Director of Public Prosecutions v Brasher

1. [1]

   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.

Background

1. [2]

   At about 12:55am on Thursday, 8 January 2015 the First Defendant, John Robert Brasher, was the driver of a motor vehicle in York Street approaching the intersection with Margaret Street. When he was approximately five metres from the stop line he braked harshly, crossed the stop line against the red signal and caused the vehicle to stop midway through the intersection. This was witnessed by the police.

2. [3]

   As a result of what police observed when they spoke to the First Defendant he was breathalysed and found to have a breath analysis of 0.127 grams of alcohol in 210 litres of breath. Initially he provided false particulars about his identity. When his correct identity was established it was ascertained that his licence was endorsed as disqualified as a result of an order of Wyong Local Court on 5 June 2013.

3. [4]

   The First Defendant was charged with driving with a mid-range concentration of alcohol in his blood and driving whilst disqualified.

4. [5]

   On 22 July 2015 the First Defendant was sentenced by the Magistrate at Wyong Local Court. In relation to the offence of driving a motor vehicle during a disqualified period - second offence, he was convicted and directed to enter into a good behaviour bond for two years pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to commence on 22 July 2015 and accept the following conditions:

5. [6]

   For the offence of driving with a mid-range PCA – second offence, he was sentenced to 100 hours of community service work and was required to report in person to the Wyong Community Corrections District Office within seven days for the processing of the order. A series of conditions was imposed and the First Defendant signed his acceptance of those conditions.

6. [7]

   A report from Corrective Services, Community Corrections, in support of the application made to revoke the CSO said that the First Defendant attended at the Wyong Community Corrections Office on 29 September 2015 where he was interviewed and his obligations were explained. He was instructed to report to Wyong Shire Council South Mobile Work Bus at the court house on 6 October and each subsequent Tuesday and perform work from 7:30am to 4:00pm. On 6 and 20 October he failed to attend the community service work as directed. On 27 October he attended but thereafter failed to participate on 3, 10 and 17 November.

7. [8]

   On 15 and 23 October the First Defendant was warned by letter of his failure to comply with his community service work instruction. In a letter dated 23 October 2015 he was directed to attend Wyong Community Corrections Office on 29 October for a final warning and was reminded that if he continued to be non-compliant revocation would commence. The First Defendant failed to attend on 29 October and has failed to maintain contact with Community Corrections. As of 25 November 2015 he had completed two hours of the 100 community service hours ordered.

8. [9]

   Those failures led to an application dated 25 November 2015.

9. [10]

   On 19 November 2015 a report was prepared by the Probation and Parole Service in relation to breaches of the First Defendant’s s 9 bond. On 28 October 2015 he was convicted and fined $250 for the offence of possess prohibited drug. He also failed to report to his first appointment with Community Corrections on 25 August 2015. He engaged with them by reporting on 1 and 23 September but thereafter has failed to report or respond to written or telephone messages directing him to report.

10. [11]

    Accordingly, on 6 January 2016 there were two matters listed before his Honour Magistrate Wilson at Wyong Local Court. The first was the application to revoke the CSO. The second was a call-up of the s 9 bond.

11. [12]

    It is necessary to set out the entirety of the brief transcript of the hearing:

12. [13]

    It may be observed that although there seem to be some inconsistency about whether any further penalty was imposed in lieu of the CSO, by the end of the hearing the Magistrate was stating affirmatively that the First Defendant was to receive no penalty in lieu of the CSO.

13. [14]

    On 20 May 2016 the District Court at Gosford allowed an appeal against the inadequacy of the fine of $500 for breach of the s 9 bond brought pursuant to s 23 of the Crimes (Appeal and Review) Act 2001 (NSW). The District Court instead imposed a s 9 bond for 18 months dating from 20 May 2016 and confirmed the licence disqualification period of two years. No appeal was taken regarding the revocation of the CSO because there was doubt about whether there was in fact a sentence from which an appeal could be brought.

14. [15]

    The DPP now seeks that the decision to revoke the CSO be quashed, alternatively, that a declaration be made that the Magistrate erred in law, on three grounds:

Submissions

1. [16]

   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.

2. [17]

   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.

3. [18]

   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.

4. [19]

   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.

5. [20]

   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

1. [21]

   Section 115 of the Crimes (Administration of Sentences) Act 1999 (NSW) (the CAS Act) provides:

2. [22]

   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):

3. [23]

   In Bonsu v R [2009] NSWCCA 316 Howie J said at [9]:

Consideration

1. [24]

   An examination of the transcript of the hearing on 6 January 2016 leads to the following conclusions:

2. [25]

   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.

3. [26]

   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.

4. [27]

   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.

5. [28]

   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.

6. [29]

   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:

7. [30]

   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

1. [31]

   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.

2. [32]

   In Caita-Mandra Howie J said at [25]:

3. [33]

   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.

4. [34]

   Accordingly, I make the following orders: