Director of Public Prosecutions (NSW) v Jones, Dillon Michael

Court of Criminal Appeal (NSW)|2017-07-05|Before: Basten JA, Harrison J, Hulme J

Q1: On the hearing of an appeal against sentence pursuant to s 17 Crimes (Appeal and Review) Act 2001 (NSW), do I have jurisdiction to make the following determinations: (1) that the Local Court did not have jurisdiction to call up the bonds imposed by Armitage DCJ; (2) that the Local Court did not have jurisdiction to resentence Mr Jones in relation to the offences for which the bonds were imposed by Armitage DCJ; (3) that the sentence imposed by the Local Court on 9 February 2017 was invalid to the extent that Grogin LCM purported to call up and resentence Mr Jones on the bonds imposed by Armitage DCJ; (4) that a direction by a judicial officer that a matter be reported to him/her and any breach dealt with by him/her is capable of being a condition of a bond imposed pursuant to s 95 of the [Crimes (Sentencing Procedure) Act 1999 (NSW)]?

(a) Exercising its powers on an appeal against sentence under s 17 of the Appeal and Review Act, the District Court has jurisdiction to determine that a sentence imposed in the Local Court was invalid and, if so held, to set it aside. (b) In the present case, the Local Court had jurisdiction to call on the offender to appear before it in relation to a suspected failure to comply with a condition of the bond imposed by Armitage DCJ and, being satisfied that the offender had failed to comply with a condition of the bond, to take any of the steps available under ss 98(2) and 99(1) as seemed appropriate to the Local Court. (c) The steps taken by the Local Court in the present case were not "invalid".

The direction given by Armitage DCJ that any breach of bond be reported to him for further action -

(a) was not a condition of the bond, and (b) did not deprive any other court or judicial officer of its statutory power to deal with the offender for a failure to comply with the conditions of the bond.

Q2: Does the Local Court have jurisdiction under s 98(1)(b) of the [Sentencing Procedure Act] to revoke a bond imposed by the District Court (sitting in its appellate capacity on an appeal from the Local Court) pursuant to s 20 of the [Appeal and Review Act]?

(a) Pursuant to s 71 of the Appeal and Review Act and s 98(1)(b) of the Sentencing Procedure Act, a Local Court has jurisdiction to call on an offender to appear before it so that the Local Court may determine whether there has been a failure to comply with any condition of the bond, and (b) if so satisfied, the Local Court may revoke the bond pursuant to s 98(2)(c) and resentence the offender under s 99(1)(a), or take such other steps as may be appropriate under s 98(2).

Q3: Is the answer to [Q2] affected by the bond containing a condition that the relevant bond be reported to a (particular) judge of the District Court?

Answer: No, in accordance with the answer to Q1(4).

Q4: Does the Local Court have jurisdiction under s 98(2)(c) of the [Sentencing Procedure Act] to revoke a bond imposed by the District Court (sitting in its appellate capacity on an appeal from the Local Court) pursuant to s 20 of the [Appeal and Review Act]?

Q5: Is the answer to [Q4] affected by the bond containing a condition that the relevant bond be reported to a (particular) judge of the District Court?

Answer: No, in accordance with the answer to Q1(4).

Q6: Does the District Court have jurisdiction, pursuant to s 95 of the [Sentencing Procedure Act], to impose a condition on a bond that any breach of the bond be reported to a particular judge?

Answer: No, in accordance with the answer to Q1(4).

Q7: If the Court does have jurisdiction to impose such a condition, if the particular District Court judge is not available, does the call up need to be dealt with by another judge of the District Court or can it be dealt with by the Local Court?

