Charara v Director of Public Prosecutions (NSW)
[2001] NSWCA 140
•15 May 2001
Reported Decision:
(2001) 120 A Crim R 225
[2001] ACL Rep 130 NSW 261
New South Wales
Court of Appeal
CITATION: Charara v The Director of Public Prosecutions & Ors [2001] NSWCA 140 FILE NUMBER(S): CA 40874/00 HEARING DATE(S): 7 May 2001 JUDGMENT DATE:
15 May 2001PARTIES :
Jamal Charara - Claimant
The Director of Public Prosecutions - First Opponent
The District Court of New South Wales - Second Opponent
Megan Latham - Third OpponentJUDGMENT OF: Powell JA at 1; Giles JA at 2; Ipp AJA at 65
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :99/12/2108 LOWER COURT
JUDICIAL OFFICER :Latham DCJ
COUNSEL: C Jeffreys (Solr) - Claimant
R D Cogswell SC & B Baker - OpponentsSOLICITORS: Jeffreys & Associates - Claimant
I V Knight - OpponentsLEGISLATION CITED: Criminal Appeal Act s 5B;
Justices Act s 122.CASES CITED: Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42 A Crim R 81;
Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683;
Craig v The State of South Australia (1995) 184 CLR 163;
Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160;
Ex parte McGavin re Byrne (1945) 46 SR 58;
Parker v Director of Public Prosections (1992) 28 NSWLR 282;
R v Boney (CCA, 22 July 1991, unreported);
R v City of Doncaster and Templestowe; ex parte Mayor (1970) 27 LGRA 193;
R v Hamilton (1993) 66 A Crim R 575;
R v Johns; ex parte Public Service Association of South Australia Inc (1971) SASR 206;
R v Liquor Control Commission (1983) VR 303;
R v Longshaw (1990) 20 NSWLR 554;
R v Marston (CCA, 23 February 1993, unreported);
R v Mitchell (CCA, 1 June 1994, unreported);
R v Sirocic [2000] NSWCCA 325;
Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397;
West v Director of Public Prosecutions [1999] NSWCA 398.DECISION: Order the claimants summons be dismissed and he is ordered to pay the opponent's costs.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40874/00
DC 99/12/2108
POWELL JA
GILES JA
IPP AJA
Tuesday 15 May 2001
Held -
1. There was an obligation to state a case unless the question was so obviously frivolous and baseless that its submission would be an abuse of process.
- Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160, applied.
- R v Boney (CCA, 22 July 1991, unreported) applied.
4. The judge had mistaken the nature of the question on which she was asked to state a case, and had effectively refused to exercise jurisdiction rather than erred within jurisdiction.
- West v Director of Public Prosecutions [1999] NSWCA 398, followed.
OF NEW SOUTH WALES
COURT OF APPEAL
DC 99/12/2108
POWELL JA
GILES JA
IPP AJA
Tuesday 15 May 2001
JUDGMENT
2 GILES JA: This is an application for a declaration and relief in the nature of prerogative relief in relation to refusal to state a case from the determination of the claimant’s appeal to the District Court against sentences imposed by a magistrate. The effective opponent is the Director of Public Prosecutions.
1 POWELL JA: I agree with Giles JA.
The claimant’s appeal to the District Court
3 On 9 April 1999 the claimant was convicted before a magistrate on a charge of driving with the mid range prescribed concentration of alcohol, two charges of assaulting a police officer in the execution of his duty, and two charges of resisting a police officer in the execution of his duty The charges arose from events on the one occasion on 14 December 1997. The claimant was sentenced on the PCA conviction to periodic detention for four months, on each of the assault police convictions to periodic detention for six months, and on each of the resist arrest convictions to periodic detention for three months, in all cases the periodic detention to commence on 16 April 1999. He was disqualified from driving for three years from 9 April 1999.
5 The then s 132 of the Act relevantly provided that an appeal was to be “by way of re-hearing on the transcripts of evidence heard before the Magistrate who made the conviction or order or imposed the sentence appealed against”, but that new evidence could be given with the leave of the District Court. By the then s 133A(1) -4 On 13 April 1999 the claimant appealed to the District Court pursuant to s 122 of the Justices Act 1902 (“the Act”). His notice of appeal identified all five offences and said that he appealed “against the above CONVICTION/ORDER because the penalty is too harsh”. The claimant was taken to have appealed against the convictions and sentences for the five offences. By s 127 of the Act, the execution of the sentences was stayed until the determination of the appeals.
