Supreme Court New South Wales Medium Neutral Citation: Dougan v NSW Fair Trading [2024] NSWSC 1429 Hearing dates: 08 November 2024 Date of orders: 11 November 2024 Decision date: 11 November 2024 Jurisdiction: Common Law Before: Griffiths AJA Decision: 1. The amended summons be dismissed. 2. The plaintiff pay the first defendant's costs. Catchwords: ADMINISTRATIVE LAW – judicial review – where magistrate refused to direct plaintiff to appear by audiovisual link rather than in person for sentencing hearing – whether magistrate misapprehended duty under s 5B(2)(b) of Evidence (Audio and Audio Visual Links) Act 1998 (NSW) by excluding consideration of inconvenience to the plaintiff – where court warrant for plaintiff's arrest subsequently issued pursuant to s 25(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) – whether magistrate required to take into account plaintiff's willingness and capacity to attend hearing by audiovisual link Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 25 Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 3(2), 5B Supreme Court Act 1970 (NSW), s 69 Cases Cited: Brodie v Streeter (2003) 180 FLR 176; [2003] ACTSC 86 Corcoran v Far [2019] NSWSC 1284 DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Ian Lawrence Struthers (in his capacity as liquidator) of P.A.C.I. Pty Ltd [2005] NSWSC 864 Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 R v Chute (No 9) [2019] ACTSC 69 R v Knight (No 1) [2023] NSWSC 195 R v Wilkie (2005) 193 FLR 291; [2005] NSWSC 794 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 Small v K & R Fabrications (W'gong) Pty Ltd [2016] NSWCA 70 Texts Cited: Nil Category: Principal judgment Parties: Sarah Dougan (Plaintiff) NSW Fair Trading (First Defendant) Local Court of New South Wales (Second Defendant) (submitting appearance) Representation: Counsel: P Lange / F Tao (Plaintiff) P McEniery (First Defendant) Solicitors: Aquila Lawyers (Plaintiff) Department of Customer Service (First Defendant) File Number(s): 2024/61315 Publication restriction: Nil Decision under review Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 17 November 2023 Before: Feather LCM File Number(s): 2013/275395 JUDGMENT 1. By an amended summons for judicial review, the plaintiff seeks to have set aside an order made by the Local Court on 17 November 2023 refusing to direct that the plaintiff appear by audiovisual link (AVL) rather than in person for a sentencing hearing. The plaintiff also seeks to set aside a warrant issued that day under s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) for her arrest. The plaintiff asks this Court to remit the matter to the Local Court for rehearing according to law by a different magistrate. 2. At the hearing before this Court, the plaintiff was granted leave to rely upon an amended summons filed in Court that day. 3. The sole ground identified in the original summons is as follows: In being satisfied, in accordance with 5B(2)(b) Evidence (Audio and Audiovisual Links) Act 1998, that the plaintiff's appearance could take place "more conveniently" in the courtroom, his Honour misapprehended the duty imposed upon him by s. 5B by applying the wrong test, namely by excluding from consideration under s. 5B(2)(b) of the Act the convenience to the plaintiff. 1. The amended summons adds an additional ground in the following terms: In causing an arrest warrant to issue pursuant to s. 25(2) Crimes (Sentencing Procedure) Act 1999, his Honour erred by failing to take into account the plaintiff's willingness, and capacity, to attend her sentencing proceedings by audiovisual link. 1. The plaintiff contends that the magistrate's decision refusing her application to appear by AVL is affected by jurisdictional error. In particular, she contends that the magistrate misapprehended the question to be asked under s 5B(2)(b) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (the Act) and thereby constructively failed to exercise the Court's jurisdiction to permit a person to appear by AVL. One aspect of this claim is that the magistrate misconstrued s 5B(2)(b) (and in particular the phrase "can more conveniently") and adopted an unduly narrow approach to that phrase by focusing only on the convenience of the Court, and excluding from consideration the convenience of all parties concerned, including the reasons advanced by the plaintiff as to why it was seriously impractical for her to appear in person. 2. It is relevant to note at this juncture that the plaintiff currently resides in the United States and has done so since mid-2012. The warrant for her arrest was issued in 2013. The warrant was issued in respect of offences committed by the plaintiff under the Crimes Act 1900 (NSW) and the Property, Stock and Business Agents Act 2002 (NSW). Those offences occurred at a time when the plaintiff was the company secretary and director of a real estate business operating in Byron Bay, NSW. In mid-2011, investigators employed by the first defendant (NSW Fair Trading) investigated complaints regarding a failure to account at settlement of a conveyancing transaction. The plaintiff provided the investigators with false bank transaction statements concerning the agency's sales trust account and property management rental account. The investigators identified a shortfall in the two trust accounts of an amount slightly less than $400,000. 