Coleman v Director of Public Prosecutions & County Court of Victoria

[2002] VSCA 116

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8756 of 2001

JASON COLEMAN
	Appellant
v.
DIRECTOR OF PUBLIC PROSECUTIONS and COUNTY COURT OF VICTORIA	Respondents

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JUDGES:	BATT and VINCENT, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 June 2002
DATE OF JUDGMENT:	8 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 116

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Criminal law - Suspended sentence - Subsequent offences - Drugs, Poisons and Controlled Substances Act 1981 ss. 73 and 75 - Meaning of "offence punishable by imprisonment" - Sentencing Act 1991 ss. 27 and 31(1).

Certiorari - Jurisdictional error - Craig v. The State of South Australia (1995) C.L.R. 163 - Presence of elements of offence not essential condition of jurisdiction - Appellant legally wronged - Declaration.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. S. Johns	Victoria Legal Aid
For the First Respondent	Mr. T. Gyorffy	Ms K. Robertson, Solicitor for Public Prosecutions
For the Second Respondent	No appearance

BATT, J.A.:

1. The facts are stated in the judgment of Vincent, J.A. which I have had the benefit of reading.  I agree with his Honour’s conclusions and reasons but desire to express in my own words my views on some aspects of the case.   

1. The first question is the meaning of the expression on which s.31 of the Sentencing Act 1991 pivots, which is found in sub-s.(1) of that section and substantially also in s.27(4)(b), namely, “If ... the offender commits ... another offence punishable by imprisonment”. The expression is to be interpreted in the context that the offender has already committed an offence which is punishable by imprisonment and for which he or she has indeed been sentenced to a term of imprisonment.[1]  The expression directs attention to the offence which the offender in fact subsequently commits.  Now, "punishable" is defined in The Oxford English Dictionary[2] as “Liable to punishment; capable of being punished” and specifically, of an offence, as “Entailing punishment”[3].  Black’s Law Dictionary[4] defines the word, when used of a crime or tort, as “giving rise to a specified punishment”.  The question, then, is whether the offence which the appellant subsequently committed was liable to be, or capable of being, visited with punishment by imprisonment.  Did that offence give rise to the possibility of punishment by imprisonment? 

   [1]Sentencing Act, s.27(1), (3), (5) and (8).

   [2]2nd edn.  The suffix -able, appended to a transitive verb, makes an adjective with the senses “able, liable, allowed, worthy, requiring or bound to be”, or “capable of being”. 

   [3]Similarly as to the last meaning, Garner, A Dictionary of Modern Legal Usage, 2nd edn., 718.

   [4]7th edn. (ed Garner), 1247.

1. There are no reported decisions directly in point.  Such decisions as there are on offences “punishable on indictment” show, on the whole, that one must consider the nature of the offence at the time when it is committed and ask whether it is one which can be punished on indictment, for it is to the intrinsic gravity of the subsequent offence that the relevant section is directed, not to the consequence which, as a matter of procedure and by the exercise of options or elections, in fact eventuates:  Wood v. Reason[5]; Hastings v. Folkestone Glassworks[6]; R. v. Guildhall Justices, Ex parte Marshall[7]; and N.S.W. Crime Commission v. D’Agostino[8].  The notable exception to this is R. v. Melbourne[9].  That case did concern activating a suspended sentence.  The offence could be punished by imprisonment if dealt with on indictment, but only by fine if dealt with summarily.  It was held that whether the offender had committed another “offence punishable by imprisonment” was to be determined by whether he was dealt with summarily or on indictment.  But the case is of no application here, for it does not answer the question relevant here, namely, what the offence is that was committed. 

   [5][1977] 1 N.S.W.L.R. 631 at 647.

   [6][1949] 1 K.B. 214 at 221.

   [7][1976] 1 W.L.R. 335 at 338.

   [8](1998) 103 A.Crim.R. 113 at 117.

   [9](1980) 2 Cr.App.R. (S) 116.

