A recent decision by the New South Wales Court of Criminal Appeal (NSWCCA) explains the law when it comes to the type of appeal to file when seeking non-conviction orders such as mental health orders, dismissals and good behaviour bonds without conviction in the District Court.
NSW laws enabling appeals from the Local to the District Court
Section 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (‘the CAR Act’) provides that a person who has been convicted or sentenced by the Local Court has the right to appeal to the District Court against the conviction, the sentence or both.
The appeal must be filed within 28 days of the Local Court sentencing, or within 3 months with the ‘leave’ (permission) of the court if it is in the interests of justice grant that leave.
Section 12(1) of the CAR Act provides that a person who is convicted in the Local Court in his or her absence or following a plea of guilty may appeal against the conviction, but only if they have the leave of the District Court.
The appeal must be filed within 28 days of the sentencing.
Section 4 of the CAR Act contains a mechanism for what are known as ‘annulment applications’ – providing that a person who did not appear in the Local Court when he or she was convicted or sentenced may apply for the conviction or sentence to be set aside, if it is in the interests of justice to do so.
Annulment applications must be made within 2 years of the relevant conviction or sentence.
District Court appeals are fresh hearings
Appeals from the Local to the District Court are known as hearings de novo; which essentially means the District Court considers the case afresh, rather than has to determine whether the Local Court has made an error of law or fact.
That said, appeals that follow a Local Court defended hearing are primarily determined by reviewing and making written and/or verbal submissions on the transcript of the Local Court hearing, and any fresh material that may be adduced by way of a notice of motion and affidavit in support.
It is important to be aware that the District Court judge is only permitted to impose a penalty that is harsher than that which was imposed in the Local Court if he or she first gives the defence what is known as a ‘Parker warning’.
There is no prescribed way of giving such a warning, but it will normally takes the form of something like,
- ‘I am considering a harsher penalty. Are you sure you wish to proceed with the appeal?’, or
- ‘I am of the view the Local Court penalty was too lenient. Are you sure you want to proceed?’.
If a Parker warning is given, it is normally prudent to withdraw the appeal at that stage; however, there are exceptions to this rule.
One of these exceptions is if the judge indicates that he or she wishes to increase the prison term imposed in the Local Court (eg from 8 months to 12 months) but deal with it by way of an alternative to a full time custodial sentence (eg impose an Intensive Correction Order rather than a full time prison sentence).
In practice, the existence of Parker warnings means that an experienced lawyer will be able to ensure that his or her client will never receive a harsher sentence than that which was imposed in the Local Court.
Power of the District Court when deciding appeals
Section 28(2) of the CAR Act makes clear that in determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings.
When appealing a case from the Local to the District Court, an appellant will often seek to avoid a criminal conviction by obtaining what’s known as a ‘non-conviction order’.
NSW non-conviction orders
In New South Wales, the Crimes (Sentencing Procedure) Act 1999 (‘the Sentencing Act’) contains provisions whereby a court may discharge a defendant without recording a criminal conviction despite a plea of guilty or a finding of guilt.
In that regard, section 10(1)(a) of the Sentencing Act empowers a court to dismiss criminal charges unconditionally; that is, without imposing a good behaviour bond. This is commonly known as a ‘section 10 dismissal’.
Section 9(1)(b) of the Sentencing Act enables a court to discharge a defendant without recording a criminal conviction on condition that he or she enters into good behaviour bond for up to 2 years under section 10(1)(b). This is commonly known as a ‘conditional release order without conviction’.
And section 10(1)(c) provides that a court may discharge a defendant without recording a criminal conviction that he or she enters into an agreement to participate in an intervention program for up to 2 years. This is commonly known as a ‘section 10 intervention order’.
In addition to these provisions, section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (‘the Mental Health Act’) contains a mechanism whereby a person who suffers from a mental health impairment or cognitive impairment may avoid a criminal conviction as well as a finding of guilt unconditionally, or on condition he or she enters a mental health treatment or support plan for up to 12 months.
This provision came into effect on 27 March 2021, and was previously known as a ‘section 32 application’.
Commonwealth non-conviction orders
In terms of Commonwealth offences, such as those charged under the Criminal Code Act 1995, section 19B of the Crimes Act 1914 empowers a court to dismiss charges unconditionally, or discharge a defendant without conviction on condition that he or she enters a good behaviour bond for up to 3 years.
In addition, section 20BQ of the Crimes Act 1914 contains a mechanism whereby a court may dismiss charges unconditionally and without recording a conviction for a defendant who suffers from a mental illness or intellectual disability at the time of the their court hearing, or conditionally upon the person entering a treatment plan for up to 3 years.
NSWCCA considers District Court’s jurisdiction on appeal
On Friday, 9 July 2021 a full three-justice bench of the New South Wales Court of Criminal Appeal (NSWCCA) handed down its judgment in Huynh v R  NSWCCA 148, which considered the power of the District Court to set aside certain convictions imposed by the Local Court and make non-conviction orders in their place.
The facts of the case were that Ms Thi Phuong Trang Huynh was charged with four counts of obtaining a financial advantage from a Commonwealth entity under section 135.1(1) of the Criminal Code Act 1995 (a Commonwealth offence).
Before entering a plea, Ms Huynh made an application in the Local Court for the charges to be dismissed on mental health grounds under section 20BQ (outlined above).
