Jaron Hoffenberg v District Court of New South Wales

[2011] HCASL 77

JARON HOFFENBERG

v
DISTRICT COURT OF NEW SOUTH WALES & ANOR
[2011] HCASL 77
S245/2010

1. The applicant pleaded guilty in the Local Court of New South Wales to (i) intentionally damaging property[1], (ii) behaving in an offensive manner in a public place[2] and to (iii) wilfully exposing himself in a public place[3].  The magistrate dealt with the latter two offences without recording a conviction[4].  The applicant was convicted of the most serious offence and placed on a bond to be of good behaviour for 12 months.

   [1]Crimes Act 1900 (NSW), s 195(1)(a).

   [2]Summary Offences Act 1988 (NSW), s 4(1).

   [3]Summary Offences Act 1988 (NSW), s 5.

   [4]Section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

2. The events giving rise to the charges occurred in the early hours of the morning.  The applicant had been out drinking with a friend.  He was seen to urinate on the door of a shop in Oxford Street, Bondi Junction.  He leaned backwards in order to aim higher and urinate on the door handle.  He then walked off.  He picked up a brick and returned to the shop, throwing it through the window. 

3. The applicant was aged 19 years.  He was a university student, undertaking an engineering degree.  He had no criminal record.  At the time of the sentence hearing he had apologised to the shop owner and made full restitution for the damage to the window. 

4. The applicant appealed from the order of the Local Court convicting him of wilful damage to the District Court of New South Wales[5].  Blanch CJ dismissed the appeal.

   [5]Crimes (Appeal and Review) Act 2001 (NSW), s 11.

5. The applicant commenced proceedings by summons in the Court of Appeal of the Supreme Court of New South Wales claiming relief pursuant to s 69(1) of the Supreme Court Act 1970 (NSW) in respect of the orders made by the District Court. The summons was dismissed.

6. The applicant seeks special leave to appeal from the dismissal of his summons. He relies on two grounds. The first is the bald claim that the Court of Appeal erred by holding that the decision of the District Court was not affected by jurisdictional error. The second is the assertion that the Court of Appeal erred by construing s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) inconsistently with the decision of this Court in Cobiac v Liddy[6].  That case concerned s 4 of the Offenders Probation Act 1913-1953 (SA).  The asserted inconsistency is with certain of the observations of Windeyer J.  As Basten JA stated, the passage is of no assistance given a proper understanding of Blanch CJ's reasons as explained by McClelland CJ at CL[7].  Nothing in the applicant's summary of argument lends colour to the assertion that the decision of the District Court was tainted by jurisdictional error.  There is no reason to doubt the correctness of the decision of the Court of Appeal.

   [6](1969) 119 CLR 257.

   [7]Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 at [7].

7. The orders of the Court of Appeal were made on 4 June 2010. The application was not filed until 27 October 2010.  The reasons for that delay are satisfactorily explained in the affidavit of Saba El-Hanania.

8. Compliance with sub-r 41.02.1 is dispensed with, however the application is dismissed.

9. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
6 April 2011 V.M. Bell