1. One must, then, construe the expression largely unassisted by authority.  It is not a question of whether the offender was subsequently punished by imprisonment:  compare Hastings & Folkestone Glassworks Ltd. v. Kalson[10]. In theory at least, the hearing of the charge for the subsequent offence could occur after the hearing of the charge for an offence under s.31(1) or indeed might never occur. Nor is it a question of what offence the offender is alleged to have committed. In the present context whether the offender has committed a “triggering” offence is a question of the level of generality with which one describes the offence. As I see it, it is not whether the subsequent offence was of a kind or generic description that could be punished by imprisonment, but whether the particular offence actually committed was able to be visited with imprisonment. I am of this view in large measure because the principle on which s.31 proceeds is that if, but only if, an offender exposes himself or herself again to the possibility of imprisonment the suspended sentence of imprisonment may, and (by virtue of sub-s.(5A)) usually must, be activated by removal of the suspension. That is, the section is concerned with the intrinsic gravity of the subsequent offending. Further, the fact that the liberty of the subject is involved supports a narrower reading of the expression if it is considered to be ambiguous.

   [10]At 221.

1. The next question is whether the appellant committed a “triggering” offence. Section 73(1)[11] of the Drugs, Poisons and Controlled Substances Act 1981, unlike s.71(1) in the form considered in R. v. Satalich[12], creates only one offence:  R. v. Pantorno[13], but an offender cannot be imprisoned where “the court”, that is, the sentencer,[14] is satisfied on the balance of probabilities of the matters set out in paragraph (a) of the sub-section.  It was tacitly accepted that, whether by reason of res judicata or issue estoppel or otherwise, we should proceed on the basis that whether the subsequent offence was one punishable by imprisonment was to be determined by reference to what occurred before, and what was held or found by, the magistrate. The respondent did, however, rely on the certificate as to the Magistrates’ Court proceeding under s.18(5) of the Magistrates’ Court Act 1989, but it was ambiguous or inconclusive on the very point. As Vincent, J.A. shows, the magistrate was, or must be taken to have been, satisfied as abovementioned. At the least and contrary to the opinion of the judge from whom this appeal is brought, an inferential or tacit finding was made. Thus, although the generic offence of having in one’s possession a drug of dependence is capable of being visited with punishment by imprisonment, the specific offence of that general description which the appellant committed was not capable of being visited with punishment by imprisonment. Accordingly, he was not guilty of an offence under s.31(1) of the Sentencing Act and the County Court judge was not entitled in law to find him guilty of such an offence or to go on to restore the sentence of two months’ imprisonment which had been imposed by him on the appellant at Ballarat on 21 February 2001 and been held in suspense and to order the appellant to serve it. 

   [11]Compare s.75. The offence against s.73(1) was the only subsequent offence relied on by the prosecution.

   [12](2001) 3 V.R. 231.

   [13][1988] V.R. 195 reversed on a point not argued and without affecting this decision: Pantorno v. The Queen (1989) 166 C.L.R. 466. In making the statement in the text I have disregarded the alternative “or attempts to have” in s.73(1). Cheng v. The Queen (2000) 203 C.L.R. 248 at 262 is not directly applicable (though the structure of the legislation is similar) because the joint judgment was contrasting the objective facts of quantity with subjective knowledge of the quantity.

   [14]R. v. Pantorno at 200.

1. I record that it was not suggested that the admission before the judge of a breach of the suspended sentence was a bar to the appellant’s arguing to the contrary before us. 

1. The question then arises whether any remedy is available to the appellant. The appellant sought relief in the nature of certiorari directed to the inferior court. That relief is only available where there is error of law on the face of the record or the inferior court was acting without jurisdiction. The record in question is that of the County Court. For it to show the error of law it would need to include material showing or admitting the mitigatory facts specified in paragraph (a) of s.73(1) of the Drugs, Poisons and Controlled Substances Act and relied on by the magistrate.  But the record is limited to the charge and summons and the certificate as to the judge’s order now in question.[15] As no reasons of his Honour are available, s.10 of the Administrative Law Act 1978 cannot assist.

   [15]The parties agreed that the certificate was in error in giving 21 November 2001 as the date of the order, especially when 22 November was the return date of the summons.

1. The principal argument for the appellant was that in finding that the appellant had committed another offence punishable by imprisonment the County Court judge had fallen into jurisdictional error.  The appellant sought to bring himself within that kind of jurisdictional error identified in Craig v. South Australia[16] in the sentence by which their Honours illustrated an inferior court’s falling into jurisdictional error by doing something which it lacks authority to do.  Their Honours said: 

“If, for example, it is an essential condition that the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be a jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain.”

