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Court of Criminal Appeal 7 July 2017

Director of Public Prosecutions (NSW) v Jones, Dillon Michael

[2017] NSWCCA 164

Public order & justice offences
CRIMINAL PROCEDURE SENTENCE SENTENCE WHETHER DIRECTION A CONDITION OF BOND

Citation: Director of Public Prosecutions (NSW) v Jones, Dillon Michael [2017] NSWCCA 164
Court: Court of Criminal Appeal
Date: 7 July 2017
Judges: Basten JA; Harrison J; R A Hulme J

Background

The respondent had been convicted in the Local Court on five offences, including police pursuit, taking a vehicle without consent, and receiving stolen property. He appealed his sentences to the District Court, where Judge Armitage set aside the sentences of imprisonment and instead imposed a good behaviour bond under s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). As part of the bond documentation, Judge Armitage included a direction stating that any breach be reported to him for further action.

The respondent subsequently failed to comply with the bond's conditions. The Local Court, rather than the District Court, dealt with the breach, revoked the bond, and resentenced the respondent to an aggregate term of three years' imprisonment with a two-year non-parole period. The respondent then appealed that sentence to the District Court, and Judge Colefax SC, uncertain about the legal foundations of the Local Court's action, stated a case for the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW).

Seven questions were stated, addressing whether the Local Court had jurisdiction to deal with the breach and whether Judge Armitage's direction requiring any breach to be brought back before him had any legal effect.

  • Whether the Local Court has jurisdiction to revoke a good behaviour bond imposed by the District Court sitting in its appellate capacity, following a failure to comply with the bond's conditions
  • Whether a direction by a District Court judge that any breach of bond be reported to that particular judge is capable of constituting a condition of the bond under s 95 of the Crimes (Sentencing Procedure) Act 1999
  • Whether such a direction, even if not a condition, could deprive another court or judicial officer of statutory power to deal with a breach
  • Whether the District Court, on a severity appeal from the Local Court's sentencing for breach, had jurisdiction to determine whether the Local Court had the authority to deal with the original breaches

Decision

The Court of Criminal Appeal, in reasons delivered by Basten JA (with Harrison J and R A Hulme J agreeing), held that the Local Court did have jurisdiction to deal with the breach of the bond imposed by the District Court. The key statutory provision was s 98(1)(b) of the Crimes (Sentencing Procedure) Act 1999, which expressly confers power on "any other court of like jurisdiction" to call on an offender to appear where a breach is suspected. Section 71 of the Crimes (Appeal and Review) Act 2001 treats the District Court, when sitting in its appellate capacity, as if it were the Local Court for relevant purposes, making the Local Court a court of "like jurisdiction" for the purposes of s 98(1)(b).

On the second issue, the Court was clear that Judge Armitage's direction was not a condition of the bond. A genuine bond condition under s 95 must require something of the offender. The direction imposed no obligation on the respondent; it was addressed to unnamed persons and did not rest on any identified statutory power. As such, it was legally ineffective and could not operate to limit the statutory authority of any other court or judicial officer to deal with a breach.

The Court also confirmed that the District Court, hearing a severity appeal under s 17 of the Crimes (Appeal and Review) Act 2001, has jurisdiction to determine whether the Local Court's sentencing was invalid. In this case, however, the Local Court's actions were found not to have been invalid, as it had acted within its statutory jurisdiction.

Orders Made

  • Q1(1), (2) and (3): The District Court has jurisdiction on a severity appeal to determine that a Local Court sentence was invalid and set it aside; however, in this case the Local Court's actions were not invalid, as it had jurisdiction to call up the offender and to take action under ss 98(2) and 99(1) of the Sentencing Procedure Act.
  • Q1(4): Judge Armitage's direction that any breach be reported to him was not a condition of the bond and did not deprive any other court or judicial officer of statutory power to deal with a breach.
  • Q2: Pursuant to s 71 of the Appeal and Review Act and s 98(1)(b) of the Sentencing Procedure Act, the Local Court has jurisdiction to call on the offender to appear, determine whether a condition was breached, revoke the bond under s 98(2)(c), and resentence under s 99(1)(a).
  • Q3 and Q5: The answers to Q2 and Q4 are not affected by any direction in the bond that breaches be reported to a particular judge.
  • Q4: The Local Court has jurisdiction under s 98(2)(c) to revoke the bond.
  • Q6: The District Court does not have jurisdiction under s 95 to impose a condition that any breach be reported to a particular judge.
  • Q7: Because the direction was neither a valid bond condition nor legally effective, the question was inappropriate to answer.

Key Takeaways

  • Under s 98(1)(b) of the Crimes (Sentencing Procedure) Act 1999, a court of "like jurisdiction" to the court that imposed a good behaviour bond may independently deal with a breach of that bond. The Local Court falls within this category in relation to a bond imposed by the District Court exercising its appellate jurisdiction under the Crimes (Appeal and Review) Act 2001.
  • A judicial direction that any breach of bond be returned to the imposing judge is not capable of constituting a condition of the bond under s 95, because it imposes no obligation on the offender.
  • Even where such a direction is recorded in bond documentation, it carries no legal force and cannot diminish the statutory authority of another court or judicial officer to deal with a breach.
  • The District Court, when hearing a severity appeal under s 17 of the Crimes (Appeal and Review) Act 2001, has jurisdiction to examine whether the Local Court's underlying sentencing decision was itself invalid.
  • In dismissing the jurisdictional challenge, the Court confirmed that the Local Court's revocation of the bond and resentencing of the respondent were not procedurally invalid steps.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 17, 20, 71; Pt 3
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 12, 95, 97, 98, 99
- Criminal Appeal Act 1912 (NSW), s 5B

Cases:
- Blacker v Parnell [1978] 1 NSWLR 616
- Morgan v District Court of New South Wales [2017] NSWCA 105
- Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8
- Yates v Commissioner of Corrective Services of NSW [2014] NSWSC 653