- “(1) The District Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:
(b) increasing or reducing the sentence appealed against,(a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against,
- (c) making such other orders as it thinks just.”
7 Her Honour gave detailed reasons in what she described as a “judgment on an all grounds appeal”. She noted that the appeal against the PCA conviction had been abandoned. She explained why she did not believe the claimant and the witness he called, and accepted the prosecution evidence of the two police officers involved and a by-stander. On that basis, the offences had been proved. Her Honour concluded her reasons -6 The appeals were heard by Latham DCJ on 1 September 2000. They were conducted by admission of the depositions taken before the magistrate and the calling of evidence by leave by both the claimant and the prosecution.
The findings of the Magistrate are confirmed and the convictions are confirmed.”“Accordingly, the appeals fail.
9 The transcript then records -8 Her Honour then asked the claimant’s legal representative, “Mr Kennedy, what do you want to do about penalty?” The sentences imposed by the magistrate were stated, and the prosecution handed up a record of the claimant’s criminal history. The prosecution referred to some of the entries in the record, but the claimant’s legal representative suggested that they were being misread. Her Honour asked the claimant’s legal representative, “Well you tell me Mr Kennedy, what’s he done?”.
- “KENNEDY: I will your Honour. If you go back to --
- HER HONOUR: I must say Mr Kennedy this is an appalling record really. He is lucky he hasn’t received a full-time custodial sentence before now.
- KENNEDY. Well your Honour that’s true up until 1997.
- HER HONOUR: He’s got a mid range PCA in 1998 and another one in --
- KENNEDY: That’s right. I was looking more at the crimes of violence.
- HER HONOUR: Well I mean they appear to go hand in hand don’t they, I mean he gets drunk, he gets into a car and he gets stroppy every time someone pulls him over, isn’t that the pattern?
- KENNEDY: Well your Honour it depends.
- HER HONOUR: The PCAs seem to be coupled with assault police officer in execution of duty, refuse to submit to breath analysis.
- KENNEDY: Can I just take you through them one at a time as I understand them your Honour?”
10 The claimant’s legal representative then took her Honour through the latter years of the record, starting with offences of assault and malicious damage with which the claimant was charged on 9 September 1996. The record in fact began with numerous offences with and for which the claimant was charged on 26 July 1989 and convicted 16 February 1990, and there were a number of further offences extending over some pages before the charges of 9 September 1996. The earlier offences were mainly, but so far as the brief entries indicated not wholly, driving-related. They included assaulting police officers, resisting arrest, offensive language, common assault and malicious damage.
12 The transcript reads -11 The record for the period after the offences with which the claimant was charged on 9 September 1996 included an offence of “low range PCA - drive vehicle” with and for which the claimant was charged on 20 September 1997 and convicted on 12 April 1999; an offence of “refuse to submit to breath analysis as directed” with and for which the claimant was charged on 6 June 1998 and convicted on 26 October 1998; and an offence of “mid range PCA - drive motor vehicle” with and for which the claimant was charged on 11 November 1998 and convicted on 24 November 1998. The claimant was fined for these offences and disqualified from driving in increasing amounts and for increasing periods. Appeals against the latter two convictions were determined against the claimant on 8 April 1999 and 18 December 1998 respectively.
- “KENNEDY: If we start on 9 September 1996 at Bankstown. He’s convicted of an assault by the learned Magistrate and given five months periodic detention and he’s convicted of malicious damage, is given a 558 recognisance for five years. On the same date the entry the Sydney District Court showing Bankstown, the assault is quashed --
- HER HONOUR: Yes I’ve got that far, I know the assault is quashed and I know that he now receives periodic in lieu of the bond. All right, so where do we go from there?
- KENNEDY: The next offence of violence your Honour is this one, on 15 December 1997 at Bankstown, that’s been appealed today and sentencing him on today. Then he’s got the refuse to submit to the breath test in the Downing Centre on 6 June 1998 with no violence. Same day Kings Cross refuse apparently. He’s got Kogarah mid range on 11/11/98, no violence. He’s got the same date Liverpool District Court, if that’s appealed. Now the next entry is the Bankstown entry of 19 April 1999.
- HER HONOUR: I don’t have anything before me on that.
- KENNEDY: Yes that’s because all of those matters in Bankstown were subject of an appeal in April 1999 and they are all quashed. So that the last matter he has involving violence in fact is the malicious charge.”
