Coleman v DPP & County Court of Victoria [2002] VSCA 116

Coleman v DPP & County Court of Victoria [2002] VSCA 116 - VSCA 2002 case summary — Zoe

[13]

The passage[17] relied on for the respondent is really the obverse of the passage quoted at length. In my opinion, the appellant fails to bring himself within the passage relied on. The County Court judge was, I consider, acting within jurisdiction when on the hearing of the charge against the appellant for an offence under sub-s.(1) of s.31 of the Sentencing Act he, pursuant to sub-s.(5) of that section, erroneously, as I would hold, found the appellant guilty of the offence and proceeded in substance to restore the suspended sentence and order the appellant to serve it. It was not an essential condition of the existence of the jurisdiction which his Honour was professing to exercise that a certain event, being the commission by the appellant of another offence punishable by imprisonment, had in fact occurred. That might have been so - I express no opinion - if the first sub-section of s.31 had provided that the following sub-sections in it applied if, but only if, during the operational period of a suspended sentence of imprisonment the offender committed another offence punishable by imprisonment, and if the remainder of the present sub-s.(1) had been the first of the other sub-sections. But the present sub-s.(1) is similar to many sections which provide that if a person does something he or she is guilty of an offence and may be proceeded against in a manner specified. Section 31(1) makes the offender who commits another offence punishable by imprisonment guilty of an offence and liable to prosecution. Sub-section (2) authorises a proceeding against a person "for", i.e., alleging, such an offence, which must necessarily be authorised whether or not the offence has actually been committed. Proof that the proscribed conduct did not occur or failure to be satisfied beyond reasonable doubt that it did occur, each of which happens daily in our courts, does not mean that the court purporting to hear and determine such a charge has acted without jurisdiction and committed a jurisdictional error. The question of the guilt or innocence of the appellant of the offence under s.31(1) alleged against him, together with, if he was guilty, what consequential orders, if any, should be made by way of restoration of the suspended sentence and the like, was clearly committed to his Honour by sub-s.(5) in particular, taken with sub-ss.(3)(b)(ii) and (4). His Honour had jurisdiction to find, whether correctly or incorrectly, that the appellant was guilty of the offence under sub-s.(1). If the judge did not have jurisdiction to decide (subject only to any appeal) whether the further offence was committed or not, his decision would always be contingent or defeasible. That his Honour was acting within jurisdiction may be demonstrated by assuming a case where the judge was not satisfied that the offender had committed a subsequent offence punishable by imprisonment either because he, correctly, was not satisfied that the offender had committed the elements of the offence alleged or because he concluded, correctly, that the offence committed was not in truth punishable by imprisonment. It could not be suggested that an order dismissing the charge in either of those cases was made without jurisdiction. If due allowance is made for the fact that it was prohibition and not certiorari that was sought in Parisienne Basket Shoes Pty. Ltd. v. Whyte[18], the judgment of Dixon, J. in particular in that case is applicable here and his Honour's reasoning shows why all the more so here there was no jurisdictional error on the part of the County Court judge. The three factors of the gravity of the error, the liberty of the subject and the absence of an avenue of appeal relied on for saying that it was a matter of jurisdiction cannot overcome the clear statutory language and the reasoning of Dixon, J. Director of Public Prosecutions v. Judge Fricke[19] supports the view that the judge here was acting within jurisdiction. Finally, it may be that the fact that s.31 is a general provision applying to the Supreme Court as well as to other courts is a factor independently making it unlikely that sub-s.(1) goes to jurisdiction: compare Roos v. Director of Public Prosecutions[20], though the dissent of Sheller, J.A.[21] there is to be noted.

