Director of Public Prosecutions v Brasher

Supreme Court of NSW|2016-12-01|Before: Davies J

Solicitors: Solicitor for Public Prosecutions (Plaintiff) Unrepresented (First Defendant) Crown Solicitors Office (Second Defendant) File Number(s): 2016/104226 Decision under appeal Court or tribunal: Wyong Local Court Jurisdiction: Criminal Date of Decision: 06 January 2016 Before: Wilson LCM File Number(s): 2016/135562

Judgment

The Director of Public Prosecutions (NSW) seeks judicial review of a decision of a magistrate at the Wyong Local Court on 6 January 2016. The Magistrate had before him an application to revoke a community service order (CSO). The Magistrate revoked the order but did not thereafter sentence the offender to any penalty for the offence for which the CSO had been imposed.

Submissions

The DPP submitted that the Magistrate had so misconstrued the nature of his jurisdiction under s 115(3) of the CAS Act that he failed to exercise that jurisdiction. In dealing with an offender under s 115(3) the judicial officer is in effect re-sentencing the offender for the original offence. Merely to revoke an order without imposing a sentence for the original offence means that the offender remains unpunished for that offence. By the Magistrate saying that no further action is taken after revoking the community service order indicates that he misconstrued the nature of the discretion conferred upon him under s 115. The DPP submitted that the Court of Criminal Appeal has emphasised that breaches of non-custodial sentencing options should be dealt with promptly and treated seriously.
The DPP submitted that the Magistrate's final remark, that he took into consideration the $500 fine he had imposed in lieu of the s 9 bond, was an irrelevant consideration as far as the revocation of the CSO was concerned. The $500 fine was in lieu of the breaches of the s 9 bond and had nothing to do with the breaches of the CSO.
The DPP submitted that the Magistrate failed to take into account relevant considerations which were the matters that he should have addressed in relation to the PCA offence, particularly when this was not the first such offence for which the First Defendant had been convicted. In particular, specific and general deterrence were significant considerations for a PCA offence generally and particularly for a subsequent PCA offence.
The DPP submitted that the Magistrate failed to take into account that the application to revoke the CSO had been brought as a result of the First Defendant's failure over some months to comply with that order, and to the fact that the First Defendant offered no reasonable explanation for that failure. Nor was there any evidence even to support the excuse he offered.
The First Defendant did not appear at the hearing of the Summons. Nor had he appeared at any time when the matter was listed before the Registrar despite notice having been given to him of each adjourned listing. Nor were any submissions received from the First Defendant despite his having been notified of a direction to that effect. I am satisfied from evidence tendered at the hearing that the First Defendant has been informed more than once of the hearing on 1 December.

