New South Wales Court of Appeal CITATION: Hoffenberg v The District Court of New South Wales [2010] NSWCA 142 HEARING DATE(S): 4 June 2010 JUDGMENT DATE: 22 June 2010 JUDGMENT OF: Tobias JA at 1; Basten JA at 2; McClellan CJ at CL at 14 DECISION: Summons dismissed with costs. CATCHWORDS: Summons seeking relief in nature of certiorari - whether decision of the District Court dismissing an appeal from the Local Court regarding sentence imposed should be quashed - whether decison of District Court was affected by jurisdictional error - statutory meaning of s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) LEGISLATION CITED: Supreme Court Act 1970 (NSW) District Court Act 1973 (NSW) Offenders Probation Act 1913-1953 (SA) Summary Offices Act 1988 (NSW) CATEGORY: Principal judgment Cobiac v Liddy [1968] HCA 26; 119 CLR 257 Craig v South Australia (1995) HCA 58; (1995) 184 CLR 163 CASES CITED: Kirk v Industrial Relations Commission (NSW) & Anor [2010] HCA 1; (2010) 239 CLR 531; (2010) 262 ALR 569 R v Dodd (1991) 57 A Crim R 349 R v Whyte (2002) 55 NSWLR 252 Spanos v Lazaris [2008] NSWCA 74 Jaron Hoffenberg (applicant) PARTIES: District Court of NSW (first respondent) Director of Public Prosecutions (second respondent) FILE NUMBER(S): CA 2009/298567 COUNSEL: G D Wendler (applicant) D M L Woodburne (2nd respondent) SOLICITORS: Saba El-Hanania Lawyers (applicant) Director of Public Prosecutions (2nd respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/12/0391 LOWER COURT JUDICIAL OFFICER: Blanch CJ LOWER COURT DATE OF DECISION: 7 April 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298567 TOBIAS JA BASTEN JA McCLELLAN CJ at CL TUESDAY, 22 JUNE 2010 HOFFENBERG v THE DISTRICT COURT OF NEW SOUTH WALES & ANOR Judgment 1 TOBIAS JA: I agree with the reasons of McClellan CJ at CL. 2 BASTEN JA: The applicant, Mr Hoffenberg, pleaded guilty in the Local Court to a count of intentionally damaging property, contrary to s 195(1)(a) of the Crimes Act 1900 (NSW). He was convicted and placed on a bond to be of good behaviour for 12 months. He exercised his right of appeal from that decision to the District Court, pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act"), s 11. The gravamen of his complaint was not that he had been put on a bond, but that he had been convicted. Despite a finding of guilt (in this case on a plea) it was open to the sentencing court, without proceeding to conviction, to order his discharge on condition that he enter into a good behaviour bond: Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(b) ("the Sentencing Procedure Act"). Both in the Local Court, and in the District Court on appeal, the applicant invited the Court to take that approach. In each case, the Court declined to take that course. 3 There is no right of appeal from the District Court orders, made on an appeal from the Local Court in a criminal matter. Accordingly, in order to challenge the decision of the District Court, the applicant sought to invoke the supervisory jurisdiction of this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). Broadly speaking, s 69 provides for relief where an inferior court, or a tribunal has made a decision or order in excess of the power conferred on it, has failed to exercise a power conferred on it or where an order is sought setting aside the decision below on the basis of an error of law appearing on the face of the record of those proceedings. Relief of the kind last mentioned is described as relief "in the nature of a writ of certiorari": s 69(3). Such relief will not be available if another legislative provision prevents the Court "exercising its powers to quash or otherwise review a decision": s 69(5). 4 A privative provision of the kind referred to in s 69(5) is to be found in Pt 4 of the District Court Act 1973 (NSW), dealing with the criminal jurisdiction of the Court. Thus, s 176 provides that no adjudication of the District Court on an appeal "is to be removed by any order into the Supreme Court". Although it is not necessary in order to grant relief under s 69 for the "adjudication" of the District Court to be removed into the Supreme Court, s 176 is nevertheless understood to operate with respect to relief in the nature of certiorari, so as to engage s 69(5) of the Supreme Court Act. As this Court has consistently held, "the effect of such a provision is to preclude relief in the nature of certiorari based on error of law on the face of the record, but not to prevent relief where the order complained of is a nullity or, in contemporary parlance, [there is] a challenge based on jurisdictional error": see Spanos v Lazaris [2008] NSWCA 74 at [15], in my judgment, Beazley and Bell JJA agreeing, and the authorities referred to therein. Accordingly, the applicant was limited, as he accepted, to challenging the adjudication in the District Court on the basis of jurisdictional error. 5 The applicant correctly recognised that the provisions in Pt 3 in the Appeal and Review Act, providing for appeals from the Local Court, and identifying the powers to be exercised by the District Court in determining such appeals, involves an implied conferral of jurisdiction on the District Court. He did not submit that there was any doubt as to the jurisdiction of the District Court (which he had himself invoked) nor that either the order sought or that made was of a kind available to the Chief Judge. (The relevant order was an order dismissing the appeal, pursuant to s 20(2)(c) of the Appeal and Review Act; the further words "confirming" the conviction and order made in the Local Court did not constitute operative orders.) Nevertheless, the applicant contended, correctly, that the District Court could commit jurisdictional error (that is, an error of a kind rendering its decision ineffective) if it were to misconceive the nature of the power it was asked to exercise, or the circumstances in which the power was available: cf Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [72]. The third example of jurisdictional error given in the joint judgment of the Court in Kirk was "misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case". 