3. The proceedings have a long history which is set out in some detail in the magistrate's reasons for judgment. In brief, the criminal proceedings against the plaintiff were commenced in 2013. In mid-2020, an arrest warrant was set aside by the same magistrate on the plaintiff's application. Then, in the period between 21 August 2020 and 5 February 2021, the criminal proceedings were mentioned several times before the same magistrate whilst plea negotiations continued. Pleas of guilty were entered at various times on different counts in the period between 18 December 2020 and 11 June 2021. 4. The matters were listed for a sentencing hearing before the same magistrate on 25 February 2022, then again on 11 April 2022, on 16 December 2022, and then further on 17 November 2023. On each of those three earlier occasions, the hearing was adjourned at the plaintiff's request. 5. The hearing listed for 17 November 2023 was for the purpose of sentencing. On that day the plaintiff's counsel provided an outline of written submissions seeking a further adjournment. The submissions also refer to the plaintiff having "applied for a direction under s 5B of the AVL Act to be present at the hearing". I will return shortly to say something more about those submissions. 6. It might also be noted that previously, when the matter was relisted before the same magistrate on 9 December 2022, the magistrate was told by the plaintiff's counsel that the plaintiff was unable to attend the then scheduled date of 16 December 2022, but would be able to attend court if the proceedings were adjourned to 17 November 2023. 7. The magistrate marked the papers on that occasion to the effect that, if the plaintiff did not attend the sentencing hearing on 17 November 2023, a court warrant would issue. 8. At the hearing on 17 November 2023, and despite what the magistrate had been told, the plaintiff was not physically present. Her counsel made an oral application that she be permitted to appear by AVL at an adjourned sentence hearing. The application was supported by the plaintiff's affidavit sworn 16 September 2023. Her counsel also tendered a letter dated 1 September 2023 from a United States immigration lawyer. 9. The relevant parts of the affidavit read on that occasion in support of the AVL application may be summarised as follows: 1. The plaintiff became aware of the outstanding charges sometime after May 2017 when she applied for permanent residency in the United States. 2. The plaintiff suffers from a medical condition, placenta accreta, and has received medical advice that she should not travel by air as this could exacerbate her condition. 3. Accordingly, the plaintiff can only travel from the United States to Australia by way of cruise ship, but that would involve her being absent from her five children (who are all under the age of seven) for at least two months, in circumstances where her husband's work commitments make him incapable of meeting the children's needs. 4. The plaintiff deposed that three of her sons had been diagnosed with attention deficit hyperactivity disorder and that one of the sons had been recently diagnosed with early signs of child schizophrenia. 5. The plaintiff was unable, from a remote location, to perform her role as chief executive officer of a company employing approximately 70 employees. 6. The plaintiff faces the real prospect of being unable to re-enter the United States if she left to travel to Australia. As noted above, the plaintiff tendered a letter from her immigration lawyer addressing these matters. Her immigration lawyer advised her that, because she was "out of status" at the time she applied for permanent residency in the United States in May 2017, more than one year of unlawful presence in the United States had resulted. This meant it would be difficult for her to re-enter the United States if she were to leave now. The proceedings below summarised 1. The transcript of the Local Court proceedings on 17 November 2023 is in evidence. The plaintiff's matter was not the only matter heard by the magistrate on that day. Evidently it was a busy list and her matter was stood in the list. 2. When the matter was eventually called, counsel announced their appearances for the plaintiff and first defendant respectively. Counsel for the plaintiff read parts of the plaintiff's affidavit dated 16 September 2023 and tendered the letter dated 1 September 2023 by her immigration lawyer. The magistrate said that he had read them both. 3. The magistrate then heard oral submissions from both parties, supplementing the plaintiff's written submissions which had been provided before the hearing. 