Citation: DPP (NSW) v Caita-Mandra and Anor [2004] NSWSC 1127
Court: Supreme Court of New South Wales (Common Law Division)
Date: 26 November 2004
Judge(s): Howie J
Background
The first defendant had pleaded guilty in the Local Court to assault occasioning actual bodily harm after striking a hotel patron with a barstool, causing serious facial injuries requiring surgery. He was sentenced to 100 hours of community service. Shortly after sentence was imposed, it emerged that he had sustained an injury that prevented him from performing any of the required work.
The Probation and Parole Service applied under s 115(2) of the Crimes (Administration of Sentences) Act 1999 to revoke the community service order on the basis that it was in the interests of justice to do so, given the defendant's medical circumstances. The Magistrate granted the revocation on medical grounds but declined to impose any alternative sentence, taking the view that no further order was required.
The Director of Public Prosecutions brought proceedings in the Supreme Court seeking a declaration that the Magistrate had erred in law and an order in the nature of mandamus compelling the Magistrate to re-sentence the defendant under s 115(3) of the Act. Both defendants entered submitting appearances except as to costs.
Legal Issues
- Whether, upon revoking a community service order under s 115(3) of the Crimes (Administration of Sentences) Act 1999, a court is required to exercise its discretion as to re-sentencing and cannot simply decline to make any consequential order at all.
- Whether the Magistrate's refusal to make any sentencing order following revocation amounted to a failure to exercise jurisdiction, rather than a valid exercise of discretion.
- Whether the Supreme Court could grant declaratory and mandamus-style relief in the circumstances.
Decision
Howie J held that the Magistrate had fundamentally misunderstood the nature of the jurisdiction conferred by s 115(3). Under that provision, once a court revokes a community service order, it must then consider whether to re-sentence the offender. The discretion in s 115(3) is whether to impose an alternative penalty, not whether to turn its mind to re-sentencing at all. The Magistrate's approach amounted to a failure to exercise jurisdiction rather than a legitimate exercise of it.
His Honour found that the Magistrate's reasoning was infected by irrelevant considerations. The Magistrate treated the fact that the maximum period for the order was nearly spent as a reason not to re-sentence, when the relevant question was simply that the defendant had completed no hours of the order whatsoever and remained entirely unpunished for a serious offence. The nature of the offence engaged significant sentencing considerations, including general deterrence and denunciation, which could not properly be disregarded.
Howie J also noted that there was no order capable of being quashed by certiorari, since the Magistrate had simply declined to act. Accordingly, the appropriate remedy was a declaration that the Magistrate had erred in law, combined with an order that the Magistrate hear and determine the question of re-sentencing according to law and in conformity with the Supreme Court's judgment.
Orders Made
- The Court declared that the Magistrate (second defendant) erred in law in refusing to make any consequential order upon the revocation of the community service order in accordance with s 115(3) of the Crimes (Administration of Sentences) Act 1999.
- The Magistrate was ordered to hear and determine the question of re-sentencing the first defendant under s 115(3) of the Act according to law and conformably with the judgment.
- The question of costs was reserved, with the plaintiff and first defendant directed to file costs submissions within 14 days, with liberty to apply for a hearing on costs within the same period.
Key Takeaways
- Under s 115(3) of the Crimes (Administration of Sentences) Act 1999, a court that revokes a community service order must actively consider the question of re-sentencing. The discretion the provision confers concerns what alternative order (if any) to impose, not whether to engage with the re-sentencing exercise at all.
- A magistrate's refusal to turn their mind to re-sentencing following revocation can constitute a failure to exercise jurisdiction, amenable to supervisory relief from the Supreme Court, even where there is no discrete order capable of being quashed by certiorari.
- Where certiorari is unavailable because no order has been made, declaratory relief combined with a mandamus-style order directing the inferior court to determine the matter according to law is an appropriate remedy.
- The fact that the maximum period of a community service order has nearly expired is not a relevant consideration when deciding whether to re-sentence an offender following revocation. The operative consideration is the extent to which the original order was performed.
- Sentencing factors such as general deterrence and denunciation remain relevant when a court turns to re-sentencing under s 115(3), and their significance cannot be displaced merely by the circumstances that led to the revocation of the original order.
Legislation and Cases Referenced
Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 115(1), 115(2), 115(3)
- Crimes Act 1900 (NSW), s 59(1)
Cases:
- R v Fielding (1993) 14 Cr App R (S) 494
- R v Hammon [1998] Crim LR 293
- Maxwell v The Queen (1995) 184 CLR 510