14 The transcript continues -13 Thus her Honour’s attention was not directed to the PCA offence with which the claimant was charged on 20 September 1997, although there is no reason to think that her Honour failed to observe the entry, but was specifically directed to the breath test offence and the PCA offence with which the claimant was charged on 6 June 1998 and 11 November 1998 respectively (“the 1998 offences”).
“HER HONOUR: To be honest with you Mr Kennedy, that doesn’t concern me so much as the combination of an absolutely continuing wilful disregard for the law insofar as he continues to get into motor vehicles and drive whilst under the influence of alcohol, and in those circumstances it’s inevitable that when he’s duly arrested or asked to undergo an alcotest or whatever it is he’s asked to do, he becomes rather hot under the collar. Now that appears to me to be what’s occurred on the occasions that we’re dealing with so, I mean whilst you want to go on about the offences of violence, I’m looking at these offences in terms of their totality. Why shouldn’t he get periodic detention? What’s the problem with it?
- KENNEDY: Well this incident is now what, two years old.
- HER HONOUR: And that’s not because of any fault on the part of the prosecution or the appellant but the fact of the matter is that an experienced Local Court Magistrate who has regard to his record, who sees people come before the Courts day in, day out, deciding that they’re going to get into the car and endanger the rest of the public willy-nilly has given him periodic, and frankly I would have given him full-time custody. So I think he should take what he’s got and be very grateful for it Mr Kennedy because you’re not going to persuade me that anything less than periodic is appropriate.
- KENNEDY: Well if your Honour is making that ruling against me, I’ll sit down.
- HER HONOUR: I’m just saying, I mean as I said, I would have thought it was an appropriate case for full-time custody and I think he’s been extraordinarily lucky. … ”
- “ … you’re going to be serving periodic detention at Parramatta and I am confirming the findings of the Magistrate, I am confirming the convictions, I am confirming the sentences that were imposed and the sentences are to commence … “.
The claimant’s application for a case stated
17 Section 5B(1) of the Criminal Appeal Act 1912 provides for submission by a judge of the District Court of “any question of law arising on any appeal to the District Court in its criminal … jurisdiction coming before the Judge to the Court of Criminal Appeal for determination”. By s 5B(2) the question of law may be submitted even though the appeal proceedings have been disposed of, but it must be submitted not later than 28 days after the end of the appeal proceedings or within such longer period as the Court of Criminal Appeal may allow. Rule 29 of the Criminal Appeal Rules provides that the question of law submitted is to be in writing and signed by the judge, and the procedure is known as statement of a case.
18 By a letter to Latham DCJ dated 29 September 2000 the claimant’s solicitor requested that her Honour state a case to the Court of Criminal Appeal pursuant to s 5B. He provided a draft stated case, expressed to be subject to completion or supplementation when the transcript of the proceedings and her Honour’s reasons were available. The draft stated case addressed all five offences, but only as to sentence.
20 The draft stated case then recorded the claimant’s contention that her Honour’s “imposition of sentence was erroneous in point of law” on the grounds that she took the 1998 offences into account on the question of sentence, describing them as -19 The draft stated case recited the convictions before the magistrate and that her Honour had convicted the claimant “and confirmed the sentences amounting to a total period of 6 months periodic detention imposed by the Magistrate”. It summarised the circumstances of the offences as found, and attributed to her Honour the statement, “I sentenced the appellant by confirming the sentences imposed by the magistrate, being a total of 6 months periodic detention”. It did not purport to express her Honour’s reasons for confirming the sentences, and did not distinguish between the five sentences falling within the total period of six months periodic detention.
- “ … the following convictions and sentences imposed upon the appellant:
| Charge date | Court date | Court | Offence | Sentence |
| 6/6/98 | 26/10/98 | Local | Refuse breath analysis | $750 fine |
| 11/11/98 | 24/11/98 | Local | Mid range PCA | $1500 fine” |
- “a. ‘Did I err in law in taking into account the convictions and sentences on [sic] imposed on the appellant on 26/10/98 and 24/11/98?’
- b. ‘If the answer to a) is no then did I err in law in adversely to the appellant taking into account the convictions and sentences imposed on the appellant on 26/10/98 and 24/11/98?’”
22 Latham DCJ replied to the claimant’s solicitor by a letter dated 6 October 2000, relevantly expressing doubts that any question of law had arisen and that issues relating only to sentence could be referred to the Court of Criminal Appeal but indicating that she would be prepared to hear the claimant on 27 October 2000. Neither before her Honour nor in the application was it suggested that the stated case had to be completed and submitted within the 28 days stated in s 5B(2) of the Criminal Appeal Act, and the request for statement of a case within the 28 days was treated as sufficient. I proceed on that basis.
