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District Court 16 July 2021

R v Johnston

[2021] NSWDC 321

Sexual offences
CRIMINAL PROCEDURE SEXUAL ASSAULT OFFENCE GUIL TY PLEA ENTERED IN LOCAL COURT PERMANENT STAY APPLICATION

Citation: R v Johnston [2021] NSWDC 321
Court: District Court of New South Wales
Date: 16 July 2021
Judge(s): Abadee DCJ

Background

The accused was charged in the Local Court with intentional sexual touching without consent under s 61KC(a) of the Crimes Act 1900 (NSW), a Table 2 offence carrying a maximum of five years' custody. He was also charged with a separate offence under the Inclosed Lands Protection Act 1901 (NSW). He had been in custody since his arrest on 16 September 2020, following revocation of his parole on an unrelated matter.

On 1 October 2020, the accused pleaded guilty to both charges in the Local Court. During sentencing submissions, it emerged that s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) effectively prevented the Local Court from imposing a further custodial sentence, because doing so would extend his total sentence beyond five years from the commencement of his existing sentence. The sentencing magistrate noted that this left her with very limited options, most likely a community corrections order.

The difficulty arose because the Director of Public Prosecutions (DPP) had in fact elected on 22 September 2020 to proceed on indictment in the District Court, where no such sentencing restriction would apply. However, the prosecutor had not informed the court or the accused of this election before the guilty pleas were entered. After the sentencing proceedings began, the prosecutor disclosed the administrative oversight and sought to have the Local Court proceedings abandoned. The DPP subsequently filed an ex officio indictment in the District Court, and the accused applied for a permanent stay of those proceedings on the ground of abuse of process.

  • Whether the filing of the ex officio indictment constituted an abuse of process warranting a permanent stay.
  • Whether the accused suffered genuine unfairness by losing the inadvertent sentencing advantage created by the prosecutor's failure to communicate the DPP's election before the guilty plea was entered.
  • Whether the loss of an accidentally obtained advantage, specifically the prospect of avoiding a custodial sentence due to the operation of s 58 of the Crimes (Sentencing Procedure) Act 1999, was sufficient to justify the exceptional remedy of a permanent stay.

Decision

Abadee DCJ refused the application for a permanent stay. The court accepted that the District Court holds an inherent jurisdiction to stay proceedings that constitute an abuse of process, and that the touchstone in every such case is fairness, requiring a balancing of the accused's interests against the community's interest in seeing persons charged with criminal offences brought to trial.

The court found that the accused had not lost the opportunity of a fair trial or the fair application of criminal justice processes. The sentencing advantage he stood to gain arose purely from an innocent administrative error: the prosecutor had failed to communicate to the court an election that the DPP had validly made before the guilty plea was entered. The court drew a clear distinction between losing a genuine procedural entitlement and losing an accidental windfall.

The court also accepted the Crown's submission that the injustice alleged by the accused was, at that stage, theoretical. If ultimately convicted or if a plea were entered, the accused retained the ability to argue for a wholly concurrent sentence or a community-based order before the District Court. The mere risk of injustice, as confirmed by the High Court in R v Edwards, is insufficient to justify a permanent stay.

Finally, Abadee DCJ observed that public confidence in the administration of justice would more likely be undermined if the DPP were prevented from exercising its lawful power to file an indictment simply to correct the consequences of a prosecutor's inadvertent failure to give effect to the DPP's earlier and valid election. The accused had no inalienable right to avoid a sentencing option that would otherwise be appropriate in all the circumstances.

Orders Made

  • The application for a permanent stay of proceedings was refused.

Key Takeaways

  • The District Court confirmed that the loss of an inadvertent sentencing advantage, created by a prosecutor's administrative error rather than any conduct of the accused, does not of itself generate the kind of unfairness that warrants a permanent stay of proceedings.
  • A permanent stay is an exceptional remedy; a permanent stay requires more than a risk of injustice or the loss of a hypothetical benefit. The accused must demonstrate actual, not merely theoretical, unfairness.
  • Where the DPP had validly elected to proceed on indictment before a guilty plea was entered in the Local Court, the subsequent filing of an ex officio indictment to give effect to that election was not characterised as an abuse of process, even though the election had not been communicated to the court or the accused before the plea.
  • Upholding the sentencing advantage in these circumstances would itself have undermined public confidence in the administration of justice, since it would have rewarded a position that arose from an innocent prosecutorial error rather than any legitimate procedural right of the accused.
  • The balancing exercise required under Jago v District Court of New South Wales (1989) 168 CLR 23 encompasses not only the accused's interests but also the community's interest in having persons charged with serious criminal offences brought to trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61KC
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 58
- Criminal Procedure Act 1986 (NSW), s 263
- Director of Public Prosecutions Act 1986 (NSW), s 7
- Inclosed Lands Protection Act 1901 (NSW), s 4

Cases:
- Adler v District Court of New South Wales (1990) 19 NSWLR 317
- Barton v The Queen (1980) 147 CLR 75
- Hermanus v R (2015) 44 VR 335
- Iqbal v R [2012] NSWCCA 72
- Island Maritime Ltd v Filipowski (2006) 226 CLR 328
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Johnston v Director of Public Prosecutions (NSW) [2021] NSWSC 333
- Peiris v R (2014) 240 A Crim R 114
- Petroulias v R (2007) 176 A Crim R 302
- R v Bartalesi; R v Fragassi (1997) 93 A Crim R 274
- R v Edwards (2009) 83 ALJR 717
- R v El Masri [2005] NSWCCA 167
- R v Moore (2015) 91 NSWLR 27
- Tony Strickland (a pseudonym) v DPP (Cth) (2018) 266 CLR 32
- Walton v Gardiner (1993) 177 CLR 378
- Watson v Attorney-General (NSW) (1987) 8 NSWLR 685
- Webb v R; Webb v R (2012) 225 A Crim R 550
- Williams v Spautz (1992) 174 CLR 509