Firth v County Court of Victoria
[2014] VSC 448
•11 September 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 04048
| DOUGLAS FIRTH | Plaintiff |
| v | |
| THE COUNTY COURT OF VICTORIA | First Defendant |
| and | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Second Defendant |
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 September 2014 |
DATE OF RULING: | 11 September 2014 |
CASE MAY BE CITED AS: | Firth v County Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2014] VSC 448 |
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CRIMINAL LAW – Appeal to the County Court against sentence imposed by the Magistrates’ Court – Whether County Court judge failed to comply with requirement that appellant be warned when he or she faces the possibility of a more severe sentence – Conceded judge did not give warning – Whether judge required to give the warning in the circumstances – Warning required - Criminal Procedure Act 2009, ss 254, 255, 256, 266, 281.
ADMINISTRATIVE LAW – Judicial Review – Act in breach of condition regulating statutory power to sentence – Whether non-compliance with condition invalidates sentence – Purpose of the Act such that compliance with warning provision precondition of the valid exercise of the power to sentence – Project Blue Skyv Australian Broadcasting Authority (1998) 194 CLR 355.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Aleksov | Doogue O’Brien George |
| For the Second Defendant | Mr T. Gyorffy QC | Office of Public Prosecutions |
HIS HONOUR:
Introduction
Douglas Firth, the plaintiff, applies for judicial review pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005.[1] He seeks an order in the nature of certiorari quashing an order of a County Court Judge, imposing sentence on appeal against sentence from the Magistrates’ Court.
[1]By Originating Motion dated 5 August 2014.
The sole ground of review is this: in failing to warn the plaintiff that he faced the possibility of a more severe sentence than that imposed in the Magistrates’ Court, it is said that the sentencing judge breached a precondition of the valid exercise of the sentencing power when he proceeded to impose a more severe sentence.
That is a convenient, if abridged, statement of the ground. It merges many of the issues that arise for determination in this case.
Background
On 22 May 2014 in the Magistrates’ Court at Broadmeadows the plaintiff pleaded guilty to two counts of indecent assault contrary to s 55(1) of the Crimes Act 1985 as it was in force between 20 July 1974 and 30 November 1975. He was convicted and sentenced on that day to 6 months’ imprisonment, suspended after 2 months for an operational period of 18 months. The plaintiff filed a Notice of Appeal against that sentence and was released on bail pending the determination of the appeal.[2]
[2]Criminal Procedure Act 2009, s 265.
The appeal proceeded in the County Court on 10 July. His Honour received submissions, oral and written, on the appropriate sentence. At no stage during the course of the hearing did his Honour warn the plaintiff that he faced the possibility of a sentence that was more severe than the sentence against which he had appealed.[3] Beyond that failure, however, no issue is taken with the conduct of the proceedings or, for that matter, the lawfulness of the sentence.
[3]This is common ground.
The Magistrates’ Court sentence was set aside and the plaintiff was sentenced to 6 months’ imprisonment, suspended after 3 months for an operational period of 12 months. At the conclusion of his Honour’s sentencing remarks Ms Giannopoulos, who appeared for the plaintiff, raised the issue of the warning. The following exchange is recorded in the transcript of the proceedings:
MS GIANNOPOULOS: Your Honour, may I raise one issue?
HIS HONOUR: What’s wrong? Yes. Sorry.
MS GIANNOPOULOS: Your Honour has increased the sentence but a warning wasn’t provided---
HIS HONOUR: I don’t have to give him a warning.
MS GIANNOPOULOS: Yes, Your Honour.
HIS HONOUR: Because he knew that when he came up here.
MS GIANNOPOULOS: Yes, Your Honour.
HIS HONOUR: He signed an acknowledgment. I in fact didn’t increase the sentence, I’ve left the same six-month sentence but suspended half of it.
MS RUSCHENA [for the Crown]: That’s the original sentence.
HIS HONOUR: It was six but two, I agree.
MS RUSCHENA: Yes, sorry, that’s all.
HIS HONOUR: I know. But it’s the same six months, but he’s doing three months of it.[4]
[4]Exhibit ‘DPP-2’ to the Affidavit of Mathew Thompson dated 14 August 2014, ‘Transcript of the hearing on 10 July 2014’, 15-16.
Under the sentence imposed on appeal the plaintiff would be due to be released from custody on 10 October. Under the preceding sentence, running from the date of the appeal, the plaintiff would have been due to be released on 10 September – that is yesterday.