23 Her Honour heard the claimant on 27 October 2000. She declined to state a case. Again her Honour did not give formal reasons, but her grounds can be seen from the transcript of the exchanges with the claimant’s solicitor.
25 Her Honour then expressed what might be called a firm tentative view -24 Her Honour initially expressed doubt as to her power to state a case “on a matter of sentence”. She said that she put that to one side.
“HER HONOUR: Mr Jeffries can I just say this, I’ll tell you right now, I regard this application, and I’m not being critical of you, I understand that you have a duty to your client. I regard this application as entirely frivolous. It is a further example of your client’s attempt to manipulate these Courts to avoid a sentence which was properly imposed and which was properly confirmed when the appeals were dismissed. The only issues on the appeal were those that went to your client’s credit. Those were determined. Following the dismissal of the appeal the sentence imposed by the Magistrate was confirmed. I didn’t increase it, I didn’t decrease it, I didn’t do anything but confirm it. I really fail to see how this can go anywhere at all. Now I’ve said my piece and I’m not going to say any more. What do you want to put to me in relation to whether or not I should state a case?”
26 In response to a matter put by the claimant’s solicitor her Honour suggested that there could not be an error of law when “all I did was confirm what the Magistrate imposed”, saying “How can that in any way be the product of a mistake or an error in law? I just don’t understand how it could be.”
28 The claimant’s solicitor submitted, with references to the transcript of 1 September 2000, that her Honour had taken into account the 1998 offences when dealing with sentence. The transcript then records -27 The claimant’s solicitor submitted that the 1998 offences could only be taken into account in considering whether or not to extend leniency to an offender, referring to R v Boney (CCA, 22 July 1991, unreported), and that they could not be “used in order to increase punishment for the principal offence”. Her Honour said that “increase” was the relevant word, and that she “did not increase the penalty”.
- “HER HONOUR: I don’t accept that submission in any event, I mean there was a discussion about what was on his record. But even if that were the case Mr Jeffries, even if that were the case there is absolutely no way that the authority that you have handed up is any proposition in support of your stated case if I did not at the end of the day increase the sentences, and I didn’t and the only inference one can draw from that is that in confirming the sentences imposed by the Magistrate, I simply put the appellant back in the position that he was in when he appeared before the Magistrate and was convicted. I have done nothing but confirm the status quo.
- JEFFRIES: What we’re losing sight of, with the greatest of respect is this, the principle in Boney and the principle in Hutchins is that when a Court comes to deal with the question of sentence, the Court can use matters which are in the interim in relation to leniency but not adverse to the appellant.
- HER HONOUR: And I didn’t use adverse to the appellant, all I did was confirm the sentences imposed by the Magistrate. You show me how in confirming sentences imposed back in 1997 I have in any way acted adversely to your client’s interests?
- JEFFRIES: I hear what your Honour says. Your Honour it is not, in my respectful submission, a function of a District Court hearing a sentence de novo to not consider the appropriate penalty to be imposed and merely confirm what the Magistrate did. That in my submission is what your Honour in fact did and we don’t know whether the Magistrate fell into the Boney era [sic: area?] because that transcript is not available.
- HER HONOUR: Really Mr Jeffries, I hear what you say. I’m not even going to call on Miss Smith. As I said to you I regard this as an entirely frivolous application. I don’t understand myself to be under any obligation to state a case which is ultimately frivolous and can I just repeat even if I were to state a case and then you take up a day or half a day in the Court of Criminal Appeal and the Court of Criminal Appeal says, yes I was in error, you shouldn’t have taken those offences into account, remit the matter to the District Court to make orders in respect of sentence. I’m telling you right now I would do exactly what I did before and there would be absolutely no point in the exercise.
- JEFFERIES: Well your Honour then, in my respectful submission, would not be properly exercising your Honour’s sentencing discretion in relation to an appeal which if your Honour had taken into account matters erroneously, your Honour would need to bring a fresh mind to bear and a fresh discretion to bear on the question of sentence at that time.
- HER HONOUR: I did that Mr Jeffries. There might have been a discussion about his record, there might have been a discussion about whether or not certain matters should have been there because they were the subject of appeals and have subsequently been quashed. There might have been a discussion about what his circumstances were now but at the end of the day I thought, and I said this, I thought that periodic detention was lenient in the circumstances. That was the extent of my fresh consideration but I was prepared to give him the benefit of the sentence which the Magistrate imposed on the day that he was convicted and there is absolutely no way that you can characterise that as any sort of adverse result for your client.”
