Director of Public Prosecutions (NSW) v Dwyer

[2017] NSWSC 1735

Supreme Court

New South Wales

Medium Neutral Citation:

Director of Public Prosecutions (NSW) v Dwyer [2017] NSWSC 1735

Hearing dates:

11 December 2017

Decision date:

11 December 2017

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

1. An order pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside the following orders:

 

(i) the order made on 30 June 2017 by his Honour Magistrate Miszalski that no action be taken in relation to the breach of the s 12 bond imposed on the first defendant for the offence of common assault (domestic violence related) by the Local Court at Inverell on 19 July 2012; and,

 

(ii) the sentence of 12 months’ imprisonment (suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and the $2,000 fine imposed on 30 June 2017 upon the first defendant for the offence of possess prohibited drug by Magistrate Miszalski.

 

2. An order pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the proceedings referred to in order 1 above be remitted to the Local Court to be dealt with according to law.

 3. Make no order as to costs.

Catchwords:

LOCAL COURT APPEAL– magistrate refused to revoke s 12 bond on the basis of effluxion of time – failure to comply with s 98(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – HELD – error of law on the face of the record – decision with respect to bond set aside – decision as to sentence imposed set aside as affected by error of law

Legislation Cited:

Crimes Act 1900 (NSW), s 61
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A, 12, 98
Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Director of Public Prosecutions v Cooke [2007] NSWCA 2; (2007) 168 A Crim R 379
DPP v Nouata [2009] NSWSC 72

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW) (Plaintiff)
Brodie Gene Dwyer (First Defendant)
Local Court of New South Wales (Second Defendant)

Representation:

Counsel:
BK Baker (Plaintiff)
B Wrench (Solicitor) (Defendant)

  Solicitors:
Solicitor for Public Prosecutions (Plaintiff)
Murphy’s Lawyers Inc (First Defendant)

File Number(s):

2017/291159

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

30 June 2017

Before:

Miszalski LCM

File Number(s):

2011/415189, 2011/175850, 2011/89643

Judgment

Introduction

1. By summons filed on 26 September 2017 the Director of Public Prosecutions (NSW) (the plaintiff) seeks orders setting aside orders made by Magistrate Miszalski in the Local Court at Inverell on 30 June 2017. The first defendant, Bodie Dwyer (the defendant), consents to the orders sought. The second defendant, the Local Court of NSW, has filed a submitting appearance.

2. At the conclusion of the hearing of the matter on 11 December 2017 I was satisfied that it was appropriate that such orders be made. Accordingly I made the following orders and indicated that I would publish my reasons subsequently:

1. An order pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside the following orders:

(i) the order made on 30 June 2017 by his Honour Magistrate Miszalski that no action be taken in relation to the breach of the s 12 bond imposed on the first defendant for the offence of common assault (domestic violence related) by the Local Court at Inverell on 19 July 2012; and,

(ii) the sentence of 12 months’ imprisonment (suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and the $2,000 fine imposed on 30 June 2017 upon the first defendant for the offence of possess prohibited drug by Magistrate Miszalski.

2. An order pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the proceedings referred to in order 1 above be remitted to the Local Court to be dealt with according to law.

3.   Make no order as to costs

3. My reasons for making the orders set out above are as follows.

Background facts

4. On 20 March 2012 the defendant was charged with common assault (domestic violence related) in breach of s 61 of the Crimes Act 1900 (NSW), which was alleged to have been committed on that day. The facts sheet alleged that the first defendant had grabbed his girlfriend around the neck with sufficient force to stop her from breathing and pushed her to the ground. At the time of this offence, the first defendant was on a 2-year bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which was imposed on 9 February 2012 for an offence of driving whilst disqualified. He was granted bail.

5. On 3 June 2012 the defendant was charged with possess prohibited drug (amphetamine) and deemed supply of same and breaching the bail which had been granted following his arrest on the charge of the common assault referred to above.

6. The defendant pleaded guilty to the common assault offence and, on 19 July 2012, a sentence of 9-months’ imprisonment was imposed, which was wholly suspended. He was released from custody on condition that he enter into a bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act (the s 12 bond). The conditions of the s 12 bond included that he be of good behaviour; appear in court if and when required; and that he accept the supervision and guidance of the Probation and Parole Service. He was directed to report to the Probation and Parole Service within seven days upon his release from custody. On 19 July 2012 the magistrate also granted bail to the defendant in respect of the charges of possession of prohibited drug and deemed supply of prohibited drug. These charges were listed on 20 August 2012.

7. On 20 August 2012 the defendant failed to appear. A warrant for his arrest was issued.

8. In breach of the s 12 bond, the defendant failed to report to the Probation and Parole Service. Officers of this service were told, when they tried to locate the defendant at his erstwhile home at Inverell, that he had gone to Queensland. On 20 September 2012 the Probation and Parole Service reported the defendant’s breach of the s 12 bond and recommended that the Local Court issue a warrant for the defendant’s arrest and revoke the bond. A further warrant was issued on 24 September 2012.