(a) Because the direction cannot be a condition of the bond, the question is inappropriate to be answered. (b) If the question refers to a direction given by the District Court judge, then because the direction is legally ineffective to limit the jurisdiction of any other judge or court to deal with proceedings for breach of the bond, the question is inappropriate to be answered. Catchwords: CRIMINAL PROCEDURE - sentence - bond imposed by District Court on appeal from Local Court - offender failed to comply with condition to be of good behaviour - power of Local Court to deal with breach of condition of bond

CRIMINAL PROCEDURE - sentence - bond imposed by District Court on appeal from Local Court - direction by District Court judge that offender be brought before him in event of breach - whether direction a condition of bond - whether direction effective to remove power of another court or judge to deal with breach Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 17, 20, 71; Pt 3 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 95, 97, 98, 99 Criminal Appeal Act 1912 (NSW), s 5B Cases Cited: Blacker v Parnell [1978] 1 NSWLR 616 Morgan v District Court of New South Wales [2017] NSWCA 105 Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 Yates v Commissioner of Corrective Services of NSW [2014] NSWSC 653 Texts Cited: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, LawBook Co, 2017) at [10.140] Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Applicant) Dillon Michael Jones (Respondent) Representation: Counsel: Mr E Balodis (Applicant) Mr R Wilson (Respondent)

Solicitors: Office of the Director of Public Prosecutions (Applicant) Legal Aid NSW (Respondent) File Number(s): 2017/134364 Referred questions Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 20 March 2017 Before: Colefax SC DCJ File Number(s): 2017/134364

Judgment

BASTEN JA: On 4 May 2017 a case stated by Judge Colefax SC pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) was filed in this Court. The case set out seven questions for the consideration of the Court, one of which had four parts. The underlying issues can, however, be reduced to three.
The first (and primary) issue is whether the Local Court has jurisdiction to revoke a good behaviour bond imposed on an offender by a judge of the District Court, there having been a failure to comply with the conditions of the bond. That issue turns on the jurisdiction to exercise powers conferred by ss 98 and 99 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act").
The second issue is whether the resolution of the first issue is affected by the act of the District Court judge in fixing the conditions of the bond, including a direction that any breach of the bond be reported to the judge who had imposed it. It will be convenient to address this issue first.
The third issue concerned the power of the District Court judge, in considering the second severity appeal, that is the current appeal against the sentences imposed by the Local Court for breach of the bonds, to determine whether the Local Court had jurisdiction to deal with the breaches of the bonds imposed in the District Court.
It is convenient to consider the matters raised by reference to those issues before addressing the specific questions raised by the stated case.
Two further matters should be noted at the outset. First, there is a degree of urgency in determining the questions, as the respondent is, subject to his appeal pending in the District Court, to serve an aggregate sentence of imprisonment for three years, imposed on 9 February 2017, with a non-parole period of two years. On 20 March 2017 Judge Colefax granted the respondent bail, pending determination of his appeal. The appeal is listed for mention in the District Court at Parramatta on 17 July 2017.
The second matter is that the Court has had the benefit of helpful written submissions from counsel experienced in criminal matters who have come to a largely common position as to the answers to be given to the questions and the reasons therefor.

(1) Direction for return of matter in case of breach

The relevant bond was imposed by Judge Armitage on 29 October 2015 in determining an appeal against sentences of imprisonment imposed in the Local Court for five offences including police pursuit (reckless driving and not stopping); taking and driving a vehicle without consent of the owner; two offences of being carried in a vehicle taken without the consent of the owner, and one offence of receiving stolen property. The judge confirmed the convictions, but set aside the sentences of imprisonment and imposed a bond in relation to all offences, pursuant to s 9(1) of the Sentencing Procedure Act. Two aspects of the bond were noteworthy. The first condition was in the following terms: "The offender must be of good behaviour and appear before the court during the bond term if required." Other conditions related to supervision and place of residence. The final sentence under the heading "Conditions" read as follows: "The Court directs any breach of bond be reported to Judge Armitage for further action."
The direction contained in the last sentence was not a condition of the bond; it did not require any act or abstention on the part of the respondent. Indeed, as a direction it was legally ineffective. It is unclear to whom it was directed; it did not purport to rely upon any particular power vested in the judge. Finally, even if it were effective as a direction, it could not diminish the statutory authority of any other court or judicial officer to deal with a breach of the bond.
No doubt the direction reflected a course which is often taken as a matter of practice; such a course makes good sense, if practicably available. However, the inclusion of the direction in the conditions of the bond had no legal effect and cannot affect the resolution of the remaining issues.