- “Now, your client has had the fullest opportunity to defend the matters that were the subject of this appeal. He had the fullest opportunity to put everything before me in relation to sentence and Mr Kennedy did that. I exercised an independent discretion. I decided that the Magistrate had imposed a sentence which whilst I may not have imposed, was nonetheless appropriate to the circumstances of the matter and I confirmed what the Magistrate had done. I do not regard that as a failure to exercise a sentencing discretion and I’m declining to state a case.”
The application in this Court
- (a) a declaration that Latham DCJ erred in law in refusing to state the case; and
(b) an order that her Honour hear and determine according to law the application to submit the questions of law to the Court of Criminal Appeal.
For some reason the declaration sought referred only to the PCA offence and the resist arrest offences, and omitted reference to the assault police offences. This is not consistent with all else in the application, and I take the omission to be a mistake.
33 In Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 Kirby P observed (at 164) that, although s 5B of the Criminal Appeal Act was expressed in permissive terms, the obligation it imposed was a rigorous one. His Honour cited the explanation by Jordan CJ in Ex parte McGavin re Byrne (1945) 46 SR 58 at 60 -32 The claimant put the application as an application for orders in the nature of mandamus. If he is entitled to relief in the nature of prerogative relief, a declaration is unnecessary. If he is not entitled to relief in the nature of prerogative relief, it will not be appropriate to make a declaration leading nowhere. Attention may be focussed on the claim to relief in the nature of prerogative relief.
“The word ‘may’ is prima facie facultative only; but it was pointed out in MacDougall v Paterson (1851) 11 CB 755; 138 ER 672 at 672 that ‘Where a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises and its exercise is duly applied for by a party interested and having the right to make the application … ‘. In my opinion it is the duty of a Chairman of Quarter Sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process.”
- Kirby P said that this authority had been applied many times. The concurring reasons of Priestley and Powell JJA proceeded upon the same basis.
35 There being a qualified obligation to state a case, the questions are -34 The opponent did not submit that a question of law in relation only to sentence could not be submitted under s 5B of the Criminal Appeal Act. In R v Sirocic [2000] NSWCCA 325 questions of law arguably only in relation to sentence were entertained pursuant to s 5B, although it does not seem to have been suggested that such a course was not open. Given the opponent’s stance, it is unnecessary to express a view in the present case.
(a) whether the questions of law fell within the qualification, that is, were so obviously frivolous and baseless that their submission would be an abuse of process;
(c) again if not, whether as a matter of discretion relief in the nature of prerogative relief should be refused.(b) if not, whether in declining to state a case Latham DCJ nonetheless erred within jurisdiction rather than failed to exercise jurisdiction; and
37 In R v Boney the offender was convicted of offences committed on 15 August 1987. He was sentenced on 16 April 1991. The sentencing judge referred to other offences committed after 15 August 1997. Grove J, with whom Mahoney JA and Newman J agreed, said -36 The opponent pointed to the two occasions on which her Honour said that she regarded the application for a stated case as frivolous. It is necessary to explore her Honour’s reasons for that view. For that purpose, a better understanding of R v Boney is desirable.
- “The approach to be taken to such interim conduct between an offence for which a person stands for punishment and its time of commission has been the subject of authoritative approach from long ago. In The King v Withers (1789) 3 TR 428 Kenyon LCJ said:
- ‘It is well settled that the conduct of a defendant subsequent to the time when he is found guilty, may be taken into consideration, either by way of aggravating or mitigating the punishment. In general it is done for his benefit, in order to extenuate the offence; but it is also done, if required, to aggravate. Though in such case the Court will always take care not to inflict a greater punishment than the principal offence itself will warrant.’
- The same approach was manifest in this Court in Reg v Hutchins (1957) 75 WN NSW page 75 where Street CJ said:
- ‘I think it is clear that in sentencing the applicant in June 1957 for a crime committed in September 1954 his Honour was entitled to take into account as matters for his consideration the convictions which the applicant had incurred between those two dates and he was entitled to take them into account for the purpose of considering whether he should reduce what he would have otherwise regarded as the proper sentence because some leniency should be extended to the applicant in the light of his youth.’
- His Honour went on to describe the circumstances in which that claim to leniency may be forfeited by reason of interim offences. It is clear, however, as I understand the authorities, that the existence of such offences cannot be used in order to increase punishment for the principal offence.”