The passage[17] relied on for the respondent is really the obverse of the passage quoted at length. In my opinion, the appellant fails to bring himself within the passage relied on. The County Court judge was, I consider, acting within jurisdiction when on the hearing of the charge against the appellant for an offence under sub-s.(1) of s.31 of the Sentencing Act he, pursuant to sub-s.(5) of that section, erroneously, as I would hold, found the appellant guilty of the offence and proceeded in substance to restore the suspended sentence and order the appellant to serve it.  It was not an essential condition of the existence of the jurisdiction which his Honour was professing to exercise that a certain event, being the commission by the appellant of another offence punishable by imprisonment, had in fact occurred.  That might have been so – I express no opinion - if the first sub-section of s.31 had provided that the following sub-sections in it applied if, but only if, during the operational period of a suspended sentence of imprisonment the offender committed another offence punishable by imprisonment, and if the remainder of the present sub-s.(1) had been the first of the other sub-sections. But the present sub-s.(1) is similar to many sections which provide that if a person does something he or she is guilty of an offence and may be proceeded against in a manner specified. Section 31(1) makes the offender who commits another offence punishable by imprisonment guilty of an offence and liable to prosecution. Sub-section (2) authorises a proceeding against a person “for”, i.e., alleging, such an offence, which must necessarily be authorised whether or not the offence has actually been committed. Proof that the proscribed conduct did not occur or failure to be satisfied beyond reasonable doubt that it did occur, each of which happens daily in our courts, does not mean that the court purporting to hear and determine such a charge has acted without jurisdiction and committed a jurisdictional error. The question of the guilt or innocence of the appellant of the offence under s.31(1) alleged against him, together with, if he was guilty, what consequential orders, if any, should be made by way of restoration of the suspended sentence and the like, was clearly committed to his Honour by sub-s.(5) in particular, taken with sub-ss.(3)(b)(ii) and (4). His Honour had jurisdiction to find, whether correctly or incorrectly, that the appellant was guilty of the offence under sub-s.(1). If the judge did not have jurisdiction to decide (subject only to any appeal) whether the further offence was committed or not, his decision would always be contingent or defeasible. That his Honour was acting within jurisdiction may be demonstrated by assuming a case where the judge was not satisfied that the offender had committed a subsequent offence punishable by imprisonment either because he, correctly, was not satisfied that the offender had committed the elements of the offence alleged or because he concluded, correctly, that the offence committed was not in truth punishable by imprisonment. It could not be suggested that an order dismissing the charge in either of those cases was made without jurisdiction. If due allowance is made for the fact that it was prohibition and not certiorari that was sought in Parisienne Basket Shoes Pty. Ltd. v. Whyte[18], the judgment of Dixon, J. in particular in that case is applicable here and his Honour’s reasoning shows why all the more so here there was no jurisdictional error on the part of the County Court judge.  The three factors of the gravity of the error, the liberty of the subject and the absence of an avenue of appeal relied on for saying that it was a matter of jurisdiction cannot overcome the clear statutory language and the reasoning of Dixon, J.  Director of Public Prosecutions v. Judge Fricke[19] supports the view that the judge here was acting within jurisdiction. Finally, it may be that the fact that s.31 is a general provision applying to the Supreme Court as well as to other courts is a factor independently making it unlikely that sub-s.(1) goes to jurisdiction: compare Roos v. Director of Public Prosecutions[20], though the dissent of Sheller, J.A.[21] there is to be noted.

[16](1995) 184 C.L.R. 163 at 177.

[17]At 179-180.  This is set out in the reasons of Vincent, J.A.

[18](1938) 59 C.L.R. 369.

[19][1993] 1 V.R. 369 at 376.

[20](1994) 34 N.S.W.L.R. 254 at 263-4.

[21]At 266-7.

