Minney v White
[2003] TASSC 54
•20 June 2003
[2003] TASSC 54
CITATION: Minney v White [2003] TASSC 54
PARTIES: MINNEY, Anthony John
v
WHITE, Graham Ross
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 22/2003
DELIVERED ON: 20 June 2003
DELIVERED AT: Launceston
HEARING DATE: 19 June 2003
JUDGMENT OF: Evans J
CATCHWORDS:
Magistrates - Jurisdiction and procedure generally – Jurisdiction, powers and duties – Subject matter – Discretion of magistrate – Matters to be considered – Whether pending dangerous criminal application relevant to decision to commit for sentence.
Sentencing Act 1997 (Tas), s19.
Justices Act 1959 (Tas), s72 (1), s72B(2).
Hall v Braybook (1956) 95 CLR 260, applied.
Aust Dig Magistrates [12]
REPRESENTATION:
Counsel:
Applicant: S J N Brown
Respondent: J P Ranson
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2003] TASSC 54
Number of paragraphs: 10
Serial No 54/2003
File No LCA 22/2003
ANTHONY JOHN MINNEY v GRAHAM ROSS WHITE
REASONS FOR JUDGMENT EVANS J
20 June 2003
The applicant appeals against an order, made in a court of petty sessions, which commits the applicant to the Supreme Court for sentence on two charges of indecent assault in contravention of the Criminal Code, s127(1). The Justices Act 1959 ("the Act"), s72(1) and 72B(2) relevantly provide:
"72 — (1) Where a person is brought before justices upon a complaint for an offence —
(a) under a section of the Criminal Code referred to in Part I of schedule 3;
(b)...
(c)...
(d)...
instead of asking him to plead under section 56A, the justices may, in the prescribed form of words or in words of like import, ask the defendant if he is willing to be tried by the justices instead of by jury and, if that person, ... does not object to his being tried by the justices, the section creating the offence shall be deemed to have created a simple offence and the complaint shall be dealt with accordingly, subject to the provisions of this section.
72B — (1) …
(2) If, during the hearing of a charge to be determined under this Part, the justices consider for any reason that the charge should be dealt with in the Supreme Court, they shall —
(a)if they have not convicted the defendant, either abandon the hearing and begin again in accordance with Part VII or complete it and convict or discharge the defendant and if they convict him commit him to the Supreme Court for sentence; or
(b)if they have convicted the defendant, commit him to the Supreme Court for sentence."
The Criminal Code, s127(1) is one of the sections detailed in the Act, PtI, sch 3. Consistent with the Act, s72(1), the applicant, having been asked whether he was willing to be tried in the court of petty sessions on the charges he faced and having indicated that he did not object, the hearing of the charges proceeded before the learned chief magistrate. Following a defended hearing the learned chief magistrate announced his reasons for convicting the applicant on each charge, and thereupon counsel for the prosecution applied to the learned chief magistrate pursuant to the Act, s72B(2) to commit the applicant to the Supreme Court for sentence in relation to the charges, and in support of the application: said that the Crown would apply to the judge before whom the applicant was brought up for sentence for a declaration that the applicant was a dangerous criminal; explained that the course proposed was the only means by which a court would have jurisdiction to entertain an application for such a declaration; provided the learned chief magistrate with a record of the applicant's prior convictions; and referred the learned chief magistrate to a comment made by Crawford J, on the occasion when the applicant was last sentenced on charges of indecent assault, to the effect that if the applicant came back before the Court on a crime of violence or a crime involving a sexual element the judge might be persuaded to exercise the power to declare the applicant a dangerous criminal.
No power is vested in the court of petty sessions to declare an offender to be a dangerous criminal; that power is vested in a judge of the Supreme Court before whom an offender is convicted or brought up for sentence by the Sentencing Act 1997, s19, which relevantly provides as follows:
"19 — (1) A judge before whom an offender is convicted or brought up for sentence after being convicted may declare the offender to be a dangerous criminal if —
(a) the offender has been convicted for a crime involving violence or an element of violence; and
(b)the offender has at least one previous conviction for a crime involving violence or an element of violence; and
(c)the offender has apparently attained the age of 17 years; and
(d)the judge is of the opinion that the declaration is warranted for the protection of the public.
(2) ...
(3) A judge who declares an offender to be a dangerous criminal must, in addition to making that declaration, sentence the offender to a term of imprisonment for the crime referred to in subsection (1)(a)."
In opposing the committal of the applicant to the Supreme Court counsel for the applicant; submitted that the power of the court of petty sessions to sentence the applicant to up to five years' imprisonment on each of the charges, that is, a total sentence of 10 years' imprisonment (Sentencing Act, s13(b)) was more than sufficient to cater for the offences; submitted that as the learned chief magistrate had heard the trial he was in a better position than a judge of the Supreme Court to deal with the applicant; asserted that the prosecutor was forum shopping and that from the outset he had been trying to have the matter transferred to the Supreme Court; and referred to the applicant's expectation that the matter would be resolved quickly.