38 It is obvious that, even if taken into account only for the purpose of withholding leniency, offences committed after the offence for which sentence is imposed can result in increased punishment in the sense that the punishment is greater than it would have been in the absence of the later offences. And to say that the 1998 offences were not used adversely to the claimant does not address whether those convictions and sentences were permissibly taken into account for the purpose of withholding leniency, or impermissibly taken into account in order to increase punishment for the offences for which the claimant was being sentenced. To say that the magistrate’s sentences were only confirmed or were not increased, or that the extent of the exercise of the sentencing discretion was to determine that the magistrate’s sentences were appropriate so that there was not an adverse result for the claimant, is consistent with impermissibly taking the 1998 offences into account.
39 Her Honour’s reasoning as appearing from the transcript for 27 October 2000 seems to me to have been as follows. Because she neither increased nor decreased the sentences, but only confirmed them, she could not have erred in taking account of the 1998 offences. She had exercised an independent discretion in that, notwithstanding her view that the sentences imposed by the magistrate were lenient, she considered it appropriate herself to impose the same sentences. (Perhaps this was influenced by double jeopardy considerations of the kind underlying Parker v Director of Public Prosecutions (1992) 28 NSWLR 282). In the result the sentences were not increased, and the 1998 offences therefore were not used adversely to the claimant. There being no properly arguable question of law, the application for a case stated was frivolous.
40 In my opinion this reasoning missed the point. The claimant was submitting that, to the extent to which her Honour gave independent consideration to the sentencing, her Honour had taken into account the 1998 offences, and had done so in an impermissible way. What her Honour said did not meet that submission. She misunderstood the notion of use adversely to the offender, founded on R v Boney , on which the claimant relied. Although the sentences were not increased, there could be use adversely to the claimant if, in determining that it was appropriate to impose the same sentences as the magistrate had imposed, her Honour had taken the 1998 offences into account otherwise than for the purpose of withholding leniency.
41 Were the questions of law in the draft stated case nonetheless frivolous? If her Honour’s reasoning on 27 October 2000 was deficient, it is necessary to go to what was said on 1 September 2000. I have already set out the material parts of the transcript and indicated their context of the record of the claimant’s criminal history.
42 In my opinion, on a proper reading of the transcript in that context her Honour did impermissibly take into account the 1998 offences: at the least, she arguably did so.
43 Her Honour’s consideration of sentencing began with the view that the claimant had been lucky not to have received a full-time custodial sentence at an earlier time. She can not have been entertaining the possibility of leniency. Further, even before being taken through the record her Honour picked out “a mid range PCA in 1998”, and saw a pattern of driving while intoxicated and violence when pulled over. She said that “the PCAs [plural] seemed to be coupled with assaulting police officers and refusing to submit to breath analysis”.
45 Her Honour then referred to a continuing disregard of the law in driving while under the influence of alcohol and ultimately violence, and said that she was “looking at these offences in terms of their totality”. In the period from 9 September 1996 the only apparent driving-related offences were those committed on 15 December 1997 and the 1998 offences. The claimant had a truly appalling record, but there was only the one earlier offence of driving under the influence of alcohol, the PCA offence with which the claimant was charged on 9 September 1996. Her Honour had not been specifically directed to that offence. It is at least arguable that her Honour had in mind the 1998 offences when she referred to the totality of the offences, and took a more adverse view of the offences committed on 15 December 1997 than she would have done if the 1998 offences had been excluded from consideration; and that she did so not by declining to extend leniency to an offender who, but for the 1998 offences, would have been entitled to leniency.44 Her Honour’s attention was then directed inter alia to the 1998 offences.
46 In my view the second question in the draft stated case could not be categorised as frivolous so as to negate the prima facie obligation affirmed in Director of Public Prosecutions v Cassell . The first question was not appropriate, and should not have been submitted to the Court of Criminal Appeal, because Latham DCJ was clearly entitled to take the 1998 offences into account, albeit for a limited purpose. The second question, however, while suffering from ambiguity in “adversely to the appellant”, was apt to raise for determination whether her Honour had taken the 1998 offences into account in a way established by R v Boney to be impermissible.
Error within jurisdiction?
- “The general object of this section is to prohibit the grant of relief in the nature of the prerogative writs directed by this Court to the District Court. However, it has long been established that an order made without jurisdiction, or in excess of jurisdiction, does not fall within the prohibition stated in s 146. See Ex parte Blackwell; Re Hateley (1965) 83 WN (Pt 1) (NSW) 109; A-G (NSW) v Dawes [1976] 1 NSWLR 242l at 245. A distinction has been drawn in the cases between those circumstances where the judicial officer has wrongly exercised jurisdiction and where there is, in substance, a failure, or refusal to exercise jurisdiction. In respect of the former, s 146 operates to prohibit relief from this Court. But not in respect of the latter.”