4. Counsel for the plaintiff asked the magistrate to bear in mind the evidence advanced in support of the plaintiff's application to appear by AVL, but otherwise said nothing of substance about her circumstances. 5. After hearing oral submissions, the magistrate proceeded to deliver an ex tempore judgment. He first explained why he was satisfied that s 5B(2)(b) of the Act applied. These reasons included the lengthy procedural history of the matter, as outlined above. The magistrate commented that it would probably be a gross understatement to describe the proceedings as having a "chequered history". 6. His Honour then noted that, bearing in mind the amount of money defrauded, the offending was objectively serious and sat well above the middle of the range of objective seriousness for offences of that nature. These comments were made in the context of the magistrate stating that the offences carried a maximum period of imprisonment of 10 years. His Honour then said: And in those circumstances, notwithstanding the strong subjective features of the accused, as set out in her affidavit of 16 September 2023, it seems to me there is a real likelihood on sentence that the threshold under section 5 of the Crimes (Sentencing Procedure) Act would be crossed, such that the Court would be considering a sentence of imprisonment. 1. His Honour then noted the terms of s 5B(2)(b) of the Act and the prohibitive effect of that provision if the Court formed the requisite satisfaction. 2. His Honour noted the plaintiff's submission that she would not be "absent" for the purposes of the definition of that term in s 25(1) of the CSP Act if an order was made that she could appear by AVL. His Honour accepted that the Act does "potentially contemplate a person appearing before a court for sentencing under section 5B of the Act". His Honour then said that, in terms of the "practical consequences" of the plaintiff appearing by AVL, these were somewhat problematic. He explained that this was because, if an accused is sentenced to a term of imprisonment, the term commences at the time of sentencing. If the accused is required to undertake an intensive correction order, the order must be supervised by Community Corrections in New South Wales, and it would be difficult for that to occur when the plaintiff was living in the United States. 3. The magistrate described the three criteria in s 5B(2) as "mandatory considerations". He acknowledged that if he was satisfied that any one of them was met, he was not permitted to allow the plaintiff's AVL application for the purposes of sentencing. 4. His Honour then concluded (without alteration): I AM SATISFIED IN THE CIRCUMSTANCES THAT I HAVE SET OUT THE SERIOUS NATURE OF THESE OFFENCES, THE FACT THAT THERE IS A REAL PROSPECT OF THE ACCUSED SERVING A SENTENCE OF IMPRISONMENT, THAT THE SENTENCING WILL BE MORE CONVENIENTLY UNDERTAKEN IN A COURTROOM. AND ON THAT BASIS ALONE, THE APPLICATION FOR THE ACCUSED TO ATTEND COURT FOR SENTENCING BY AUDIO VISUAL LINK IS DISMISSED. 1. Having delivered those ex tempore reasons in respect of the AVL application, the magistrate proceeded to address the issue of whether an arrest warrant should be issued. In exchanges with counsel, the magistrate stated that it seemed to him that it was unlikely that the plaintiff would ever return to Australia, based on the affidavit that he had read. 2. After providing the plaintiff's counsel an opportunity to make further submissions, the magistrate directed that a s 25(2) warrant issue for the plaintiff's arrest. The relevant statutory provisions 1. Section 5B of the Act provides: 5B Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally (1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting. (2) The court must not make such a direction if— (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or (c) the court is satisfied that the direction would be unfair to any party to the proceeding, or (d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission. (2A) A court must not make a direction under this Part in relation to the giving of evidence or making of a submission by audio visual link by any accused detainee in any criminal proceeding in relation to the detainee concerning an offence alleged to have been committed by the detainee. However, this subsection does not prevent the making of such a direction in relation to an accused detainee in any other proceeding to which this Part applies. Note— Part 1B of this Act contains provisions with respect to the appearance of accused detainees who are in custody in criminal proceedings. (3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so. 1. With reference to the phrase in s 5B(2)(b) "the evidence or submission can more conveniently be given…", it is relevant to note that s 3(2) of the Act provides that a reference in the Act (other than in Pt 1B) to "making a submission to a court includes a reference to making an appearance before the court". Thus, a requirement to appear before the Court may be satisfied by an offender where a direction has been made under s 5B for the person to appear by AVL, even if the person is outside Australia (see by analogy R v Chute (No 9) [2019] ACTSC 69 at [10] per Mossop J). 