This matter was referred to me for hearing as a matter of urgency by the sitting Practice Court judge. These reasons have been produced, therefore, under some time constraints.
Appeals by an Offender from the Magistrates’ Court to the County Court.
A person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3 of the Criminal Procedure Act 2009 (‘the Act’) may appeal to the County Court against conviction and sentence, or sentence alone.[5]
[5]Criminal Procedure Act 2009, s 254.
An appeal under s 254 is commenced by filing a notice of appeal with the registrar of the Magistrates’ Court within 28 days of the imposition of the Magistrates’ Court sentence.[6] That notice must specify whether the appeal is against conviction and sentence or sentence alone and must be in the form prescribed by the rules.[7] Section 255 of the Act contains other formal requirements. Significantly,
(4) A notice of appeal must include a statement in the form prescribed by the rules of the County Court and signed by the appellant to the effect that the appellant is aware that on the appeal the County Court may impose a sentence more severe than that sought to be appealed.
[6]Ibid, s 255(1).
[7]Ibid, ss 255(3)(a) and (b).
The evident purpose of this formal requirement is to bring home to the prospective appellant that it is within the power of the County Court to impose a more severe sentence.[8] This purpose receives further treatment at s 255(6):
[8]See, Hamilton v Pickering [2014] VSC 399 at [24].
(6) Before accepting a notice of appeal, a registrar of the Magistrates' Court must—
(a) give to the person seeking to file the notice of appeal a notice in the form prescribed by the rules of the County Court to the effect that on the appeal the County Court may impose a sentence more severe than that sought to be appealed against; and
(b) if the person seeking to file the notice of appeal is not the proposed appellant, be satisfied that the proposed appellant has signed the statement required to be included in the notice of appeal by subsection (4).
An appeal under s 254 is conducted as a rehearing.[9] On the hearing of the appeal the County Court must set aside the sentence of the Magistrate’s Court[10] and the appellant is not bound by the plea entered in that court.[11]
[9]Criminal Procedure Act 2009, s 256(1)
[10]Ibid, s 256(2)(a).
[11]Ibid, s 256(1).
The County Court may impose any sentence which the County Court considers appropriate and which the Magistrates' Court imposed or could have imposed and exercise any power which the Magistrates' Court exercised or could have exercised.[12] This is notwithstanding the fact that a sentence so imposed is for all purposes to be regarded as a sentence of the County Court.[13]
[12]Ibid, ss 256(2)(b) and (c).
[13]Ibid, 256(5).
Section 256 contains two further provisions which govern the determination of an appeal under s 254. The first, which is irrelevant to the issues now before me, concerns the backdating of a sentence imposed under s 256(2).[14] The second provides:
(3) On the hearing of an appeal under section 254, the County Court must warn the appellant, as early as possible during the hearing, that the appellant faces the possibility that a more severe sentence may be imposed than that imposed by the Magistrates' Court.
[14]Ibid, 256(4).
This section is the focus of this proceeding.
Submissions
In very broad terms, the answers to the following questions will determine the outcome of this review proceeding:
a) What does s 256(3), properly construed, require of a Judge determining an appeal brought under s 254?
b) Did his Honour fail to comply with s 256(3), so construed?
c) What follows from a failure to comply with s 256(3), so construed?
If the answer to question (b) is ‘no’, it will be unnecessary to consider the last question. If the answer to question (b) is ‘yes’ and the answer to question (c) is ‘invalidity’, certiorari will be available on a discretionary basis to quash to continuing legal effect of the sentence.[15] I will deal with individual submissions in more detail, however, it is helpful, I think, to set out their major premises at this stage.
[15]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 88 ALJR 52, 58 at [25], [40] and [67]; See, also, Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 389 at [92]: ‘breach of an essential preliminary to the exercise of a statutory power [goes] to the jurisdiction of the person or body exercising the power or authority’.
The plaintiff submits that s 256(3) contemplates more than a simple reminder that it is within the power of the County Court to impose sentence that is more severe than the appealed sentence. It is said that a s 256(3) warning adverts to the practical possibility that a more severe sentence will be imposed in a particular case as opposed to the theoretical possibility that a more severe sentence may be imposed in all cases (with which ss 255(4) and (6) are concerned).