- “As was observed by Glass JA in Wentworth v Rogers [1984] 2 NSWLR 422 at 433, the distinction between a real and an ostensible performance of duty, or between an actual and a constructive failure to exercise jurisdiction, is, in a context such as the present, easier to state than to apply. A magistrate, engaged upon the performance of the tasks imposed upon him by s 41, might be alleged by the prosecution or the defence to have fallen into various kinds of error of fact or of law. It might be claimed that he has misunderstood the evidence, or given too much or too little weight to particular parts of it, or misapprehended the law relating to the charge in question. Errors of this kind, however, would ordinarily constitute errors within jurisdiction rather than failures to exercise jurisdiction. By contrast, the error of the magistrate which resulted in the granting of relief in Wentworth v Rogers was described (1984 2 NSWLR 422 at 433) as ‘a misunderstanding on his part as to the circumstances in which he had power to discharge (the defendant) under s 41(6)(a)’. In that case the magistrate's error was an error as to the nature of his powers and duties under s 41 rather than an error either of fact or law in the exercise of those powers or the performance of those duties.”
- “ … the law as stated in Cassell seems to me to be applicable here to the extent that the trial judge appears to have mistaken the nature of the question upon which he was asked to state a case, and effectively refused to exercise his jurisdiction to state a case in circumstances where he was bound to do so. My conclusion on this point depends on my opinion that the question of construction which the plaintiff was seeking to raise by way of stated case was an arguable and not frivolous question of construction.”
Discretion
51 The draft stated case was defective in that it did not contain a statement of her Honour’s reasons for confirming the sentences, and open to improvement in the framing of the second question. The opponent did not submit that relief in the nature of prerogative relief should be refused because of deficiencies in the draft stated case, accepting that in the normal course it would (or should) be modified to a suitable form and content before signature by her Honour. He submitted that relief should be refused because it was inevitable that, if Latham DCJ was held to have erred in law in the exercise of her sentencing discretion, sentences of at least the same severity would be imposed on the claimant in a resentencing.
52 The claimant accepted that he would undergo resentencing. He did not accept that sentences of at least the same severity would be imposed. We were informed that the claimant had served one period of weekend detention, but had then been bailed, so there was practical significance in possible sentences of lesser severity.
53 It is necessary to return to the events of 15 December 1997 and the record of the claimant’s criminal history. I take the events of 15 December 1997 as accepted by Latham DCJ.
54 The claimant was pulled over when seen driving erratically, changing lanes without indicating and causing other cars to take sudden evasive action. He was approached by one police officer, who observed symptoms consistent with slight intoxication. The claimant produced his licence. The police officer obtained an alcometer from the police car and returned to the claimant’s car, but before he could administer a roadside breath test the claimant wound up his window and locked the doors.
55 The claimant began to swear at and abuse the police officer in what her Honour described only as “rather graphic terms”. A second police officer approached the claimant’s car. The claimant got out of the car and demanded his licence, which the officers would not surrender until the claimant underwent the alcotest. The abuse continued, and at one point the claimant tried to re-enter his car. He was warned a number of times that he was facing arrest if he did not take the test. Ultimately the claimant was told that he was under arrest.
56 When one of the police officers went to take hold of the claimant, the claimant punched at him. There was a struggle between the claimant and the two police officers. As described by her Honour, the claimant was wrestled to the ground while swearing at and abusing the officers, who were having difficulty in handcuffing him because of his kicking and struggling. With the assistance of a third person, eventually the claimant was restrained and, still struggling, was placed in a police truck. In the course of this struggle he attempted to head butt one of the police officers and to bite the other.
57 The claimant’s defence was that the police officers fabricated their account of these events, and that his arrest was the culmination of a long running campaign of racial harassment and victimisation against him waged almost single handedly by one of the police officers. He said that he was pulled over without justification, that he did not swear at or abuse the police officers, did not struggle or lash out or attempt to bite, but rather was the victim of police brutality. As I have said, the claimant and the witness whom he called were not believed.