Legal principles

Section 115 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the CAS Act) provides: 115 Revocation of community service orders (1) An application for the revocation of an offender's community service order may be made to the sentencing court, to a court of like jurisdiction or to a court that is superior to the sentencing court. (2) The application may be made: (a) by the offender's assigned officer, on the grounds that the offender has failed, without reasonable excuse, to comply with the offender's obligations under the order, or (b) by the offender, or by the offender's assigned officer, on the grounds that it would (having regard to circumstances that have arisen since the relevant community service order was made) be in the interests of justice to revoke the order. (2A) The application cannot be made later than one month after the expiry of the relevant maximum period for the order. (2B) For the purpose only of determining an application under this section, a community service order is taken to be in force even if the relevant maximum period has expired. (3) If satisfied that the applicant has established the grounds on which the application is made, the court may revoke the offender's community service order and (if it considers it appropriate to do so) deal with the offender in any manner in which it could have dealt with the offender had the order not been made. (4) An offender on whom a penalty is imposed as a consequence of the revocation of a community service order under this section has the same rights of appeal as if the penalty had been imposed when the offender was convicted of the offence to which the penalty relates. (5) A court that revokes an offender's community service order under this section must cause notice of the revocation to be sent to the offender's assigned officer. (6) For the purposes of this section: (a) failure by an offender to perform the required number of hours of community service work under a community service order within the relevant maximum period for the order is taken to constitute failure by the offender to comply with the offender's obligations under the order, and (b) failure by an offender to comply with the offender's obligations under one community service order (the primary failure) is taken to constitute failure by the offender to comply with the offender's obligations under every other community service order that is in force when the primary failure occurs.
The proper approach to an application under s 115 is set out in DPP (NSW) v Caita-Mandra [2004] NSWSC 1127 by Howie J. The portions extracted relate particularly to an application under s 115(2)(a): [13] With respect, in my view, the Magistrate allowed himself to be distracted by the nature of the application being made to him and by what the Service wanted or did not want in making the application. There are two grounds upon which an application can be made for a revocation, those being set out in s 115(2)(a) and (b). The first of those applications, under s 115(2)(a), is based upon a failure of the offender, without reasonable excuse, to carry out the offender's obligation under the order. The second, under s 115(2)(b) is based upon what is necessary in the interests of justice. Neither of those applications, either intrinsically or explicitly, indicates whether an order of revocation should be made, let alone what order, if any, should be made as a consequence of revocation. [14] An application under s 115(2)(a) or (b) simply brings the matter before the Court and invokes the jurisdiction under s 115(3). There is nothing in the provisions of s 115 that suggests that the jurisdiction of the court, either to revoke the order or to make some other order as a consequence of the revocation, should be exercised in any particular way because of the nature of the application being made to the court. The discretion of the court is unfettered by the nature of the application made to it. As the Magistrate rightly observed, there is nothing in the section that entitles the Service to require, or even to request, that any particular order be made as a consequence of revocation. [15] The Magistrate, having revoked the order simply determines in the exercise of his or her discretion whether to make any consequential order. There will no doubt be a number of relevant facts and circumstances to be taken into account in exercising that discretion, but one of them is not the nature of the application for revocation. No doubt the circumstances giving rise to the application will be a relevant matter in deciding if some other order should be made and what that order should be. For example, if the circumstance giving rise to the revocation is not the fault of the offender, it would be unlikely that the court would impose a custodial order upon revocation because such an order would be unduly harsh: R v Fielding (1993) 14 Cr App R (S) 494. On the other hand, if the sentencing court was deceived into making the community service order by the offender failing to reveal a relevant fact that later made it expedient to revoke the order, a sentence of imprisonment might be imposed upon revocation: R v Hammon [1998] Crim L R 293. But it does not follow that, simply because it was not the fault of the offender that he could not complete the community service order, no order should be made following revocation. [16] … [17] In my opinion the magistrate's jurisdiction under s 115(3) miscarried because he took into account irrelevant considerations being the nature of the application and the absence of any request by the Service for a consequential order on revocation. This would be sufficient to enliven the jurisdiction of this Court to order the magistrate to exercise his jurisdiction afresh and according to law. … [22] Neither the exercise of the jurisdiction to revoke the order nor the exercise of the jurisdiction to make some other order consequent upon the revocation was determined by a finding that it was not the defendant's fault that he could not complete the community service order. Insofar as the Magistrate appears to have acted on the belief that the revocation was an act of mercy to relieve the defendant of the burden of a punishment lawfully imposed upon him and therefore it was inappropriate to make any order imposing some other punishment upon the defendant, the Magistrate failed to understand the true nature of the jurisdiction arising under the section and, therefore, he failed to exercise that jurisdiction. [23] The failure of the magistrate upon the material before him to re-sentence the defendant itself shows that he must have misunderstood the nature of the discretion he was required to exercise upon revoking the community service order. No reasonable magistrate properly exercising the power under s 115(3) could have reached that decision. The defendant had been convicted of a serious offence and, instead of being sentenced to imprisonment, was ordered to perform 100 hours community service. He performed no part of that order and, therefore, remained completely unpunished for the offence of which he had been convicted once the order was revoked. There was nothing in the material put before the Magistrate that could have possibly justified a failure to make some other sentencing order on the application of proper sentencing principles. The offence was one to which both general deterrence and denunciation were highly relevant factors in determining the appropriate sentence. It was so obvious that the defendant could not escape punishment for the offence that the strongest submission his legal representative was prepared to make was that the application should be stood over for six months to see whether the applicant could in that time become fit to complete the order. [24] The Magistrate also thought that it was relevant that the period in which the order had to be served had almost come to an end without the Service seeking to extend that time. This was in my view a completely irrelevant consideration. The relevant matter was that the defendant had completed not one hour of the order even though he had been given time to see whether his injury might improve. In any event, subject to s 115(2A), an application for revocation of an order can be made even after the order expires: s 115(2B).
In Bonsu v R [2009] NSWCCA 316 Howie J said at [9]: It is clear from the terms of this provision that, where a community service order is revoked, the court deals with the offender for the offence in respect of which the order had been made. There is no offence of failing to carry out a community service order.

