Director of Public Prosecutions v Brasher [2016] NSWSC 1707

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v Brasher [2016] NSWSC 1707 Hearing dates: 1 December 2016 Date of orders: 07 December 2016 Decision date: 07 December 2016 Jurisdiction: Common Law Before: Davies J Decision: 1. An order that the record of the proceedings in the Wyong Local Court on 6 January 2016 against the First Defendant for the breach of a Community Service Order imposed on 22 July 2015 for an offence of drive with mid-range prescribed concentration of alcohol be removed into this Court and the order revoking the Community Service Order be quashed.

2. A declaration that Magistrate Wilson erred in law in failing to make any order consequential upon the revocation of the First Defendant's community service order in accordance with s 115(3) of the Crimes (Administration of Sentences) Act.

3. An order that the matter be remitted to the Second Defendant to hear and determine the question of re-sentencing the First Defendant under s 115(3) of the Crimes (Administration of Sentences) Act according to law.

4. An order that the First Defendant pay the Plaintiff's costs of and incidental to the Summons. Catchwords: CRIMINAL LAW – judicial review – Local Court – application to revoke community service order – failure to attend to perform work – only two out of 100 hours completed - offender also called-up on breach of bond imposed at the same time as the community service order – magistrate revoked community service order – no consideration given to penalty to be imposed for offence for which order imposed – failure to have regard to s 115 Crimes (Administration of Sentences) Act 1999 - offender fined $500 in lieu of bond – magistrate irrelevantly considered imposition of fine in lieu of bond when revoking community service order – misapprehension by magistrate as to his jurisdiction – decision legally unreasonable - orders made in the nature of certiorari and mandamus Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Cases Cited: Bonsu v R [2009] NSWCCA 316 DPP (NSW) v Caita-Mandra [2004] NSWSC 1127 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Regina v Nathan Benjamin Morris (14 July 1995, CCA, Unrep) Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) John Robert Brasher (First Defendant) The Local Court of New South Wales (Second Defendant) Representation: Counsel: J E Davidson (Plaintiff) No appearance (First Defendant) Submitting Appearance (Second Defendant)