(2) Jurisdiction to deal with breach of bond

The first condition noted above was in substance a combination of the first two requirements of s 95 of the Sentencing Procedure Act, which reads as follows: 95 Good behaviour bonds A good behaviour bond: (a) must contain a condition to the effect that the offender to whom the bond relates (the person under bond) will appear before the court if called on to do so at any time during the term of the bond, and (b) must contain a condition to the effect that, during the term of the bond, the person under bond will be of good behaviour, and (c) may contain such other conditions as are specified in the order by which the bond is imposed, other than conditions requiring the person under bond: (i) to perform community service work, or (ii) to make any payment, whether in the nature of a fine, compensation or otherwise.
It is significant, though not necessarily determinative, that the offender subject to the bond agrees to appear before "the court", if called on to do so. As the usual reason to call on a person to appear is to determine whether there has been a failure to comply with a condition of the bond, that is an indication that such steps will involve the court which imposed the bond.
A similar inference may be drawn from s 97 which reads as follows: 97 Procedure following failure to enter into good behaviour bond If: (a) a court makes an order that provides for an offender to enter into a good behaviour bond, and (b) the offender fails to enter into such a bond in accordance with the order, the court may sentence the offender, or convict and sentence the offender, as if the order had not been made. [1]
There is no doubt that the court which imposed the bond has power to deal with a suspected failure to comply with the conditions of the bond. The question is whether it alone has such power. The answer to this question was seen by the parties to turn upon the proper construction of s 98 of the Sentencing Procedure Act, which relevantly provides: 98 Proceedings for breach of good behaviour bond (1) If it suspects that an offender may have failed to comply with any of the conditions of a good behaviour bond: (a) the court with which the offender has entered into the bond, or (b) any other court of like jurisdiction, or (c) with the offender's consent, any other court of superior jurisdiction, may call on the offender to appear before it. (1A) If the offender fails to appear, the court may: (a) issue a warrant for the offender's arrest, or (b) authorise an authorised officer to issue a warrant for the offender's arrest. … (1C) For the purposes of subsection (1)(c), a court is of superior jurisdiction to the court with which an offender has entered into a good behaviour bond if it is a court to which the offender has (or has had) a right of appeal with respect to the conviction or sentence from which the bond arises. (2) If it is satisfied that an offender appearing before it has failed to comply with any of the conditions of a good behaviour bond, a court: (a) may decide to take no action with respect to the failure to comply, or (b) may vary the conditions of the bond or impose further conditions on the bond, or (c) may revoke the bond. (3) In the case of a good behaviour bond referred to in section 12, a court must revoke the bond unless it is satisfied: (a) that the offender's failure to comply with the conditions of the bond was trivial in nature, or (b) that there are good reasons for excusing the offender's failure to comply with the conditions of the bond.
Where the court revokes the bond pursuant to s 98(2) or (3), the following powers are conferred: 99 Consequences of revocation of good behaviour bond (1) If a court revokes a good behaviour bond: (a) in the case of a bond referred to in section 9, it may re-sentence the offender for the offence to which the bond relates, or (b) in the case of a bond referred to in section 10, it may convict and sentence the offender for the offence to which the bond relates, or (c) in the case of a bond referred to in section 12: (i) the order under section 12(1)(a) ceases to have effect in relation to the sentence of imprisonment suspended by the order, and (ii) Part 4 applies to the sentence, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 applies in relation to the setting of a non-parole period under that Part. (iii) (Repealed) … (4) This Act applies to the sentencing or re-sentencing of an offender under this section in the same way as it applies to the sentencing of an offender on a conviction. (5) An offender who under this section is sentenced by a court for an offence has the same rights of appeal as the offender would have had if the offender had been sentenced by that court on being convicted of the offence.