The Plaintiff submits that the purpose of the section, so construed, is to allow an appellant the opportunity to seek to withdraw his or her appeal once this hypothetical possibility reaches the stage where it can fairly be said that the appellant “faces” that possibility as a matter of practical reality. A further purpose is to permit an appellant who chooses to persist with the appeal to formulate a response to this possibility, for instance by directing submissions to it.
To a point the Crown agrees with this construction. It concedes the question of the content of the s 256(3) warning and agrees that it adverts to the practical possibility that a more severe sentence will be imposed, where that possibility arises. The Crown, however, reads a caveat into the section, namely that a Judge need only give the warning, ‘if it is practicable to do so’. This is said to be necessary because:
a) In order to warn an appellant that he or she faces the possibility of a more severe sentence, a Judge must first appreciate that it is possible that he or she will impose that sentence. In some cases, it is said, a Judge may conclude the issue of the appropriate sentence before it is apparent to that Judge that it is possible that he or she will impose that sentence. It is further submitted that it would be inappropriate to give the warning once the appropriate sentence has ‘arrived’ in the mind of the sentencing Judge; and
b) In some cases, although a Judge may appreciate that there is a practical possibility that he or she will impose a particular sentence, that Judge may fail to appreciate that that possible sentence is more severe than the appealed sentence. If a Judge misapprehends the nature of the sentence he or she imposes (as may have happened in this case) it will not be apparent to that Judge that they are required to give the warning; and
c) In some cases, a Judge may reserve sentence before appreciating the practical possibility of any sentence. It is submitted that s 256(3) would not permit a Judge to reconvene to give the warning, once the hearing is adjourned to a date for sentence.
The Crown also takes issue with the appellant’s contention relating to the purpose of the section. The Crown submits that where a Judge fails to give the warning it is wrong to say that an appellant has lost the opportunity to abandon an appeal because s 266 of the Act, which confers a general right of abandonment on an appellant, ceases to apply at the commencement of the appeal hearing. The Crown submits that once the appeal has commenced the appeal may only be abandoned by leave.
The Crown concedes that the warning was not given. It submits, however, that if the provision is read in the way it suggests there has been no failure to comply with its terms, because it was not reasonably practicable for the sentencing Judge to give the warning in this case.
As to the plaintiff’s submission that s 256(3) is a condition that regulates a limited statutory power to sentence (s 256(2)) and that, applying the principles set down in Project Blue Sky, invalidity ought follow non-compliance with the condition, the Crown submitted that the giving of a warning was not a jurisdictional fact.
What does s 256(3) require of a Judge determining an appeal brought under s 254?
Section 256(3) requires a Judge to perform a function at a point in time. The function is to ‘warn the appellant’ and they must perform the function ‘as early as possible during the hearing’. Two issues of construction therefore arise for determination. The first, which is no longer controversial between the parties, concerns the content of the warning. The second issue is when the Judge is required by law to provide it.
What is the content of the warning?
As I have said, the Crown concedes that s 256(3) goes further than ss 255(4) and (6) and adverts to the practical, rather than theoretical, possibility of a more severe sentence. This concession, offered early at the hearing of this proceeding, was not clear from the Crown’s written submissions, which argued to the contrary. For that reason, I have spent more time on the content of the s 256(3) warning than I otherwise might have done.
The text of s 256(3) and its immediate statutory context both support the agreed construction. First, I consider the use of the verb ‘to face’ in ‘faces the possibility’ to distinguishes s 256(3) from ss 255(4) and (6). Sections 255(4) and (6) require only that the prospective appellant be notified that ‘the County Court may impose’ a more severe sentence. In my view it is significant that Parliament did not adopt this same approach to s 256(3) which would have been preferable for consistency with ss 255(4) and (6) and would also have avoided unnecessary wordplay. The general rule is that so far as is possible all words in a statute should be given meaning.[16] In my view it is a different thing to ‘face’ a possibility than to be ‘aware’ of it.
[16]The Commonwealth v Baume (1905) 2 CLR 405, 415 (Griffith CJ) and 419 (O’Connor J); Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 12-13 (Mason CJ).
