Scott v Director of Public Prosecutions

Court of Appeal (NSW)|2015-03-18|Before: Basten JA, Gleeson JA, Johnson J

Solicitors: Director of Public Prosecutions (NSW) (First respondent) Crown Solicitor (Second respondent) File Number(s): 2014/318143 Decision under appeal Court or tribunal: District Court Date of Decision: 19 August 2014 Before: Lakatos DCJ File Number(s): 2014/14473 2014/13361

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

GLEESON JA: The applicant, Raymond Leslie Scott, who is self-represented, seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) in relation to a decision made by a judge of the District Court on two appeals by Mr Scott against the severity of sentences imposed in the Local Court on various charges under the Crimes Act 1900 (NSW). The charges alleged that he dishonestly obtained a financial advantage by deception.
Mr Scott seeks to set aside the decision of the District Court granting him leave to withdraw the two sentence appeals and dismissing the appeals (District Court (NSW), Lakatos DCJ, 19 August 2014, unrep). The first respondent, the Director of Public Prosecutions (NSW) (DPP), opposed the relief sought. The District Court has also been joined as a respondent. It filed a submitting appearance, save as to costs.
To succeed in obtaining relief it was necessary for Mr Scott to establish that Lakatos DCJ, exercising the District Court's criminal jurisdiction, had committed jurisdictional error, which may be taken to include a failure to afford procedural fairness during a hearing. [1]
For the reasons that follow, I am of the view that the Court should dismiss the claims for relief.

Background

The matter comes to this Court in the following way. On 23 May 2014, following his pleas of guilty, Mr Scott was convicted in the Local Court on five charges of dishonestly obtaining financial advantage by deception in contravention of s 192E(1)(b) of the Crimes Act. The maximum penalty which could be imposed by the Local Court is imprisonment for 2 years for each offence.
The offending conduct involved Mr Scott passing valueless cheques which were not met on presentation on three occasions (each being amounts of $200 cash) at the Yass Soldiers Club between July and September 2012, and on four occasions (each being amounts of $400) at the Goulburn Soldiers Club between March and April 2013. In doing so, he dishonestly obtained total sums of $600 and $1,600 respectively.
On the first count relating to the Yass Soldiers Club, Mr Scott was sentenced in the Local Court to 9 months imprisonment dating from 23 May 2014 to 22 February 2015, and a compensation order of $600.
On the other four counts relating to the Goulburn Soldiers Club, Mr Scott was sentenced to 12 months imprisonment, to be served concurrently, dating from 23 October 2014 to 22 October 2015, with a non-parole period of 7 months, and compensation orders totalling $1,600.
The effective total sentence was 17 months imprisonment, with a non-parole period of 12 months, concluding on 21 May 2015.
It is common ground that Mr Scott had a significant criminal history in relation to dishonesty offences in New South Wales, Australian Capital Territory (ACT), Queensland, Western Australia and South Australia. Moreover, at the time of his sentence in the Local Court, there were proceedings on foot in the ACT Magistrates Court for eight similar offences.
Mr Scott appealed against the severity of the sentences imposed in the Local Court. The jurisdiction of the District Court, in respect of an appeal against conviction or sentence from the Local Court, is provided in Pt 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Appeal and Review Act). The task of the District Court was to determine an appeal against sentence by way of rehearing. [2]
The District Court may determine an appeal against sentence by setting aside the sentence, by varying the sentence, or by dismissing the appeal [3] . The reference to varying a sentence includes (a) a reference to varying the severity of the sentence, and (b) a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature. [4]
An appeal, including an appeal against sentence, may at any stage be withdrawn by the appellant, but only by leave of the appeal court, here the District Court. [5]
The sentence appeals came before Lakatos DCJ on 19 August 2014. The DPP tendered a Crown bundle of documents. Mr Bevan, the solicitor for Mr Scott, tendered a pre-sentence report from ACT Corrective Services in respect of the ACT Magistrates Court proceedings mentioned above. Mr Bevan informed his Honour that Mr Scott had been given a suspended sentence for those offences.
His Honour then asked Mr Bevan what would be his ultimate submission on sentence. Mr Bevan responded that notwithstanding that Mr Scott's "record is not too good", he would be submitting that the objective seriousness of the offences did not warrant the penalty imposed in the Local Court and the "bottom line" is that a non-parole period of 6 months is suitable in relation to the offending behaviour. [6]
Some exchanges then took place between his Honour and Mr Bevan concerning the maximum penalty and Mr Scott's criminal history starting in 1994, and whether the level of offending relating to the Goulburn Soldiers Club in March and April 2014, even though the sums involved were not great, warranted a significant penalty of imprisonment. His Honour then gave a "Parker warning" [7] in the following terms: HIS HONOUR: Can I suggest this to you, Mr Bevan, you may seek some instructions. I've looked at this matter over night and read the offender's criminal history. I can say categorically that had he come up before me I would have considered a heavier sentence. In those circumstances you might inform your client that I have the power to increase it and you might seek some instructions. BEVAN: Yes, your Honour.
After a short adjournment, Mr Bevan informed his Honour that Mr Scott had considered what had been said and had instructed him to withdraw the appeals.
Lakatos DCJ proceeded to give a short judgment in which he noted that Mr Bevan, having heard his view, sought instructions and had sought on behalf of his client leave to withdraw the appeals. His Honour accordingly dismissed the appeals and confirmed the convictions and orders of the magistrate.