Consideration

An examination of the transcript of the hearing on 6 January 2016 leads to the following conclusions: (a) The Magistrate observed that the First Defendant had only done two out of 100 hours of community service but did not seek an explanation why that was so nor did he make further reference to the matter; (b) His Honour made no reference to s 115 of the CAS Act nor to any obligation or discretion on his part to consider a resentence when the CSO was revoked; (c) Although the Magistrate made a statement suggesting, in the first instance, that the fine of $500 was to be imposed in respect of both the breach of the CSO and the bond, his Honour clarified that there was to be no penalty or sentence to replace the CSO; (d) Although the Magistrate had material indicating that the bond had been breached both by the commission of the drug offence and by the failure to comply with the terms of the bond in relation to compliance with directions of community corrections, his Honour appeared not to challenge the false statements of the First Defendant that he had not been in any further trouble and that he had not committed any further offences; (e) The Magistrate gave no reasons for the orders he made except insofar as those reasons can be discerned from the exchanges between the Magistrate on the one hand and the First Defendant and the police prosecutor on the other.
It is perhaps unfortunate that the police prosecutor did not specifically direct his Honour's attention to s 115 and to the judgment of Howie J in Caita-Mandra. Nevertheless, it can reasonably be assumed that the Magistrate knew that the application was under s 115 because the section was referred to in the application which was before him. Sub-section (3) makes it clear that the Court had a discretion to re-sentence the offender. Of course, the Court may have exercised that discretion in a manner favourable to the offender but it would reasonably be expected that reasons for doing so would be provided.
A reading of the whole of the transcript satisfies me that the Magistrate misunderstood the jurisdiction that he had when he came to revoke the CSO. As Howie J said in Caita-Mandra at [23] the failure of the Magistrate upon the material before him to re-sentence the First Defendant itself shows that he must have misunderstood the nature of the discretion he was required to exercise upon revoking the CSO. No reasonable magistrate properly exercising the power under s 115(3) could have reached the decision the Magistrate came to in the present case. There are three particular reasons for that conclusion.
First, the First Defendant had been ordered to perform 100 hours of community work under the CSO. That was not an inconsiderable sentence. Secondly, the application under s 115 was made on the basis of a failure by the offender without reasonable excuse to comply with his obligations under the CSO. It is unfathomable when the Magistrate knew that only two out of 100 hours had been performed that if he had properly considered his obligations and discretions under the section why he would have determined that nothing was to replace the CSO which was revoked.
Thirdly, the First Defendant's record entitled him to no leniency that could have justified no penalty for driving with mid-range PCA. On 10 December 2012 the First Defendant was fined $550 and disqualified from driving for three months for driving while his licence was suspended under s 66 of the Fines Act 1996 (NSW). He was then charged on 22 January 2013, during the disqualification period, with driving with a mid-range PCA and driving while disqualified. On 5 June 2013 he was fined $800 and disqualified for two years from driving in respect of the mid-range PCA offence. For driving while disqualified he was given a $500 fine and a 18 month s 9 bond. During that disqualification period the offences earlier referred to that gave rise to the CSO and the further s 9 bond were committed. In addition the First Defendant had convictions for behaving in an offensive manner, common assault and cultivating a prohibited plant.
The decision by the Magistrate not to impose a penalty for the mid-range PCA offence when the CSO was revoked demonstrated either a misunderstanding of his jurisdiction or was a decision so unreasonable as to amount to an error of law: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [71] - [72], [75] - [76]. In that regard it is worth noting what was said by the Court of Criminal Appeal (Kirby ACJ, Badgery-Parker and Bruce JJ) in Regina v Nathan Benjamin Morris (14 July 1995, CCA, Unrep), a case involving a breach of a recognisance, at p.5: [I]f leniency extended in such fashion is abused, there is a very real risk that the whole regimen of non-custodial sentencing options will be discredited both in the eyes of those members of the community who might otherwise have continued to support them and in the eyes of magistrates and judges; and there is a substantial risk that courts, of their own motion but also reflecting in a general way community opinion, may become increasingly reluctant to extend to offenders those lesser sentencing options which the legislature has provided. It is therefore extremely important that breaches of non-custodial sentencing orders be brought promptly to the notice of the sentencing court and there be dealt with swiftly and, generally speaking, in a manner which will demonstrate how seriously such breaches are regarded and must be regarded in the community interest. Of course, there may be circumstances where the breach of recognisance is merely technical or may be seen as trivial or may readily be excused in the light of particular circumstances affecting the offender at the time of the breach. Absent such considerations, the consequence of a breach of a recognisance ought usually be the imposition of a sentence which, while not exceeding the appropriate range for the offence in question, is determined with a real awareness of the fact that it comes to be imposed following such a breach. It may not, of course, exceed that sentence which is appropriate to the objective circumstances; but it should usually reflect the fact that by his rejection of the trust placed in him by the previous sentencing court, the offender will have shown a lack of remorse and cast doubt upon his prospects of rehabilitation.
Further, to the extent that the Magistrate had regard to the imposition of a $500 fine in lieu of the s 9 bond, that was an entirely irrelevant consideration as far as the exercise of his discretion under s 115(2) and (3) was concerned. The Magistrate's failure to take into account the prior convictions of the First Defendant when he revoked the CSO was a failure to take into account relevant considerations. So too was his failure, apparently, to take into account the fact that the First Defendant had performed only two of the 100 hours ordered.