[14]

Whether other proceedings could fruitfully be taken by the appellant in this Court was debated during argument. But no appropriate proceeding was suggested or presents itself to my mind. In particular, since the sentence of imprisonment imposed on 21 February 2001 was imposed on the hearing of an appeal to the County Court under Subdivision 1 of Division 4 of Part IV of the Magistrates' Court Act 1989 and not "on indictment" in that court's original jurisdiction (as had occurred in R. v. Hatch[22]), an application under Part VI of the Crimes Act 1958 for leave to appeal against the sentence constituted by the order for restoration of the suspended sentence could not be brought instanter (with the necessary extension of time) and allowed: R. v. Nguyen[23]; R. v. Coppin[24]. Section 105 of the Sentencing Act provides in essence that a person sentenced by a court for breach of a sentencing order has a right of appeal against sentence as if the court had immediately before imposing sentence found the person guilty or convicted the person of the offence in respect of which the sentencing order was originally made and the sentence were a sentence imposed on that finding of guilt or conviction. In Nguyen it was further held that s.105 did not enable an application for leave to appeal under Part VI of the Crimes Act to be made from an sentencing order made under s.47(3) (as it originally stood) of that Act upon breach of a community-based order. Section 47 is and was quite similar to s.31. It would seem that the reasoning in that case would apply here to prevent s.105 from assisting the appellant to apply for leave to appeal under Part VI. Finally, s.104, authorising the Supreme Court to correct sentences where it determines that the sentence imposed was beyond the power of the sentencing court, does not assist the appellant. For one thing, it requires, relevantly, an application to the Supreme Court for relief in the nature of certiorari. In any event, it authorises the amendment of the conviction by substituting for the sentence imposed a sentence which the sentencing court had power to impose. In other words, it appears to be limited to correcting the kind or range of penalty[25] as opposed to quashing the conviction and setting aside the sentence entirely. Difficulties, probably not

[24]

"M: Yes thanks Senior. POLICE PROSECUTOR (PP): Your Worship at approximately 7.25 a.m. on Friday 6th July of this year the police attended at the address of 32 Albert Street, Sebastopol and there executed a search warrant issued under the Drugs Enforcement Control Substances Act. After gaining entry to the premises the police gave the defendant Coleman an opportunity to declare location of any illegal substances in the house prior to searching the property. Coleman then removed from a cigarette packet that was sitting on the bedside table a piece a silver foil contained a small quantity of cannabis. Police took possession of that, search of the address was conducted and located other items that were not relevant to this defendant and another male that resides at this address was charged with these items. The defendant was conveyed back to the Ballarat Regional response office and was interviewed in relation to the matter. During the interview the defendant made full admissions in relation to the possession and use of cannabis and stated that the foil contained just under ½ gram of cannabis. He stated that he bought it the previous night as a 1 gram stick for $20 from an unknown male at a hotel in Ballarat. He further stated that he smoked some of it the prior night at home from a bong and admitted that he was a regular user of cannabis and admitted that he smoked about a gram every one or two days as it helped him relax. That's the summary your Worship. DF: Fair summary your Worship. M: Well I find those 2 charges proven. Is there anything known. What do you want me to do with the breach matter just adjourn it sine die? DF: That would be good. PP: Your Worship I was going to make an application for that charge to be withdrawn and .. M: I was going to say that it would need to be re-issued I'll mark that withdrawn. Yes. DF: Just in regard to the summary you probably already noted that the warrant and if not I will tell you now. The warrant wasn't actually issued with a view to searching any premises occupied by my client in particular the warrant was actually directed at the nominal occupier of the house. M: [Counsel] he's got a modest amount of cannabis although he has a string of priors I would normally propose dealing with it by way of a fine. DF: Certainly Sir his income is $160 Newstart allowance per week and on that basis that is also still undergoing counselling for drug problems and doing his best to get over this and I will say no more. M: Thank you. Stand up please Mr Coleman. Mr Coleman I frequently say to people that it is still illegal in this state and I know a lot of people do smoke and a lot of people have it around the place but it is still illegal. You have got enough priors and you have been to court often enough to well understand that. However it is a very small amount and you were co-operative with the police and I will take into account your plea of guilty today. You will be convicted on each of these matters and you will be fined an aggregate fine of $400 and you need time to pay that? DF: 2 months stay. M: A stay of 2 months. DF: As the court pleases. M: Yes thank you, you are free to go."

At a glance

Court

Decision date

Before

Source

Judgment (88 paragraphs)

Parties