Brash v Magistrates' Court of Victoria

[2013] VSC 745

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 06301 of 2013

OLIVER MATHEW BRASH	Plaintiff
v
MAGISTRATES’ COURT OF VICTORIA	Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	13, 17 & 18 December 2013
DATE OF JUDGMENT:	18 December 2013
CASE MAY BE CITED AS:	Brash v Magistrates’ Court of Victoria
MEDIUM NEUTRAL CITATION:	[2013] VSC 745

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ADMINISTRATIVE LAW – Judicial Review – Decision of Magistrate – Whether Magistrate failed to make order under s 18(1) of the Sentencing Act 1991 (Vic) with respect to pre-sentence detention – Period of detention not served on remand for the relevant offences – Magistrate not required to make order under s 18(1) – Application dismissed – No order as to costs.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr O. Brash (in person)	N/A
For the Defendant	Mr Adrian Castles	Office of Public Prosecutions

HIS HONOUR:

1. On 14 August 2012 the plaintiff, Oliver Brash, was convicted in the Magistrates' Court of various offences committed in December 2011.  I will call these the consolidated offences.  The presiding magistrate imposed an aggregate sentence of 24 months imprisonment with a minimum term to be served before parole eligibility of 16 months.  Eight days were reckoned as having been served by way of pre-sentence detention.  By originating motion filed 4 December 2013 Mr Brash seeks judicial review of the Magistrates' Court order recording convictions and imposing the aggregate sentence. 

1. The grounds for review concern the period declared served by way of pre-sentence detention.  In short compass the plaintiff, Mr Brash, contends that the learned sentencing magistrate erred in failing to take into account an extra 56 days that Mr Brash alleges was spent on remand for the charges that are the subject of the relevant sentence.  I set out the plaintiff’s grounds and the relief sought:

GROUNDS:

1.   That the second Defendant committed two errors of law,

a.   That on the 14^th of August 2012 the Plaintiff was not under sentence and the period previously served in detention applied to the sentence being imposed.

b. That the second Defendant ignored the provisions (Section 18 Sentencing Act) by not including the period mentioned in part (a) and did not make any order in respect of that period.

c.    The Court records show that the second Defendant was erroneously informed that the Plaintiff was in custody serving a sentence on other matters at the time of the court’s order.

ORDERS SOUGHT

2.   That the time period to be served shall be adjusted to include the period 24^th February to 20^th April 2012 thereby setting a date for termination of the sentence on the 13^th of June 2014 reflecting 56 days held in custody and not credited.

3.   That the non parole date be reset to take into account the 56 days served.

4.   Any other order that the Honourable Court may deem fit.

1. If the plaintiff is correct and the period from the 24 February 2012 to 20 April 2012 was spent on remand for charges the subject of the relevant sentence then the presiding Magistrates' Court would have been obliged to make an order with respect to that period under s 18(1) of the Sentencing Act.  That order would have been either:

(a)to declare that the pre-sentence detention has been reckoned as imprisonment already served under the sentence; or

(b)to decline specifically to make that pre-sentence detention order and to articulate the fact that the magistrate has declined to make that order.

1. In short Mr Brash's argument is this:

(a)He was sentenced on 14 August 2012, eight days were credited as pre-sentence detention by the learned sentencing magistrate;

(b)He had been arrested eight days earlier and those eight days were correctly credited as pre-sentence detention;

(c)He was also entitled to a further 56 days pre-sentence detention as he was arrested on these matters on 24 February 2012 and not bailed until 20 April 2012.

1. It follows according to Mr Brash's argument that the learned magistrate was required either:

(a)to take this 56 days into account as pre-sentence detention already served; or

(b)to specifically state that he did not take this time served into account as I have observed a little earlier in these reasons.

1. Section 18(1) of the Sentencing Act 1991 of course is only engaged if the time served has actually been served in respect of the offences that are the subject of the sentence and is not served in relation to some other offences that are not the subject of the sentence itself.

1. Mr Castle, who appears for the 1st defendant, has provided a helpful affidavit which sets out a short chronology of offending and dispositions.  Relevantly, I accept that on 24 February 2012 the plaintiff was arrested, interviewed and charged with intentionally causing injury, recklessly causing injury and unlawful assault said to have been committed on 23 February 2012 (the injury offences).  These were given Case No. C10570840.  The injury offences are separate and discrete from the consolidated offences. 

1. No application for bail on the injury offences was made until the 20 April 2012.  The injury offences were not dealt with until 15 November 2012, where the plaintiff was sentenced at the Latrobe Valley Magistrates' Court to five months imprisonment for recklessly causing injury.  The other two offences were struck out.

1. This sentence was to be served wholly concurrently with the sentence imposed on 14 August 2012 for the consolidated offences.  If this analysis correct and I consider it to be so, then the 56 days imprisonment was served in relation to the injury offences and not the consolidated offences.  It follows that I do not consider that error has been demonstrated in the sentencing exercise.

1. It may be that the injury offences could have been merged with the consolidated offences for the purposes of the plea on 14 August 2012. But that is not what happened and there is no guarantee that the learned magistrate would not have imposed a longer sentence had this incurred.  This is of course speculation.

1. What can be said with some certainty is that no error on the part of the magistrate has been demonstrated.  Accordingly I will dismiss the originating motion and I will make no order as to costs.