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

1. [1]

   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.

2. [2]

   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”).

3. [3]

   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.

4. [4]

   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.

5. [5]

   It is convenient to consider the matters raised by reference to those issues before addressing the specific questions raised by the stated case.

6. [6]

   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.

7. [7]

   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

1. [8]

   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:

2. [9]

   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.

3. [10]

   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

1. [11]

   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:

2. [12]

   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.

3. [13]

   A similar inference may be drawn from s 97 which reads as follows:

4. [14]

   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:

5. [15]

   Where the court revokes the bond pursuant to s 98(2) or (3), the following powers are conferred:

6. [16]

   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).

7. [17]

   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.

8. [18]

   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.

9. [19]

   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.

10. [20]

    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.)

11. [21]

    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.

12. [22]

    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.

13. [23]

    The powers of the District Court conducting a sentence appeal are set out in s 71 of the Appeal and Review Act, which provides:

14. [24]

    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.

15. [25]

    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.

16. [26]

    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

1. [27]

   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

1. [28]

   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.

2. [29]

   HARRISON J: I agree with Basten JA.

3. [30]

   RA HULME J: I agree with Basten JA.