WHITESIDE v THE DIRECTOR OF PUBLIC PROSECUTIONS & ANOR

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40584/99 MASON P HANDLEY JA STEIN JA Friday 10 December 1999

NICOLE WHITESIDE v THE DIRECTOR OF PUBLIC PROSECUTIONS & ANOR The claimant pleaded guilty in the Local Court to two charges of stealing as a clerk. She was sentenced in relation to each charge to a minimum term of four months and an additional term of five months, the minimum term to be served by way of home detention.

Having served seven days of home detention the claimant appealed against sentence to the District Court. She was granted bail. The appeal is now governed by Pt 5A of the Justices Act 1902.

English DCJ warned the claimant that she was at risk of having her sentence increased. The claimant indicated that she wished to withdraw her appeal. The appeal was dismissed and the conviction confirmed.

With a possible view to varying the terms of the home detention order the Judge called for a fresh home detention assessment report. That report stated that a urinalysis taken on the first day of the previously served period of home detention revealed the presence of drugs.

The Probation and Parole Service sought an adjournment for further investigation but this was opposed by the Crown. Without giving the claimant a proper opportunity to put submissions as to adjournment or the accuracy of the report, the Judge revoked the home detention order and imposed a sentence of fulltime custody.

The claimant served six weeks of fulltime custody before being released on bail pending the determination of her application to the Supreme Court.

HELD:

1. The Judge had exceeded her jurisdiction having regard to her limited function with reference to a withdrawn appeal (see Justices Act s133O(2)). Furthermore the Judge lacked jurisdiction under the Home Detention Act 1996 to revoke the home detention order for breach.
2. The orders were also vitiated by denial of procedural fairness.
3. In the light of s69D of the Supreme Court Act, it was open to the Court of Appeal to make a declaration and to frame orders in such a way as to give the claimant effective credit for the period of fulltime custody which she should not have served.

Discussion of Pt 5A of the Justices Act, especially ss33O and 133P. Discussion of the scope of s69D of the Supreme Court Act.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40584/99

MASON P HANDLEY JA STEIN JA

NICOLE WHITESIDE v THE DIRECTOR OF PUBLIC PROSECUTIONS & ANOR

JUDGMENT 1 THE COURT: The claimant seeks the quashing of orders made by Judge English in the District Court, being orders made in disposition of an appeal against severity of sentence. The second opponent submits to the judgment of the Court. The first opponent concedes that the judge exceeded her jurisdiction and consents to the order sought in par 1 of the Amended Summons. There is however disagreement between the parties as to an important aspect of ancillary relief to which reference will be made below. In any event, the consent of the contending parties does not remove the need for this Court to indicate the reasons why the orders made in the District Court must be quashed (cf Fleet v District Court of NSW & Ors (1999) NSWCA 363 at [59]). 2 The claimant was arrested and charged with two offences pursuant to s156 of the Crimes Act 1900 (stealing as a clerk). She pleaded guilty in the Local Court. On 20 May 1998 she was sentenced in relation to each charge to a minimum term of four months and an additional term of five months. The matters were then adjourned for the purposes of a home detention assessment (see Home Detention Act 1996, s9). On 7 April 1999 a magistrate at the Ryde Local Court ordered that the sentence be served by way of home detention. The minimum terms were ordered to commence on 7 April 1999 and expire on 6 August 1999 and the additional terms to commence on 7 August 1999 and expire on 6 January 2000. 3 Having served seven days of her sentence, the claimant lodged an appeal against sentence on 14 April 1999. She was granted bail pending determination of the appeal. 4 The provisions of the recently commenced Pt 5A of the Justices Act 1902 governed that appeal to the District court. They apply to convictions, orders and sentences imposed on or after 1 March 1999. 5 The appeal came before Judge English on 31 May 1999. The claimant represented herself. Early in the hearing, the judge stated: You stole over seventeen thousand dollars. I mean it's my view you should go to gaol, I think this magistrate was extremely lenient in the circumstances and it's going to be my strong recommendation to you that you withdraw this appeal because I would seriously consider sending you to gaol. 6 The judge was entitled to give such a warning (cf Parker v Director of Public Prosecutions (1992) 28 NSWLR 282). The claimant took the message. She informed the judge that "in regards to home detention I would like to withdraw my appeal" in a context that showed that she was abandoning her appeal against sentence. She enquired whether it would be possible to be permitted to serve the home detention order in South Australia with her parents and it is this request which appears to have been the genesis of her Honour ordering another assessment under the Home Detention Act. 7 According to the District Court record signed by her Honour, the orders made on 31 May 1999 were as follows: Appeal is dismissed. Conviction is confirmed. Sentenced to four months imprisonment to be served by way of home detention. Term to run from 28 June '99 and expire 27 Oct 1999. Sentenced to an additional period of parole from 28 Oct 1999 and to expire 27 March 2000. Order updated assessment. To appear before English DCJ at 9.30 on the 28 June 1999 for sentencing.

