Director of Public Prosecutions (Cth) v Ede

[2014] NSWCA 282

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282

Hearing dates:

12 August 2014

Decision date:

12 August 2014

Before:

Basten JA at [1];
Gleeson JA at [2];
Tobias AJA at [51]

Decision:

(1) Set aside the order of the District Court made on 19 December 2013.

(2) Remit the proceedings to the District Court to determine Ms Ede's outstanding appeal against the sentence imposed by the Local Court on 15 October 2013.

(3) No orders to the costs of the proceedings in this Court.

(4) Otherwise dismiss the summons.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - Judicial Review - orders in nature of certiorari and mandamus - Whether jurisdictional error - Whether District Court correctly construed and applied s 19B(1)(d) Crimes Act 1914 (Cth) - Whether the discretion to impose a condition of the recognisance extends to the power to impose a requirement to perform unpaid work
PRACTICE AND PROCEDURE - Judgments and Orders - Appropriate remedy where sentence below partly affected by jurisdictional error - Severance - Whether possible to sever only the impugned portion of the decision - Whether the impugned portion is inextricably linked

Legislation Cited:

Crimes Act 1914 (Cth) ss 16A, 19B, 20, 20AB, 21B
Crimes (Appeal and Review) Act 2001 (NSW) ss 3, 11, 12, 20, 71
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 8, 10
Criminal Code 1995 (Cth) s 135.2
Commonwealth Gazette, No 293, 12 November 1990
District Court Act 1973 (NSW) s 176
Judiciary Act 1903 (Cth) ss 39, 68 and 79
Justices Act 1902 (NSW) s 125
Supreme Court Act 1970 (NSW) s 69

Cases Cited:

Adams v Carr (1987) 47 SASR 205
Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701
Bantick v Blunden (1981) 58 FLR 414
Bros Bins Systems Pty Ltd v Industrial Relations Commission (2008) 74 NSWLR 257
Cheatley v R (1972) 127 CLR 291
Commissioner of Taxation v Baffsky [2001] NSWCCA 332
Commissioner of Taxation v Doudle (2005) 195 FLR 76
Corporation of the City of Unley v Claude Neon Ltd and another (1993) 32 SASR 329
Craig v South Australia [1995] HCA 58; 184 CLR 163
Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552
Elias v Director of Public Prosecutions [2012] NSWCA 302; 222 A Crim R 286
Erceg v The District Court of New South Wales [2003] NSWCA 379; 143 A Crim R 455
Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531
R v Ingrassia (1997) 41 NSWLR 447
R v North Hertfordshire District Council, ex parte Cobbold [1985] 3 All ER 486
R v Said El Masri [2005] NSWCCA 167
R v Shambayati [1999] 105 A Crim R 373
R v Wall [2002] NSWCCA 42; 71 NSWLR 692
R v Winchester (1992) 58 A Crim R 345
Re Narula, Ng & Hammersley; Ex parte Atanasoski [2003] WASCA 156
Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151
Spanos v Lazaris [2008] NSWCA 74
Wentworth v Wentworth (Supreme Court (NSW), Santow J, 6 February 1998, unrep)
Yousaf v Director of Public Prosecutions [2012] NSWCA 397

Category:

Principal judgment

Parties:

Commonwealth Director of Public Prosecutions (Applicant)
Tamerine Ede (First respondent)
Acting District Court Judge R Madgwick (Second respondent)
District Court of New South Wales (Third respondent)

Representation:

Counsel:
R Ranken (Applicant)
A Mitchelmore with J Davidson (Amici Curiae)
Solicitors:
Commonwealth Director of Public Prosecutions (Applicant)

File Number(s):

2014/13839

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-12-19 00:00:00

Before:

Madgwick ADCJ

File Number(s):

2013/235143

Judgment

1. BASTEN JA: I concur in the reasons of Gleeson JA for the orders made at the conclusion of the hearing on 12 August 2014.

