Anthony v Magistrates' Court of Victoria
[2014] VSC 573
•13 NOVEMBER 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 01372
| WARREN ANTHONY | Plaintiff |
| v | |
| THE MAGISTRATES' COURT OF VICTORIA | First named defendant |
| - and - | |
| PETER MELLINGTON | Second named defendant |
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JUDGE: | BELL J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 13 NOVEMBER 2014 |
DATE OF JUDGMENT: | 13 NOVEMBER 2014 |
CASE MAY BE CITED AS: | Anthony v Magistrates’ Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2014] VSC 573 |
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JUDICIAL REVIEW – criminal law – sentencing – Magistrates’ Court of Victoria – multiple charges – single hearing – sentence imposed included both community correction order and sentence of imprisonment – whether imposition of community correction order was contrary to prohibition in s 44(1) of Sentencing Act 1991 (Vic) – consequences of violation of prohibition – whether all or some of the sentences to be quashed and remitted for reconsideration – totality principle – ‘occasion’.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Ms R Avis | Robert Stary Lawyers |
| For the first named defendant | No appearance | |
| For the second named defendant | Mr R Elston QC with Mr P Doyle | Office of Public Prosecutions |
HIS HONOUR:
Under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), Warren Anthony seeks judicial review of sentences imposed in respect of a number of charges by his Honour Mr Vandersteen in the Magistrates’ Court of Victoria on 3 April 2013.
The charges arose out of various factual circumstances and were brought by four different informants. For ease of reference I will refer to the charges as the Mellington, Zivkovic, McLeay and Tink charges.
Following plea negotiations between the prosecution and the defence, certain charges were withdrawn and a sentence indication was sought and given by his Honour in relation to the non-withdrawn charges. Following those indications, Mr Anthony pleaded guilty to those charges and the sentences were imposed. The sentences imposed were the sentences indicated.
All of the charges were dealt with together at the one hearing on the same day. It followed that imposition of sentence was governed (among other things) by the provisions of s 44(1) of the Sentencing Act 1991 (Vic), which provided:
44Imprisonment and a community correction order
(1)When sentencing an offender in respect of one, or more than one, offence, a court may make a community correction order in addition to imposing a sentence of imprisonment only if –
(a)any sentence of imprisonment imposed on that occasion in relation to any offence is not suspended; and
(b)the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 3 months or less.
As can be seen, s 44(1)(a) prohibits the making of a community correction order in respect of an offender on whom is imposed, on the same occasion, a wholly suspended sentence of imprisonment.
As relevant to this proceeding, in respect of the Zivkovic, McLeay and Tink charges his Honour imposed a community correction order for 18 months. In respect of the Mellington charges, his Honour imposed a sentence of imprisonment for 12 months, wholly suspended for 18 months.
It was common ground in the proceeding before me that the community corrections order made by his Honour in relation to the Zivkovic, McLeay and Tink charges was contrary to s 44(1)(a). It was contrary to the provisions of that subsection to make that order because, in the one hearing and on the same day (ie the same ‘occasion’) his Honour imposed a wholly suspended sentence of imprisonment in relation to the Mellington charges. There is no suggestion that the facts establish that the prosecution or the defence intentionally procured this result. It appears that all parties and his Honour simply overlooked the application of s 44(1).
As the parties quite properly conceded, the orders by way of sentence in respect of the Zivkovic, McLeay and Tink charges must be quashed and remitted to his Honour for resentence in accordance with law. The parties were in dispute about the appropriate order in relation to the Mellington charges.
It was submitted for Mr Anthony that the orders made by way of sentence in respect of the Mellington charges should also be quashed and an order for resentence made. I accept this submission. It was submitted for Mr Mellington that the sentence imposed in respect of those charges was free-standing and the court could not and should not disturb that sentence by way of judicial review. This was a considered and responsible submission but I cannot accept it.
As submitted for that informant, suspended sentences of imprisonment are made under s 27 of the Sentencing Act, not s 44(1). In the present case, the magistrate must have been satisfied that it was appropriate both to impose a sentence of imprisonment and that it should be wholly suspended. That was an exercise of his Honour’s sentencing discretion. However, his Honour exercised that sentencing discretion in circumstances where he was dealing, at the same time, with four sets of charges brought by four different informants. In doing so, it was necessary for his Honour to apply the totality principle.
Under that principle, the overall sentence imposed in relation to numerous charges must be a just sentence. Therefore, the justice of the sentences to be imposed in respect of each of the four sets of charges brought against Mr Anthony was inextricably connected. In particular, the justice of the sentences to be imposed in respect of the Mellington charges was inextricably connected with the sentences to be imposed in respect of the Zivkovic, McLeay and Tink charges. While it was for his Honour to determine quite how the totality principle fell to be applied in the circumstances of the cases before him, application of the principle was mandatory.
I accept the submissions made for Mr Mellington that the court should not disturb his Honour’s sentence in respect of the charges brought by him unless an error of law upon the face of the record has been established. In my view, this has been established. The record shows that his Honour had four sets of charges before him, all inextricably connected for sentencing purposes in the way that I have explained. A fundamental error of law was made in relation to the sentence imposed in respect of three sets of the charges. That error necessarily vitiated the sentences imposed in respect of the remaining set.
This is not a case where this court can know what sentence would have been imposed by his Honour in respect of the Mellington and other charges if the legislation had been correctly applied. His Honour may have imposed a different sentence in relation to the four sets of charges than is indicated by the invalid sentences that he did impose. For me now to quash the orders by way of sentence in respect of the Zivkovic, McLeay and Tink charges and to leave in force the orders made by way of sentence in respect of the Mellington charges would, in effect, be to exercise a power of sentence on the merits in respect of those charges, including the Mellington charges. In a judicial review application, that is not this court’s function. In the circumstances, it is proper for the power and the duty to sentence Mr Anthony in respect of all of the four sets of charges to be remitted to his Honour to be exercised according to law.
I want to make it clear that I do not criticise the reasons behind his Honour’s sentencing disposition. The (unintentional) error of law that his Honour committed was solely concerned with his failure to apply s 44(1) of the Sentencing Act. It will be for his Honour to determine how Mr Anthony should be resentenced in the circumstances that have happened.
Accordingly, the orders of the court will be:
(1)The orders by way of sentence made by his Honour Mr Vandersteen in the Magistrates’ Court of Victoria on 3 April 2013 in respect of the charges brought against the plaintiff by informants Mellington, Zivkovic, McLeay and Tink are quashed.
(2)His Honour is to resentence the plaintiff on those charges according to law.
(3) The costs of the plaintiff, including any reserved costs, are to be paid by the Chief Commissioner of Police except for the hearing on 20 June 2014 in relation to which the costs of the second named defendant are to be paid by the plaintiff.
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