Director of Public Prosecutions (NSW) v Caita-Mandra

[2004] NSWSC 1127

CITATION:	DPP (NSW) v Caita-Mandra and Anor [2004] NSWSC 1127 revised - 22/01/2005
HEARING DATE(S):	04/11/2004
JUDGMENT DATE:	26 November 2004
JUDGMENT OF:	Howie J at 1
DECISION:	(1) The Court declares that the Second Defendant erred in law in refusing to make any order consequential upon the revocation of the community service order in accordance with s 115(3) of the Crimes (Administration of Sentences) Act. (2) The Magistrate is to hear and determine the question of re-sentencing the First Defendant under s 115(3) of the Act according to law and conformably with this judgment. (3) The Court reserves the question of costs. The Plaintiff and First Defendant are to file submissions in respect of the orders to be made as to costs within 14 days from today. Either party has liberty to apply within 14 days for a hearing on the question of costs.
CATCHWORDS:	Relief against justices - Order in the nature of mandamus sought against a magistrate refusing to resentence an offender following the revocation of a community service order
LEGISLATION CITED:	Crimes (Administration of Sentences) Act 1999 - ss 115(1), 115(2), 115(3) Crimes Act - s 59(1)
CASES CITED:	R v Fielding (1993) 14 Cr App R (S) 494 R v Hammon [1998] Crim L R 293 Maxwell v The Queen (1995) 184 CLR 510
PARTIES :	Director of Public Prosecutions (NSW) Laurentiu Caita-Mandra Stephen Vaughan Jackson LCM
FILE NUMBER(S):	SC 12435/2004
COUNSEL:	P. Lakatos - Plaintiff Submitting appearance - Defendants
SOLICITORS:	S. Kavanagh - Plaintiff Submitting appearance - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

FRIDAY 26 NOVEMBER 2004

12435/2004 DIRECTOR OF PUBLIC PROSECUTIONS v
LAURENTIU CAITA-MANDRA AND ANOR

JUDGMENT

1 HIS HONOUR: The Director of Public Prosecutions seeks various orders from this Court in relation to the determination of a Magistrate (the second defendant) in proceedings In the Local Court in Singleton. The proceedings arose consequent upon Mr Caita-Mandra (the defendant) appearing before that court for revocation of a community service order under s 115(1) of the Crimes (Administration of Sentences) Act. The Director seeks orders in the nature of certiorari and mandamus and a declaration that the learned Magistrate erred in law in refusing to deal with the defendant pursuant to s 115(3) of that Act. Mr Lakatos appeared for the Director. Both the defendant and the Magistrate made submitting appearances except as to cost.

2 On 11 May 2004 the Probation and Parole Service (the Service) made an application to the Local Court for revocation of the community service order to which the then defendant was subject pursuant to s 115(2) of the Act. The ground upon which the order was sought was, using the words of the subsection, that “having regard to circumstances that have arisen since the relevant Community Service Order was made, it is in the interests of justice to do so”. A number of medical certificates and reports were annexed to the application. The Magistrate granted the application but determined that it was inappropriate to impose any other sentence upon the defendant. It is that determination that the Director seeks to challenge on the basis that the Magistrate so far misunderstood the nature of his jurisdiction that, in effect, he failed to exercise it.

3 Section 115 provides:

“ 115 Revocation of community service orders
(1) An application for the revocation of an offender’s community service order may be made to the sentencing court, to a court of like jurisdiction or to a court that is superior to the sentencing court.
(2) The application may be made:
(a) by the offender’s assigned officer, on the grounds that the offender has failed, without reasonable excuse, to comply with the offender’s obligations under the order, or
(b) by the offender, or by the offender’s assigned officer, on the grounds that it would (having regard to circumstances that have arisen since the relevant community service order was made) be in the interests of justice to revoke the order.
(2A) The application cannot be made later than one month after the expiry of the relevant maximum period for the order.
(2B) For the purpose only of determining an application under this section, a community service order is taken to be in force even if the relevant maximum period has expired.
(3) If satisfied that the applicant has established the grounds on which the application is made, the court may revoke the offender’s community service order and (if it considers it appropriate to do so) deal with the offender in any manner in which it could have dealt with the offender had the order not been made.
(4) An offender on whom a penalty is imposed as a consequence of the revocation of a community service order under this section has the same rights of appeal as if the penalty had been imposed when the offender was convicted of the offence to which the penalty relates.
(5) A court that revokes an offender’s community service order under this section must cause notice of the revocation to be sent to the offender’s assigned officer.
(6) For the purposes of this section:
(a) failure by an offender to perform the required number of hours of community service work under a community service order within the relevant maximum period for the order is taken to constitute failure by the offender to comply with the offender’s obligations under the order, and
(b) failure by an offender to comply with the offender’s obligations under one community service order (the primary failure ) is taken to constitute failure by the offender to comply with the offender’s obligations under every other community service order that is in force when the primary failure occurs.”