Orders

The Summons filed 6 April 2016 sought only orders in the nature of certiorari and mandamus. In the light of what Howie J had said in Caita-Mandra at [25], an Amended Summons was filed seeking in the alternative to the order in the nature of certiorari, a declaration that the Magistrate erred in law in failing to make a consequential order upon the revocation of the CSO.
In Caita-Mandra Howie J said at [25]: I do not believe that the Magistrate made any order that the Court can quash: he simply indicated that he was not going to make any consequential order on the revocation. I am satisfied, however, that the Court should make the appropriate declaration and order that the magistrate determine his jurisdiction under s 115(3) according to law and conformably with this judgment.
In my opinion an order in the nature of certiorari should be made for the quashing of the order revoking the CSO as well as a declaration that the Magistrate erred in law in not making a consequential order. An order in the nature of mandamus should also be made. My reason for taking that course is that under s 115(3) if the Court is satisfied that the DPP has established (inter alia) the ground in sub-s (2)(a) the Court may revoke the CSO. Although it is unlikely, it is possible that the Court, if fully apprised of the First Defendant's reasons for failure together with the provisions of s 115(3) and the matters to be taken into account when exercising the discretion under that sub-section, may take the view that the CSO should not be revoked. The Magistrate before whom the remitted application will come should be free to exercise the discretion in sub-s (3) completely and not be constrained by the CSO having been already revoked.
Accordingly, I make the following orders:
An order that the record of the proceedings in the Wyong Local Court on 6 January 2016 against the First Defendant for the breach of a Community Service Order imposed on 22 July 2015 for an offence of drive with mid-range prescribed concentration of alcohol be removed into this Court and the order revoking the Community Service Order be quashed.
A declaration that Magistrate Wilson erred in law in failing to make any order consequential upon the revocation of the First Defendant's community service order in accordance with s 115(3) of the Crimes (Administration of Sentences) Act.
An order that the matter be remitted to the Second Defendant to hear and determine the question of re-sentencing the First Defendant under s 115(3) of the Crimes (Administration of Sentences) Act according to law.
An order that the First Defendant pay the Plaintiff's costs of and incidental to the Summons.

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