8 It is common ground that it was implicit in these orders that the judge had made an order granting the claimant leave to withdraw her pending appeal to the District Court (cf Justices Act, s133O). 9 The proceedings came back before English DCJ on 28 June 1999. The claimant represented herself and counsel appeared for the Crown. Counsel for the Crown tendered a home detention assessment report dated 24 June 1999. The report, signed by Ms Haddad, a Home Detention Officer, included the following information: Prior to lodging her notice of appeal to the District Court on 14 April 1999, Ms Whiteside served 7 days of her Home Detention Order (7-14 April 1999). A urine sample taken during the first day proved positive to methadone, cannabis, morphine and monoacetyl morphine. It is noted that during this assessment stage, Ms Whiteside declined to provide a urine sample even though she was given numerous opportunities to do so. A number of arrangements were made to initiate the Home Detention Assessment with Ms Whiteside, however, she declined to be available. From information ascertained from Departmental records and from the abovementioned urine sample result, it would appear that Ms Whiteside has a continuing problem with the use of illicit drugs. Ms Whiteside was finally interviewed on 21 June 1999. She was provided with details of drug and alcohol facilities to pursue. Ms Whiteside's initial evasive response to the Service and her failure to comply with numerous opportunities to provide a urine sample has given little confidence in her ability to comply to the strict regime of a Home Detention programme. However, of her own accord, on 23 June 1999 Ms Whiteside initiated contact with a drug and alcohol service and has made an initial appointment for 9 July 1999. She has further indicated her willingness to participate in a six week "Relapse Prevention course" facilitated by the Royal Prince Alfred Hospital. Therefore, an adjournment period will provide an opportunity for Ms Whiteside to continue seeking therapeutic support for her drug problem and for this Service to assess her genuine commitment in making these positive changes. 10 Earlier in the report, Ms Haddad stated that the Probation and Parole Service's Home Detention team was seeking an adjournment in order to assess fully the claimant's current circumstances, with particular emphasis on assessing her commitment to addressing issues surrounding her current drug use. 11 Counsel for the Crown indicated that he opposed the adjournment. His submission that home detention was one of the easiest types of incarceration and "if that is not appreciated I think something else has to be done about it" was adopted with alacrity by her Honour. Judge English commenced to upbraid the claimant in a somewhat hectoring manner about her attitude as disclosed in the report. Without effectively hearing from her about whether or not the matter should be adjourned, the judge remanded the claimant into custody until lunchtime that day. After lunch, without even calling upon the claimant to address her as to the accuracy or impact of the report, she proceeded to judgment. Her Honour revoked the home detention order and ordered that the prisoner was to serve the unexpired portion of home detention by way of full time imprisonment. The minimum term was ordered to commence on 21 June 1999 and to expire 20 October 1999 and the additional term to commence on 21 October 1999 and expire on 20 March 2000. 12 Her Honour's reasons indicate that the home detention order was revoked on the basis that the claimant had "failed to avail herself of the leniency extended to her". It was found that the claimant had failed to comply with the terms of her home detention, that failure occurring on the very first day of the commencement of the home detention programme. It was held that the claimant had remained uncooperative by declining to submit to further urinalysis and declining to make herself available for interview to enable a further assessment report to be prepared. 13 As a result of these orders, the claimant entered full time custody on 28 June 1999. She remained in prison until 11 August 1999 when released on bail pending the determination of these proceedings. 14 The first opponent concedes that English DCJ exceeded her jurisdiction on 28 June 1999 when she revoked the home detention order and ordered that the unexpired portion of the sentence be served by way of full time imprisonment. That concession is properly made, on two bases: (a) Having implicitly given the claimant leave to withdraw her appeal to the District Court, the judge's powers and implicit duties were to "make such orders as [were] necessary to place the appellant as nearly as possible in the same position as if the appeal … had not been made" ( Justices Act, s133O(2)). The revocation of the home detention order so clearly contravened this provision as to represent a constructive failure to exercise the jurisdiction conferred by s133O(2).