6 It is not necessary for present purposes to explore the limits of jurisdictional error available to an applicant in such circumstances as the present; as McClellan CJ at CL explains, the Chief Judge made no error of the kind sought to be identified by the applicant. 7 In relation to the approach taken by the Chief Judge, the complaint centred on the way in which his Honour had directed his attention to factors which might be relevant in making an order under s 10(1)(b) of the Sentencing Procedure Act. In this regard, the applicant sought to call in aid comments in the judgment of Windeyer J in the High Court in Cobiac v Liddy [1968] HCA 26; 119 CLR 257, dealing with what was described as "similar but not entirely identical statutory language to that of s 10". The passage relied on is of no assistance, given a proper understanding of the reasons of the Chief Judge, as explained by McClellan CJ at CL. However, it is informative to note the differences between s 10 and the section of the Offenders Probation Act 1913-1953 (SA) in issue in Cobiac. Section 4 of the latter Act provided: "Where any person is charged before a court of summary jurisdiction with an offence punishable by such court, and the court thinks that the charge is proved, but is of opinion that, having regard to – (a) the character, antecedents, age, health or mental condition of the person charged, or (b) the trivial nature of the offence, or (c) the extenuating circumstances under which the offence was committed, it is expedient to exercise any of the powers conferred by this section, the court may – I without convicting the person charged dismiss the information or complaint." 8 A comparison with s 10 (set out at [24] below), reveals the common ancestry of the provisions. However, whereas the South Australian provision was clear in its structure and operation, that clarity has been lost in the redrafting of s 10. Section 10 is relevantly broken into three parts, the first conferring a power to make an order of a particular kind; the second prescribing that the order "may be made" if the court is satisfied of certain matters, although not stating that the court must be so satisfied to make such an order, and the third identifying factors which, in considering whether to make such an order, the court "is to have regard to". While the logic of the new structure is apparent, its effect is obscured. 9 Section 4 required that the court be of opinion that it was expedient to proceed without convicting the person; s 10(2)(a), suggests an order may be made under sub-s (1)(b) if "it is inexpedient to inflict any punishment (other than nominal punishment)" or if it is "expedient to release the person on a good behaviour bond". Neither of these conditions identifies criteria for not proceeding to conviction and it does seem unlikely that the court would discharge a person on condition that he or she enter in to a good behaviour bond unless satisfied that it was expedient to do so. (It is not necessary to consider how sub-ss (1)(c) and (2A) operate together.) 10 Further, to say that a court "is to have regard to" certain factors (see sub-s (3)), suggests that these are mandatory considerations. However, they are really conclusions reached by the court in the course of its considerations. As is clear from s 4 of the South Australian Act, a critical question for the court may be whether the nature of the offence can properly be described as "trivial" and whether the circumstances in which it was committed were in fact "extenuating circumstances". Properly understood, the court is not to "have regard to" those factors, but to determine whether those factors exist. Finally, it seems that these are not in truth mandatory considerations, because par (d) includes "any other matter that the court thinks proper to consider". It is not meaningful to make that a mandatory consideration. Again the purpose is to ensure the court considers the full range of factors it considers relevant. 11 Despite its form, s 10 should be understood as having the same general effect as s 4 of the South Australian Act. That is, it will not be expedient for the Court to release a person guilty of an offence without proceeding to conviction unless one or more of the factors set out in sub-s (3)(a), (b) or (c) is satisfied or there are other circumstances, not clearly fitting within those characteristics, which would justify such a course. Thus, a court now has a broader discretionary power than in the past; relevantly for the question of jurisdictional error, there is no statement of impermissible considerations. 12 There is no doubt that the Chief Judge did consider relevant aspects of the applicant's character, antecedents, age, health and mental condition. He also considered factors which might fall within par (d), namely the potential consequences for the applicant if a conviction were recorded. His Honour's discussion of the particular offence, and the deliberate nature of the conduct in committing it, were clearly relevant to a consideration of whether it was trivial in nature and whether the circumstances of its commission were extenuating. In holding against the applicant, his Honour did not use that language. He did not need to. It is beyond doubt that the factors he considered were all material and that he did not place material weight upon any factor which was unavailable for consideration, according to law. 13 For these reasons, in addition to those given by McClellan CJ at CL, the orders dismissing the summons and requiring the applicant to pay the respondent's costs as made by this Court on 4 June 2010, were appropriate. 