1. Whether other proceedings could fruitfully be taken by the appellant in this Court was debated during argument. But no appropriate proceeding was suggested or presents itself to my mind. In particular, since the sentence of imprisonment imposed on 21 February 2001 was imposed on the hearing of an appeal to the County Court under Subdivision 1 of Division 4 of Part IV of the Magistrates’ Court Act 1989 and not “on indictment” in that court’s original jurisdiction (as had occurred in R. v. Hatch[22]), an application under Part VI of the Crimes Act 1958 for leave to appeal against the sentence constituted by the order for restoration of the suspended sentence could not be brought instanter (with the necessary extension of time) and allowed: R. v. Nguyen[23]; R. v. Coppin[24]. Section 105 of the Sentencing Act provides in essence that a person sentenced by a court for breach of a sentencing order has a right of appeal against sentence as if the court had immediately before imposing sentence found the person guilty or convicted the person of the offence in respect of which the sentencing order was originally made and the sentence were a sentence imposed on that finding of guilt or conviction.  In Nguyen it was further held that s.105 did not enable an application for leave to appeal under Part VI of the Crimes Act to be made from an sentencing order made under s.47(3) (as it originally stood) of that Act upon breach of a community-based order. Section 47 is and was quite similar to s.31. It would seem that the reasoning in that case would apply here to prevent s.105 from assisting the appellant to apply for leave to appeal under Part VI. Finally, s.104, authorising the Supreme Court to correct sentences where it determines that the sentence imposed was beyond the power of the sentencing court, does not assist the appellant. For one thing, it requires, relevantly, an application to the Supreme Court for relief in the nature of certiorari. In any event, it authorises the amendment of the conviction by substituting for the sentence imposed a sentence which the sentencing court had power to impose. In other words, it appears to be limited to correcting the kind or range of penalty[25] as opposed to quashing the conviction and setting aside the sentence entirely.  Difficulties, probably not

insuperable, would also have been caused by the fact that “the Supreme Court” appears to mean a judge of the Trial Division[26].

[22][1998] 3 V.R. 693.

[23][1995] 2 V.R. 277 at 279-281.

[24]Unreported, Court of Appeal, 11 November 1997.  Because s.105 was able to be used, it seems that the original sentence must have been imposed by the County Court in its original jurisdiction, that is, “on indictment”, as the opening sentence of Hampel, A.J.A.’s judgment seems to suggest.

[25]As was recommended in Coppin.

[26]D.P.P. v. Kanfouche [1992] 1 V.R. 141. The Sentencing Act not infrequently uses “the Court of Appeal” where that division of the Supreme Court is intended. 

1. It has, however, been held that, where relief in the nature of certiorari is not available, a declaration may in appropriate circumstances be made:  Ainsworth v. Criminal Justice Commission[27]; and Enfield City v. Development Assessment Commission[28].  Besides an order in the nature of certiorari and an order granting bail the appellant sought in his originating motion any other order that the court should see fit.  Although that claim may not satisfy Rule 5.05 as specifying a declaration, and in particular an appropriately worded declaration, as part of the relief or remedy sought by the originating motion, it does, I think, enable this Court to treat appropriate declarations as within the general purview of the proceeding without the need for amendment.  Whilst the reason for the non-availability of certiorari here is not the same as in Ainsworth, this, like it, is a case where the appellant has been legally wronged and, since the matter is not hypothetical, but a pardon may be sought, it is appropriate to grant declarations in the form proposed by Vincent, J.A.

VINCENT, J.A.:

[27](1992) 175 C.L.R. 564 at 581-582 and 595-596.

[28](2000) 199 C.L.R. 135 at paras.[22] and [58].

1. The appellant appeared before the Magistrates' Court at Ballarat on 11 January 2001 on one count of obtaining property by deception and one count of causing criminal damage.  He was convicted on each charge and was sentenced to imprisonment for two months and placed on a community based order for a period of 12 months respectively.

1. An appeal to the County Court in respect of both of the convictions and sentences imposed was heard by a judge sitting at Ballarat on 21 February 2001.  The convictions were upheld but his Honour set aside the sentences imposed in the

Court below.  The appellant was again sentenced to imprisonment for two months on the charge of obtaining property by deception;  the judge directing that the service of the whole of this term be suspended for a period of twelve months.  With respect to the offence of causing criminal damage, he re-imposed the sentence previously handed down.

1. On 6 September 2001 the appellant returned to the Magistrates' Court at Ballarat.  He was, on this occasion, charged with possession of a drug of dependence, namely cannabis and the use of a drug of dependence, namely cannabis.  He pleaded guilty to both charges.

1. In the circumstances, it is desirable to set out the entirety of the transcript of that proceeding:

“DEFENCE COUNSEL (DF):        I appear for the defendant your Worship, he’s behind me, he pleads guilty to both charges however the charge of breach of suspended I am instructed will be withdrawn and pursued in the County Court.

MAGISTRATE (M):           I have only got one file in front of me which relates to two use and one possess.

DF:Yes sir there was also a charge in the material I have of breach of a suspended sentence.