(b) Furthermore, it was not open to her Honour to revoke the home detention order for breach. The manner in which that may be done is set out in Pt 3 of the Home Detention Act and it does not contemplate this type of intervention by the District Court. 15 The orders made by her Honour must also be quashed because they were made in circumstances involving a denial of procedural fairness. What is revealed in the transcript of 28 June 1999 is quite disturbing. The claimant was scarcely heard as to her attitude concerning the adjournment actually sought by the Probation and Parole Service. She was not even given the opportunity to put submissions before the finding was made that she had breached the conditions of the home detention order. The reasoning of her Honour does not explain the process whereby a positive drug analysis on the first day of home detention on 7 April 1999 necessarily evidenced a breach of the conditions of that home detention. In all of these circumstances it is most regrettable that the claimant was imprisoned on 28 June 1999. 16 The claimant is therefore entitled to have the orders made on 28 June 1999 quashed. It is at this point that the submissions of the parties diverge. 17 It is convenient to go to the parties' "bottom lines". 18 The claimant submits that she has been substantially prejudiced as a result of the orders now to be quashed. The six weeks of full time custody served between 28 June and 11 August should not have been served at all. What is more, this incarceration deprived her of the opportunity of serving out the term of home detention during this period. Pointing to the remarks of Sully J in R v Jurisic (1998) 45 NSWLR 209 at 248-9, the claimant submits that six weeks full time imprisonment represents punishment that in substance is at least as great as and probably significantly greater than the four months of home detention imposed in the Local Court. The claimant submits that orders should now be made which effectively treat the claimant as having served her home detention in total. She asks that the additional term of five months parole commence from the date of this Court's order. 19 The first opponent's "bottom line" does not dispute that the detention and imprisonment actually served under the combined operation of the orders made by the Local Court and the District Court are at least the equivalent in punitive effect to the order of four months home detention imposed by the Local Court. However, the first opponent denies that this Court has the power to give effect to this proposition. Indeed, as we understand the submission, the first opponent does not necessarily concede that the District Court would have that power except in the course of upholding the claimant's appeal to the District Court that would be reinstated in the event that this Court set aside most or all of Judge English's orders of 31 May 1999 as well as her orders of 28 June 1999. 20 At this stage it is convenient to turn to the relevant statutory provisions. 21 Part 5A of the Justices Act (ss116-133V) creates and regulates rights of appeal to the District Court. The right of appeal against sentence imposed by a magistrate in summary proceedings is conferred by s120(1). It is an appeal by way of re-hearing with the right to adduce new evidence (s131A). The District Court's powers in determining such appeals include powers to confirm, quash, set aside or vary a sentence, to increase or reduce the sentence, or to make such other order as the District Court thinks just (s133A(1)). 22 Sections 133O and 133P of the Justices Act provide as follows: Withdrawal of appeals and applications 133O (1) An appeal or application for leave to appeal may at any stage be withdrawn by the appellant with the leave of the District Court. (2) In giving leave for an appeal or application for leave to appeal by an appellant to be withdrawn, the District Court may make such orders as are necessary to place the appellant as nearly as possible in the same position as if the appeal or application had not been made. (3) Any order made by the District court in respect of an appeal or application that is withdrawn is taken to be an order made by the Magistrate that made the conviction or order or imposed the sentence that gave rise to the appeal. Court may confirm conviction, order or sentence with effect from an earlier day 133P (1) The District court may order that a conviction, order or sentence, confirmed or varied by it on appeal, or any part of it: (a) is to take effect on and from a day specified in the order, or (b) in the case of a sentence that has been served in part, is to recommence on and from a day specified in the order, being the day the order is made or an earlier day. (2) The order has effect even though a stay of execution may have been in force in respect of the sentence appealed against. (3) Any time spent in custody by an appellant pending the determination of an appeal counts as part of any sentence imposed on the appellant in relation to the matter on appeal. (4) Despite subsections (1) and (2), any period during which a stay of execution was in force in respect of a conviction under the Traffic Act 1909 is not to be taken into account when calculating the length of a period of disqualification from holding a driver's licence resulting from the conviction.