58 The claimant’s record included convictions for offences of resisting arrest and assaulting police, in association with other convictions for driving-related offences, with and for all of which he was charged on 26 July 1989 and convicted on 16 February 1990; resisting arrest and assaulting police with and for which he was charged on 6 January 1990 and convicted on 22 October 1990; resisting arrest with and for which he was charged on 23 February 1994 and convicted on 9 August 1994; and “assault s 61” (that is, assaulting a police officer in the execution of his duty) with and for which he was charged on 1 September 1995 and convicted on 23 January 1996. He was fined in increasing amounts for these offences. He had convictions for a number of other driving offences.
59 From 1995 the record included convictions for other offences involving violence. One was for malicious damage (charged 1 September 1995, convicted 23 January 1996), for which the claimant was fined. Another was for common assault (charged 17 March 1996, convicted 15 October 1996), for which the claimant was sentenced to a fixed term of five months. On the same dates he was charged with and convicted for malicious damage, for which he was given a recognizance in the sum of $500 for five years. Another was for malicious damage (charged 25 April 1996, convicted 22 April 1997), for which he was sentenced to a community service order for sixty hours. Relevantly the last such conviction before the events of 15 December 1997 was for malicious damage (charged 9 September 1996, convicted 15 October 1996): on 17 March 1997 in the District Court his appeal against the conviction was dismissed and he was sentenced to periodic detention for five months in place of the sentence imposed by the magistrate.
60 Even putting aside offences involving driving while under the influence of alcohol, this was the record of a man who had no respect for the persons or property of others or the laws protective of them and it, and in particular was not prepared to accept the performance of their duties by police officers. Offences against the exercise of lawful authority by police officers are regarded as serious, and as meriting ample punishment. The legislature has provided for penalties of imprisonment for five years (without actual bodily harm), seven years (with actual bodily harm) and twelve years (with malicious wounding or grievous bodily harm), see Crimes Act 1900 s 60. Although specifically concerned with a different offence under s 33B of the Crimes Act, in R v Hamilton (1993) 66 A Crim R 575 Gleeson CJ said (at 581) that in dealing with offences of that nature “it is incumbent upon the Court … to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task”; see also R v Marston (CCA, 23 February 1993, unreported) and R v Mitchell (CCA, 1 June 1994, unreported).
61 The claimant was convicted on the 20 September 1997 charge of driving with a low range concentration of alcohol, and so the PCA offence with which he was charged on 15 December 1997 was his second recent offence of driving under the influence of alcohol. In connection with that offence, and in circumstances which can only be said to show continuance of his disdain for the law and lawful authority, the claimant committed the resist arrest and assault police offences of 15 December 1997. He was still bound by his recognizance. He should have been well aware, from the sentences imposed on 15 October 1996 and 17 March 1997, that he was in danger of a custodial sentence if he continued to act in the manner I have described. In my opinion, without regard to the 1998 offences the sentences imposed on the claimant by the magistrate and “confirmed” by Latham DCJ were entirely proper, and the claimant can not expect any lesser sentences in the event that, following a favourable determination by the Court of Criminal Appeal on the stated case, he comes to be resentenced.
63 In my opinion this is a case in which the discretion should be exercised against the grant of relief in the nature of prerogative relief. The facts of the claimant’s offences of 15 December 1997 are known: they have been found, and there is no challenge to the convictions. The record of his criminal history is before us, and no other evidence was led before Latham DCJ for the purposes of sentencing. It was not suggested that other evidence would or might be led on a rehearing as to sentence. We are in as good a position to exercise the sentencing discretion as Latham DCJ or another judge of the District Court would be in the event that the claimant came to be resentenced. I consider that the sentences would have to be no less than those to which the claimant is presently subject, and that there is no utility in a grant of the relief sought.62 That is not an end to the question of discretion. The community has an interest in upholding the rule of law, and the claimant was entitled to due consideration of his application for statement of a case. Nonetheless, there is a discretion to deny mandamus, and the discretion may be exercised where it is clear that the tribunal will reach the same result on a reconsideration if it is sufficiently clear that that will be so: see R v City of Doncaster and Templestowe; ex parte Mayor (1970) 27 LGRA 193 at 202-3; R v Johns; ex parte Public Service Association of South Australia Inc (1971) SASR 206 at 209; R v Liquor Control Commission (1983) VR 303 at 312. The community’s interest is balanced by an interest in its resources not being devoted to pointless exercises, and the rule of law is recognised and the claimant receives due consideration of his position in the course of the application for relief in the nature of prerogative relief.
The result
65 IPP AJA: I agree with Giles JA.64 In my opinion the claimant’s summons should be dismissed and he should be ordered to pay the opponent’s costs.
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