CDPP v Bozana Fabri

Mill v The Queen (1988) 161 CLR 59 CASES CITED : Pearce v The Queen (1998) 166 CLR 59 DPP v James Adam Lee & Anor (2006) NSWSC 270

PARTIES : The Commonwealth Director of Public Prosecutions Bozana Fabri

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Rein J 20 June 2008

11567/08 Commonwealth Director of Public Prosecutions v Bozana Fabri

JUDGMENT 1 His Honour: In this matter the Commonwealth Director of Public Prosecutions by summons appeals from a decision of her Honour Magistrate O'Shane made on 12 March 2008, in which her Honour dismissed an information and summons exhibited on 29 November 2007, in respect of Bozana Fabri ("the defendant").

2 There was today, when the matter was called, no appearance by or on behalf of the defendant. There is evidence from Mr Powell's affidavit that Legal Aid have been notified and that they are not instructed in the matter. Mr Powell has been contacted by the defendant on two occasions. I am satisfied that the defendant has been served with the summons in this matter on 10 April 2008 (see the affidavit of Terrence Brightman sworn 14 April 2008) and that she has been notified of today's hearing and of the other occasions on which this matter has been listed in this court (see the affidavit of Mr Anthony John Powell of 16 June 2008). I am satisfied that she has had adequate opportunity to appear and that it is appropriate for the matter to proceed in her absence.

3 The Commonwealth Director of Public Prosecutions ("the DPP"), relies on the evidence contained in an affidavit of Mr Powell of 16 May 2008 and the set of exhibits thereto, to which exhibits I have had regard.

4 The appeal is brought pursuant to s 56 of the Crimes (Appeal and Review) Act 2001. That Act relevantly provides an appeal as of right to this court by a prosecutor against an order made by a Local Court dismissing a matter the subject of any summary proceedings, on the ground that it involves a question of law alone. Section 56(2) provides that the time in which an appeal must be brought is that fixed by the rules of court, and the rules of court affix 28 days from the material date as the time within which an appeal is to be brought. This appeal was filed on 9 April, which was the last day within the time provided for an appeal. The appeal is therefore competent both as to subject matter, it being an appeal in relation to a matter of law, and as to the time within which it has been brought. 5 The background to the matter is as follows: (1) On 24 February 2004 the defendant was convicted by his Honour Judge Price, then Chief Magistrate, of three offences: (i) an offence against s 215 of the Social Security (Administration) Act 1999 (Cth.); (ii) two offences against s 135(2)(1) of the Criminal Code . (2) On 24 February 2004 in respect of all three offences, his Honour Judge Price released the defendant pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth.) upon the defendant giving security by recognisance of $500 to be of good behaviour for two years. (3) On 3 July 2007 a offence pursuant to s 135.1(5) of the Criminal Code was found to be proven in the absence of the defendant who failed to appear ("the later offence"). Section 135.1(5) provides: "(5) A person is guilty of a offence if: (a) the person dishonestly causes a loss, or dishonestly causes a risk of loss, to another person; and (b) the first-mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and (c) the other person is a Commonwealth entity. Penalty: Imprisonment for five years." (4) The "loss" the subject of the 2007 offence was obtaining a payment of a Parenting Payment Single, without disclosing that she was employed and in receipt of income, that she was married and not living separately and apart on a permanent or indefinite basis from her husband and that her husband was employed and in receipt of income. The particulars allege that the loss occurred between "about 5 June 2001 and about 14 October 2004". (5) On 23 October 2007 the Local Court confirmed that the defendant was convicted of the s 135.1(5) offence, but sentence was not then imposed nor has it yet been imposed. (6) On 29 November 2007 Magistrate Paul Johnson issued an information and summons on the basis of information of Phillip Mark Chamberlain setting out the matters recited in subpara (2) above, and asserting that: "Between about 24 February 2004 and about 14 October 2004, [the defendant] did, without reason cause or excuse fail to comply with a condition of an order pursuant to which she was released, namely that she failed to comply with an order made in the Local Court of New South Wales at the Downing Centre in Sydney, New South Wales on 24 February 2004 pursuant to s 20(1)(a) of the Crimes Act 1914 that she be of good behaviour for a period of two years, contrary to s 20A of the Crimes Act 1914."

6 Section 20A of the Crimes Act 1914 (Cth.) is, relevantly, in the following terms: "Failure to comply with condition of discharge or release (1) Where a person has been discharged in pursuance of an order made under subs 19B(1), or released in pursuance of an order made under subs 20(1), and information is laid before a magistrate alleging that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, the magistrate may: (a) issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court by which the order was made; or (b) if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective--issue a warrant for the apprehension of the person. (1A) Subs(1) does not apply to a failure by a person to comply with a condition of an order (other than a failure constituted by the commission by the person of an offence) unless the information is laid before the end of the period for which the person is required by the order to give security to be of good behaviour. ... (5) Where, in accordance with this section, a person who has been discharged in pursuance of an order made under subs 19B(1), or released in pursuance of an order made under subs 20(1), appears or is brought before the court by which the order was made, the court (whether or not constituted by the judge or magistrate who made the order), if it is satisfied that the person has, without reasonable cause of excuse, failed to comply with a condition of the order, may: (a) ... (b) in the case of a person who has been released in pursuance of an order made under para 20(1)(a): (i) without prejudice to the continuance of the order, impose a pecuniary penalty not exceeding 10 penalty units on the person; (ii) revoke the order and, subject to subs (6), deal with the person, for the offence or offences in respect of which the order was made, in any manner in which he could have been dealt with for that offence or those offences if the order had not been made and he was before the court for sentence in respect of the offence or offences; or (iii) take no action; or ..."