1. GLEESON JA: The short question in these proceedings is whether a judge of the District Court who dealt with an offender under s 19B(1)(d) of the Crimes Act 1914 (Cth) by discharging the offender, without proceeding to conviction, conditionally on the offender entering into a recognisance without sureties to be of good behaviour for a period of two years and accepting the supervision and guidance of a probation officer during such period (or such lesser period as the probation officer may determine), could also impose a condition requiring the performance of unpaid work, namely that:

"The offender perform not less than 32 hours work per calendar month for the St Vincent de Paul Society or such other charity as the Community Corrections Office may approve for a period of one year from [19 December 2013]."

1. The matter comes to this Court in the following way. The applicant, the Commonwealth Director of Public Prosecutions, seeks orders by way of judicial review setting aside orders of the District Court of New South Wales made on 19 December 2013 on an appeal by the first respondent (Ms Ede) against the severity of the sentence imposed on her at Campbelltown Local Court on 15 October 2013.

1. Ms Ede was charged with an offence of engaging in conduct to obtain financial advantage from a Commonwealth entity to which she knew she was not entitled - contrary to s 135.2(1) of the Criminal Code 1995 (Cth). The short particulars of the offence were that Ms Ede did not inform the Commonwealth fully of her income from McDonald's Australia Limited and as a result of that she obtained an advantage in that over a period of approximately four years she was paid more by way of a single parenting payment than she should have been paid had she made proper disclosure. The amount involved was $22,210.

1. In the Local Court Ms Ede was convicted and sentenced to a fixed term of imprisonment for three months. The maximum penalty provided for such an offence is imprisonment for 12 months. The magistrate also made a reparation order pursuant to s 21B of the Crimes Act requiring Ms Ede to repay to the Commonwealth the amount of $19,530.24. Ms Ede appealed to the District Court against the severity of the sentence.

1. On the appeal, Madgwick ADCJ considered whether the circumstances of the case were such that it was appropriate to apply the provisions of s 19B of the Crimes Act and discharge Ms Ede conditionally, without proceeding to conviction.

1. Section 19B provides, relevantly, that:

Discharge of offenders without proceeding to conviction

(1) Where:

(a) a person is charged before a court with a federal offence or federal offences; and

(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

(i) the character, antecedents, age, health or mental condition of the person;

(ii) the extent (if any) to which the offence is of a trivial nature; or

(iii) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

the court may, by order:

...

(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:

(i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;

(ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

(A) on or before a date specified in the order; or

(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs-by specified instalments as provided in the order; and

(iii) that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.

... ."

1. His Honour referred to a number of factors in his consideration of the s 19B application. He found that Ms Ede was of good character; that the offence was the consequence of Ms Ede's partial or entire inability to provide for her four children; but also that the offence was not trivial. Having regard to the first two findings (relating to Ms Ede's antecedents, and the extent to which the offence was committed under extenuating circumstances), his Honour came to the conclusion that:

"In my opinion, it is highly expedient to release this offender on probation to give her the chance to earn the right permanently to avoid the stain of criminal conviction for this matter against her name." (Reasons at WB 12)

1. His Honour then addressed the conditions of Ms Ede's discharge. Whilst recognising the general principle of criminal law that there be no punitive imposition on a person except after she or he has been convicted, his Honour considered that "remediatory and restitutive" conditions could be imposed as a condition of probation under s 19B(1)(d). In this regard his Honour found that:

"... It would be both remediatory for the offender to have to undergo some productive charity work without reward, and it would be restitutive to the community in the sense of acknowledging to the community thereby that mere repayment of the money alone does not amount to giving something back to the community from which she has in effect stolen." (Reasons at WB 13-14)

1. His Honour proceeded to dismiss the appeal and confirm the finding that the offence was proven. Notably the order for dismissal of the appeal was inconsistent with the subsequent orders made by his Honour in which he quashed the conviction in the Local Court and all other orders and, in lieu, discharged Ms Ede conditionally under s 19B(1)(d) of the Crimes Act on probation for a period of two years. His Honour imposed conditions that Ms Ede place herself under and accept the supervision and guidance of the Community Corrections Office for that period or such lesser period, if any, as the relevant officer of that service may determine, and that she report to the Campbelltown district office of that service within 24 hours to enable that supervision to commence. His Honour also imposed a condition in relation to the performance of unpaid work, set out at [2] above.