M:Well it may be its disappeared out of my system if its going to the County Court it might have already been whipped off this system.

DF:It might of followed its natural courses it might just have disappeared all together we can only hope.

M:I’m sorry its just been incorrectly been put on the computer.

DF:Should have quit while we were ahead."

My Interpolation: There is no suggestion in the transcript that the possibility that this charge may have been misconceived was considered by any of those involved.

"M:Yes thanks Senior.

POLICE PROSECUTOR (PP):  Your Worship at approximately 7.25 a.m. on Friday 6th July of this year the police attended at the address of 32 Albert Street, Sebastopol and there executed a search warrant issued under the Drugs Enforcement Control Substances Act.  After gaining entry to the premises the police gave the defendant Coleman an opportunity to declare location of any illegal substances in the house prior to searching the property.  Coleman then removed from a cigarette packet that was sitting on the bedside table a piece a silver foil contained a small quantity of cannabis.  Police took possession of that, search of the address was conducted and located other items that were not relevant to this defendant and another male that resides at this address was charged with these items.  The defendant was conveyed back to the Ballarat Regional response office and was interviewed in relation to the matter.  During the interview the defendant made full admissions in relation to the possession and use of cannabis and stated that the foil contained just under ½ gram of cannabis.  He stated that he bought it the previous night as a 1 gram stick for $20 from an unknown male at a hotel in Ballarat.  He further stated that he smoked some of it the prior night at home from a bong and admitted that he was a regular user of cannabis and admitted that he smoked about a gram every one or two days as it helped him relax.  That’s the summary your Worship.

DF:Fair summary your Worship.

M:Well I find those 2 charges proven.  Is there anything known.  What do you want me to do with the breach matter just adjourn it sine die?

DF:That would be good.

PP:Your Worship I was going to make an application for that charge to be withdrawn and ..

M:I was going to say that it would need to be re-issued I’ll mark that withdrawn.  Yes.

DF:Just in regard to the summary you probably already noted that the warrant and if not I will tell you now.  The warrant wasn’t actually issued with a view to searching any premises occupied by my client in particular the warrant was actually directed at the nominal occupier of the house.

M:[Counsel] he’s got a modest amount of cannabis although he has a string of priors I would normally propose dealing with it by way of a fine.

DF:Certainly Sir his income is $160 Newstart allowance per week and on that basis that is also still undergoing counselling for drug problems and doing his best to get over this and I will say no more.

M:Thank you.  Stand up please Mr Coleman.  Mr Coleman I frequently say to people that it is still illegal in this state and I know a lot of people do smoke and a lot of people have it around the place but it is still illegal.  You have got enough priors and you have been to court often enough to well understand that.  However it is a very small amount and you were co-operative with the police and I will take into account your plea of guilty today.  You will be convicted on each of these matters and you will be fined an aggregate fine of $400 and you need time to pay that?

DF:2 months stay.

M:A stay of 2 months.

DF:As the court pleases.

M:Yes thank you, you are free to go.”

1. It is to be observed that there was no discussion of, or challenge to the accuracy of the summary provided by the police prosecutor and it would appear to be clear that the sentence aggregate imposed was based upon the acceptance by the magistrate of the assertions made.  For present purposes, these included the purchase by the appellant of a one-gram stick of cannabis (a very small quantity itself) and the smoking of half of it, leaving him in possession of the amount subsequently located by the police.  The appellant had given an explanation that he smoked approximately a gram every two days.  There was nothing in his version which could be perceived as inconsistent with the objectively ascertainable circumstances or which otherwise might have cast doubt upon it.  Indeed, the very small amount involved was strongly suggestive of possession for personal use rather than some purpose connected with trafficking in the material.  In that situation the inference that the possession by the appellant of cannabis was unrelated to involvement in trafficking in the material would seem to be irresistible and to have been accepted by the magistrate in the passage:

“Mr Coleman I frequently say to people that it is still illegal in this State and I know a lot of people do smoke and a lot of people have it around the place but it is still illegal.  You have got enough priors and you have been to court often enough to well understand that.  However it is a very small amount and you were co-operative with the police and I will take into account your plea of guilty today.”

