Citation: [2015] NSWLC 12
Court: Local Court of New South Wales
Date: 5 August 2015
Judge(s): Crompton LCM
Background
The defendant faced a series of criminal charges, including Table 1, Table 2, and strictly summary offences, arising from an arrest in Sydney on 1 August 2014. At the time of the alleged offending, he was on parole and subject to a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). He was also the subject of outstanding arrest warrants and, following his arrest, his parole was revoked.
The prosecution sought to elect to have the charges in one sequence (H 55121852) proceed on indictment in the District Court rather than be determined summarily in the Local Court. However, that election was made after the time permitted by s 263(1) of the Criminal Procedure Act 1986 (NSW). The Director of Public Prosecutions applied for leave under s 263(2), which requires the court to be satisfied that "special circumstances" exist before granting leave.
A magistrate initially granted leave but applied the wrong legal test. The defendant successfully challenged that decision in the Supreme Court, where Campbell J set aside the grant of leave and remitted the matter to the Local Court for determination according to law. This decision is the Local Court's determination of that remitted question.
Legal Issues
- Whether the Director of Public Prosecutions could establish "special circumstances" under s 263(2) of the Criminal Procedure Act 1986 (NSW) to justify an out-of-time election to proceed on indictment.
- What the correct meaning and content of "special circumstances" is in the context of s 263(2), given the absence of any judicial consideration of that specific provision.
Decision
Crompton LCM noted that "special circumstances" is not defined in the Criminal Procedure Act and had not previously been considered by any court in the context of s 263(2). In the absence of specific authority, the Magistrate drew on judicial treatment of "special reasons" under s 93 of the same Act, which has attracted a body of case law.
Applying the principles from Baines v Gould (1993) and TEZ v Longley [2004], the Magistrate identified a set of criteria: the circumstances must be special to the particular case, substantial in nature, not common or usual, out of the ordinary, and clearly distinguishable from the general run of cases. Importantly, the Magistrate adopted the principle that this test should not be approached in an unduly restrictive way.
The Director relied on five factors: the defendant was on parole and subject to a s 9 bond at the time of the alleged offences; the offences were serious, with one carrying a maximum of 10 years imprisonment; the defendant had an extensive criminal history; he was currently serving a custodial sentence for other matters; and, critically, without the election the Local Court would have no sentencing scope to deal with the H 55121852 offences if the defendant were convicted.
The Magistrate found those facts collectively satisfied the "special circumstances" test. The point that the Local Court could impose no effective penalty if the matter remained in its jurisdiction was described as substantial and clearly distinguishable from the ordinary case, sufficient in itself to warrant leave.
Orders Made
- Leave granted for the Director of Public Prosecutions to elect to proceed on indictment out of time in respect of charge sequence H 55121852.
Key Takeaways
- Crompton LCM held that "special circumstances" under s 263(2) of the Criminal Procedure Act 1986 (NSW) bears a meaning consistent with how "special reasons" has been construed under s 93, requiring facts that are substantial, unusual, and clearly distinguishable from the general run of cases.
- In the absence of any prior judicial interpretation of s 263(2), the court drew by analogy on the established s 93 case law, treating the principles from Baines v Gould and TEZ v Longley as the appropriate framework.
- The test is not to be applied in an unduly restrictive way; no closed category of facts will or will not constitute special circumstances, and each case turns on its own particular circumstances.
- A finding that the Local Court would have no sentencing scope to impose any penalty referrable to the offending conduct, should the defendant be convicted, was treated as a substantial and independently sufficient consideration distinguishing the case from the ordinary.
- The combination of serious charges, active parole and bond obligations at the time of the alleged offending, an extensive criminal history, and current custodial status collectively supported a finding of special circumstances in this instance.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 93, 263
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Cases
- Hall v Director of Public Prosecutions [2015] NSWSC 839 (Campbell J)
- Baines v Gould (1993) 67 A Crim R 297
- TEZ v Longley [2004] NSWSC 74; 142 A Crim R 122
- O'Hare v DPP [2000] NSWSC 430