2. Section 25 of the CSP Act relevantly provides: 25 Local Court not to impose certain penalties if offender is absent (1) The Local Court must not make any of the following orders with respect to an absent offender— (a) an order imposing a sentence of imprisonment, (b) an intensive correction order, … (2) At any time after it finds an absent offender guilty of an offence or convicts an absent offender for an offence, the Local Court— (a) may issue a warrant for the offender's arrest, or (b) may authorise an authorised officer to issue a warrant for the offender's arrest, for the purpose of having the offender brought before the Local Court for conviction and sentencing, or for sentencing, as the case requires. … (4) In this section— absent offender means an offender who is being dealt with in his or her absence, including a person who does not attend court because the person has lodged a written plea in accordance with section 182 of the Criminal Procedure Act 1986 in respect of the offence concerned. Parties' submissions 1. To avoid adding unnecessarily to the length of these reasons for judgment, I will address the plaintiff's primary submissions and those of the first defendant in the next section of these reasons. Consideration and disposition 1. It is well settled that jurisdictional error includes a constructive failure to exercise jurisdiction, which may occur when a decision-maker misunderstands the nature of its jurisdiction and, consequently, applies a wrong test, misconceives its duty, fails to address the real question to be decided or misunderstands the nature of the opinion it is to form (see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [80] per Gaudron J and Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [12]-[16] per Kirk JA). 2. As noted above, the plaintiff contended in support of ground 1 that the magistrate failed to exercise jurisdiction because, in considering whether to permit the plaintiff to appear at the sentencing hearing by AVL, he looked only to the convenience of the Court and excluded from consideration the plaintiff's inconvenience. I do not accept that contention. 3. It is uncontroversial that the reference to "convenience" is a reference to convenience generally and involves taking into account considerations bearing upon convenience to the Court, witnesses and the parties depending upon the circumstances of the case (see, for example, R v Wilkie (2005) 193 FLR 291; [2005] NSWSC 794 at [48] per Howie J; Brodie v Streeter (2003) 180 FLR 176; [2003] ACTSC 86 at [14]-[15] per Higgins CJ and R v Knight (No 1) [2023] NSWSC 195 at [28]-[29] per Yehia J). 4. In addition, the magistrate's reasons for judgment need to be read fairly and not with an eye keenly attuned to the identification of error. His Honour's reasons were given ex tempore and in circumstances where it is evident that the Court was required to deal with matters other than the plaintiff's matter. Those considerations do not excuse the provision of inadequate reasons, but I am satisfied that the magistrate's reasons for judgment here are adequate, and it was not suggested otherwise. 5. The need to review the reasons for judgment in this manner is supported by the leading authority in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6. All the more so where the reasons were given ex tempore. 6. The need to avoid an approach which compartmentalises reasons is also well established. In Small v K & R Fabrications (W'gong) Pty Ltd [2016] NSWCA 70, Basten JA said at [54] (McColl and Simpson JJA agreeing) (footnote omitted): This form of reasoning, which was repeated with respect to other aspects of the findings at trial, committed the same error which was sought to be ascribed to the trial judge, namely compartmentalising the reasoning process. Even without the express cross-reference to the earlier passages, a reading of the judgment as a whole demonstrates unequivocally, that the reasoning progressed through a series of stages of considering the claims, the evidence, making findings on specific issues and reaching a final conclusion. The challenge to the adequacy of the reasons, as thus articulated, contravened the canonical statement that "reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". (Although this language was used with respect to judicial review of an administrator's decision, it may properly be applied to appellate review of a trial judge's reasoning.) 