The magistrate refused the application.
Ms Huynh then pleaded guilty and criminal convictions were entered against her.
She then appealed against the sentences under section 11(1) of the CAR Act.
During the appeal, a question arose as to whether the District Court had jurisdiction to dismiss the charges under section 20BQ or 19B.
The District Court judge then referred the matter to the NSWCCA for determination of four specific questions.
The questions for determination
The questions before the NSWCCA were:
- On an appeal against sentence brought under section 11(1) of the CAR Act, does the District Court have the power to set aside the Local Court convictions and instead make orders under section 20BQ?
- On an appeal against conviction brought under section 12(1) of the CAR Act, does the District Court have the power to set aside the Local Court convictions and instead make orders under section 20BQ?
- On an appeal against sentence brought under section 11(1) of the CAR Act, does the District Court have the power to set aside the Local Court convictions and instead make orders under section 19B?
- In an appeal against conviction brought under section 12(1) of the CAR Act, does the District Court have the power to set aside the Local Court convictions and instead make orders under section 19B?
In the leading judgment, with which Chief Justice Bathurst and Justice Adams agree, Justice Beech-Jones considers the relationship between the NSW legislation that enables appeals – which is the CAR Act – and the federal legislation under which Ms Huynh had been charged – which is the Criminal Code Act 1995.
His Honour notes that the federal legislation was enacted under power contained in the Australian Constitution – specifically section 76(ii) – and that the CAR Act cannot therefore by itself confer jurisdiction on a state court to deal with federal charges.
His Honour explains that the federal legislation enabling New South Wales courts to deal with Commonwealth charges is contained in the Judiciary Act 1903 (Cth) – specifically, sections 39(2), 68(2) and 79(1) of that Act – and Part 1B of the Crimes Act 1914 (Cth).
His Honour then reviews sections 20BQ and 19B of the Crimes Act 1914, finding they do not contain clear provisions regarding the court or courts in which certain powers are vested, the precise nature of any vested powers or the meaning of specific terms – including whether a person referred to as ‘charged’ includes one that has been convicted and is appealing the decision.
The judge then looks closely at sections 11, 12, 13, 20 and 28 of the CAR Act, noting they draw a distinction between appeals against conviction and those against sentence.
As to section 28(2), which provides that ‘the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings’, the judge remarks, ‘it is not a function of the Local Court to set aside its own convictions (except in certain narrowly defined circumstances…’.
He then proceeds to review case law relating to the appeal provisions and how it applies to the questions before the court.
Significantly, the judge finds that appeals to the District Court against the Local Court’s refusal to grant section 14 State mental health orders (formerly known as section 32 orders) must be in the form of conviction appeals – they cannot be appeals against sentence (which are commonly known as a ‘severity appeals’).
His Honour distinguishes these appeals from those made to the District Court seeking non-conviction orders under section 10 of the NSW Sentencing Act. In that regard, he notes that section 10(5) of the Sentencing Act provides that:
‘A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence’.
His Honour finds that the subsection empowers the District Court to make section 10 orders pursuant to appeal against sentences – in other words, conviction appeals are not required.
The judge then turns to the provisions of the abovementioned federal appeal provisions, as well as case law which interprets them, finding that while the legislation enables section 20BQ and 19B orders to be made pursuant to conviction appeals to the District Court, they do not empower the District Court to make these orders pursuant to sentence appeals.
His Honour also explains that while section 10 of the NSW Sentencing Act and section 19B of the federal Crimes Act may appear to be similar, the former contains a provision enabling the District Court to make orders under the section pursuant to a sentencing appeal while the latter does not.
The court therefore answers the posited questions as follows:
- The District Court does not have the power to set aside a Local Court conviction and instead make an order under section 20BQ on appeal against sentence under section 11(1) of the CAR Act.
- The District Court does have the power to set aside a Local Court conviction and instead make an order under section 20BQ on appeal against conviction under section 12(1) of the CAR Act.
- The District Court does not have the power to set aside a the Local Court conviction and instead make an order under section 19B on appeal against sentence under section 11(1) of the CAR Act.
- The District Court does have the power to set aside a Local Court conviction and instead make an orders under section 19B on appeal against conviction brought under section 12(1) of the CAR Act.
The court also makes clear that:
- An appeal to the District Court seeking a section 14 order (formerly known as a section 32 order) must be a conviction appeal, and
- An appeal to the District Court seeking a section 10 order may be a sentence appeal.
It has been the practise of the District Court for many years to hear and determine section 32 mental health applications (now section 14 applications), section 20BQ mental health applications and requests for dismissal under section 19B during an appeal against sentence (ie a severity appeal).
However, the NSWCCA makes clear that this is impermissible – that the District Court can only make such determinations if the appeal is against conviction.
In practical terms, this could lead to inefficiencies in the allocation of court resources as the District Court may not be aware of the nature (and therefore the estimated duration) of the first court attendance for conviction appeals.
The situation could, however, be resolved by requiring greater detail in the notice of appeal or by way of legislative amendments.
To rectify the inconsistency in the rules relating to section 10 and section 19B, the latter could be amended to introduced a subsection in similar terms to section 10(5) of the NSW Sentencing Act, enabling the District Court to make section 19B orders pursuant to a sentence appeal.
Ms Huynh’s matter will return to the District Court for determination in accordance with the law.