There are several issues arising from the language of s 98. First, it is necessary to identify the relationship between subss (1) and (2). On one view, subs (1) identifies the court in which proceedings may be taken for breach of a good behaviour bond, whereas subs (2) identifies the powers conferred on the court once breach has been established. In other words, the two provisions identify a sequential process, which is completed by s 99(1), dealing with the steps which the court may take if it revokes the bond pursuant to subs 98(2).
On another view, the steps may be, but need not be, sequential. The ability to "call on the offender to appear" is reflected in the mandatory condition that the person must agree to appear if called upon to do so. [2] However, the offender may be before the court pursuant to a court attendance notice or an arrest for a further offence. The lack of any necessary sequential relationship between subss (1) and (2) may be reflected in the differential references to the court. Thus, where the person fails to appear when called upon, it is said that "the court" may issue a warrant for his or her arrest. [3] By contrast, the provisions dealing with the powers of the court once satisfied that there has been a breach, are conferred on "a court". [4] On this alternative view, this language recognises the possibility that the court which deals with the breach of the bond condition may not be the court which has power to call the offender to appear before it pursuant to s 98(1). In any event, as noted below, the Local Court was a "court of like jurisdiction" for the purposes of s 98(1)(b), so that it is not necessary to resolve this issue.
Subject to the consideration of the scope and operation of subs (1), there are practical considerations which favour the latter (non-sequential) construction. Where the offender is before the Local Court for further offences which constitute breaches of a bond imposed for earlier offences, it would be unfortunate if the one court could not deal with both the breach of the bond and the further offences. For that purpose, it should not matter whether the bond was imposed by the District Court or a Local Court.
A further issue concerns the purpose and scope of s 98(1). In the present case, the offender was originally sentenced in the Local Court to imprisonment on a series of charges. The bond imposed by Judge Armitage in the District Court was the result of a successful severity appeal by the offender. In other cases, a bond may be imposed in the Local Court, followed by an appeal to the District Court which confirms the sentence and dismisses the appeal. While the present case falls into the former category, it is convenient to refer also to the second category.
Section 98(1)(a) refers to the court "with which" the offender has entered into a bond. This language suggests a relationship between the court and a party giving a form of undertaking to the court. That language accords primacy to the content of the document, which will identify the court and judicial officer which directed the entry into the bond, and the officer before whom the offender signed the bond, accepting its terms. It has been held that the relevant court for the purposes of s 98(1)(a) was the Local Court in circumstances where the bond was imposed by that court, but was confirmed on appeal by the District Court. [5] In the result, it was held that the District Court had no jurisdiction to call up the offender for non-compliance with a condition of the bond. It was also held that the District Court was not a court of "like jurisdiction" for the purposes of par (b) in s 98(1). (There may be a need to reconcile that approach with Wishart v Fraser [6] and Blacker v Parnell, [7] stating that even if the District Court dismisses an appeal from the Local Court, its order supersedes that of the court below.)
