Hughes v Morgan [1998] VSC 147

14. The charges came before the Magistrates' Court at Dandenong on 11 March 1998. The plaintiff was represented by her solicitor. Following negotiations between the plaintiff's solicitor and the first defendant, the plaintiff agreed to and did plead guilty to one charge of trafficking in a drug of dependence and four charges of handling and/or receiving stolen goods.

17. The Magistrate, who is the second defendant to this proceeding, is said to have then stated to the plaintiff's solicitor that he was considering sending the plaintiff to gaol for a period of nine months, and that the only reason why he would not imprison her was because she had a child, the child would have nowhere to go, and he did not want to create another ward of the State.

20. The Magistrate then adjourned the further hearing of the proceedings for a week to enable enquiries to be made as to the status of the child. He stated that he wished counsel to confirm that there was no one else to look after the plaintiff's child. The Magistrate further ordered that the Office of Corrections prepare an assessment of the plaintiff as to her suitability for an intensive corrections order pursuant to s.96 of the Sentencing Act 1991.

23. The proceedings came back before the Court on 18 March 1998. On that day the solicitor for the plaintiff informed the Magistrate that the applicant was the only potential custodian of the child as the plaintiff's mother was going overseas and the father of the child was unsuitable in that the plaintiff had been forced to live in a refuge by reason of the violence he had exhibited towards her. The Magistrate was further informed that the plaintiff was considered to be a suitable candidate for an intensive corrections order and was handed an appropriate pre-sentence report to that effect.

26. It is said that without informing the plaintiff or her solicitor of his intention to do so the Magistrate then proceeded to sentence the plaintiff to a term of 14 months' imprisonment in respect of the drug trafficking charge and terms of four months' imprisonment in respect of each of the charges of handling and/or receiving stolen goods. The Magistrate ordered that the terms of imprisonment in respect of the charges of handling and/or receiving stolen goods were to be served concurrently with the sentence of 14 months. The Magistrate then fixed a non-parole period of nine months. The plaintiff's solicitor immediately lodged a notice of appeal to the County Court pursuant to the provisions of s.83 of the Magistrates' Court Act 1989 and Schedule 6 to the Act and the plaintiff was released on bail.

29. The plaintiff's appeal came before his Honour Judge Mullaly on 24 June 1998 but was adjourned to 5 August 1998.

32. On 13 July 1998 the plaintiff consulted her present solicitor in relation to the appeal. The plaintiff's solicitor took the view that it was strongly arguable that in convicting and sentencing the plaintiff in the way he had, the Magistrate had made at least two significant errors of law.

35. On 5 August the plaintiff's solicitor appeared before Judge Mullaly, informed his Honour that it was the plaintiff's intention to appeal to this Court on a question of law pursuant to the provisions of s.92 of the Magistrates' Court Act and asked that the plaintiff's appeal to the County Court be adjourned sine die. His Honour acceded to the application.

38. On 9 September 1998 the plaintiff filed an originating motion in this Court in which were stated the grounds of her appeal.

41. On 29 October 1998 the plaintiff's solicitor appeared before Master Evans as required by R.58.09 of the Rules of the Court seeking an order stating each question of law raised by the appeal. The Master refused the plaintiff's application and ordered that the proceeding be dismissed.

44. I was informed by counsel for the parties that the Master refused the application and dismissed the proceeding because the plaintiff had not instituted her appeal within 30 days after the day on which the orders complained of had been made as required by s.92(3)(a) of the Act, and had not demonstrated that her failure in that regard was due to exceptional circumstances sufficient to justify granting her leave to appeal out of time as required by s.92(6) of the Act.

"92 (1) A party to a criminal proceeding (other than a committal proceeding) in the Court may appeal to the Supreme Court on a question of law, from a final order of the Court in that proceeding.

(a) must be instituted not later than 30 days after the day on which the order complained of was made; and

(b) does not operate as a stay of any order made by the Court unless the Supreme Court so orders.

(5) An appeal instituted after the end of the period referred to in sub-section (3)(a) is deemed to be an application for leave to appeal under sub-section (1).

(6) The Supreme Court may grant leave under sub-section (5) and the appellant may proceed with the appeal if the Supreme Court -

(a) is of the opinion that the failure to institute the appeal within the period referred to in sub-section (3)(a) was due to exceptional circumstances; and

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay."