The basis of these proceedings

There is no right of appeal to this Court from a decision of the District Court on an appeal against a conviction or sentence in the Local Court. Section 176 of the District Court Act 1973 (NSW), which provides that no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court, therefore applies. [8] The effect of s 176 is not to entirely exclude proceedings by way of judicial review, but limits relief to cases in which the applicant can demonstrate jurisdictional error. [9]
An inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist". [10]
One recognised form of jurisdictional error is a failure to accord procedural fairness during a hearing. [11] Such a failure is susceptible to correction as jurisdictional error. [12]

Mr Scott's complaints

The two grounds for Mr Scott's claim for judicial review are lack of procedural fairness and asserted "error of law".
On the first ground, Mr Scott's complaint is that he was denied procedural fairness in prosecuting the appeals because the judge determined the merit of his sentence appeals without first allowing him an opportunity to be heard. This complaint was encapsulated in Mr Scott's written submissions that he was not "given a fair opportunity to state [his] case". [13] It amounts to an allegation of actual or apprehended bias in the form of pre-judgment on the part of the District Court Judge.
On the second ground, Mr Scott contended that the judge erred when sentencing him by considering his prior criminal history and not the objective criminality for the offences charged. This complaint does not come within any category of jurisdictional error. This Court does not have jurisdiction in relation to an asserted error of law by reason of s 176 of the District Court Act.
In any event this complaint is misconceived. The judge did not sentence Mr Scott. Rather he made observations in an exchange with his solicitor concerning the objective seriousness of the offending and the significance of Mr Scott's prior criminal history. These matters were relevant to the various considerations informing the sentences imposed in the Local Court which were under appeal.
The only question that may be agitated in this Court, therefore, is whether the decision of the District Court on 19 August 2014 on appeal from the Local Court is affected by jurisdictional error, in particular, whether there was a failure to afford Mr Scott procedural fairness.