1. The charges in respect of which the sentences were imposed arose under ss.73 and 75 of the Drugs, Poisons and Controlled Substances Act 1981. Relevant portions of those sections read:

Section 73

“(1)A person who without being authorized by or licensed under this Act or the regulations to do so has or attempts to have in his possession a drug of dependence is guilty of an indictable offence and liable -

(a)where the court is satisfied on the balance of probabilities that -

(i)the offence was committed in relation to a quantity of cannabis or tetrahydrocannabinol that is not more than the small quantity applicable to cannabis or tetrahydrocannabinol;

(ii)the offence was not committed for any purpose related to trafficking in cannabis or tetrahydrocannabinol -

to a penalty of not more than 5 penalty units;”

This section has been the subject of attention by the Court on more than one occasion.  Of importance for present purposes is the judgment of the Court of Appeal in R. v. Pantorno[29] where it was held a single offence had been created with three possible levels of penalty according to the circumstances. Two of these levels encompass the imposition of imprisonment. The third which is addressed by s.73(1)(a) is applicable where the offender satisfies the Court on the balance of probabilities of the presence of the mitigatory factors of the possession of a “small quantity of cannabis” and that the offence was “not committed for any purpose related to trafficking” in the material.

[29][1988] V.R. 195.

Section 75

“A person who, without being authorized by or licensed under this Act or the regulations to do so uses or attempts to use a drug of dependence is guilty of an offence against this Act and liable -

(a)where the court is satisfied on the balance of probabilities that the offence was committed in relation to cannabis or tetrahydrocannabinol - to a penalty of not more than 5 penalty units;”

A “small quantity of cannabis” is defined as 50.0 grams in Part 2 of Schedule II of the Act.

1. Accordingly, the appellant was in possession of a “small quantity” of cannabis and entitled on the material before the Court to the finding that this possession was not for “any purpose related to trafficking”.  The maximum penalty which could lawfully have been imposed upon him for either offence to which he pleaded guilty in that circumstance was a monetary fine.  Nevertheless, he was charged with breaching the order suspending his earlier sentence.  The relevant portions of the Charge and Summons served upon him read:

“1.The defendant, within the operational period of a suspended sentence imposed at the County Court at Ballarat on 21/02/01 committed further offences punishable by imprisonment and is therefore in breach of the suspended sentence.”

The attached schedule asserts that:

“At the County Court of Victoria at Ballarat the defendant was convicted of obtain property by deception & criminal damage and was sentenced on the charge of obtain property by deception to 2 months' imprisonment wholly suspended for a period of 2 years.

It is now alleged that the defendant has breached the Order by the commission of further offences:

On the 6/09/01 at the Magistrates' Court at Ballarat the defendant was convicted of possess cannabis (the commission date of the offences being 6/07/01) and was fined $400.00.”

1. I observe that the charge refers to “further offences punishable by imprisonment” although, on the least favourable view of the situation from the appellant’s perspective, only one such offence could possibly have been committed.  The reference is repeated in the schedule.  I also note that the penalty for these “offences” is said to have been a fine of $400 whereas an aggregate penalty was imposed for the two different offences involved.

1. The power to suspend in whole or part a sentence of imprisonment which would otherwise have been imposed upon an offender has been conferred upon the County Court by s.27 of the Sentencing Act 1991. Before such a disposition can be ordered a number of conditions must be satisfied. They include the formation of the view by the sentencer that the imposition of a sentence of imprisonment is appropriate in the circumstances, regardless of whether or not an order for suspension is made. In other words, the situation must be one, having regard to all relevant sentencing principles and factual considerations, in which a sentence of imprisonment is called for.

1. Breaches of such Orders are addressed by s.31 under which:

“(1)If at any time during the operational period of a suspended sentence of imprisonment, the offender commits, whether in or outside Victoria, another offence punishable by imprisonment, the offender is guilty of an offence for which he or she may be proceeded against on a charge filed by a prescribed person or a member of a prescribed class of persons.”

Although there is no authority directly in point, the position is, I think, reasonably clear.  As can be observed, it is not required in terms that the offender has committed a further offence in respect of which a sentence of imprisonment has been imposed.  If that had been the legislative intention, a different form of words would almost certainly have been employed.  “Punishable” as a matter of standard English language usage would ordinarily refer to the potential for punishment and not to its actual imposition.  It is the commission of a “further offence” which attracts that potential penalty to which attention must be directed.Emphasis has been placed upon the consideration that, having been accorded the opportunity of avoiding incarceration, although the offender’s earlier conduct was of such a seriousness that a sentence of imprisonment had to be imposed, there has been further criminal behaviour of a significant kind;  the standard being the commission of an offence which carries the possibility of a sentence of imprisonment.  Accordingly, as I see it, no question arises as to whether, in the individual case, incarceration would be appropriate in the proper exercise of sentencing discretion.