4 The facts of the offence that led to the imposing of a community service order on the defendant can be stated briefly. On 3 August 2002, the defendant became involved in an altercation in a hotel at Singleton, during which he picked up a barstool and swung it at the victim. As a result, the victim sustained serious injuries including a laceration to the right temple and multiple fractures of the right facial bones. The victim was required to undergo surgery to insert small plates to hold the fractured bones in place.

5 On 14 May 2003, the defendant pleaded guilty before the Local Court to a charge of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. It was for this offence that he was sentenced to 100 hours of community service.

6 The applicant did not complete any hours of his community service. A short time after sentence was imposed it was discovered by the Service that the defendant was suffering an injury that precluded him from carrying out the work assigned to him. Hence the Service made the application that came before the Magistrate.

7 During the hearing of the application for revocation the Magistrate made the following comments:

“…this is one of those situations where he was prepared to do community service through – I was going to say through no fault of his own – I don’t know that – but through misadventure, if nothing else, he’s now not able to do the work.

All that the probation service is asking is that he be released from the order and that they effectively be released from the need to require him to do the work.

In the circumstances, it would seem to me that there’s probably little point in the Court imposing any alternative sentence. So that in the circumstances, I’m prepared to revoke the order on medical grounds, and leave it at that.”

8 In the light of these comments, the prosecutor submitted that, if the Magistrate revoked the order, he was required to re-sentence the defendant. The magistrate responded that he did not believe that the submission was correct and added:

“….Its revoked on medical grounds. My understanding is that’s all I need do”.

9 The Magistrate adjourned to consider the terms of the relevant section. On resumption both the prosecutor and the solicitor appearing for the defendant conceded that the Magistrate had a discretion in respect of what further order he made consequent to revoking the community service order. However, the Magistrate remained of the view that he should deal with the application in the way that he had foreshadowed. In his judgment revoking the order without re-sentencing the defendant, he stated:

“…in the circumstances, I am prepared to accept what the probation service says. It wants to revoke the order, and I can understand why it wants to. I propose to revoke the orders on medical grounds. I do not propose to impose an alternative sentence.”

10 The Magistrate then made the following orders:

I propose to revoke the order(s) on medical grounds. I do not propose to impose an alternative sentence.

11 The Director submits that the Magistrate misunderstood the nature of the jurisdiction that arose upon the revocation of the order such that he failed to exercise that jurisdiction. In support of that submission the Director relies upon two main errors that he asserts the Magistrate made. The first is that his Honour treated the application as being “a revocation on medical grounds”, a particular type of revocation that was to be considered differently from a revocation sought on some other ground, such as that the offender had failed to attend to carry out the order. The second error was that the magistrate misunderstood what was meant by the use of the term “the interests of justice” in the application for revocation.

12 As to the first alleged error, the Director points to statements made by the Magistrate both in argument and in his reasons for judgment that indicate that the Magistrate saw particular significance in the fact that the Service sought the revocation for medical reasons and without seeking any other order. The Magistrate referred to his experience of how such applications were made by the Service and placed weight on the fact that, in the present case, the Service had not sought that any other order be made on revocation, even though he appreciated that insofar as the Service sought some other order it “was exceeding its jurisdiction because ultimately the decision or discretion to impose some alternative penalty would reside in this Court”. However, ultimately the Magistrate stated, “I’m prepared to accept what the probation service says. It wants to revoke the order, and I can understand why it wants to”.

