Flaherty v DPP
[2004] VSC 269
•4 August 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4870 of 2004
| RAYMOND FLAHERTY | Plaintiff |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | First Defendant |
| - and - | |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 AUGUST 2004 | |
DATE OF JUDGMENT: | 4 AUGUST 2004 | |
CASE MAY BE CITED AS: | FLAHERTY v DPP | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 269 | |
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Judicial review of sentencing decision - Certiorari – Extension of time – No seriously arguable case for review – Principle of “double jeopardy” - Suspended sentence as sentence of imprisonment - Non-parole period cannot be combined with a partly suspended sentence at the time the sentence is imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr K. Armstrong | Victoria Legal Aid |
| For the First Defendant | Mr T Burke | Office of Public Prosecutions |
HIS HONOUR:
By originating motion issued on 4 March 2004 the plaintiff seeks orders that::
(a)time be extended for the commencement of the proceeding pursuant to r.56.02 of the Rules of the Supreme Court; and
(b)the decisions on sentencing made by a Judge of the County Court on 12 September 2003 in an appeal pursuant to s.84 of the Magistrates Court Act 1989 be quashed.
The background to this matter is somewhat unusual and is set out in my decision of 26 June 2003 in proceeding No. 8767 of 2002.
On 21 February 2002 the plaintiff pleaded guilty before a Magistrates' Court to four charges of burglary; three charges of theft; four charges of loitering with intent; one charge of handling stolen goods; one charge of attempted burglary; one charge of attempted theft and three charges of driving whilst disqualified.[1] The plaintiff was convicted on each charge and sentenced to a total aggregate sentence of 12 months' imprisonment. It was further ordered that six months of the sentence be suspended.
[1]The commission of these offences also involved a breach of a suspended sentence of three months imposed on 24 October at the Melbourne Magistrates' Court.
On 14 March 2002 the Director of Public Prosecutions ("DPP") filed a notice of appeal pursuant to s.84 with respect to the sentences imposed by the Magistrates' Court.
On 18 April 2002 the appeal came before the County Court. The Court allowed the appeal and sentenced the plaintiff on the charges to a total effective sentence of four years and one month imprisonment. It further ordered that the prisoner serve a minimum of three years before becoming eligible for parole.
No right of appeal lies from the decision of a County Court Judge hearing an appeal from the Magistrates' Court pursuant to s.84 of the Magistrates' Court Act, except where the penalty is increased to imprisonment from a penalty which was non-custodial.[2]
[2]Magistrates' Court Act 1989 s.91
On 26 June 2003 I extended time for the commencement of a proceeding pursuant to r.56 of the Rules of the Supreme Court and quashed the 2002 sentencing decision of the County Court. I did so having formed the view that it was vitiated by a failure to have regard to the principle of double jeopardy as it applies to appeals by the DPP of the type in issue.
Consequent upon my decision the plaintiff was re-sentenced on 12 September 2003 by his Honour Judge Howie to whom I shall refer as "the appeal Judge". The sentence then imposed was expressed in the following terms:
"On the 17 charges to which you have pleaded guilty you are convicted and sentenced to an aggregate sentence of imprisonment of three years. Pursuant to s.18 of the Sentencing Act the period of 577 days are to be reckoned as a period of imprisonment already served under the sentence.
I order that 18 months of the imprisonment be suspended for a period of two years. The intended effect of this sentence is that you will not be required to return to prison to serve a further term in respect of these offences, unless, of course, you breach the suspended sentence."
The current proceeding seeks judicial review of this sentencing decision. Because the proceeding was not instituted until 4 March 2004 a preliminary question arises as to whether time should be extended for its institution outside the 60 day period fixed by r.56. Rule 56.02 requires the plaintiff to demonstrate special circumstances before an extension of time is granted. The relevant principles were canvassed by me in my 2003 decision and I shall not repeat them. Both parties accepted those principles as there set out.
In the present instance I am not satisfied that time should be extended. On the one hand I accept:
(a) that the decision in issue may affect the liberty of the subject;
(b)that the plaintiff has no remedy available to him by way of appeal as distinct from r.56 review;
(c)the delay in instituting proceedings is not the fault of the plaintiff personally but arises from delay on the part of Victoria Legal Aid which in turn stemmed from delay in obtaining a copy of the appeal Judge's sentencing remarks; and
(d)no prejudice to the defendants has been demonstrated to have resulted from the consequent delay of three months and three weeks.
On the other hand I am not satisfied for reasons which I shall elaborate that the plaintiff has a seriously arguable case for review. In these circumstances it is not appropriate to extend time for the application, but my consideration of the last mentioned factor will nevertheless necessitate a canvassing of the plaintiff's proposed grounds of review.
Mr Armstrong, who appeared on behalf of the plaintiff, turned first in argument today to proposed ground 1(b) set out in the originating motion, which asserts the appeal Judge failed to have due regard to the principle of double jeopardy.