The last conclusion followed from the distinction in s 98(1) between a court "of like jurisdiction" and a court "of superior jurisdiction", in circumstances where the latter is identified as a court to which the offender has or had a right of appeal with respect to the sentence from which the bond arises. The District Court is, on that approach, a court of superior jurisdiction to the Local Court and the terms of s 98(1) require that the District Court cannot call on an offender to appear before it to answer for a failure to comply with a condition of the bond imposed in the Local Court, unless the offender consents pursuant to s 98(1)(c). That circumstance does not arise in the present case.
On the basis that the bond was entered into only in the District Court, and on the assumption that the court which may take action for breach of the bond must be a court with power to call on the offender to appear before it, pursuant to s 98(1), the question is whether the Local Court is a court "of like jurisdiction" with respect to the District Court. In addressing that question it is necessary to distinguish between the appellate jurisdiction of the District Court (which was exercised by Judge Armitage in the present case) and the general criminal jurisdiction of the District Court to conduct trials on indictment. It is clear that, in relation to the latter category, the Local Court is not a court of like jurisdiction. However, a different answer is available with respect to the exercise by the District Court of appellate jurisdiction under Pt 3 of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"). It was that jurisdiction which was being exercised by Judge Armitage in imposing a bond with respect to an appeal against the severity of sentences imposed by the Local Court.
The powers of the District Court conducting a sentence appeal are set out in s 71 of the Appeal and Review Act, which provides: 71 Variation of sentences of Local Court (1) An appeal court may not vary a sentence so that the sentence as varied could not have been imposed by the Local Court. (2) An appeal court may not make an order or impose a sentence that could not have been made or imposed by the Local Court. (3) Any sentence varied or imposed by an appeal court, and any order made by an appeal court under this Act, has the same effect and may be enforced in the same manner as if it were made by the Local Court.
This provision is significant in two respects. First, because s 71(1) and (2) preclude the District Court making any order or imposing any sentence that could not have been made or imposed by the Local Court, it is appropriate to treat the District Court, in determining a sentence appeal from the Local Court, as a court of "like jurisdiction" with the Local Court. It follows that, in relation to a bond imposed by the District Court, the Local Court is a court of like jurisdiction with the District Court. On that basis, s 98(1)(b) of the Sentencing Procedure Act is satisfied and the Local Court has power to deal with a failure to comply with a condition of the bond.
The same result is achieved by reference to s 71(3) of the Appeal and Review Act. That is, the bond imposed by the District Court has the same effect and may be enforced in the same manner as if it had been imposed by the Local Court. (Although the last clause in the provision speaks only of it being "made" by the Local Court it is clear from the sentence taken as a whole that it is not limited to "any order made" but includes any sentence varied or imposed.) Proceedings which can be taken for breach of a good behaviour bond provide a manner of enforcement of the bond; accordingly, the powers conferred by s 98 can be exercised by the Local Court with respect to a bond imposed by the District Court on appeal from the Local Court.
As noted above, [8] that construction is consistent with the language of s 98, because of the references in s 98(2) and (3) to "a court", rather than "the court" referred to in sub-ss (1)(a) and (1A). The practical consequence of that construction is that in the common case, where the failure to comply with a condition of the bond involves the commission of further offences, it will be open to the Local Court when sentencing for the further offences to deal with the failure to comply with the bond, even though it was imposed by the District Court pursuant to an appeal against an earlier sentence. That result is likely to avoid, in a significant proportion of cases, the need for the involvement of two levels in the judicial hierarchy in relation to one course of offending.