14 McCLELLAN CJ at CL: The applicant sought an order that this Court quash a decision made by the Chief Judge of the District Court dismissing an appeal which the applicant made from a sentence imposed on him in the Local Court. The matter was heard by this Court on 4 June 2010 when orders were made dismissing the summons with costs and it was indicated that reasons would be published in due course. These are my reasons for joining in the Court's orders. 15 The applicant, Jaron Hoffenberg, pleaded guilty in the Local Court to one count of intentionally or recklessly destroying or damaging property contrary to s 195(1)(a) of the Crimes Act 1900; namely a glass shopfront window of premises described as "Jews for Jesus" at 576 Oxford Street, Bondi Junction. He was further charged with and pleaded guilty to one count of behaving in an offensive manner in a public place contrary to s 41 of the Summary Offices Act 1988 (NSW) and one count of exposure of oneself wilfully and unseemingly in a public place contrary to s 5 of the Summary Offences Act 1988 (NSW). 16 The Local Court magistrate convicted the applicant of the damage to property offence and placed him on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Act") to be of good behaviour for 12 months. The magistrate disposed of the other matters pursuant to s 10 of the Act and without proceeding to a conviction, imposed a bond requiring the applicant to be of good behaviour for 2 years. 17 The applicant appealed his sentence, in relation to the damage to property offence, to the District Court in accordance with Part 3, Division 1 of the Crimes (Appeal and Review) Act 2001 (NSW). Section 17 of that Act provides that "an appeal against sentence is to be by way of rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings." Section 20(2) provides that the Court may determine the appeal by either setting the sentence aside, varying the sentence or dismissing the appeal. 18 The applicant submitted to the District Court that in relation to the property offence his conviction should be set aside and instead an order should be made pursuant to s 10(1)(b) of the Sentencing Act. The result would be that the applicant would be required to enter into a bond to be of good behaviour but no conviction would be recorded against him. 19 The appeal to the District Court was heard by the Chief Judge who declined to accept the applicant's submission. In the course of considering that submission, his Honour gave careful consideration to the circumstances of the offence including whether or not it was motivated by religious intolerance but concluded that it was not. Having excluded that issue his Honour considered the nature of the offending and concluded that the applicant had acted deliberately. His Honour said: "The question then comes down to one of whether or not it was a deliberate act and how far it was caused by his intoxication. … It clearly was a deliberate act. He was urinating on the door. The magistrate has not convicted him in respect of those matters but has convicted him on the one matter. The reason for doing that obviously was because this act was regarded as a deliberate act of vandalism and there is no doubt about the fact that it was because he and his co-offender walked away. When he found the brick they went back there to the very same premises and smashed the window. 20 His Honour indicated that because the applicant had engaged in a deliberate act of vandalism, in his opinion the offence would normally result in the recording of a conviction. However, prior to arriving at his decision the Chief Judge considered the particular circumstances of the applicant and the consequences that might flow to him if the conviction was maintained, including any impact upon his future university studies in engineering because of his desire to complete his degree in America. His Honour recognised that a conviction would raise difficulties for the applicant in some jurisdictions although it would not be an absolute bar to him completing his degree or obtaining employment. His Honour weighed these matters and concluded that "in all those circumstances it would not be appropriate to exercise a discretion". His Honour dismissed the appeal and confirmed the orders made by the magistrate. 21 The applicant submitted to this Court that the decision made by the Chief Judge was affected by jurisdictional error. It was submitted that the Chief Judge applied an incorrect statutory test when exercising the Court's "jurisdiction" pursuant to s 10 of the Sentencing Act. It was submitted that his Honour misconceived the nature of the function he was required to perform under that section by first finding that the applicant's conduct was deliberate and then, and for that reason alone, deciding that the discretion provided by s 10 was not available to be exercised in the applicant's favour. The jurisdictional error was submitted to be of the nature discussed by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Kirk v Industrial Relations Commission (NSW) & Anor (2010) 239 CLR 531; (2010) 262 ALR 569 ("Kirk") at [72] being a misconstruction of the statutory provisions and accordingly a misconception by his Honour of the nature of the Court's function. 