Tarasenko v Boylan and the Attorney-General File No. SCGRG 92/1672 Judgment No. 3642 Number of Pages 14 Courts and Judges (1992) 64 a Crim R 268 - [1992] SASC 3642

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA King C.J.(1), Olsson(2) and Mullighan(3), JJ.

CWDS
Courts and judges - courts - judicial review to compel District court judge to impose penalties for summary offences constituting breaches of a bond imposed in district Court - whether section 22 of the Magistrates Act or section 5 Judicial Administration (Auxiliary Powers and Appointments) Act empower District Court judge to exercise powers of magistrate under Magistrates Courts Act 1922 - such powers exercisable by District Court judge sitting as District Court - section 57(4) Criminal Law (Sentencing) Act not impliedly repealed by Magistrates Court Act or section 9 District Court Act - District Court judge required to impose penalties for summary offences constituting breach of bond granted in District Court - order in nature of mandamus commanding District Court judge to impose penalties for the summary offences.

HRNG ADELAIDE, 8 September 1992 #DATE 16:10:1992
Counsel for plaintiff:         Mr G.F. Barrett
Solicitors for plaintiff:     Matthew Mitchell
Counsel for defendant Boylan:    No attendance.
Counsel for Attorney-General for South Australia:             Mr S.A. Millsteed
Solicitors:   Crown Solicitor

ORDER
Delivery of reasons for judgment made earlier.

JUDGE1 KING C.J. In this action for judicial review the plaintiff sought an order in the nature of mandamus directing Judge Boylan of the District Court of South Australia to sentence him with respect to four summary offences to which he pleaded guilty on 27th May 1992 in the Holden Hill Magistrates Court. The Court made the order and indicated that reasons for judgment would be delivered later. 2. The summary offences to which the plaintiff pleaded guilty were breaches of a bond upon which a sentence in the District Court was suspended on 2nd August 1991. When the plaintiff pleaded guilty to the summary offences in the Holden Hill Magistrates Court, he was remanded pursuant to section 57(4) of the Criminal Law (Sentencing) Act to appear for sentence in the District Court. When the plaintiff appeared for sentence before Judge Boylan in the District Court on 29th June 1992, the learned judge declined to deal with the matter and remanded the plaintiff to the Holden Hill Magistrates Court. When the plaintiff appeared in that court on 7th July 1992, the magistrate considered that he was precluded by section 57(4) of the Criminal Law(Sentencing) Act from imposing sentence and remanded the plaintiff back to the District Court. On 13th July 1992, when the plaintiff again appeared before Judge Boylan, the learned judge revoked the suspension of the sentence imposed in the District Court and estreated the recognisance, but declined to sentence the plaintiff for the summary offences. This action is designed to compel him to do so. 3. In declining to sentence the plaintiff, Judge Boylan relied upon a view of the law expressed by Judge Lunn of the District Court in a memorandum which Judge Boylan communicated to counsel. That memorandum is before us. Since that time the views expressed by Judge Lunn have been substantially reproduced by…

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.

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Details

AGLC: Tarasenko v Boylan and the Attorney-General File No. SCGRG 92/1672 Judgment No. 3642 Number of Pages 14 Courts and Judges (1992) 64 a Crim R 268 [1992] SASC 3642
Case: [1992] SASC 3642
Decision Date: 16 October 1992

CaseChat Overview and Summary

In the Supreme Court of South Australia, the plaintiff, Tarasenko, sought a mandamus order directing Judge Boylan of the District Court to sentence him for four summary offences he pleaded guilty to in the Holden Hill Magistrates Court. The offences were breaches of a bond imposed in the District Court, where a sentence was suspended on August 2, 1991. When Tarasenko appeared for sentence on June 29, 1992, Judge Boylan declined to sentence him, remanding him to the Magistrates Court. The plaintiff then filed this action to compel Judge Boylan to sentence him. The central legal issues were whether the Magistrates Court Act 1991 or the District Court Act 1991 deprived District Court judges of the power to impose penalties for summary offences and whether section 57(4) of the Criminal Law (Sentencing) Act 1988 mandated Judge Boylan to sentence Tarasenko. The Court concluded that District Court judges retained the authority to sentence summary offences under section 22 of the Magistrates Act 1983 and section 5 of the Judicial Administration (Auxiliary Powers and Appointments) Act 1988. It further held that section 57(4) required Judge Boylan to sentence Tarasenko for the summary offences. Therefore, the Court ordered Judge Boylan to sentence Tarasenko for the offences in question.

Orders