1. No copy of the formal orders of the District Court was in evidence on this application. The terms of the Court's orders, as recorded in the "Order and Recognisance under par 19B" which is dated 19 December 2013 and signed by an unidentified "Authorised officer" as well as Ms Ede, are stated to be:

"Sentence Appeal Dismissed - Order Varied

Appeal dismissed. Confirm finding offence proven. Without proceeding to conviction, appellant discharged under S19B(1)(d) of Crimes Act 1914 (Commonwealth). 2 years, P&P supv.

The offender, Tamerine EDE, is to be released under section 19B(1)(d) of the Crimes Act 1914 (Commonwealth), without proceeding to conviction on condition that the offender enter into a recognizance self in the sum of $500.00 to be of good behaviour for 2 years

To accept the supervision and guidance and comply with all reasonable direction of the Probation and Parole Service for as long as deemed necessary. obey all reasonable directions for counselling, education development or drug and alcohol rehabilitation and any mental ill health issues. [sic]

To report to Probation and Parole at Campbelltown Community Corrections District Office within 24 Hours.

The offender is to undertake 32 hours per calendar month unpaid work for St Vincent de Paul, or any other charity that the Community Corrections officer in charge of her case deems appropriate, for a period of 1 year.

The court is satisfied that the charge is proved, but is of the opinion, having regard to:

(a) the character, antecedents, cultural background, age, health or mental condition of the person; or

(b) the extent to which the offence is of a trivial nature; or

(c) the extent to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment."

1. It will be apparent that the Order and Recognisance does not correctly record the orders pronounced in his Honour's reasons for judgment. First, his Honour did not impose any condition requiring obedience in relation to "all reasonable directions for counselling, education, development or drug and alcohol rehabilitation and any mental ill health issues" [sic]. Nor indeed did his Honour make any findings to this effect. Secondly, the notation that the Court was of the opinion that it is inexpedient to inflict any punishment, having regard to the extent to which the offence is of a trivial nature, does not reflect his Honour's findings. As already noted (at [8] above), his Honour found that the offence was not trivial.

1. On 14 January 2014 the applicant filed a summons in this Court naming Ms Ede, the sentencing judge, and the District Court of New South Wales as respondents. The relief claimed in the summons included orders quashing the orders of the District Court made on 19 December 2013 and that the proceedings be remitted to the District Court to determine Ms Ede's severity appeal to that Court according to law. A declaration was also sought that the District Court erred in law in making unpaid work a condition of a discharge without proceeding to conviction pursuant to s 19B(1)(d) of the Crimes Act.

1. Each of the respondents filed a submitting appearance. In the absence of a contradictor the Court was assisted on the hearing of this application by written submissions and oral argument from Ms A Mitchelmore and Ms J Davidson of counsel who appeared as amici curiae, at the request of the Registrar of this Court.

1. At the conclusion of oral argument the Court made the following orders and reserved its reasons for judgment:

(1)   Set aside the order of the District Court made on 19 December 2013.

(2)   Remit the proceedings to the District Court to determine Ms Ede's outstanding appeal against the sentence imposed by the Local Court on 15 October 2013.

(3)   No orders to the costs of the proceedings in this Court.

(4)   Otherwise dismiss the summons.

1. My reasons for joining in those orders are as follows.

The basis of these proceedings

1. The applicant invokes the supervisory jurisdiction of this Court conferred by s 69 of the Supreme Court Act 1970 (NSW). Review under s 69 extends to relief formerly available by writ of certiorari and mandamus. However it is necessary to consider whether there is any legislative constraint on the Court's exercise of its powers to quash or otherwise review a decision: s 69(5). The applicant acknowledged that s 176 of the District Court Act 1973 (NSW) provides that: "no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court."