7 On 12 March 2008 the DPP sought to obtain a conviction pursuant to s 20A(5) but Magistrate O'Shane dismissed the information. The reasons for the dismissal need to be gleaned from the transcript of proceedings on this occasion, and it would appear that her Honour took the view that since the period of good behaviour relevant to the recognisance had expired on 23 February 2006, the DPP could not bring a complaint in 2007 that there had been an offence committed in 2004 (even if wholly or partly within the period in which good behaviour was required): see T3 lines 13 to 33, exhibit AJP7. Her Honour also expressed the view that s 20A was ambiguous (see T4 lines 6 to 7), and appeared to rely on that as a further basis for dismissing the information.

8 It is clear from a reading of s 20A(1A) that an information which alleges an absence of good behaviour for reasons other than the commission of an offence cannot be laid other than within the period in which good behaviour is required. However, in my view, it is clear from a reading of subs (1) and (1A) of s 20A that there is no requirement that an information based on an offence as a basis for lack of good behaviour must be brought within the period required for good behaviour, and in my view the learned magistrate has fallen into error by, in effect, so holding.

9 Because, in my view, there is no ambiguity in s 20A(1), there is no need to have resort to secondary materials to see whether ambiguity can be resolved. If, however, the magistrate's view that the section is ambiguous was correct and resort is had to the second reading speech (of Mr Duncan, the Parliamentary Secretary to the Attorney-General), it can be seen at p 3783 that it was intended that if a federal offender commits an offence whilst on a recognisance, "breach action may be taken, even if the order has expired at the time the person is convicted of the relevant offence". That material would strongly support the conclusion to which I have come if, contrary to my view, there were any ambiguity.

10 I note that there was no suggestion by the magistrate that the offences said to constitute the breach of the recognisance were not at least partly committed within the relevant period. The statements of facts found at exhibit AP5 in relation to the offences of which the defendant was convicted by his Honour Magistrate Dillon, refers to receipts and failure to advise within that relevant period as well as outside it. The relevant question for a breach of the recognisance is the commission of an offence or offences within the period of the recognisance, not before or after. There is a sufficient basis to establish that offences were committed within the period, although as I say, there were other acts also forming part of the offences which would not be relevant for the purposes of s 20A.

11 It follows that in my view the magistrate has fallen into error and that the dismissal of the information was based on an error of law.

12 The evidence before me is that the defendant, who has been arrested under a warrant issued out of the Local Court following her non-attendance for sentencing on the later offence, is due to appear before the Local Court at Sutherland on 26 June for that purpose. It is submitted by counsel appearing on behalf of the DPP that it would be appropriate in the circumstances that the question of breach of the recognisance brought about by the commission of an offence within the relevant period ought be dealt with at the same time as the defendant is to be sentenced for the later offence. The DPP therefore seeks an order that the information the subject of the appeal be heard together with the sentencing in respect of those other matters.

13 I accept Counsel's submission that it would be in the interests of justice, having regard to the importance of totality as a principle in sentencing (see Mill v The Queen (1988) 161 CLR 59, at 62; and Pearce v The Queen (1998) 166 CLR 59,62 in the High Court), for the Local Court to deal with the s 20A information at the same time as the 2007 conviction, and that it therefore is appropriate for orders in the terms which are sought by the DPP.

14 S 59 of the Crimes (Appeal and Review) Act, provides that in setting aside an order made by the Local Court, this court may make "such other order as it thinks just", which supports Counsel's contention that an order of this kind is appropriate; I should note that he very properly brought my attention to s 66 of that same Act, in which it is stated that if an appeal court remits a matter to the Local Court and the magistrate who made the original conviction or order, or imposed the original sentence, has ceased to hold office as a magistrate or is for any other reason unable to continue to hear and determine the matter, the matter is to be dealt with by another magistrate nominated by the Chief Magistrate, which could give rise to an argument that the order that is to be made is for remittal to the magistrate who heard the matter from which the appeal is brought.

15 I note that in DPP v Adam James Lee & Anor (2006) NSWSC 270 at paras 67 to 72, Howie J considered what orders should be made and noted that there was no dispute in that case that he had a power to make an order remitting the matter to be heard by another magistrate under s 59(2)(a), and that is what he did. It would follow that it is not necessary in every case for the matter to be remitted to the same magistrate. In any event it seems to me that s 66 is designed to enable the Local Court to deal with the matter once it is returned to it and I do not think s 66 should be read as a fetter upon the jurisdiction given to this court in s 59. In my view it is just that all matters relevant to past offences, including any breaches of the recognisance, be heard at the same time by the same magistrate.

16 Accordingly, I make the orders that are sought by the DPP, which have been reduced to writing, and accordingly I will make orders in accordance with the short minutes of order which are initialled by me, dated with today's date and placed with the papers.

17 There is some urgency about this matter, given that the other matters to which I have referred are to be heard on 26 June. Accordingly, it would be of assistance if the registry can arrange for the despatch of a copy of the orders that I have just made as soon as possible. I grant leave to the DPP to have formal orders taken out in accordance with the orders that I have just made forthwith. To enable ease of sealing the orders, further copies will be placed together with the copies that I have initialled on the file. **********

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