(3) Jurisdiction of District Court to deal with invalid sentences

Because the sentence imposed by the Local Court for the breach of the bond was not invalid, this issue falls away. However, even if the Local Court had exceeded its power in dealing with the failure to comply with the bond imposed by the District Court, the appeal to the District Court would have been a valid appeal. It has long been established that statutory rights of appeal are generally available with respect to invalid decisions, whether or not the decision is treated as "nullity". [9] On the assumption that the Local Court lacked jurisdiction, but the District Court had the relevant jurisdiction, it would have been open to the District Court to set aside the order made in the Local Court and then exercise its own powers to address the failure to comply with the terms of the original bond. In doing so it would, arguably, have been exercising its appellate jurisdiction, but in the original proceedings and not in the new proceedings. In any event, it is not necessary to explore those issues further.

Orders

The questions raised in the stated case should be answered, noting that each of the questions started with the number 3, because they appeared in part 3 of the stated case. It is convenient for simplicity to answer them numerically. Q1: On the hearing of an appeal against sentence pursuant to s 17 Crimes (Appeal and Review) Act 2001 (NSW), do I have jurisdiction to make the following determinations: (1) that the Local Court did not have jurisdiction to call up the bonds imposed by Armitage DCJ; (2) that the Local Court did not have jurisdiction to resentence Mr Jones in relation to the offences for which the bonds were imposed by Armitage DCJ; (3) that the sentence imposed by the Local Court on 9 February 2017 was invalid to the extent that Grogin LCM purported to call up and resentence Mr Jones on the bonds imposed by Armitage DCJ; (4) that a direction by a judicial officer that a matter be reported to him/her and any breach dealt with by him/her is capable of being a condition of a bond imposed pursuant to s 95 of the [Crimes (Sentencing Procedure) Act 1999 (NSW)]? Answer: In answer to Q1(1), (2) and (3): (a) Exercising its powers on an appeal against sentence under s 17 of the Appeal and Review Act, the District Court has jurisdiction to determine that a sentence imposed in the Local Court was invalid and, if so held, to set it aside. (b) In the present case, the Local Court had jurisdiction to call on the offender to appear before it in relation to a suspected failure to comply with a condition of the bond imposed by Armitage DCJ and, being satisfied that the offender had failed to comply with a condition of the bond, to take any of the steps available under ss 98(2) and 99(1) as seemed appropriate to the Local Court. (c) The steps taken by the Local Court in the present case were not "invalid". Answer: In answer to Q1(4): The direction given by Armitage DCJ that any breach of bond be reported to him for further action - (a) was not a condition of the bond, and (b) did not deprive any other court or judicial officer of its statutory power to deal with the offender for a failure to comply with the conditions of the bond. Q2: Does the Local Court have jurisdiction under s 98(1)(b) of the [Sentencing Procedure Act] to revoke a bond imposed by the District Court (sitting in its appellate capacity on an appeal from the Local Court) pursuant to s 20 of the [Appeal and Review Act]? Answer: (a) Pursuant to s 71 of the Appeal and Review Act and s 98(1)(b) of the Sentencing Procedure Act, a Local Court has jurisdiction to call on an offender to appear before it so that the Local Court may determine whether there has been a failure to comply with any condition of the bond, and (b) if so satisfied, the Local Court may revoke the bond pursuant to s 98(2)(c) and resentence the offender under s 99(1)(a), or take such other steps as may be appropriate under s 98(2). Q3: Is the answer to [Q2] affected by the bond containing a condition that the relevant bond be reported to a (particular) judge of the District Court? Answer: No, in accordance with the answer to Q1(4). Q4: Does the Local Court have jurisdiction under s 98(2)(c) of the [Sentencing Procedure Act] to revoke a bond imposed by the District Court (sitting in its appellate capacity on an appeal from the Local Court) pursuant to s 20 of the [Appeal and Review Act]? Answer: Yes, in accordance with the answer to Q2. Q5: Is the answer to [Q4] affected by the bond containing a condition that the relevant bond be reported to a (particular) judge of the District Court? Answer: No, in accordance with the answer to Q1(4). Q6: Does the District Court have jurisdiction, pursuant to s 95 of the [Sentencing Procedure Act], to impose a condition on a bond that any breach of the bond be reported to a particular judge? Answer: No, in accordance with the answer to Q1(4). Q7: If the Court does have jurisdiction to impose such a condition, if the particular District Court judge is not available, does the call up need to be dealt with by another judge of the District Court or can it be dealt with by the Local Court? Answer: (a) Because the direction cannot be a condition of the bond, the question is inappropriate to be answered. (b) If the question refers to a direction given by the District Court judge, then because the direction is legally ineffective to limit the jurisdiction of any other judge or court to deal with proceedings for breach of the bond, the question is inappropriate to be answered.
HARRISON J: I agree with Basten JA.
RA HULME J: I agree with Basten JA.

Endnotes

Emphasis added.
Sentencing Procedure Act, s 95(a).
Sentencing Procedure Act, s 98(1A).
Sentencing Procedure Act, s 98(2) and (3); see also s 99(1).
Yates v Commissioner of Corrective Services of NSW [2014] NSWSC 653 (Rothman J).
(1941) 64 CLR 470 at 478 (Starke J); 482-483 (Dixon J); [1941] HCA 8.
[1978] 1 NSWLR 616 at 618 (Moffitt P; Reynolds and Samuels JJA agreeing).
See [17] above.
M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, Lawbook Co, 2017) at [10.140]; see also Morgan v District Court of New South Wales [2017] NSWCA 105 at [24]-[26] (Meagher JA; Beazley ACJ and Macfarlan JA agreeing).

Amendments 09 August 2017 - Coversheet - adding solicitor for respondent DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2017

(Sentencing Procedure) Act 1999(NSW)

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