Rogers v Magistrates Court of South Australia

[2004] SASC 428

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application for Judicial Review)

ROGERS v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR

Judgment of The Honourable Justice Gray

17 December 2004

ADMINISTRATIVE LAW - JUDICIAL REVIEW AT COMMON LAW - EXCESS OF POWER AND DEFECTIVE USE OF POWERS - LACK OR EXCESS OF JURISDICTION

Plaintiff charged with indictable offences under Commonwealth legislation (29B Crimes Act 1914 (Cth)) - pursuant to 4J(1) Crimes Act parties consented to offences being dealt with summarily - magistrate formed opinion sentence to be imposed exceeded two years - pursuant to section 19 Criminal Law (Sentencing) Act 1988 (SA) plaintiff remanded before District Court for sentence - judicial review sought on grounds magistrate lacked jurisdiction - held that section 68 Judiciary Act 1901 (Cth) gave magistrate jurisdiction to remand plaintiff to District Court for Commonwealth offence - section 4J Crimes Act does not limit this jurisdiction - application dismissed.

Crimes Act 1914 (Cth) s 29B, s 4J, s 4G; Criminal Law (Sentencing) Act 1988 (SA) s 19; Judiciary Act 1901 (Cth) s 68, referred to.
Putland v R (2004) 204 ALR 455; Williams v The King [No 2] (1934) 50 CLR 551; R v Murphy (1985) 158 CLR 596; R v Luscombe (1999) 48 NSWLR 282; Maguire v Simpson (1976) 139 CLR 362; Commonwealth v Mewett (1997) 191 CLR 471; Brownlee v The Queen (2001) 207 CLR 278, considered.

ROGERS v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2004] SASC 428

Application for Judicial Review

1. GRAY J                 This is an application for judicial review.

   Introduction

2. Pursuant to section 29B of the Crimes Act 1914 (Cth) the plaintiff, Garry John Rogers, was charged on information dated 9 May 2003 with two counts of making an untrue representation with a view to obtaining money.[1] The maximum penalty for an offence against section 29B is two years imprisonment.

   [1] Repealed No. 137 of 2000 s 3 and schedule 2, item 149 as from 24 May 2001

3. The offences were indictable offences.[2]  Pursuant to 4J(1) of the Crimes Act parties may consent to offences being dealt with summarily.[3]  The maximum sentence of imprisonment for each offence when dealt with summarily is one-year imprisonment. 

   [2] Section 4G of the Crimes Act defines indictable offences as those punishable by a period exceeding 12 months.

   [3] Section 4J(1) provides that certain indictable offences may be heard by a court of summary jurisdiction with the consent of the prosecution and defendant. Offences contained in section 29B of the Crimes Act are such offences.

4. In accordance with section 4J(1) of the Crimes Act, both the prosecutor and Mr Rogers consented to the offences being dealt with summarily.  The matter proceeded in the Adelaide Magistrates Court.  On 5 March 2004 Mr Rogers pleaded guilty to both charges.  A presentence report was ordered and the hearing adjourned.

5. On 6 July 2004 the magistrate, being of the opinion that a sentence should be imposed which exceeded the limit of the court’s jurisdiction, ordered that Mr Rogers be remanded before the District Court for sentence. The magistrate purported to exercise jurisdiction pursuant to section 19 of the Criminal Law (Sentencing) Act 1988 (SA) which relevantly provides:

   (2) If the Court, constituted otherwise than by a Magistrate, is of the opinion that a sentence of imprisonment should be imposed in any particular case, it may remand the defendant to appear for sentence before the Court constituted of a Magistrate.

   (3) The Magistrates Court does not have the power to impose--

   (a) a sentence of imprisonment that exceeds 2 years; or

   (b) a fine that exceeds $150 000.

   (4) Subsection (3) applies whether the offence to which the sentence relates is a summary offence or a minor indictable offence.

   (5) If the Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by subsection (4), the Court may remand the defendant to appear for sentence before the District Court.

6. The issue that arises for consideration in this application for judicial review is whether the magistrate had jurisdiction to exercise powers under section 19 of the Sentencing Act when dealing with a Commonwealth offence. The question is whether section 19(5) of the Sentencing Act can be picked up by section 68(2) of the Judiciary Act 1901 (Cth) to allow the court to remand Mr Rogers for sentence in the District Court. Alternatively the threshold question can be expressed as follows: has section 19 of the Sentencing Act been translated into federal law by the operation of section 68 of the Judiciary Act?[4]

   [4] Putland v R 204 ALR 455 per Gummow and Haydon JJ at 463

7. In each State and Territory there are provisions which allow a magistrate to remand or commit a defendant to a superior court if the magistrate is of the opinion that a greater sentence should be imposed than is available summarily or that it is not appropriate to deal with the matter summarily.[5]

   [5] In Victoria, s53 of the Magistrates Court Act 1989 provides that the Magistrates Court may deal with particular indictable offences if the court is of the opinion that it is appropriate and with the consent of the defendant. Section 113 of the Sentencing Act 1991 limits jurisdiction of the Magistrate’s Court to 2 years.