1. Nevertheless it is well established that the effect of s 176 is not to exclude proceedings by way of judicial review by this Court, but to limit their availability to cases involving jurisdictional error: Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 at [10] per Basten JA (Giles JA and McColl JA agreeing). See also Spanos v Lazaris [2008] NSWCA 74 at [15]; Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 at [18] and [45]; and Elias v Director of Public Prosecutions [2012] NSWCA 302; 222 A Crim R 286 at [5]; Yousaf v Director of Public Prosecutions [2012] NSWCA 397 at [12] per Barrett JA (McColl JA and Meagher JA agreeing). An inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist": Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 at [72]; Craig v South Australia (Craig) [1995] HCA 58; 184 CLR 163 at [11]. One example given in Craig at [12] of an inferior court acting beyond jurisdiction is the misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.

1. In this case the question before the Court is whether the decision of the District Court on appeal from the Local Court exceeded its jurisdiction. The question is therefore one concerning jurisdictional error. If error is established, a further question of what relief should be granted must be addressed. Relevant to these questions is a proper understanding of the jurisdiction which the Local Court was exercising, and in turn the jurisdiction the District Court was exercising on appeal from the Local Court in respect of a federal offence.

The jurisdiction of the Local Court and the District Court

1. The subject matter of the proceedings against Ms Ede involved federal jurisdiction, being an offence committed contrary to Commonwealth law. The Local Court, within the limits of its jurisdiction, was invested with the federal jurisdiction to determine the proceedings by virtue of s 39(2) of the Judiciary Act 1903 (Cth).

1. The jurisdiction of the District Court, in respect of an appeal against sentence from the Local Court, is provided in Pt 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act). Those provisions apply to proceedings in respect of Commonwealth offences by operation of ss 68(1)(d) and 79 of the Judiciary Act, except as otherwise provided by the Constitution or the laws of the Commonwealth.

1. Any person who has been convicted or sentenced by a Local Court may appeal to the District Court against the conviction or sentence (or both): s 11(1) Appeal and Review Act. However, if a person is convicted in their absence or following a plea of guilty, there is no appeal as of right in respect of a conviction but only by leave of the District Court: ss 11(1A) and 12.

1. Section 20(2) provides that the District Court may determine an appeal against sentence by setting aside the sentence, by varying the sentence, or by dismissing the appeal. The power to vary a sentence includes the power to make an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (relating to dismissal of charges and conditional discharge of the offender) and, for that purpose, to set aside a conviction made by the original Local Court (without setting aside the finding of guilt on which the conviction is based) to enable such an order to be made: s 3(3A) Appeal and Review Act.

1. Section 71 of the Appeal and Review Act confines the District Court on appeal to sentences which could have been imposed by the Local Court.

1. In varying the sentence imposed by the Local Court for a federal offence, the District Court was required to do so in accordance with the provisions of Pt 1B of the Crimes Act. The starting point for the determination of the appropriate sentence or order is s 16A of the Crimes Act. Section 16A(1) mandates the imposition of a sentence or the making of an order that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) provides a non-exhaustive list of mandatory considerations to be taken into account to the extent that they are relevant and known to the Court. Division 3 of Pt 1B deals with sentences of imprisonment.

1. Division 5 of Pt 1B deals with conditional release on parole or licence. Within Division 5, the alternative sentencing options to imprisonment or a fine include the discharge of offenders without conviction (s 19B) and the conditional release of offenders after conviction (s 20).

1. The application of s 19B involves a two-stage inquiry. The first is the identification of a factor or factors of the character specified in subpars (i), (ii) and (iii) of par (1)(b). The second stage is the determination that, having regard to the factor or factors so identified, it "is inexpedient to inflict any punishment" or to reach the other conclusions for which the paragraph provides: Commissioner of Taxation v Baffsky (Baffsky) [2001] NSWCCA 332 at [10] (Spigelman CJ; Simpson J and Einfeld AJ agreeing). The scope of considerations relevant to the exercise of the power in s 19B(1) encompass each of the matters identified in s 16A(2), which arise at the second stage of the inquiry: Baffsky at [15].