Second, where ss 255(4) and (6) refer to a notice or statement ‘to the effect that on the appeal the County Court may impose a [more severe] sentence’, s 256(3) uses more dramatic language. An appellant must be warned. The plaintiff placed some reliance on the fact that s 255(4) and (6) referred to ‘statements’ and ‘notices’ rather than ‘warnings’. I accept that this difference lends some support to the agreed construction though I am careful not to give it undue weight. As Kyrou JA noted in Hamilton v Pickering, one possible purpose of s 256(3) could be to ‘cloth[e]’ the s 255(4) and (6) notices ‘with the authority of the Judge’s office’.[17] The use of the verb ‘to warn’ might countenance no more than this.
[17]Hamilton v Pickering [2014] VSC 399 at [24].
Third, the use of the verbs ‘to face’ and ‘to warn’ in s 256(3) is consistent with their use in s 281(3) of the Act. That section, which applies on an appeal brought by an offender against sentence to the Court of Appeal,[18] provides:
If the Court of Appeal is considering imposing a more severe sentence than the sentence first imposed, the Court of Appeal must warn the appellant, as early as possible during the hearing of the appeal, that the appellant faces the possibility that a more severe sentence may be imposed than that first imposed.
[18]Criminal Procedure Act 2009, s 278.
This section requires the Court of Appeal warn an appellant in respect of whom it is considering imposing a more severe sentence.[19] The invariable experience of that Court is that having given the warning the appellant abandons their appeal.[20] While it is true that s 281(3) contains the additional qualification ‘[i]f the Court of Appeal is considering imposing a more severe sentence than the sentence first imposed’ I doubt this amounts to much. No construction of this Act will achieve perfect harmony between its parts and I consider the differences between the two sections to be outweighed by their similarities.
[19]Day v The Queen [2011] VSCA 243 at [29] (Nettle JA, Neave JA and Sifris AJA agreeing).
[20]Ibid.
Fourth, the phrase ‘as early as possible during the hearing’ countenances a case in which it is not possible to give the warning at the commencement of the hearing. If a s 256(3) warning were intended to do no more than provide a ritual reminder to the appellant that it was within the County Court’s powers to impose a more severe sentence, and could therefore be given prior to any consideration of the circumstances of the case, I see no practical or procedural reason why it would not be given at the commencement of the proceeding. If Parliament was concerned that the warning should be given as early as possible[21] and it could be given at the commencement of the hearing, I consider it likely that the provision would include that requirement in terms.
[21]And in my view it is evident from s 256(3) that Parliament was so concerned.
The agreed construction, on the other hand, makes sense of this flexible requirement. Whether or not an appellant faces the possibility of a more severe sentence will depend upon the sentencing Judge’s appreciation of the relevant circumstances of the case. This appreciation will not crystallise until some time into the appeal and obviously after the appeal is commenced. Only then will a judge be able to assess whether a more severe sentence is a possibility in a practical rather than academic sense. If s 256(3) intended the warning to be given about an academic or theoretical possibility as I have said I consider that Parliament would have required it to be given at the outset rather than during the hearing.
It follows that I consider a s 256(3) warning to advert to the practical possibility that a more severe sentence will be imposed in a particular case as opposed to the theoretical possibility that a more severe sentence may be imposed in all cases.
When must a Judge warn an appellant?
Sentencing is an intuitive synthesis undertaken by Judges, not mystics. Although the intuitive synthesis is not a mathematical calculus nor a process of addition and subtraction,[22] this does not mean that it is not a considered exercise that proceeds gradually, often with some consternation. A sentence does not ‘arrive immediately’, as the Crown suggested, like a bolt of lightning.
[22]Markarian v R (2005) 228 CLR 357 at [39].
In this type of sentence appeal a Judge may not need to proceed particularly far along the path to the appropriate sentence before he or she is in a position to give the warning. Section 256(3) does not require the Judge to advise an appellant that there is a likelihood or probability that they will impose a more severe sentence – the section only requires that they be warned that they face the possibility of a more severe sentence.[23] That possibility may be conditional in the sense that it will almost invariably depend upon the drawing of certain inferences or the acceptance or rejection of particular propositions of fact or law, but the appellant will still face that possibility. This is why, in at least some cases, the warning is given immediately after the Crown summary of the offending but before the Defence puts any factors in mitigation or takes issue with the Crown’s characterisation of the circumstances of the offending.[24]
[23]Harding v County Court of Victoria [2013] VSC 711: see, particularly, the distinction between the statutory warning at [60] and a ‘practice’ in County Court appeals of giving an ‘explicit warning that [the] sentence is likely to be increased’ at [64].
[24]See, for example, Harding v County Court of Victoria [2013] VSC 711.