The learned chief magistrate having reserved his decision overnight made the order sought by the prosecutor, in substance because of the seriousness and nature of the charges and the nature and extent of the applicant's prior offending. The learned chief magistrate also noted the Crown's intention to apply to the Supreme Court for a declaration that the applicant was a dangerous criminal.
The sole ground of appeal is that the learned chief magistrate erred in law by committing the applicant to the Supreme Court for sentence. A consideration which the learned chief magistrate paid regard to in the exercise of his discretion to commit the applicant to the Supreme Court was the different consequences which could flow from the applicant being sentenced in the Supreme Court instead of the court of petty sessions; that is, if sentenced in the Supreme Court rather than the court of petty sessions it would be open to the Crown to apply for a declaration that the applicant was a dangerous criminal. Counsel for the applicant, in my view quite properly, did not contend that the learned chief magistrate erred in paying regard to this consideration.
A provision containing a discretion which is broadly equatable to the discretion contained in the Act, s72B(2), is the subject of the decision of the High Court in Hall v Braybrook (1956) 95 CLR 620. That decision dealt with s72 of the Crimes Act 1928 (Vic), which section, after making provision in certain cases for the summary trial before justices of persons charged with certain offences, provided that "if the person charged does not consent or if the justices are of opinion that the charge is from any circumstances fit to be prosecuted by proceedings as for an indictable offence rather than to be disposed of summarily" the justices shall not summarily adjudicate thereon, but shall deal with the charge as a charge of an indictable offence. At issue was whether the words "any circumstances" in s72 confined the justices, in the consideration of their discretion as to whether to dispose of a charge summarily or deal with it as an indictable offence, to circumstances surrounding the charge, or whether they could take into account other matters, in that case, the prior convictions of the accused. When that issue was dealt with in the Supreme Court of Victoria in Braybrook v Hall (1956) VLR 75, Sholl J at 84 said:
"... the protection of the community is involved in the formulation and administration of the criminal law, and one ought not to be astute to exclude by implication from the consideration of the justices circumstances which have an obvious logical relevance from the point of view of the community to the discretionary determination of the question whether a summary trial, with its more limited maximum penalties, is appropriate, or is likely to be appropriate in a particular case."
That comment was cited with favour by McTiernan J at 638 when the matter was before the High Court. McTiernan, Williams and Kitto JJ, who made up the majority of the court, found that the phrase "any circumstances" should not be limited to the circumstances surrounding the charge. Their decision is authority for the proposition that a relevant circumstance to the exercise of the discretion under consideration is any circumstance of the offender which bears on whether the offender can be adequately dealt with on a summary trial, McTiernan J at 638 and Williams J at 640.
A similar approach to that which found favour in Hall v Braybrook should be taken when considering the scope of the discretion contained in the Act, s72B(2). The requirement in that provision that if "the justices consider for any reason that the charge should be dealt with in the Supreme Court, they should" commit the offender to the Supreme Court is unambiguous. The only limitation placed on the scope of the discretion by the phrase "any reason" is that it should be a reason which bears on why the charge should be heard in the Supreme Court. Just as the adequacy of the penalty that may be imposed if a charge is dealt with summarily is relevant to the discretion so is any restriction on the way in which an offender may be dealt with as a consequence of a conviction. There is no basis for implying that such a restriction is a matter which should be excluded from consideration when exercising the discretion conferred by s72B(2).
Counsel for the applicant contends that the learned chief magistrate erred in the exercise of his discretion by failing to take into account a material matter, that is, the full range of sentencing options which were available to him. As counsel developed this submission it became clear that he was contending that the learned chief magistrate should have fully explored the sentencing options that were appropriate in relation to the applicant before exercising the discretion to commit the applicant to the Supreme Court for sentence. Particular reference was made to the sentencing options contained in the Sentencing Act, Pt10, which deals with assessment, hospital and restriction orders. It is apparent from the comments made by Crawford J when sentencing the applicant on a past occasion, which comments were provided to the learned chief magistrate, that it is asserted that the applicant suffers from permanent and serious brain damage. Against this background counsel for the applicant submits that the learned chief magistrate should have considered that a sentence directed to rehabilitating the applicant was appropriate. With respect, this submission misses the point. Even if the learned chief magistrate had been so satisfied, it would not, in the light of the matters put before him, have been appropriate for him to have sentenced the applicant. To have done so would have rendered the applicant immune from an application by the Crown that he be declared a dangerous criminal arising from his conviction on the offences heard by the learned chief magistrate. Save for recognising this consequence of proceeding to sentence the applicant there was no occasion for the learned chief magistrate to explore the sentencing options which might have been appropriate in relation to the applicant any further. The learned chief magistrate was perfectly entitled to leave these options for the consideration of the judge who, in consequence of the committal order, would be called upon to sentence the applicant. Pursuant to the Sentencing Act, s19(3), it is incumbent upon that judge to sentence the applicant in respect of the offences for which he has been committed for sentence regardless of whether the judge declares the applicant to be a dangerous criminal.
As I am unpersuaded that the learned chief magistrate erred in the exercise of his discretion the appeal is dismissed.
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