Director of Public Prosecutions (NSW) v Dwyer [2017] NSWSC 1735

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Dwyer [2017] NSWSC 1735 Hearing dates: 11 December 2017 Decision date: 11 December 2017 Jurisdiction: Common Law Before: Adamson J Decision: 1. An order pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside the following orders:

(i) the order made on 30 June 2017 by his Honour Magistrate Miszalski that no action be taken in relation to the breach of the s 12 bond imposed on the first defendant for the offence of common assault (domestic violence related) by the Local Court at Inverell on 19 July 2012; and,

(ii) the sentence of 12 months' imprisonment (suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and the $2,000 fine imposed on 30 June 2017 upon the first defendant for the offence of possess prohibited drug by Magistrate Miszalski.

2. An order pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the proceedings referred to in order 1 above be remitted to the Local Court to be dealt with according to law.

3. Make no order as to costs. Catchwords: LOCAL COURT APPEAL– magistrate refused to revoke s 12 bond on the basis of effluxion of time – failure to comply with s 98(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – HELD – error of law on the face of the record – decision with respect to bond set aside – decision as to sentence imposed set aside as affected by error of law Legislation Cited: Crimes Act 1900 (NSW), s 61 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A, 12, 98 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Director of Public Prosecutions v Cooke [2007] NSWCA 2; (2007) 168 A Crim R 379 DPP v Nouata [2009] NSWSC 72 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) Brodie Gene Dwyer (First Defendant) Local Court of New South Wales (Second Defendant) Representation: Counsel: BK Baker (Plaintiff) B Wrench (Solicitor) (Defendant)