23 Sections 69B, 69C and 69D of the Supreme Court Act contain provisions relevant to proceedings in this Court for judicial review relating to conviction and/or sentence: 69B Other powers in relations to claimants for judicial review of convictions and sentences (1) In determining proceedings for judicial review in relation to a conviction or sentence for an offence, the Court may make an order quashing either the conviction of, or the sentence imposed on, the claimant, or quash both the conviction and the sentence. (2) This section applies to judicial review of orders made by a Local Court or the District Court despite anything contained in the Justices Act 1902 . 69C Stay of execution of conviction, order or sentence pending appeal (1) This section and section 69D apply to proceedings in the Court for judicial review of a determination made by the District Court in appeal proceedings relating to a conviction or order made by a Local Court (or part of such a conviction or order) or sentence imposed by a Local Court. (2) The execution of a sentence imposed as a consequence of a conviction, or of any other order, is stayed when a notice of appeal is given in accordance with this Division. (3) Subsection (2) does not apply to an appellant who is in custody when the appeal is made unless and until the appellant enters into a bail undertaking in accordance with the Bail Act 1978 , or bail is dispensed with. (4) The stay of execution continues until the appeal is finally determined, subject to any order or direction of the Court. (5) Despite subsection (2), any period during which the stay is in force is not to be taken into account when calculating the length of a period of disqualification from holding a driver's licence resulting from a conviction under the Traffic Act 1909. 69D Court may confirm conviction or order with effect from an earlier day (1) The Supreme Court may order that a conviction, order or sentence that is the subject of proceedings, or any part of it: (a) is to take effect on and from a day specified in the order, or (b) in the case of a sentence that has been served in part, is to recommence on and from a day specified in the order, being the day the order is made or an earlier day. (2) The order has effect even though a stay of execution may have been in force in respect of the sentence that is the subject of the proceedings.

24 It must be said at the outset that the person who drafted s69C appears to have laboured under the misapprehension that proceedings for judicial review may properly be characterised as an appeal (cf the reference to "notice of appeal" in subs(2), "appellant" in subs(3) and determination of "the appeal" in subs(4)). Judicial review proceedings are not properly regarded as proceedings by way of appeal, notwithstanding that some classes of such proceedings are assigned to the Court of Appeal by s48 of the Supreme Court Act. 25 The claimant submits that s69D of the Supreme Court Act confers ample power upon this Court to remedy the injustice done to her in the manner indicated. We were reminded of the remarks of Kirby P in Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 at 710 where his Honour said: Prerogative relief is discretionary. But because public as well as private interests are involved, the mere existence of alternative means of redress will not necessarily exclude the issue of relief prerogative in nature. To send a party who has established his or her case away to another court on another day involves delay and expense, inconvenience and further use of judicial time. If all of these can be avoided by an appropriate order which is otherwise justified, the courts should strive to perform their functions so as to conclude the matter in controversy.

Meagher JA and Sheller JA agreed. See also Supreme Court Act, s63.

