate the sentence that would have been imposed for each separate offence. In respect to the taking a conveyance offence, his Honour indicated a sentence of 2 years gaol after applying a discount of 25% for Park’s early guilty plea. This meant that had Park not pleaded guilty, the sentence would have been 2 years and 8 months – more than the jurisdictional limit of 2 years.

Park lodged an appeal in the Supreme Court which dismissed the appeal finding:

“…the correct approach is to assess the appropriate sentence for an offence within the context of the prescribed maximum penalty. The assessment involves a synthesis of all relevant facts and circumstances with any discount for a plea of guilty then applied. The result is the sentence that the court would impose. If that sentence exceeds a jurisdictional limit, it must be reduced so that it is within the limit.”

In the High Court, Park argued that the majority of the Court of Criminal Appeal got it wrong when interpreting the phrase “it would otherwise have imposed”. He argued that if a court seeks to impose a lesser penalty under section 22, it must impose a penalty that is less than it could (and therefore would) impose. Further, where the court is subject to a jurisdictional limit, the court must necessarily have regard to the jurisdictional limit. In other words, Park argued that the jurisdictional limit is the starting point before the discount is applied.

But the High Court, agreeing with the Supreme Court, rejected this argument and said that the phrase “would otherwise have imposed” is the sentence that the court would otherwise have imposed in accordance with the Sentencing Act. That sentence is imposed without regard to any jurisdictional limit affecting the court’s sentencing power. Any jurisdictional limit is applied after the judge has determined the appropriate sentence for the offence.

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