1. As earlier stated, the offence created by s.73 is punishable by imprisonment in circumstances where the offender fails to establish on the balance of probabilities that the mitigatory factors of a small quantity and possession for a purpose unconnected with trafficking are present. Their presence was not the subject of any dispute or serious doubt in the present matter. Could the appellant then be properly described as having committed “another offence punishable by imprisonment” within the meaning to be attributed to that expression in Section 31 of the Sentencing Act?  In my view, the answer to the question must be – No.  As a matter of basic common sense and fairness, to reach the conclusion that an individual had committed such an offence when there was not even a theoretical possibility that imprisonment could have been lawfully imposed appears to me to be absurd.  The legislature is not to be taken to have intended to achieve such a result in the absence of a clear expression to this effect.  The expression must, I consider, be read as a whole and be taken to incorporate any aggravating or mitigatory factors contained in the statute creating the offence upon which the possibility of a sentence of incarceration can depend. 

1. Precisely what took place when the breach proceeding came on for hearing before the County Court judge is not known.  No recording of what transpired was made and the material before us contains no description of the matters put before his Honour.  It seems that the hearing was brief and importantly that no argument was advanced before the judge to the effect that, in the undisputed circumstances of the matter, no sentence of imprisonment could lawfully have been handed down in the Magistrates' Court.  Whether or not his Honour was informed of the very small quantity of cannabis involved or of the appellant’s explanation for its possession does not emerge.  However, I consider that these matters were almost certainly not drawn to his attention, having regard to his very considerable experience as a member of the County Court Bench.[30]  Seemingly without any explanation being provided to him of the circumstances, which of itself is somewhat troublesome as I wonder to what matters the judge had regard in the exercise of his discretion, his Honour reinstated the original sentence of imprisonment. 

   [30]This view is supported by paragraph 11 of a further affidavit in supportof the application sworn by Marcus Dempsey, a solicitor in the employ of Victorian Legal Aid to the following effect:

   "I am informed by counsel who appeared on the plaintiff's behalf both at the Magistrates' Court proceedings and in the breach proceedings in the County Court [counsel] by telephone on the 10^th of January 2002, that the issue of whether or not the offence alleged to be the breaching offence was 'punishable by imprisonment' within the meaning of the Sentencing Act (Vic) 1991 was not raised."

1. Subsequently, appreciating what had occurred, the appellant’s solicitor sought from the judge sitting in the Practice Court an order in the nature of certiorari to quash the order reinstating the sentence.

1. His Honour held that the County Court had jurisdiction to hear and determine the charge laid under s.31 of the Sentencing Act and that once the matter was properly before it, the judge would have to determine whether the charge had been made out.  He pointed out that the appellant admitted the breach and stated:

“The plaintiff was charged with possession of a drug of dependence namely cannabis.  Unless there is more that is an offence punishable by imprisonment.  However, it is open to a person found guilty of possession to establish to a court's satisfaction that the offence was committed in relation to a quantity of cannabis that was not more than “the small quantity” applicable to cannabis as stipulated in the Drugs Act, and that the offence was not committed for any purpose related to trafficking in cannabis.  The onus of so doing rests upon the defendant.  See R. v. Pantorno[31].

If such a person does not satisfy the Court on the balance of probabilities of both matters then he or she is liable to be sentenced to a term of imprisonment.

In the present case there was no finding of the Magistrates' Court in respect of either matter.  That much is clear from the transcript of the proceedings before the Ballarat Magistrates' Court on 11 January 2001.”

In those circumstances, his Honour considered that it was open to the judge in the County Court to adopt the course that he did and dismissed the application.

[31][1988] V.R. 195.

1. The appellant has appealed against that decision relying upon four grounds, namely:

“1.That the learned judge erred in finding that the applicant committed an offence punishable by imprisonment within the meaning of s.31(1) of the Sentencing Act 1991.

2.That the learned judge erred in finding that it was open to His Honour Judge Crossley of the County Court of Victoria to adopt the course he did in the matter and order that the plaintiff serve the period of imprisonment in question.

3.That the learned judge erred in finding that if His Honour Judge Crossley was in error, the error was not jurisdictional in nature.