13 With respect, in my view, the Magistrate allowed himself to be distracted by the nature of the application being made to him and by what the Service wanted or did not want in making the application. There are two grounds upon which an application can be made for a revocation, those being set out in s 115(2)(a) and (b). The first of those applications, under s 115(2)(a), is based upon a failure of the offender, without reasonable excuse, to carry out the offender’s obligation under the order. The second, under s 115(2)(b) is based upon what is necessary in the interests of justice. Neither of those applications, either intrinsically or explicitly, indicates whether an order of revocation should be made, let alone what order, if any, should be made as a consequence of revocation.

14 An application under s 115(2)(a) or (b) simply brings the matter before the Court and invokes the jurisdiction under s 115(3). There is nothing in the provisions of s 115 that suggests that the jurisdiction of the court, either to revoke the order or to make some other order as a consequence of the revocation, should be exercised in any particular way because of the nature of the application being made to the court. The discretion of the court is unfettered by the nature of the application made to it. As the Magistrate rightly observed, there is nothing in the section that entitles the Service to require, or even to request, that any particular order be made as a consequence of revocation.

15 The Magistrate, having revoked the order simply determines in the exercise of his or her discretion whether to make any consequential order. There will no doubt be a number of relevant facts and circumstances to be taken into account in exercising that discretion, but one of them is not the nature of the application for revocation. No doubt the circumstances giving rise to the application will be a relevant matter in deciding if some other order should be made and what that order should be. For example, if the circumstance giving rise to the revocation is not the fault of the offender, it would be unlikely that the court would impose a custodial order upon revocation because such an order would be unduly harsh: R v Fielding (1993) 14 Cr App R (S) 494. On the other hand, if the sentencing court was deceived into making the community service order by the offender failing to reveal a relevant fact that later made it expedient to revoke the order, a sentence of imprisonment might be imposed upon revocation: R v Hammon [1998] Crim L R 293. But it does not follow that, simply because it was not the fault of the offender that he could not complete the community service order, no order should be made following revocation.

16 I do not know whether the Service is in the practice of making recommendations or suggesting possible alternative orders on revocation of a community service order. But, if the Service does present a report to the Magistrate indicating its view as to the appropriate order to be made as a consequence of revocation, the Magistrate should simply give that opinion whatever weight it deserves having regard to other considerations that the Magistrate must take into account, such as the public interest in the offender being adequately punished for the offence committed.

17 In my opinion the magistrate’s jurisdiction under s 115(3) miscarried because he took into account irrelevant considerations being the nature of the application and the absence of any request by the Service for a consequential order on revocation. This would be sufficient to enliven the jurisdiction of this Court to order the magistrate to exercise his jurisdiction afresh and according to law.

18 However, the second basis upon which the Direction impugns the exercise by the Magistrate of the jurisdiction under s 115(3) is also made out in my opinion. During the course of his judgment the Magistrate considered the meaning of the term “in the interests of justice” appearing in s 115(2)(b) as being relevant to his determination of whether he should make any order consequent upon revocation. The Magistrate, after referring to the prosecution’s submission that an alternative sentence should be imposed, stated:

“However, it’s these words, ‘in the interests of justice’, that caused me a little bit of concern. I, rightly or wrongly, see that to an extent as being an extension of the, what you might call the – and this is not big noting – but the prerogative of mercy which resides normally in the sovereign. In this country, in the governor with the advice of the executive counsel in certain cases, but also the Court does have a discretion.

And it seems as though there is a comparison that can be drawn between that prerogative of mercy and the sovereign and in the crown. It’s not as though, at least as far as I read the material that’s before the Court, it’s not as though the offender has sought to injure himself to the extent that he can’t carry out the work. There’s really nothing here as to how the accident occurred or the injury occurred. But there’s nothing to suggest that there was a wilful doing of something that caused the injury so that he couldn’t carry out the community service work."

