Scott v Director of Public Prosecutions (NSW)

1. [1]

   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.

2. [2]

   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.

3. [3]

   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]

4. [4]

   For the reasons that follow, I am of the view that the Court should dismiss the claims for relief.

Background

1. [5]

   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.

2. [6]

   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.

3. [7]

   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.

4. [8]

   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.

5. [9]

   The effective total sentence was 17 months imprisonment, with a non-parole period of 12 months, concluding on 21 May 2015.

6. [10]

   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.

7. [11]

   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]

8. [12]

   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]

9. [13]

   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]

10. [14]

    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.

11. [15]

    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]

12. [16]

    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:

13. [17]

    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.

14. [18]

    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

1. [19]

   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]

2. [20]

   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]

3. [21]

   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

1. [22]

   The two grounds for Mr Scott’s claim for judicial review are lack of procedural fairness and asserted “error of law”.

2. [23]

   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.

3. [24]

   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.

4. [25]

   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.

5. [26]

   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

1. [27]

   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.

2. [28]

   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]

3. [29]

   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.

4. [30]

   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.

5. [31]

   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.

6. [32]

   Further, Mr Bevan, on behalf of Mr Scott, made a number of submissions including:

7. [33]

   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:

8. [34]

   More recently in Yousaf v Director of Public Prosecutions, [20] Barrett JA stated that a warning in terms of a Parker warning is:

9. [35]

   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.

10. [36]

    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.

11. [37]

    I propose the following orders:

    1. (1)

       Summons dismissed.

    2. (2)

       Applicant to pay the first respondent’s costs.

12. [38]

    BASTEN JA: I agree that the summons must be dismissed for the reasons given by Gleeson JA.

13. [39]

    JOHNSON J: For the reasons given by Gleeson JA, I agree that the Summons should be dismissed with costs.