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Flaherty v DPP

Flaherty v DPP

Case [2003] VSC 234 26 June 2003

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8767 of 2002

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:	18 JUNE 2003
DATE OF JUDGMENT:	26 JUNE 2003
CASE MAY BE CITED AS:	FLAHERTY v DPP
MEDIUM NEUTRAL CITATION:	[2003] VSC 234

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Sentence – Judicial review – Certiorari – Error of law on the face of the record – Crown appeal to County Court against Magistrates' Court sentence – substantial increase in sentence where County Court Judge did not refer to concept of "double jeopardy" in sentencing.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr K. Armstrong	Victoria Legal Aid
For the First Defendant	Mr J.D. McArdle QC	Office of Public Prosecutions

HIS HONOUR:

By originating motion issued on 12 December 2002 the plaintiff in these proceedings seeks orders that:

(a)the 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 sentence made by a Judge of the County Court on 18 April 2002 in an appeal pursuant to s.84 of the Magistrates Court Act 1989 be quashed.

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 appeal Judge allowed the appeal and sentenced the plaintiff on the charges to a total effective sentence of four years and one month imprisonment. He 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

The plaintiff now seeks judicial review of the decisions of the County Court. The central contention advanced on his behalf is that the appeal Judge did not have regard to the principle of "double jeopardy" which in circumstances such as the present should be understood to refer to the fact of the prisoner twice standing for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flaherty v DPP

Details

AGLC: Flaherty v DPP [2003] VSC 234
Case: [2003] VSC 234
Decision Date: 26 June 2003

CaseChat Overview and Summary

The case of Flaherty v DPP involved a judicial review where the applicant sought a writ of certiorari to challenge a decision of the County Court. The applicant, who had previously been sentenced by the Magistrates' Court, appealed against a substantial increase in the sentence imposed by the County Court. The key issue was whether the County Court judge had made an error of law by not considering the concept of "double jeopardy" during sentencing. The court was required to determine whether the error was so significant that it rendered the sentence unlawful.

The court considered whether the failure to refer to the concept of "double jeopardy" constituted an error of law on the face of the record. It was established that while the principle of "double jeopardy" generally prevents a person from being tried again for the same offence after acquittal, it does not strictly apply in the context of sentencing appeals. However, the court recognised that the principle could have relevance in assessing whether a sentence was appropriate or excessive. The court held that the County Court judge's omission to consider "double jeopardy" did not amount to an error of law that would justify the issuance of a writ of certiorari. The court reasoned that the absence of such a reference did not affect the overall legality of the sentence imposed.

The court ultimately decided that the error, if any, did not render the sentence unlawful. The applicant's challenge to the sentence on the grounds of the omission to refer to "double jeopardy" was dismissed. The court found that the County Court judge had exercised their discretion in imposing the sentence and that there was no legal requirement to specifically mention "double jeopardy". The applicant's application for a writ of certiorari was denied, and the increased sentence was upheld. The court's decision affirmed the principle that not every judicial oversight in considering legal concepts results in an unlawful sentence.

Orders