19 It is unnecessary for present purposes to review decisions on the meaning to be attributed to the words “the interests of justice” in the many and varied statutory provisions where those words appear. It is enough to indicate that the interests of justice are never determined by a consideration only of the interests of one party to litigation. In particular, in criminal matters “the interests of justice” is not synonymous with “the interests of the accused”: Maxwell v The Queen (1995) 184 CLR 510 at 525.

20 Clearly the Magistrate before he could revoke the order had to be satisfied that it was in the interests of justice to do so. But this consideration had nothing to do with the prerogative of mercy even if the magistrate should be taken as using the term in a non-technical sense rather than as a right of the Crown, exercised not by courts but the Governor of the State. The Magistrate seems, with respect, to have completely misconceived the nature of the jurisdiction under s 115(3) if he thought it was exercised as an act of grace to relieve the defendant of punishment lawfully imposed upon him on humanitarian grounds. The exercise of the power to revoke the order arose simply because it was not in the interests of justice to require the offender to comply with the order by reason of a change of circumstances arising after the order had been made by the court. The interests of justice may in some cases and might well be in the present case inimical to the interests of the offender.

21 In the present case it was in the interests of justice to revoke the order because the defendant was unable to carry it out due to an injury he suffered apparently after the order had been made but before he was able to carry out any part of the order. In those circumstances there was no point in continuing to enforce the order as the defendant could never comply with it and yet, while it remained on foot, he could never be appropriately punished for the offence to which the order related. It was in the interests of justice that the order be revoked because it was in the interests of the community generally that an unenforceable punishment be revoked and that the court be called upon to consider again what, if any, punishment should be imposed upon the offender for the crime committed.

22 Neither the exercise of the jurisdiction to revoke the order nor the exercise of the jurisdiction to make some other order consequent upon the revocation was determined by a finding that it was not the defendant’s fault that he could not complete the community service order. Insofar as the Magistrate appears to have acted on the belief that the revocation was an act of mercy to relieve the defendant of the burden of a punishment lawfully imposed upon him and therefore it was inappropriate to make any order imposing some other punishment upon the defendant, the Magistrate failed to understand the true nature of the jurisdiction arising under the section and, therefore, he failed to exercise that jurisdiction.

23 The failure of the magistrate upon the material before him to re-sentence the defendant itself shows that he must have misunderstood the nature of the discretion he was required to exercise upon revoking the community service order. No reasonable magistrate properly exercising the power under s 115(3) could have reached that decision. The defendant had been convicted of a serious offence and, instead of being sentenced to imprisonment, was ordered to perform 100 hours community service. He performed no part of that order and, therefore, remained completely unpunished for the offence of which he had been convicted once the order was revoked. There was nothing in the material put before the Magistrate that could have possibly justified a failure to make some other sentencing order on the application of proper sentencing principles. The offence was one to which both general deterrence and denunciation were highly relevant factors in determining the appropriate sentence. It was so obvious that the defendant could not escape punishment for the offence that the strongest submission his legal representative was prepared to make was that the application should be stood over for six months to see whether the applicant could in that time become fit to complete the order.

24 The Magistrate also thought that it was relevant that the period in which the order had to be served had almost come to an end without the Service seeking to extend that time. This was in my view a completely irrelevant consideration. The relevant matter was that the defendant had completed not one hour of the order even though he had been given time to see whether his injury might improve. In any event, subject to s 115(2A), an application for revocation of an order can be made even after the order expires: s 115(2B).

25 I do not believe that the Magistrate made any order that the Court can quash: he simply indicated that he was not going to make any consequential order on the revocation. I am satisfied, however, that the Court should make the appropriate declaration and order that the magistrate determine his jurisdiction under s 115(3) according to law and conformably with this judgment.

26 Orders:

1. The Court declares that the Second Defendant erred in law in refusing to make any order consequential upon the revocation of the community service order in accordance with s 115(3) of the Crimes (Administration of Sentences) Act .
2. The Magistrate is to hear and determine the question of re-sentencing the First Defendant under s 115(3) of the Act according to law and conformably with this judgment.
3. The Court reserves the question of costs. The Plaintiff and First Defendant are to file submissions in respect of the orders to be made as to costs within 14 days from today. Either party has liberty to apply within 14 days for a hearing on the question of costs.

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Last Modified: 07/16/2007