DPP v Nouata & Ors

[2009] NSWSC 72

CITATION:	DPP v Nouata & Ors [2009] NSWSC 72 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16 February 2009
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J
EX TEMPORE JUDGMENT DATE:	16 February 2009
DECISION:	Orders made in accordance with summons.
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - Prerogative relief - "Call up" for breach of recognizance - Failure to exercise jurisdiction
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Procedural and other rulings
CASES CITED:	DPP v Cooke [2007] 168 A Crim R 379
PARTIES:	Director of Public Prosecutions - Plaintiff Maliota Nouata & Ors - Defendants
FILE NUMBER(S):	SC 16327/09
COUNSEL:	M Buscombe - Plaintiff In person - First Defendant
SOLICITORS:	Director of Public Prosecutions - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Monday 16 February 2009

16327/09 - DIRECTOR OF PUBLIC PROSECUTIONS NEW SOUTH WALES v MALIOTA NOUATA & 2 ors

JUDGMENT

1 HIS HONOUR: This is an application for relief pursuant to a summons filed by the Director of Public Prosecutions against Maliota Nouata, and against a Magistrate sitting in the local court. In accordance with the practice, the Magistrate has filed a submitting appearance. The relief sought arises out of a decision by the Magistrate not to take any action in relation to a bond pursuant to section 12 of the Crimes(Sentencing Procedure) Act, to which Mr Nouatta was subject at the time he was convicted of an offence before the Magistrate.

2 The history of the matter is that on 27 September 2006 at the Local Court in Griffith, Mr Nouata was convicted of offences of assault occasioning actual bodily harm and a second offence of resisting police. In respect of those matters a sentence of 12 months’ imprisonment was suspended pursuant to section 12 of the act, upon recognizance being entered into. A copy of the recognizance is exhibited to the affidavit of Helen Langley sworn 27 November 2008.

3 On 16 September 2007 Mr Nouata was again charged with an offence of assault occasioning actual bodily harm. He was charged pursuant to court attendance notice and required to attend Cowra Local Court where, on 4 September 2008, he was convicted of that offence. Obviously by the time of that conviction the bond entered into at Griffith had expired, but it was current at the time of the commission of the offence, for which he was convicted at Cowra Local Court. The Magistrate was asked to deal with the alleged breach of the recognizance which had been entered into, and exhibited to the affidavit of Ms Langley is a transcript of the proceedings of 4 September 2008 at Cowra Magistrates court. The only relevant reference is to be found at page 75 of the transcript where the Magistrate said:

"I do have regard to the fact that this section 12 bond was very close to its finality and I find that there are special circumstances and I will take no action in relation to that bond, the bond having very nearly expired at the time of the commission of this offence and has currently expired".

4 The obligation of a court dealing with what is commonly referred to as “call up for breach of bond” is governed, at least in part, by section 98 of the statute which I have mentioned. Subsection 3 thereof provides that:

"In the case of good behaviour bond referred to in section 12 a court must revoke the bond unless it is satisfied (a) that the defendant's failure to comply with the conditions of the bond was trivial in nature or (b) that there are good reasons for excusing the defendant's failure to comply with the conditions of the bond".

5 As I have indicated, the only observation made by the Magistrate was that the bond was nearly expired. The evidence would seem to suggest that the matter in respect of which he was dealt with at Cowra was unable to be classified as trivial, bearing in mind the penalty there imposed was a further sentence of imprisonment for 18 months again suspended pursuant to section 12 of the act.

6 It is the submission of the Director of Public Prosecutions that it is revealed by the evidence that the second defendant did not direct his mind to the requirements of section 98 (3). As is obvious, there was no finding or indeed no reference, to the requirements of that subsection. In those circumstances, bearing in mind the authority concerning the application of that provision (which is usefully set out in the judgment of Howie J in DPP v Cooke [2007] l68 A Crim R 379), I am persuaded that the relief sought by the Director of Public Prosecutions should be granted.

7 Accordingly, I make orders in terms of paragraphs 1, 2 and 3 of the summons filed herein. I order the first defendant to pay the plaintiff’s costs. The first defendant is to have a Suitors Fund Certificate in respect of those costs, if he otherwise qualifies.

**********

19/02/2009 - Spelling of first defendant's surname corrected. - Paragraph(s) 1, 2, 3