26 The first opponent submits that the proper course to take in disposition of these proceedings is to quash all of the orders made by English DCJ and to remit the matter to the District Court so that the claimant's appeal to that court may be heard and determined according to law. 27 The first opponent submits that this would enable the District Court to give full credit to the claimant with respect to the time spent by way of home detention and imprisonment, such credit to be given in the course of the disposition of the appeal to that court. This certainly is a possible solution, but it has its drawbacks so far as the claimant is concerned. It puts the claimant at risk that a judge of the District Court may (like English DCJ) take the view that the sentence imposed in the Local Court should be increased. The judge may be unwilling to leave that sentence untouched or to allow sufficient credit to the claimant for the period of home detention and the term of imprisonment already served to achieve the result that both active parties to these proceedings accept is appropriate. 28 Section 69B of the Supreme Court Act is not sufficient to achieve the desired outcome (see Charalambous v Federal Commissioner of Taxation (1997) 35 ATR 384 at 391). 29 The first opponent submits that s69D of the Supreme Court Act is not broad enough to empower this Court to make orders which effectively re-cast the sentence imposed by the Local Court, even though re-casting may go no further than giving proper credit to the claimant for the periods of sentence served by her under the order of the Local Court and the invalid order of the District Court. In particular, the opponent submits that s69D: (a) applies only to a conviction, order or sentence of a the District Court; and (b) applies only in proceedings in which the sentence of the District Court is to be confirmed. 30 In our view s69D is not limited in the manner suggested by the first opponent. 31 As to proposition (a), one may observe that her Honour imposed a fresh sentence on 31 May 1999, varying it on 28 June 1999. In any event, s69D applies to "a conviction, order or sentence that is the subject of proceedings" (in the Supreme Court). This expression is explained by s69C(1) which indicates that the relevant District Court determination is one made "in appeal proceedings relating to a conviction or order made by a Local Court (or part of such a conviction or order) or sentence imposed by a Local Court" (emphasis added). Thus, s69C(1) and s69D extend to a conviction, order or sentence imposed by the Local Court that is confirmed by the District Court in determining an appeal or which is simply left standing when the appellant is granted leave to withdraw an appeal to the District Court. See also Justices Act, s133O(3). 32 As to proposition (b), there is nothing in the language, context or purpose of s69C and s69D that confine those sections to unsuccessful applications for judicial review brought by the person who is convicted or sentenced. Sections 69C and 69D are not in terms confined to proceedings in the Supreme Court brought by convicted persons (contrast s69A). Judicial review may be sought by the Crown, and a successful or unsuccessful application could create a need to re-cast the sentence. Likewise with both a successful or unsuccessful application by the person convicted or sentenced. In the absence of words of restriction, none should be imported. 33 The need for appropriate adjustment is as great when adjustment needs to take account of periods spent on bail in relation to a sentence that is left undisturbed by the Supreme Court as it is with periods of imprisonment served under a conviction, order or sentence that is to be quashed . It would be a curious and illiberal interpretation that made the generally expressed s69D available only to the Crown. 34 This Court should endeavour, if possible, to dispose of the matter finally, if that can be achieved in a way that does full justice to the rights of the parties. This is consonant with s63 of the Supreme Court Act and the principle stated by Kirby P in Anderson (par 25 above). It is also consonant with the well-established principle that "one of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors" (Rodger v The Comptoir D'Escompte de Paris (1871) LR 3 PC 465 at 475 per Lord Cairns, cited in The Commonwealth v McCormack (1984) 155 CLR 273 at 276). 35 The power conferred by s69D necessarily requires this Court to assess the real impact of the sentence served or not served pending the application. The power (like the similar power in s133P of the Justices Act) may take account of punishment actually endured pursuant to orders that are about to be set aside or intended punishment avoided pursuant to the grant of bail pending the review proceedings (cf Whan v McConaghy (1984) 153 CLR 631). In order to do this the Court is not confined to a simple numerical exercise. While it is not exercising an appellate jurisdiction as on a rehearing, its power under s69D is obviously available to be used in a way that addresses the substantive issue as regards the reinstatement of the penalty that properly should have been served. The limit is that this power is only available to be exercised in the manner contemplated by s69D(1). (The District Court's powers under s133(2) are wider in their terms.) 36 In the present case, the concession that the claimant has endured at least as substantial a period of detention/imprisonment as that intended by the orders of the Local Court means that it will be sufficient if this Court makes a declaration to that effect and (as a step in the exercise of its powers under s69D) orders that the remaining part of the sentence, being the two additional terms of five months to be served concurrently commence from the date of the order. 37 The following orders should be made: 1. Quash the orders made by English DCJ on 31 May 1999 and 28 June 1999 other than the order made on 31 May 1999 confirming the conviction of the claimant in the Local Court. 2. Declare that the claimant is not required to serve any further portion of the minimum term imposed in the Local Court. 3. Order that the remaining part of the sentence imposed in the Local Court that is to be served, being the additional terms of five months to be served concurrently, take effect from the date of this order. 4. First opponent to pay claimant's costs. **************

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