1. The judge held that it was expedient to release Ms Ede on probation. The basis for that finding seems to have been the antecedents of Ms Ede and to give her the opportunity to earn the right to avoid a conviction against her name. The focus of the applicant's complaint was directed to the imposition of the condition relating to the performance of unpaid work as a condition of discharge, without conviction, under s 19B. That constituted, it was submitted, the infliction of punishment.

1. Finally it should be observed that the power to impose a community service order in respect of a federal offence is to be found in s 20AB of the Crimes Act. Section 20AB provides:

"Additional sentencing alternatives

(1) Where under the law of a participating State or a participating Territory a court is empowered in particular cases to pass a sentence or make an order known as a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention or an attendance order, or to pass or make a similar sentence or order or a sentence or order that is prescribed for the purposes of this section, in respect of a State or Territory offender, such a sentence or order may in corresponding cases be passed or made by that court or any federal court in respect of a person convicted before that first-mentioned court, or before that federal court in that State or Territory, of a federal offence.

(1A) Where the law of a participating State or a participating Territory requires that before passing a sentence, or making an order, of the kind referred to in subsection (1) a court must first pass another sentence or make another order (whether or not that other sentence or other order is suspended upon the making of the first-mentioned sentence or order), then, a court is not required, before passing or making that first-mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order."

1. New South Wales has been a "participating" State for the purposes of s 20AB since 12 November 1990: Commonwealth Gazette, No 293, 12 November 1990; R v Winchester (1992) 58 A Crim R 345 at 348 (Hunt CJ at CL; Smart and Grove JJ agreeing).

1. In respect of proceedings in New South Wales, the power to make a community service order, which is a non-custodial alternative to a sentence to fulltime imprisonment, arises under s 8(1) of the Crimes (Sentencing Procedure) Act which provides:

"Instead of imposing a sentence of imprisonment on an offender, a court may make a community service order directing the offender to perform community service work for a specified number of hours."

1. Section 8(1) of the Crimes (Sentencing Procedure) Act applies to federal offences by reason of s 20AB of the Crimes Act: R v Wall [2002] NSWCCA 42; 71 NSWLR 692 at [84] (Wood CJ at CL; Meagher JA and Bell J agreeing).

Jurisdictional error

1. The applicant submits that the imposition of the condition on a recognisance relating to the performance of unpaid work involved a misapprehension by his Honour of the limits of the District Court's power under s 19B(1)(d) and amounted to jurisdictional error. In her very helpful submissions, Ms Mitchelmore agreed with the applicant's submission on the construction of s 19B.

1. Section 20AB provides no basis for imposing a community service order on any person who has not been convicted: s 20AB(1). Section 19B(1)(d) permits the Court to "discharge the person, without proceeding to conviction". It is clear the two sections operate in different circumstances; nor is there any provision of Commonwealth law which could operate inconsistently with this legislative scheme. The scheme is consistent with the general law principle that a person who has not been convicted on an offence should not be punished by a court: R v Ingrassia (1997) 41 NSWLR 447 at 449G-450A (Gleeson CJ; McInerney and Ireland JJ agreeing); Commissioner of Taxation v Doudle (2005) 195 FLR 76 at 83 (Debelle J). Both these cases concerned the imposition of a fine in combination with a conditional discharge. In each case it was held that the Court had no power to require the offender to pay a fine as a condition of discharging the offender on a recognisance because the relevant legislative provision did not permit the combination of a conditional discharge and punishment in the form of a fine.