60. In Schwerin v. Equal Opportunity Board & Ors. [1994] VicRp 60; (1994) 2 V.R. 279 McDonald, J. was required to consider the provisions of s.109(5) of the Magistrates' Court Act. That section deals with civil appeals from the Magistrates' Court to this Court. The provisions of s.109(5) are identical to the provisions of s.92(6). At p.287 his Honour said:

"That which must be first established is that the failure to institute the appeal within the period referred to in sub-s. (2)(a) of s.109 of the Magistrates Court Act, 'was due to exceptional circumstances'. It is not sufficient that the plaintiff establishes there exists exceptional circumstances generally with respect to the subject matter of the appeal, or the appeal itself, but, rather, that which must be established is that the failure to institute the appeal within the statutory period was due to exceptional circumstances."

64. In my opinion that is the correct interpretation of the sub-section. One does not look to the merits of the appeal itself when determining whether to grant leave to a litigant to appeal out of time. The sub-section requires one to look at the circumstances giving rise to the litigant's failure to appeal within time. If those circumstances can properly be categorised as exceptional then leave to appeal out of time will be granted. If they cannot, then leave will be refused.

67. I turn then to the circumstances relied upon by the plaintiff and which it is said can properly be categorised as exceptional.

70. In the first place it is said that it is clear that the Magistrate made one error of law at the time he sentenced the plaintiff and strongly arguable that he made not less than one other error of law. I agree with those contentions.

73. Section 13(2) of the Sentencing Act provides that if a person is sentenced to a term of imprisonment for less than two years but not less than one year the Court may fix a period during which the offender is not eligible to be released on parole. Section 11(3) provides that a non-parole period fixed under s.s.(2) must be at least six months less than the term of the sentence. In the present case the non-parole period is only five months less than the term of the sentence. There was a clear error of law therefore on the part of the Magistrate.

76. It was argued by counsel for the plaintiff that the County Court had no power to rectify that defect. In my opinion there is no substance to that contention. Section 13(1) of the Sentencing Act provides, so far as is relevant, that the failure of a sentencing court to fix a non-parole period in accordance with s.11 does not invalidate the sentence, but the County Court in respect of a sentence imposed by a Magistrates' Court may on the application of the offender fix a non-parole period in accordance with that section in any manner in which the sentencing court might have done. In the instant case the Magistrate failed to fix a non-parole period in accordance with s.11 in that he did not fix a non-parole period at least six months less than the term of the sentence. Clearly that error can be corrected by the County Court.

79. In failing to inform the plaintiff and her solicitor on 18 March that he intended to impose a term of imprisonment on the plaintiff thereby giving the plaintiff's solicitor an opportunity to call further evidence in relation to the matter and to make further submissions, it is strongly arguable that the Magistrate denied the plaintiff natural justice.

82. However, in my opinion neither of the matters to which I have referred have any bearing on the failure of the plaintiff to institute her appeal within time.

85. The second matter relied upon by counsel for the plaintiff is the unfortunate background of the plaintiff and the devastating effect the imposition of the term of imprisonment has had on the plaintiff. Whilst one may feel sympathetically disposed to the plaintiff by reason of such matters, can it be said that those facts amount to exceptional circumstances. In my opinion the short answer to the question posed must be no. The solicitor acting for the plaintiff at the relevant time must have known that any appeal from the decision of the Magistrate had to be instituted within 30 days of 18 March whether it be an appeal to the County Court by way of rehearing (see clause 1 of Schedule 6 to the Magistrates' Court Act) or an appeal to this Court on a question of law. In his wisdom he chose to appeal to the County Court rather than this Court. The fact that he did so cannot amount to an exceptional circumstance.

88. The final matter, relied upon by counsel for the plaintiff, is that in his submission the sentence imposed by the Magistrate was not in accordance with the normal sentencing practices in respect of offenders in need of rehabilitation and merciful dispositions as a result of personal circumstances. Indeed he contended that the sentence imposed was so harsh and oppressive as to constitute an error of law. Whilst that may or may not be so, and I specifically decline to express a view one way or the other in the matter, such facts cannot amount to exceptional circumstances sufficient to excuse the plaintiff's failure to comply with the provisions of s.92(3)(a) of the Magistrates' Court Act.

91. It follows, therefore, that the plaintiff has not satisfied me that exceptional circumstances exist in this case and her appeal must be dismissed accordingly.

94. I would wish to add in conclusion that I am comforted in dismissing the plaintiff's appeal by the fact that her appeal to the County Court will now proceed before Judge Mullaly, one of the most experienced Judges sitting on the bench of that Court. If the plaintiff has suffered any wrong at the hands of the Magistrate, and in my opinion she clearly has, I have no doubt but that his Honour will rectify the situation.

97. I order that the plaintiff pay the defendants' costs of the appeal.