9. It was not, however, until 29 June 2017 that the defendant was located by NSW Police and brought before the court. In the interim, on 19 December 2012, the defendant was convicted of offences in Queensland, which were committed on 18 December 2012 during the pendency of the s 12 bond, which included assaults occasioning bodily harm while armed/in company. He was sentenced for those offences to a term of imprisonment of 18 months for which his parole release date was 18 June 2013.

10. On 29 June 2017, the defendant appeared before Miszalski LCM in the Local Court at Inverell in respect of the following matters:

1. H47688225 - Seq 2- possess prohibited drug; Seq 4- fail to appear

2. H4795063 - breach of s 9 bond (relating to driving offences); and

3. H47957063 - breach of s 12 bond (relating to the common assault).

11. Bail was refused and the matters were stood over to the following day.

12. On 30 June 2017 the magistrate purported to deal with the defendant for the breaches of the two bonds. The magistrate gave the following reasons for his decision to take no action on the breaches of bonds:

“In relation to the breaches I will take no action, bearing in mind

the effluxion of time.”

13. The defendant was also sentenced in respect of the offence of possess prohibited drug to which he had pleaded guilty. His Honour imposed the following sentence for the possession matter:

“IN RELATION TO THE POSSESSION OF THE [sic] MATTER - STAND UP. YOU ARE GOING TO BE SENTENCED TO 12 MONTHS' IMPRISONMENT.

I WILL SUSPEND THAT ON YOU ENTERING INTO A BOND TO BE OF

GOOD BEHAVIOUR FOR 12 MONTHS.”

14. His Honour convicted the first defendant pursuant to s 10A of the Crimes (Sentencing Procedure) Act in respect of the fail to appear offence.

Relevant statutory provisions

15. Section 12 of the Crimes (Sentencing Procedure) Act relevantly provides:

“12 Suspended sentences

(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:

(a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and

(b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.

(2) An order under this section may not be made in relation to a sentence of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order.

. . .”

16. Section 98 of the Crimes (Sentencing Procedure) Act makes provision for proceedings for breach of good behaviour bond. It relevantly provides:

“(2) If it is satisfied that an offender appearing before it has failed to comply with any of the conditions of a good behaviour bond, a court:

(a) may decide to take no action with respect to the failure to comply, or

(b) may vary the conditions of the bond or impose further conditions on the bond, or

(c) may revoke the bond.

(3) In the case of a good behaviour bond referred to in section 12, a court must revoke the bond unless it is satisfied:

(a) that the offender’s failure to comply with the conditions of the bond was trivial in nature, or

(b) that there are good reasons for excusing the offender’s failure to comply with the conditions of the bond.”

Consideration

17. This Court has jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) to grant relief in the nature of certiorari for errors of law on the face of the record and jurisdictional error. The record is defined, by s 69(4) of the Supreme Court Act, to include the reasons of the Local Court. As the error relied upon is evident from the reasons given by the magistrate, it is not necessary to consider whether the error was a jurisdictional one.

18. It is plain from the reasons given by the magistrate that his Honour failed to comply with s 98(3) of the Crimes (Sentencing Procedure) Act. His Honour took no action on the bond (that is, he failed to revoke it) in circumstances where this course was not open to him as he had not satisfied himself that the defendant’s failure to comply with the conditions of the bond was trivial in nature or that there were good reasons for excusing the defendant’s failure to comply with the bond. There is no indication that the magistrate addressed these matters. The “effluxion of time” was not capable of rationally affecting the first matter and has been held to be irrelevant as a matter of law to the second matter: Director of Public Prosecutions v Cooke [2007] NSWCA 2; (2007) 168 A Crim R 379 at [14]-[15] and [35]-[36] (Howie J, Price and Sully JJ agreeing). Director of Public Prosecutions v Cooke was applied in DPP v Nouata [2009] NSWSC 72 where it was held that the magistrate had erred in determining to take no action in respect of a breach of a s 12 bond on the basis that it had “nearly expired” at the time of the breach. Thus the decision of the magistrate with respect to the bond ought be set aside as it was affected by an error of law on the face of the record.

19. The setting aside of the decision with respect to the bond has a consequential effect on the sentence imposed for the possession matter. Section 12(2) of the Crimes (Sentencing Procedure) Act prohibits the imposition of a suspended sentence if the offender is subject to some other sentence of imprisonment that is not the subject of such an order. It will be necessary for the Local Court to consider what action is to be taken in respect of the s 12 bond before imposing a sentence for the possession matter, since the action taken might constrain the choices open to the magistrate when imposing sentence for the possession matter. As the sentence imposed for the possession matter was predicated on no action having been taken with respect to the bond and as the decision with respect to the bond has been set aside, it is necessary to set aside the sentence imposed for the possession matter since it, too, is affected by the error.

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Decision last updated: 13 December 2017