Asserted procedural unfairness

An allegation of bias or apprehended bias entails lack of procedural fairness which is an established category of jurisdictional error. Mr Scott's complaint is that the comments of the judge demonstrated that there were grounds for a reasonable apprehension of bias in the form of pre-judgment.
The test to be applied in determining whether a judge is to be disqualified by reason of the appearance of bias (in this case, in the form of pre-judgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions the judge is required to determine. [14]
Here the complaint by Mr Scott is directed to two aspects of the hearing. The first relates to his Honour's comments when giving the Parker warning that he had looked at the matter overnight and read the offender's criminal history. The documents to which his Honour was referring were the Crown papers, which had been filed in advance of the appeal. [15] There was no evidence before this Court, and no basis for otherwise thinking, that his Honour had read anything other than the material which was in evidence in the Local Court.
Further, there was nothing inappropriate, let alone any form of pre-judgment, in his Honour reading in advance of the hearing the materials which had been filed by the parties in relation to the appeals. This is part of the normal preparation of the judge hearing the appeals.
The second aspect of the complaint is that his Honour was reluctant to hear from Mr Scott's legal representative. This is incorrect. A review of the transcript of the appeal proceedings in the District Court indicates that after the formal tender of the Crown's documents, clarification of the sentences under appeal and the tender by Mr Bevan of a pre-sentence report from ACT Corrective Services, his Honour quickly focused the proceedings on the ultimate submission on sentence which Mr Scott's solicitor proposed to make. It was reasonable and appropriate for his Honour to make such inquiry early in the hearing. To do so, did not indicate that he had already determined the merits of the appeals.
Further, Mr Bevan, on behalf of Mr Scott, made a number of submissions including: 1. a general submission as to the alternative sentence sought - "a non-parole period of 6 months"; [16] 2. a submission as to the objective seriousness of the offences - "he's gone to clubs, cashed a cheque and put the money in the poker machines and left with empty pockets"; [17] and 3. a submission as to Mr Scott's subjective circumstances. [18] Reference was made to his gambling problem which had not been addressed over the years and which did need to be addressed because all the offences related to gambling.
Mr Scott's complaint that he was denied procedural fairness is based on a misunderstanding of the purpose of a Parker warning. As Kirby P observed in Parker: There is an established practice or convention in District Court appeals under s 122 that a judge, contemplating an increase in the sentence under appeal, will signal that possibility to the appellant. This is well-known. Although it is not a rule of law, it is an established practice. It should rarely, if ever, be departed from. [19]
More recently in Yousaf v Director of Public Prosecutions, [20] Barrett JA stated that a warning in terms of a Parker warning is: …. an unexceptionable exercise of the judge's functions for him to state the position he had reached on the [question] of sentence … and to give [the applicant] an opportunity to decide whether, in the light of that, he wished to press his appeals.
Accordingly, it was an aspect of procedural fairness and natural justice that the judge give an indication, if he was minded to substitute a more severe sentence, so that Mr Scott might decide whether he preferred to accept the sentences imposed in the Local Court. A failure to give such a warning might well result in a denial of procedural fairness, [21] if the sentence were increased.
Here, the clear message of the judge's comments was that he was minded to substitute a more severe penalty. The judge gave Mr Scott an opportunity to consult with his solicitor, in conformity with the well-established practice as to whether he wished to pursue his sentence appeals. The asserted denial of procedural fairness is misconceived and this complaint must be rejected.
I propose the following orders: 1. Summons dismissed. 2. Applicant to pay the first respondent's costs.
BASTEN JA: I agree that the summons must be dismissed for the reasons given by Gleeson JA.
JOHNSON J: For the reasons given by Gleeson JA, I agree that the Summons should be dismissed with costs.

Endnotes

Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79 at [37] (Tobias AJA); Kirk v Industrial Court of New South Wales (Kirk) [2010] HCA 1; (2009) 239 CLR 531 at [60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wang v Farkas [2014] NSWCA 29 at [41] (Basten JA).
Section 17 of the Appeal and Review Act.
Section 20(2) of the Appeal and Review Act.
Section 3(3) of the Appeal and Review Act.
Section 67(1) of the Appeal and Review Act.
Transcript 19/8/14 at 2, lines 14-20.
Parker v Director of Public Prosecutions (Parker) (1992) 28 NSWLR 282 at 295 (Kirby P; Handley and Sheller JJA agreeing).
Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 at [9] (Basten JA; Giles and McColl JJA agreeing).
Garde v Dowd at [10]. See also Spanos v Lazaris [2008] NSWCA 74 at [15] (Basten JA); Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 at [18] (Spigelman CJ) and [45] (Basten JA); and Elias v Director of Public Prosecutions [2012] NSWCA 302; 222 A Crim R 286 at [5] (Basten JA); Yousaf v Director of Public Prosecutions [2012] NSWCA 397 at [12] (Barrett JA; McColl and Meagher JJA agreeing).
Kirk at [72]; Craig v South Australia [1995] HCA 58; 184 CLR 163 at 177 (The Court).
Kirk at [60].
Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; 179 ALR 513 at [10] (Kirby J).
Handwritten submissions dated 12 February 2015 (p 2).
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [31] (Gummow ACJ, Hayne, Crennan and Bell JJ).
Transcript 19/8/14 at 1, lines 49-50.
Transcript 19/8/14 at 2, line 15.
Transcript 19/8/14 at 2, lines 45-46.
Transcript 19/8/14 at 2, lines 42-43.
(1992) 28 NSWLR 282 at 295.
[2012] NSWCA 397 at [37] (Barrett JA; McColl and Meagher JJA agreeing).
Neal v The Queen [1982] HCA 55; 149 CLR 305 at 308-9 (Gibbs CJ), 310 (Murphy J), 322 (Brennan J). 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: 18 March 2015

Crimes Act 1900(NSW)s 192E(1)(b)

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