22 The relevant portion of counsel's written submission was as follows: "Instead of first making a finding whether the Claimant came within any of the criteria in s 10(3) and then proceeding to balance those matters against the Claimant's objective level of criminal responsibility ultimately deciding the matter within the control of s 10(2)(b); his Honour first found deliberateness and then treated deliberateness as a general presumption against the exercise or operation of any of the mitigating factors in s 10(3). In short, his Honour approached the discretionary process in s 10 in reverse order, put in another way, the Court misunderstood its statutory task. His Honour first found that: 'The question then comes down to one of whether or not it was a deliberate act and how far it was caused by his intoxication.' He then proceeded to find that the act of wilful damage was indeed 'deliberate.' Deliberateness was merely one of the background factors relevant to the discretionary exercise in s 10(1)(b) and (2)(b) it was not controlling of the Court's jurisdiction in s 10 in the sense of acting as a general presumption against any findings of the kind set out in s 10(3)." 23 To my mind the applicant's submission is misconceived. The submission was predicated upon the assumption that the Chief Judge was exercising "jurisdiction" under s 10 of the Sentencing Act and that in so doing his Honour "misunderstood the statutory task before him" (see Craig v South Australia (1995) 184 CLR 163 at 179). The submission fails to appreciate that when considering the appeal, his Honour was exercising the jurisdiction provided by Division 1 of Part 3 of the Crimes (Appeal and Review) Act 2001. Subdivision 2 of Part 3 provides for the determination of those appeals, the powers of the court being provided by s 20(1) in respect of an appeal against conviction and 20(2) with respect to an appeal against sentence. Sentence is defined in s 3 of the Act to mean an order made by a Local Court. When exercising those powers the District Court must give consideration to all relevant matters including, in relation to sentence, whether or not it is appropriate to dispose of the matter pursuant to s 10 of the Sentencing Act. Because in this case the issue raised in the appeal was confined to whether an order pursuant to s 10 should have been made, rather than a conviction entered, his Honour confined his consideration to that issue rather than giving consideration to other matters which would have been relevant if a fine or custodial sentence had been submitted to be appropriate. This was the appropriate course. 24 Section 10 of the Sentencing Act is in the following terms: "10 Dismissal of charges and conditional discharge of offender (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders: (a) an order directing that the relevant charge be dismissed, (b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years, (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program. (2) An order referred to in subsection (1) (b) may be made if the court is satisfied: (a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or (b) that it is expedient to release the person on a good behaviour bond. (2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person. (2B) Subsection (1) (c) is subject to Part 8C. (3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition, (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, (d) any other matter that the court thinks proper to consider. (4) An order under this section has the same effect as a conviction: (a) for the purposes of any law with respect to the revesting or restoring of stolen property, and (b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and (c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property. (5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence." 25 Accordingly, pursuant to s 10(3), his Honour was required to consider "the trivial nature of the offence." When considering that issue his Honour, in my view correctly, considered whether the applicant's actions were deliberate, in the sense of considered, pre-meditated or deliberated upon. His Honour took the view, as he was entitled to do, that a deliberate act of vandalism placed the nature of the offence beyond the trivial and may, depending on all the circumstances, deny an offender the benefit of an order pursuant to s 10. 26 Having made this finding his Honour considered the relevant personal circumstances of the applicant referred to in s 10(3) and in particular, the impact of a conviction on his future prospects before reaching his conclusion: see s 10(3)(d). His Honour determined that the personal circumstances of the applicant were not such that it was appropriate to make a s 10 order in relation to a deliberate act of vandalism. 27 By approaching his decision in this manner, his Honour discharged his obligation to consider the matters raised by s 10(3) of the Sentencing Act and in so doing carried out the task required of a sentencing judge (see R v Dodd (1991) 57 A Crim R 349 at 354; R v Whyte (2002) 55 NSWLR 252 at [156]-[158]). 28 As the passage which I have extracted from the applicant's written submissions indicated, he submitted that having first determined that the applicant's actions were deliberate his Honour erroneously determined that that fact alone was a bar to the exercise of the discretion in s 10 in the applicant's favour. It was submitted that this was an error of process of the character identified in Kirk. Whether an error is jurisdictional or an error within jurisdiction can be, as Kirk makes plain, a difficult question (see the discussion in Craig v South Australia (1995) HCA 58; (1995) 184 CLR 163 considered in Kirk at [66]ff). However, critical to the decision in Kirk was the fact that the error made by the Industrial Commission was an error which had the consequence that the Commission made an order when it had no power to do so. The same cannot be said in the present case. 29 In any event, for the reasons I have indicated, there was no error in the deliberative process followed by the Chief Judge. Accordingly, I joined in the orders of the Court dismissing the summons 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. 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