4.That the learned judge erred in finding that there was no error disclosed on the face of the record of the County Court proceedings on 22nd November 2001.”

1. Essentially two propositions have been advanced. 

1. First, it was contended that the appellant had not committed an offence punishable by imprisonment in the undisputed circumstances.  His Honour, it was argued, was incorrect in his statement that the magistrate made no finding in respect of the presence of either of the mitigatory factors which were required if the appellant’s possession of cannabis was not so punishable.  I have already indicated that, in my opinion, there is considerable force in this argument.  It is hardly surprising that little reference was made to either the quantity involved or the purpose of possession in a case in which the prosecutor adverted to both factors, his summary was accepted by the appellant’s legal representative and there was nothing in the circumstances which could have raised any sensible doubt concerning either.

1. The second, and in the circumstances more difficult proposition from the appellant’s perspective is that his Honour fell into error in deciding that no remedy in the nature of certiorari would have been available in any event.  Certiorari has been described as:

"a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record.'"[32]  (Footnotes omitted.)

[32]Craig v. The State of South Australia (1995) 184 C.L.R. 163 at 175-176.

1. No error on the face of the very limited amount of material constituting  the record is discernible;  however broadly the term “record” is employed.  Accordingly, a valiant endeavour was made by counsel for the appellant to demonstrate the presence of jurisdictional error which would justify intervention by this Court as an alternative basis from the grant of this form of relief.  However, it is apparent that no such error has been demonstrated.  In this context reliance was placed on behalf of the appellant upon passages in the judgment of the High Court in Craig v. South Australia:

"Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers.

…

Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern."[33] (Footnotes omitted.)

However the Court went on to state:

"[T]he ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."[34]

Obviously, as in the case of any other criminal charge coming before the County Court, all of the elements of the offence involved must be established before a conviction may be recorded or a penalty imposed but generally speaking the jurisdiction of the Court to consider  the matter is not dependent upon their presence.  In my view, it could not be described as “an essential condition” for the existence of jurisdiction to determine whether there had been a breach of the order suspending sentence in the present case that a trafficking offence had been committed.  The imposition of a suspended sentence is one of a range of dispositions available to a sentencing judge under the Sentencing Act.  The legislation sets out the circumstances under which such a disposition can be made and identifies those which if established would constitute a breach.  The Judge was clearly empowered to determine whether a breach of the order had been committed. 

[33]At 177-178.

[34]At 179-180.

1. Unfortunately in that situation the only form of relief which appears to be available and of practical utility to the appellant would be the making of orders and declarations in the following form:

1. 1.        Appeal allowed.

1. 2.        Set aside orders made by Beach, J. and in lieu substitute:

   (1)A declaration that the offence of having in his possession a drug of dependence, namely, cannabis, contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981 of which the plaintiff, Jason Coleman, was convicted at the Magistrates’ Court of Victoria at Ballarat on 6 September 2001 was not “an offence punishable by imprisonment” within the meaning of s.31(1) of the Sentencing Act 1991 because, as the said Magistrates’ Court of Victoria must be presumed to have found on the agreed facts, the offence was committed in relation to a quantity of cannabis that was not more than the small quantity applicable to cannabis and was not committed for any purpose relating to trafficking in cannabis, and for that the maximum penalty was not more than 5 penalty units.

   (2)A declaration that the offence the subject of declaration (1) was the further offence alleged in the schedule to the charge for an offence under s.31(1) of the Sentencing Act 1991 (referred to as s.31(2) in the charge sheet), which was laid by or on behalf of the Director of Public Prosecutions against the plaintiff on 12 November 2001.

   (3) A declaration that his Honour Judge Crossley in the County Court at Melbourne on 22 November 2001 on the hearing of the charge referred to in declaration (2) erred in finding the plaintiff guilty of the offence under s.31(1) and ordering the plaintiff to serve the sentence of two months’ imprisonment which he had imposed on the plaintiff in the County Court at Ballarat on

   21 February 2001 but had ordered to be suspended. 

   (4) An order that each party bear his or its own costs of the proceeding.

   3.        Order that each party bear his or its own costs of this appeal.

O'BRYAN, A.J.A.:

1. I have had the advantage of reading the judgments of Batt, J.A. and Vincent, J.A.  I agree with their Honours’ reasons and conclusions and do not wish to add anything.  I agree in the suggested orders proposed by Vincent, J.A.

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