1. As a matter of statutory construction, and whether or not a community service order is a form of punishment, the power of the court to impose a condition on an offender who is discharged without conviction should not be read as extending to the imposition of a community service order which, pursuant to s 20AB, can only be imposed on a person after he or she is convicted. That conclusion is supported by the fact that both under State law (which provides for the imposition of a community service order) and under the common law, a community service order would constitute a form of punishment which is not available absent a conviction.

1. That a community service order constitutes a punishment under New South Wales law is demonstrated by the terms of s 8 of the Crimes (Sentencing Procedure) Act, which are set out above at [31]: R v Wall at [84] (Wood CJ at CL); R v Said El Masri [2005] NSWCCA 167 at [37] (Johnson J; Hunt AJA and Hulme J agreeing). However, because there is no statutory basis for applying s 8 in federal jurisdiction, except as a form of punishment of an offender after conviction under s 20AB of the Crimes Act, it is not necessary to consider the preconditions to the application of this section under the State Act. (It appears that the conditions under Pt 7 of the Crimes (Sentencing Procedure) Act dealing with community service orders were not in fact satisfied.)

1. Nor is it necessary to deal with the submissions of the amici curiae concerning the suggested conflict between the Queensland Court of Appeal in R v Shambayati [1999] 105 A Crim R 373 and the Full Court of the Supreme Court of South Australia in Adams v Carr (1987) 47 SASR 205 at 213-214, and whether these decisions have any relevance to s 20AB of the Crimes Act for the purposes of proceedings in a New South Wales court in respect of a federal offence having regard to the decision of this Court in R v Wall at [84]. It is sufficient to note that the applicant accepted, correctly in my view, that s 20AB of the Crimes Act is not available where an order is made under s 19B for discharge, without conviction.

Appropriate remedy

1. The applicant seeks relief setting aside the order made by the District Court and remitting the proceedings to the District Court to redetermine Ms Ede's severity appeal against the sentence imposed by the Local Court. The applicant did not press the claim for declaratory relief.

1. Ms Mitchelmore submitted that the appropriate remedy would be to quash only that part of the District Court orders in respect of which his Honour lacked jurisdiction to make, relevantly, the condition regarding the performance of unpaid work.

1. It was submitted that where partial invalidity is established in proceedings in the nature of certiorari, it is open to the reviewing court to quash only the invalid portion of the decision or order, provided that the portion is severable. Reference was made to a number of authorities including Cheatley v The Queen (1972) 127 CLR 291 at 308-309 per Walsh J (dissenting in the result); and Re Narula, Ng & Hammersley; Ex parte Atanasoski (Narula) [2003] WASCA 156 at [48]-[50] per Roberts-Smith J (Murray and Barker JJ agreeing).

1. Ms Mitchelmore referred to authority in this Court which permitted orders made by the District Court on an appeal under s 20 of the Appeal and Review Act, to be severed and to quash only that part of the judge's order which he did not have jurisdiction to make: Roads and Traffic Authority of NSW v Higginson (Higginson) [2011] NSWCA 151 at [27] Giles JA, [70] Basten JA and [146] Young JA. Reference was also made to Bros Bins Systems Pty Ltd v Industrial Relations Commission (Bros Bins Systems) (2008) 74 NSWLR 257 at [81] (Spigelman CJ; Giles JA and Handley AJA agreeing) where severance was permitted in relation to a decision on appeal to the Full Bench of the Industrial Court because there was a clear distinction between the decision to set aside the order of the primary judge dismissing the proceedings and the order remitting the matter for a new trial (in circumstances where the jurisdictional error only related to the latter order).

1. The applicant did not seek to challenge Higginson or Bros Bins Systems, but submitted that these cases were distinguishable on the facts. That may be accepted. The applicant confined his submissions on severance to the contention that the condition relating to the performance of unpaid work was inextricably linked to the imposition of the condition of discharge relating to probation. Accordingly it was said that it was not possible to sever the impugned condition, which his Honour lacked jurisdiction to make.

