Ross v Fiedler

[1999] VSC 295

SUPREME COURT OF VICTORIA
PRACTICE COURT	Do not Send for Reporting
Not Restricted

No. 6242 of 1999

STUART BRADLEY ROSS	Plaintiff
v.
NICHOLAS FIEDLER AND ANOTHER	Defendants

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 AUGUST 1999
DATE OF JUDGMENT:	26 AUGUST 1999
CASE MAY BE CITED AS:	ROSS v. FIEDLER
MEDIA NEUTRAL CITATION:	[1999] VSC 295

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CATCHWORDS:      Criminal Law – Sentence – Sentence by Magistrate – Appeal to County Court – Requirements of procedural fairness – Imposition of custodial sentence – Warning by trial Judge.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P. Hurley	Koutsantoni & Associates
For the Defendants	Mr. C. Hillman	Solicitor for Public Prosecutions

HIS HONOUR:

1. On 29 January 1999, at the Ringwood Magistrates' Court, the plaintiff was convicted of a number of offences relating to breaches of intervention orders, stalking and theft.  He was sentenced to an effective term of imprisonment of six months in respect of certain of the offences, such term to be served by way of an Intensive Correction Order, and to a term of six months' imprisonment in respect of the other offences, such term to be wholly suspended for a period of 24 months.

1. The plaintiff appealed to the County Court against all convictions and sentences.  His appeals were heard by his Honour Judge Duckett on 14 and 15 July 1999.

1. At the conclusion of the hearing on 15 July his Honour acquitted the plaintiff of four of the charges but found him guilty of the remainder which included stalking, a number of breaches of intervention orders, threatening to kill, assault, using a telephone service to harass and criminal damage.

1. Having heard a plea by the plaintiff's counsel his Honour adjourned the proceedings to the following day.  In doing so his Honour said:

"I propose to adjourn to 10 o'clock tomorrow morning, to further consider the matter.  I will release the appellant on bail but he should appreciate that he is not to take that as an indication that he will not be going to prison tomorrow.  If you would explain that to him as well Mr. X."  (Mr. X was the plaintiff's counsel.)

1. Pausing at this juncture – it would seem to me that the inescapable inference to be drawn from his Honour's remarks was that his Honour was giving serious consideration to imposing a custodial sentence on the plaintiff.

1. At all events on 16 July 1999 his Honour imposed sentence upon the plaintiff.  No effort was made by counsel for the plaintiff to address his Honour further in the matter, despite the clear indication his Honour had given the previous afternoon that he may well impose a term of imprisonment on the plaintiff.

1. In the final analysis his Honour sentenced the plaintiff to a total effective term of imprisonment of four months.  His Honour suspended three months of the term for 18 months.

1. In sentencing the plaintiff his Honour noted that the plaintiff had already served 11 days of the sentence.  It follows therefore that the actual sentence the plaintiff was required to serve at that time was of the order of 19-20 days.

1. On 22 July 1999 the plaintiff filed an originating motion in this Court whereby he seeks the following orders:

"1.An order in the nature of Certiorari that the orders before Judge A.P. Duckett made on the 16th July, 1999 were made without the appropriate regard to matters of procedural fairness.

2.       An order quashing the said orders."

1. The grounds relied upon by the plaintiff are numbered 3 and 4 in the originating motion and read:

"3.The Learned Judge failed to place the Plaintiff or his legal advisers on notice that he was considering a jail sentence in respect of the charges.

4.The Learned Judge failed to take into account time spent by the Plaintiff in relation to performing his Intensive Corrections Order."

1. No argument was advanced to me in relation to ground 4 and it can be disregarded.

1. There can be no doubt but that a failure by a trial Judge to disclose that he was contemplating imposing a custodial sentence in lieu of a non-custodial sentence appealed from may amount to a denial of procedural fairness as to which relief in the nature of certiorari will be granted.  See Neal v. The Queen (1982) 149 C.L.R. 305; Parker v. Director of Public Prosecutions and Another (1992) 28 N.S.W.L.R. 282; and Brand v. Parsons (1994) 1 V.R. 252.

1. But in the present case I consider that in making the observations he did before releasing the plaintiff on bail overnight, Judge Duckett clearly disclosed to the plaintiff and his counsel that he was considering the imposition of an immediate term of imprisonment.  The words his Honour used are, in my opinion, incapable of any other interpretation.

1. Further in imposing an effective and immediate term of 19-20 days' imprisonment upon the plaintiff his Honour was not imposing a custodial sentence in lieu of a non-custodial sentence;  nor was he imposing a longer term of imprisonment than that originally imposed.  Indeed the reverse was the situation.

1. Section 19(5) of the Sentencing Act 1991 provides that an intensive correction order must be taken to be a sentence of imprisonment for the purposes of all enactments except certain enactments which have no relevance to the present case.

1. Section 27(5) of the Act contains a similar provision in relation to suspended sentences of imprisonment.

1. It follows therefore that what his Honour did was to impose a term of imprisonment of four months for a term of imprisonment of 12 months albeit that his Honour required the plaintiff to serve immediately 19-20 days of the term.

1. In my opinion the plaintiff's originating motion cannot be sustained.

1. The originating motion will be dismissed with costs to be taxed and paid by the plaintiff.

1. I hereby revoke the plaintiff's bail.

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