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District Court 16 December 2015

Shima v R

[2015] NSWDC 410

Assault & violenceDomestic & family violence
CRIMINAL LAW CONVICTION APPEAL SENTENCES PASSED SPENT ADJOURNMENT NOT OF OBJECTIVE UTILITY

Citation: Shima v R [2015] NSWDC 410
Court: District Court of New South Wales
Date: 16 December 2015
Judge(s): Neilson DCJ

Background

The appellant faced three domestic violence-related charges arising from incidents in 2012 and 2013: one count of intimidation under the Crimes (Domestic and Personal Violence) Act 2007 and two counts of common assault. On 19 May 2014, following a hearing in the Downing Centre Local Court at which the appellant's counsel tendered evidence by consent and made no submission on guilt, Magistrate Mijovich found all three offences proved. No conviction was recorded. Instead, the appellant was placed on an 18-month good behaviour bond under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 and made subject to a one-year apprehended violence order.

The appellant filed a notice of appeal in June 2014, nominating "not guilty" as his ground. Over the following eighteen months, the appeal underwent numerous mentions and adjournments before multiple judges, with the appellant cycling through three firms of solicitors. Various applications were raised and then abandoned, including two separate applications under s 32 of the Mental Health (Forensic Provisions) Act 1990 and a notice of motion seeking leave to adduce fresh evidence.

By the time the matter came before Neilson DCJ in December 2015, both the good behaviour bond and the apprehended violence order had already expired. The appellant, appearing in person on the day of judgment, withdrew the remaining s 32 application and instead sought a further adjournment to contest the original evidence.

  • Whether the adjournment application to adduce fresh evidence should be granted.
  • Whether the s 32 application under the Mental Health (Forensic Provisions) Act 1990, had it not been withdrawn, should have been granted.
  • Whether the appeal should be dismissed for want of prosecution.

Decision

Neilson DCJ refused the adjournment application. His Honour reasoned that the application was of no objective utility: the good behaviour bonds had expired in November 2015 and the apprehended violence order had expired in May 2015. Crucially, because the Local Court had proceeded under s 10, no conviction had been recorded, meaning nothing adverse appeared on the appellant's criminal record.

His Honour also indicated that, had the appellant not withdrawn the s 32 application, it too would have been refused on the same basis. Granting any further relief would have been an otiose exercise, exposing the appellant to the possibility of further legal sanction without any corresponding benefit.

With no remaining application before the Court and no utility in continuing the proceedings, Neilson DCJ dismissed the appeal for want of prosecution.

Orders Made

  • Adjournment application refused.
  • Appeal against the apprehended violence order dismissed (withdrawn as spent, dismissed on the previous day).
  • Conviction appeal dismissed for want of prosecution.

Key Takeaways

  • The District Court confirmed that where all penalties imposed following a finding of guilt have been served or have expired, and no conviction was recorded, a continuing appeal against that finding serves no legal purpose.
  • Under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, a good behaviour bond without a conviction leaves no adverse entry on a criminal record, removing the practical foundation for pursuing an appeal.
  • A s 32 application under the Mental Health (Forensic Provisions) Act 1990 will be refused where granting the relief would be otiose, particularly where any further sanction the applicant might face would serve no purpose given spent penalties.
  • Repeated adjournments and the successive abandonment of interlocutory applications can ultimately result in an appeal being dismissed for want of prosecution.
  • In dismissing the appeal, the Court noted the appellant's history of psychotic mental illness as contextual background, without that history altering the outcome given the complete absence of any remaining legal consequence from the original proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases cited: No cases were cited in the judgment.