1. In reviewing the magistrate's reasons I consider that it is also important to have regard to how the plaintiff's case was conducted before his Honour. As noted above, the plaintiff's counsel provided an outline of written submissions dated 17 November 2023. Part of those submissions addressed the plaintiff's request for a further adjournment of the sentencing hearing. Significantly, however, they also addressed, but to a much lesser extent, the plaintiff's application under s 5B of the Act to appear by way of AVL. 2. The only written submission in support of that application appears in [22] of the submissions (which totalled 26 paragraphs) and is as follows: Ultimately, in determining whether the direction will be given, the Court will also be asked to take into account the detriment to the offender, which would be occasioned, if the direction were not made, this being a relevant factor, see R v Knight (No. 1) [2023] NSWSC 195 at [28]-[29] per Yehia J. 1. This submission was not elaborated on at all in the written submissions. No specific written submission was made as to any part of the contents of the plaintiff's affidavit sworn 16 September 2023. 2. It is also fair to say that the point was not developed in any material way by the plaintiff's counsel in his oral submissions on 17 November 2023. The only oral submission which touched on the point was expressed as follows: So your Honour has to be satisfied that otherwise 5B applies. In my submission, it does, particularly when one bears in mind the evidence which is now advanced in support of the application. 1. In my respectful view, the magistrate was entitled to respond to the way in which the plaintiff's case was conducted below. His Honour was not taken to any particular part of the plaintiff's affidavit and the limited submissions made on her behalf did not descend into any detail so as to oblige the magistrate to address them, having regard to well-known authorities such as Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 (see also DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [33] per Kiefel CJ, Keane and Edelman JJ, albeit in a different context). As McCallum J observed in Corcoran v Far [2019] NSWSC 1284 at [64]: The decision in Dranichnikov is not authority for the proposition that a Tribunal will fall into legal error if it fails to refer to and engage with every argument put (whether clearly articulated or otherwise). Some discernment is required.… 1. When the magistrate's reasons are fairly read, I do not accept that they indicate that the magistrate excluded from consideration the relevant parts of the plaintiff's affidavit and the immigration lawyer's letter (noting that ground 1 of the amended summons expressly refers to the magistrate "excluding from consideration" the convenience to the plaintiff). Earlier in his Honour's reasons, he made express reference to "the strong subjective features of the accused", as set out in her affidavit, which the magistrate had plainly read. Self-evidently, having regard to other relevant considerations, including the lengthy procedural history of the proceedings and the strong possibility that the plaintiff might be given a custodial sentence or an intensive correction order, the magistrate considered that the plaintiff should physically attend the sentencing hearing. 2. The plaintiff contended that the magistrate's reference to her "strong subjective features" did not relate to his Honour's consideration of convenience, but was limited to the likelihood of her being given a custodial sentence. I do not accept that contention. It sits uncomfortably with the principle that the reasons need to be read holistically and with an eye not attuned to discerning error. 3. It is also well to bear in mind what Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [14]: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him. 1. And even if I am wrong in rejecting the plaintiff's submission concerning the magistrate's reference to the plaintiff's "strong subjective features" as having a narrow and specific application, jurisdictional error is not necessarily established. That is particularly so having regard to the manner in which the plaintiff's case was conducted below, the fact that the magistrate said that he had read the plaintiff's submissions and the parts of her affidavit which were relied upon, as well as to the fact that the magistrate made express reference to at least one of the matters raised therein, namely that she was living in the United States. It is plain that the magistrate considered that all these matters were outweighed by the other factors he identified. 2. I am not persuaded that the magistrate misconstrued s 5B(2)(b) of the Act or excluded from his consideration the matters put forward by the plaintiff in support of her application. 