1. In Narula at [51], in the context of judicial review of a decision of an administrative tribunal, the Western Australia Court of Appeal expressed the principle of severance as follows:

"If the impugned decision as a whole is [dependent] or conditioned upon the impugned element, or is one of several elements which are interrelated in that the flaw which affects the one, necessarily also affects the other or others, then the impugned element cannot be severed. Where however they can stand apart and the flaw which affects one is confined to it, severance should be preferred."

1. In Wentworth v Wentworth (Supreme Court (NSW), (6 February 1998, unrep) Santow J said that the critical requirement for severability was described as "what is severed is not 'so closely integrated' or 'so inextricably connected' with what remains as to leave what is sought to be preserved as 'fundamentally changed in character'", citing Corporation of the City of Unley v Claude Neon Ltd and another (1993) 32 SASR 329 at 333. His Honour also observed that another way of putting it was that "what's left must not be so radically and substantially different as a result of the excision that it could not operate independently of what was excised", citing R v North Hertfordshire District Council, ex parte Cobbold [1985] 3 All ER 486 at 490-492.

1. Severability is subject to contrary statutory indications, such as if the relevant Act treats the impugned decision as a single entity, it might not be severable: Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701 at 712-713 in relation to the former s 125 of the Justices Act 1902 (NSW). As noted above, the applicant did not submit that there was any contrary statutory indication in the present case arising from the terms of s 20 of the Appeal and Review Act or otherwise.

1. In these circumstances it is appropriate to proceed upon the basis that the Court may quash that part of an invalid decision or order made by his Honour without interfering with the remainder, provided that the bad can be cleanly severed from the good. Nonetheless severance must not be used to achieve substantive alteration.

1. I am not persuaded by the submissions of Ms Mitchelmore that it is possible to sever the impugned condition from the remainder of his Honour's order conditionally discharging Ms Ede. It is evident from his Honour's reasons for judgment that the imposition of the unpaid work condition was inextricably linked to the conditional discharge of Ms Ede on probation. It cannot be safely concluded that his Honour would probably have made an order under s 19B if not for the inclusion of the impugned condition. In these circumstances, and regrettably for Ms Ede who must now have her severity appeal redetermined by the District Court, it is not possible to sever the impugned condition.

Conclusion

1. The applicant has made out his case for setting aside the orders of the District Court made on 19 December 2013 and remitting the proceedings to the District Court to determine Ms Ede's outstanding appeal against the sentence imposed by the Local Court on 15 October 2013. The orders of this Court made on 12 August 2014 reflect this outcome.

Further matter

1. It is appropriate to refer to one further matter. The circumstances in which an "authorised officer" of the District Court added certain conditions and notations to the terms of the recognisance which were not pronounced in court by his Honour when discharging Ms Ede, are unknown to this Court. Nonetheless the fact that the order recorded in the recognisance did not properly reflect the order pronounced in the District Court (see [12] above) is of concern. The changes to the Court's order were not insignificant. Similar concerns have been previously raised by this Court in Erceg v The District Court of New South Wales (Erceg) [2003] NSWCA 379; 143 A Crim R 455 at [24]-[25] (Sheller JA) and [165]-[167] (McColl JA). In Erceg the Court commented on certain unsatisfactory features of the sentencing procedure adopted in a proceeding in the District Court where amendments to warrants of commitment had been made which did not reflect the sentence pronounced in court by the sentencing judge.

1. The recognisance signed by the offender is an important document. If the offender fails to observe the conditions of his or her discharge, without reasonable excuse, he or she can be brought back to court and re-sentenced. The rights of people not to be exposed to further proceedings otherwise than in accordance with the terms of an order duly and properly pronounced in court should be paramount. This should be reflected in the care and attention given by the District Court to properly recording the terms of the Court's order in the recognisance signed by the offender.

1. TOBIAS AJA: I agree with the reasons of Gleeson JA for the making of the orders by the Court on 12 August 2014 in which I joined. I also agree with the additional remarks of his Honour at [49] and [50] of his reasons.

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Decision last updated: 25 August 2014