HUGHES v DIRECTOR OF PUBLIC PROSECUTIONS [1994] NSWCA 142

HUGHES v DIRECTOR OF PUBLIC PROSECUTIONS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and MAHONEY

15 March 1994

PREROGATIVE WRITS — order in the nature of certiorari — grounds for — allegation that order of District Court made in excess of jurisdiction — alleged denial of natural justice — sentence — increased sentence — imposition of custodial sentence in lieu of fines — alleged failure of District Court judge to warn the accused of the risk of the imposition of a custodial sentence in order to permit the accused to consider application to withdraw appeal to District Court from Local Court sentence — Local Court magistrate finds claimant guilty of having goods in custody contrary to s 527C Crimes Act 1900 — imposes fines — claimant appeals to District Court — District Court Judge (Karpin DCJ) states her impression that magistrate "dealt leniently with" claimant — brings to attention the power of the Court to impose "a more severe penalty" — states "I will certainly be looking at a custodial option" — held:

(1) The District Court Judge had sufficiently disclosed that she was contemplating imposing a custodial sentence in lieu of the non custodial sentence appealed from;

(2) Accordingly, there was no denial of procedural fairness to the claimant.

Parker v Director of Public Prosecutions and Anor (1992) 28 NSWLR 282 (CA) applied

DISTRICT COURT - appeal - criminal jurisdiction - magistrate imposes non custodial sentence - whether District Court judge sufficiently signalled consideration of non custodial sentence - held: She did. Observations by the Court on the limits of the duty of District Court judges as explained in Parker v Director of Public Prosecutions and Anor (1992) 28 NSWLR 282 (CA) considered.

Crimes Act 1900, s527C.

Justices Act 1902, s132B.

ORDERS