3. The same may be said concerning the plaintiff's emphasis on the fact that the magistrate used the phrase "on that basis alone" immediately before he dismissed the plaintiff's application to attend Court for sentencing by AVL. It is accepted that that phrase appears immediately after the magistrate had explained why he was satisfied that the offences were serious and that there was a real prospect of the plaintiff serving a sentence of imprisonment. His Honour then said that "the sentencing will be more conveniently undertaken in a Courtroom". 4. Having regard to the way in which the plaintiff's case was conducted below, it is unsurprising that no specific reference was made to the plaintiff's convenience in this part of the magistrate's reasons. There are, however, no less than three separate express references to the notion of "convenience" in this section of the magistrate's reasons, without any indication that the magistrate excluded from his analysis the plaintiff's convenience. 5. I am not persuaded that the Court approached the matter on the limited basis that only the convenience of the Court was relevant and that other considerations were excluded. 6. For all these reasons, I reject the plaintiff's contention that the magistrate committed a jurisdictional error in refusing the plaintiff's request to appear by AVL. 7. I turn now to address the plaintiff's claim that the magistrate's decision to issue an arrest warrant involved an error of law on the face of the record. 8. For the purposes of determining this part of the plaintiff's case I shall assume, without deciding, that the magistrate's warrant decision under s 25(2) of the CSP Act is an "ultimate determination" so as to attract the operation of ss 69(3) and (4) of the Supreme Court Act 1970 (NSW). I will also assume in the plaintiff's favour, without deciding, that the "record" includes the reasons for judgment and the transcript. 9. The plaintiff submits that the error of law evident on the face of the record here was the magistrate's failure to take into account the plaintiff's willingness and capacity to attend her sentencing proceedings by AVL. 10. It was common ground that the magistrate had a discretion under s 25(2) of the CSP Act as to whether or not to issue a warrant (see Ian Lawrence Struthers (in his capacity as liquidator) of P.A.C.I. Pty Ltd [2005] NSWSC 864 at [45] per Brereton J). The plaintiff submitted that the magistrate erred in failing to take into account a relevant consideration, namely the plaintiff's willingness and capacity to attend a sentencing hearing by AVL. The plaintiff contended that this error flowed from the magistrate's erroneous construction of s 5B(2)(b) and the meaning of the word "conveniently". Thus grounds 1 and 2 are connected. 11. The effect of s 25(1) of the CSP Act is to prohibit the Court from making orders with respect to an absent offender, which is defined in subs (4) to mean, for the purposes of the provision, an offender who has been dealt with in his or her absence. Hence the Court is prohibited, in the case of an absent offender, from imposing a term of imprisonment or an intensive correction order or a community correction order. 12. There are two limbs to the discretionary power in s 25(2). The first is that an offender has been found guilty of an offence by the Local Court. The second is that the offender is an "absent offender" being one who has been dealt with in his or her absence. 13. As the first defendant correctly pointed out, when the magistrate issued an arrest warrant on 17 November 2023, the plaintiff had previously entered pleas of guilty on 18 December 2020 and 11 June 2021. She had effectively been found guilty of the relevant offences by the Local Court. Thus the first limb was satisfied. 14. As to the second limb, the consequence of the magistrate's earlier decision to refuse the plaintiff's request that she appear by AVL meant that she was, at that point in time, an absent offender. In those circumstances, in exercising the discretion in s 25(2) the magistrate was not required to take into account the plaintiff's "willingness and capacity" to appear by AVL. 15. The plaintiff's claim that there was a failure to take into account a relevant consideration must be rejected in circumstances where the magistrate had denied the plaintiff the opportunity to appear by AVL and she has failed to establish any jurisdictional error in that previous decision. 16. In the light of these matters, it is difficult to see how or why the magistrate was legally obliged to take into account the plaintiff's willingness to appear by AVL in determining to exercise his discretion to issue an arrest warrant. That avenue was not available after her application to appear by AVL had just been rejected and the magistrate proceeded, as he was entitled to do, to consider whether an arrest warrant should issue in circumstances which existed at that time. 17. For all these reasons, I reject ground 2 of the amended summons. Conclusion 1. The amended summons should be dismissed, with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2024