   In NSW, s476 of the Crimes Act 1900 provides in relation to particular indictable offences that the defendant may be sentenced in the Local Court where the defendant consents and the magistrate considers “the case may be properly disposed of summarily”. Section 267 of the Criminal Procedure Act 1986 limits the period of imprisonment imposed by the Local Court to a maximum of 2 years.

   In Queensland s552A of the Criminal Code 1899 provides that particular indictable offences must be heard summarily where the prosecution elects and s552B provides for further indictable offences that may be dealt with summarily where the defendant consents. Both sections are subject to s552D which provides that where a magistrate considers the defendant may not be adequately punished on summary conviction, the defendant must be committed for trial on indictment.

   In the ACT, s375(7) of the Crimes Act 1900 provides in relation to particular indictable offences a defendant may be sentenced in the Magistrate’s Court where the defendant consents and the magistrate “is of the opinion that the case cannot properly be disposed of summarily”.  Section 375(10) provides that the maximum period of imprisonment imposed summarily is 2 years.

   In Tasmania, s13 of the Sentencing Act 1997 provides that the maximum term of imprisonment imposed summarily is 12 months for a first offence or 5 years for a subsequent offence. Sections 71 and 72 of the Justices Act 1959 provide for particular indictable offences which can be dealt with summarily. Section 72B(2) provides that if “the justices consider for any reason that the charge should be dealt with in the Supreme Court, they shall if they have convicted the defendant, commit him to the Supreme Court for sentence”.

   In WA sections 426 and 427 of the Criminal Code 1913 provide a limit where itemised indictable offences are dealt with summarily. The limit is generally 2 years imprisonment. Section 5(9) provides that if a summary court “convicts the defendant of the offence after a plea of guilty and considers that any sentence the court could impose on the defendant for the offence would not be commensurate with the seriousness of the offence, the court may commit the defendant to a court of competent jurisdiction for sentence”.

   In the NT, s121A of the Justices Act provides that in relation to particular indictable offences, where both the defendant and prosecutor consent and “the Court is of the opinion that the case can properly be disposed of summarily” the Court may determine the charge in a summary manner.

   There is no reported decision on the application of s68 of the Judiciary Act to these interstate provisions.

   Counsels’ Submissions

8. Counsel for Mr Rogers submitted that section 19(5) of the Sentencing Act was not picked up by section 68(2) of the Judiciary Act.  Counsel drew attention to the scheme of the Crimes Act and in particular the provisions of section 4J. That section provides:

   (1) Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction.

   (2) Subsection (1) does not apply in relation to an indictable offence where, under a law of the Commonwealth other than this Act, that offence may be heard and determined by a court of summary jurisdiction.

   (3) Subject to subsection (6), where an offence is dealt with by a court of summary jurisdiction under subsection (1), the court may impose:

   (a) where the offence is punishable by imprisonment for a period not exceeding 5 years—a sentence of imprisonment for a period not exceeding 12 months or a fine not exceeding 60 penalty units, or both; or

   (b) where the offence is punishable by imprisonment for a period exceeding 5 years but not exceeding 10 years—a sentence of imprisonment for a period not exceeding 2 years or a fine not exceeding 120 penalty units, or both.

   (4) A court of summary jurisdiction may, if it thinks fit, upon the request of the prosecutor, hear and determine any proceeding in respect of an indictable offence against a law of the Commonwealth if the offence relates to property whose value does not exceed $5,000.

9. Counsel for Mr Rogers submitted that the Commonwealth scheme allowed the magistrate, with the consent of both parties, to proceed summarily rather than remanding Mr Rogers to the District or Supreme Courts. It was said once a decision had been taken to proceed summarily the complaint had to be heard and determined summarily. Emphasis was placed on the phrase “hear and determine”. It was said that the Commonwealth scheme did not allow for a matter to commence summarily, and then part way through that hearing for the summary proceeding to be abandoned and for the defendant to be remanded to the District Court or the Supreme Court. Attention was drawn to the different wording of sub-sections 4J(1) and 4J(4). The words “if it thinks fit” appearing in section 4J(4) do not appear in section 4J(1).

10. Counsel submitted that section 19 of the Sentencing Act had not been translated into Federal law by operation of section 68 of the Judiciary Act because the Crimes Act had by implication made a contrary provision. [6]  It was said that the order made by the magistrate remanding the defendant to the District Court was beyond power.

    [6] Putland v R (2004) 204 ALR 455 per Gleeson CJ at 457

11. Counsel for the Commonwealth submitted that the magistrate had acted within power.  It was contended that section 68(2) of the Judiciary Act picked up the jurisdiction provided by section 19 of the Sentencing Act. It was said that section 19(5) of the Sentencing Act was adopted into Federal law by analogy.  This interpretation was said to accord with the intention of Parliament, that when dealing with Commonwealth offences the full State procedural processes were to be available to the court.  It was contended that section 68(2) of the Judiciary Act had application and invested the magistrate with a like jurisdiction with respect to the applicant who was charged with Commonwealth offences, as it did with respect to a person charged with a State offence.