In my view there will always be a moment before a Judge reaches a concluded view as to the appropriate sentence when an appreciation of that practical possibility arises. If that possibility contemplates a more severe sentence than that from which the appeal is brought, the triggering event in s 256(3) has occurred.
Where a Judge appreciates that there is a possibility that he or she will impose a sentence, and that sentence is more severe than the appealed sentence, then if that Judge is abreast of s 256(3) he or she will ordinarily be aware that there is an obligation to warn.
This may not always be so. A Judge may appreciate that it is possible that he or she will impose a particular sentence and may fail to appreciate that the possible sentence is more severe than the appealed sentence. The Crown submits that in those circumstances a Judge is not required to give the warning as it would not be ‘practicable to do so’. In this case, as I have observed, it is at least open[25] to conclude that his Honour was not of the view that he was imposing a more severe sentence. If this were the case in my view his Honour was mistaken. I shall refer to this aspect again shortly.
[25]From the exchange set out at para [6].
I do not accept that a Judge is relieved from the obligation to warn in these circumstances. Although the phrase ‘as early as possible during the hearing’ makes allowance for a Judge’s subjective appreciation of the circumstances of a case which (in most cases) will develop as the hearing runs, it cannot make allowance for a Judge’s subjective appreciation of the nature of the possible sentence.
Having determined that an appellant should have the right to be warned when faced with the practical possibility of a more severe sentence I consider it unlikely that Parliament could have intended that that appellant be denied that right when a sentencing Judge misapprehends the nature of the sentence he or she imposes or the nature of a sentence that they consider it possible he or she will impose. That interpretation would be inconsistent with the text and purpose of the Act because an appellant will ‘face the possibility’ of a more severe sentence notwithstanding a failure by the Judge to appreciate that possibility, and also because the evident purpose of the warning is to permit the appellant to formulate his or her response to that possibility.[26]
[26]It is in the nature of a warning that it is designed to illicit a response, even if that response is the acceptance of the risk adverted to by the warning.
It follows from the above that I do not accept the Crown’s submission that it is necessary to read the words ‘as far as it is practicable to do so’ into s 256(3). I have not considered the practicability of the giving of a s 256(3) warning when sentence is reserved because that issue does not present itself on the facts of this case.
Did his Honour fail to comply with s 256(3)?
The Crown concedes that no warning was given during the hearing of the appeal. It follows from my observations at [34]-[36] that I consider his Honour must have appreciated that it was possible he would impose the sentence he did impose, before he imposed that sentence.
I have said that if a judge appreciates that it is possible that he or she will impose a sentence and, objectively, that sentence is more severe than the sentence imposed in the Magistrates’ Court, the Judge will be required to give the warning and it will be irrelevant that that Judge may not appreciate that the sentence is more severe than the appealed sentence. It is unnecessary, therefore, to consider his Honour’s view of the severity of the sentence.
The sentences recorded in the Magistrates’ and County Courts differ in two ways. First, although both imposed an aggregate term of 6 months’ imprisonment, the immediate custodial aspect of the County Court sentence was increased from 2 to 3 months. Second, the operational period of suspended portion of the County Court sentence was reduced from 18 to 12 months.
In take the view that the County Court sentence is more severe than the appealed sentence. The actual prison time to be served by the appellant was increased by 50%. The contraction of the operational period of the suspended sentence by 33% hardly offsets this.
What follows from a failure to comply with s 256(3)?
Not all acts done in breach of a condition regulating the exercise of a statutory power are invalid and of no effect.[27] Instead, it is necessary to ask whether the purpose of the Act is such that compliance with the condition is a precondition of the valid exercise of the statutory power.[28] The existence of such a purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[29]
[27] Project Blue Sky [1998] 194 CLR 355, 388–9 at [91].
[28]Ibid at [41].
[29]Ibid, 388–9 at [91].
The language of s 256(3) is mandatory. The word ‘must’ combines with the requirement that the warning be given as ‘early as possible during the hearing’ and provides at least some measure of the significance of the section. In the use of this language the section is also identical to s 281(3), which was described as a ‘duty’ in Saneer v The Queen.[30]
[30]Saneer v The Queen; Kamal v The Queen [2014] VSCA 134 at [7]-[8].