It was conceded, and properly conceded, that the appeal Judge did have regard to the relevant principle and in this regard I need only refer to the following paragraph which appears at page 5 of his sentencing remarks:
"The second matter to be taken into account is that this is an appeal by the DPP. It has meant that as a consequence of the appeal you have been placed in a situation of uncertainty arising from the delay in resolving your position. The anxiety and stress experienced by a respondent in such a situation is properly taken into account when determining the appropriate disposition on the hearing of the Director's appeal. In this case the period of uncertainty and consequential anxiety has been extended significantly by the motion on your behalf to review the appeal judge's decision. As it has turned out you have been released from gaol, after having been deprived of your liberty for a significant period of time, and it is that factor which, in my view, principally mitigates against a sentence which would require you to return to gaol."
The submission on behalf of the plaintiff was put in two ways. First, it was said the sentence was such that it demonstrated in itself that due regard had not been had to the relevant principles. Second, it was said his Honour's reasons did not disclose an appreciation that the sentenced imposed a three year term of imprisonment despite the part suspension.
I reject both of these contentions. It is clear the appeal Judge ameliorated the sentence he would otherwise have imposed but for the relevant principle and I am satisfied that he had due regard to it. The further argument advanced in support of this ground is simply not borne out by the substance of the sentencing remarks and I shall return to it in a moment.
Mr Armstrong further contended that the sentence was manifestly excessive. I do not accept this was so particularly having regard to the plaintiff's extraordinarily extensive criminal history and the circumstances of the offences in issue which it is unnecessary for present purposes to elaborate but which are relevantly set out in the appeal Judge's sentencing remarks.
My conclusion in this regard is supported by the concession made by counsel when the 2003 application came before me that the effective sentence of 4 years 1 month imprisonment first imposed by the County Court would not have been manifestly excessive if imposed at first instance.
The reality is that the sentence was comfortably within the range of appropriate sentences.
It was further contended that the appeal Judge had failed to have regard to the 18 months of partly suspended sentence as a sentence of imprisonment in accordance with s.27(8) of the Sentencing Act 1991. I do not accept that the substance of his Honour's sentencing remarks is to this effect or that taken as a whole they can be said to support such a conclusion. These remarks included the following statement:
"A custodial sentence is necessary to protect the community, to make clear the court's denunciation of the type of conduct in which you have engaged and to deter you and others. You are convicted of each of the offences to which you have pleaded guilty. As the offences form part of a series of offences of the same or similar character I impose an aggregate sentence of imprisonment of 3 years in respect of those offences in place of a separate sentence of imprisonment in respect of each of them."
It was next submitted that s.11(1) of the Sentencing Act required the Court to fix a non-parole period. Counsel for the DPP, however, drew the Court's attention to the decision of the Court of Appeal in R v Hatch[3]. This decision stands as authority for the proposition that a non-parole period cannot be combined with a partly suspended sentence at the time the sentence is imposed. It may, however, be fixed if and when the suspended sentence is restored. In this regard I note the observations of Callaway AJ in Hatch at p.700 of the report:
"To restore a three-year suspended sentence on breach will be in conformity with the new s.31(5A), but to restore it without eligibility for parole would often be unjust. It would also be contrary to the legislative policy evinced by s.11(1). Even where only s.11(2) is applicable, it is worth recalling that an appropriate non-parole period is in the public interest. See R. v. Krasnov and Schlacht (1995) 82 A.Crim.R. 92 at 99."
[3](1998) 3 VR 693
In reply Mr Armstrong accepted that this ground as formulated in the originating motion could not succeed in the face of this authority. He then sought, however, to recast the ground by arguing that the appeal Judge erred in his discretion by imposing a part suspended sentence rather than imposing a fixed term and fixing a minimum non-parole period.
I do not accept that it can be said the appeal Judge exercised his discretion in a manner which was not open to him as a matter of law. Both the alternatives referred to raise considerations of the prisoner's likely future behaviour. The appeal Judge embraced one of the alternatives legitimately open to him. Moreover, it seems to me that in this respect he responded directly to the principal submission made by way of plea on behalf of the plaintiff, namely:
"that a sentence should be imposed that would not require (the plaintiff) to return to gaol in respect of these charges."[4]
[4]The plaintiff having already spent some 18 months in custody.
The further proposed grounds 1(d), (e) and (g) set out in the originating motion were not pursued in argument before me and I shall say no more about them.
It follows, however, that for the reasons I have set out above I am not persuaded the plaintiff has a seriously arguable case but on the contrary I am persuaded that the proposed grounds of judicial review must fail.
In the circumstances the originating motion is dismissed.
The plaintiff is ordered to pay the first defendant's costs in the agreed sum of $4,500 with a stay for the agreed period of 3 months.
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