    Consideration of the Issues

12. In relation to a State offence, section 19 of the Sentencing Act grants jurisdiction to allow magistrates in specified circumstances to remand a defendant to the District Court or the Supreme Court for sentencing.  In enacting section 19 Parliament contemplated that the circumstance may arise where a magistrate in the course of hearing a summary matter might be of the opinion that the penalty that should be imposed for the crime would exceed the limits of a magistrate’s jurisdiction prescribed by section 19(4).  Parliament provided a process of jurisdiction to allow the matter to be transferred to an appropriate court.

13. Section 68(2) of the Judiciary Act provides.

    The several Courts of a State or Territory exercising jurisdiction with respect to:

    (a) the summary conviction; or

    (b) the examination and commitment for trial on indictment; or

    (c) the trial and conviction on indictment;

    of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.

14. In Williams v The King [No 2][7] Dixon J observed that section 68 disclosed a policy “to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State”.  In R v Murphy[8] the High Court reaffirmed those observations:

    In 1903 the Punishment of Offences Act was replaced by the relevant provisions of the Judiciary Act, including s 68, which has stood unchallenged for eighty-two years as a central provision in the administration and enforcement of federal criminal law.  What is more, s 68 fulfils an important role in ensuring that federal criminal law is administered in each State upon the same footing as State law and avoids the establishment of two independent systems of justice, this being the object which lies behind the grant by the Constitution of power to invest State courts with federal jurisdiction.  The importance of s. 68 in this respect has been expressly recognized in the judgments of this Court:  Williams v. The King [No. 2];  Reg. v Loewenthal; Ex parte Blacklock.

    In the present case the Magistrates Court generally exercised jurisdiction with respect to persons charged with offences against the laws of South Australia.  Pursuant to section 68(2) of the Judiciary Act, the court had a like jurisdiction with respect to persons charged with offences against the laws of the Commonwealth. The Magistrates Court’s jurisdiction included the jurisdiction conferred by section 19 of the Sentencing Act.  The court had a like jurisdiction with respect to persons charged with offences against Commonwealth law.  The court had a like jurisdiction with respect to Mr Rogers.  The effect of section 68(2) of the Judiciary Act was to give the magistrate jurisdiction, if he was of the opinion that the sentence that should be imposed on Mr Rogers exceeded the limits prescribed by section 4J(3) of the Crimes Act, to remand the applicant to appear for sentence before the District Court.

    [7] (1934) 50 CLR 551 at 560

    [8] (1985) 158 CLR 596 at 617

15. The adoption of State jurisdiction proceeds by analogy.[9] Section 19(3) of the Sentencing Act and section 4J(3) of the Crimes Act legislate with respect to the same subject matter for State and Commonwealth offences respectively.  By operation of section 68(2) of the Judiciary Act, section 19(5) of the Sentencing Act by analogy applies with reference to section 4J(3) in Commonwealth matters in a similar way as it applies with reference to section 19(3) in State matters.

    [9] R vLuscombe (1999) 48 NSWLR 282

16. For the Magistrates Court to have like jurisdiction in Commonwealth matters, section 19(5) should be construed, by operation of section 68(2) of the Judiciary Act, to read:  “if the court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by subsection 4J(3) of the Crimes Act the court may remand the defendant to appear for sentence before the District Court.”

17. The purpose of section 19(5) is to provide the jurisdiction to remand the defendant for sentence in the District Court where the court is of the opinion that a sentence should be imposed that exceeds the sentencing limits of the Magistrates Court. The identified construction gives effect to that purpose.

18. Subsection 19(3) of the Sentencing Act does not apply in relation to the subject offences because section 4J(3) of the Crimes Act has otherwise provided. It is section 4J(3) of the Crimes Act, which determines the limit of summary jurisdiction with respect to sentencing. Although section 19(3) of the Sentencing Act has no application it does not follow that section 19(5) of the Sentencing Act has no application.  There are many examples of the partial picking up of State laws.[10] This may occur where there is no altered or limited meaning. The proposed construction does not give section 19(5) an altered or limited meaning. The section operates in relation to Commonwealth offences in the same way that it operates in relation to offences under State law.

    [10] Maguire v Simpson (1976) 139 CLR 362, Commonwealth v Mewett (1997) 191 CLR 471, Brownlee v The Queen (2001) 207 CLR 278

19. The construction earlier referred to is consistent with Parliament’s intention in enacting section 4J(1):

    Subsection 4J(1) only empowers a court of summary jurisdiction to deal with an indictable offence summarily, it does not direct it to do so.[11] 

    Parliament explicitly intended to preserve the kind of discretion provided by section 19(5) of the Sentencing Act and similar provisions interstate.

    [11] Explanatory Memorandum, Crimes Legislation Amendment Bill 1987 (Cth).

20. The submissions of counsel for the applicant should be rejected. The limits of the powers of the magistrate when dealing with a Commonwealth offence in the manner submitted would deny the court jurisdiction that allows justice to be done in a particular case. There is nothing in the wording of section 4J of the Crimes Act that would support the suggested limitation.

21. For these reasons the application for review should be dismissed.  The magistrate acted within jurisdiction.