I consider the consequences of invalidity to be relatively minor. This is not the kind of case in which public inconvenience will result as a consequence of holding every act done in breach of the condition to be invalid.[31] In assessing that inconvenience, it is relevant that conditions of this kind are for the most part complied with.[32] In the Court of Appeal, it is said to be ‘the invariable practice of the Court’ that the warning is given where that Court is considering imposing a more severe sentence.[33] It was agreed between Counsel in this case (and in Hamilton and Brand v Parson[34]) that this accorded with their experience of practice in the County Court.
[31]See, for example, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 316.
[32]See, Project Blue Sky (1998) 194 CLR 355, 392 at [97].
[33]Warwick v The Queen [2011] VSCA 243 at [23].
[34]Brand v Parson [1994] 1 V.R. 252, 256.
A related point is that it will only be in the rare case that the County Court will increase a sentence on appeal from a sentence imposed by the Magistrates’ Court. The Crown has its own right of appeal against a sentence imposed by the Magistrates’ Court. Under s 257 of the Act, the Crown may bring such an appeal if it is satisfied that it is in the public interest to do so. The notice of appeal must state the general grounds upon which that appeal is brought, which is not a requirement shared by an appeal brought by an offender under s 254. In my view Parliament clearly intended that where the Crown wished to argue the inadequacy of the Magistrates’ Court sentence this would normally be done under s 257 and the offender-respondent put on notice of the grounds of appeal. Counsel accepted this to be reflected by practice in that court.
The consequences of invalidity must also be measured against the consequences of holding a breach of the condition to result in a valid, though unlawful, decision. This assessment overlaps with the issue of the purpose of the provision, which in this case is to allow an appellant to formulate a response to the practical possibility of an increased sentence. Although there was some argument about whether s 266 of the Act confers upon an appellant a right to abandon his or her appeal once the appeal hearing has commenced, at the very least what is lost by the appellant who faces the possibility of a more severe sentence and who is not given the warning is the opportunity to confront that possibility with an application for leave to abandon in accordance with the rules of the Court. In the Court of Appeal, at least, those applications are so invariably made and so invariably granted that ‘there is […] no realistic possibility in any sentence appeal [brought by an offender] that a sentence will be increased.’[35] I am unable to understand why this practice would differ, materially, in the County Court.
[35]Warwick v The Queen [2011] VSCA 243 at [23].
Until this point, I have largely ignored the issue of the Common Law requirements that an appellant risking an increased sentence should be warned of that fact. The foundation for that practice was twofold. First, the practice reflects a ‘species of the double jeopardy principle.’[36] Second, in some cases procedural fairness required the sentencing Judge to give the warning so that submissions could be directed to the issues, if any, that were raised by the possibility of a custodial sentence, or an increased custodial sentence.[37] This was because the hearing rule ‘would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues’.[38]
[36]Brand v Parson [1994] 1 V.R. 252, 254; Neal v The Queen (1982) 149 CLR 305, 306.
[37]See, for example, DPP v Shoan [2007] VSCA 220; Brand v Parson [1994] 1 V.R. 252; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282.
[38]Dixon v Commonwealth (1981) 55 FLR 34, 41; Commissioner for the Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576; Recently, this principle was affirmed in SZEBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152, 162 at [32].
As I have said, the Project Blue Sky inquiry asks whether the purpose of the Act is such that compliance with the provision is a precondition of the valid exercise of the statutory power. I cannot impute the purposes of a common law practice to the legislature. Although I consider it likely that s 256(3) was intended to achieve the objects of that practice nothing in the Act compels this conclusion. Because this is a process of statutory construction, however, these cases might have some relevance to working theories of construction, such as the principle of legality. I have not considered this question at length because I take the view that the purpose of the Act is clear on the issue of invalidity.
Relief
An order in the nature of certiorari is available only in respect of an exercise (or purported exercise) of power which has an “apparent legal effect” at the date of the order.[39] The plaintiff is in custody and will remain in custody purportedly serving the County Court sentence until 10 October.
[39]Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, 159; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 88 ALJR 52, 58 at [25], [40] and [67].
I do not consider there to be any discretionary reasons why I ought refuse relief. Where the warning is not given, and a more severe sentence imposed, what is lost is at the minimum the opportunity apply to abandon the appeal and therefore to preserve the original sentence. Parliament’s evident intention was that an appellant should have this opportunity.
Conclusion
It follows that I propose to order that the sentence of 10 July be quashed. I will hear the parties as to the appropriate form of orders.
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