Supreme Court New South Wales Medium Neutral Citation: Roylance v Director of Public Prosecutions (NSW) [2018] NSWSC 933 Hearing dates: 20 June 2018 Date of orders: 20 June 2018 Decision date: 20 June 2018 Jurisdiction: Common Law Before: Bellew J Decision: (1) Pursuant to pt 51B r 6(2)(a) of the Supreme Court Rules 1970 (NSW) the time for the plaintiff to bring an appeal against the decision of the Local Court at Byron Bay on 22 August 2017, in the criminal proceedings entitled Police v Lauren Roylance ("the decision") be extended to 21 March 2018, that being the date on which the summons commencing the proceedings was filed. (2) Pursuant to s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW) the plaintiff's appeal on a question of law alone is allowed. (3) Pursuant to s 55(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) the decision of the Magistrate of 22 August 2017 is set aside and the proceedings the subject of this appeal are remitted to the Local Court at Byron Bay for re-determination according to law and in conformity with these reasons. (4) There is no order as to the costs of the appeal. (5) The summons filed by the plaintiff seeking leave to appeal is otherwise dismissed. Catchwords: PRACTICE AND PROCEDURE – Appeal from Local Court – Where plaintiff charged with possession of prohibited drugs and elected to have the proceedings dealt with in her absence – Where plaintiff filed a written notice of pleading setting out the circumstances of the offending and annexing character references – Where proceedings dealt with ex-parte and fines imposed – No reference to testimonial material relied upon by the plaintiff – No indication of how or why the decision was reached that the plaintiff should be convicted and fined – Obligation to provide proper reasons extends to reasons for imposing sentence – Reasons inadequate – Error conceded by Director of Public Prosecutions – Appeal allowed – Matter remitted to Local Court Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Supreme Court Rules 1970 (NSW) Cases Cited: Dee Why Auto Clinic v Roads and Maritime Services [2017] NSWSC 377 Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492 Poliakov v Magistrate Andrew George [2009] NSWSC 1133 R v JCE [2000] NSWCCA 498; 120 A Crim R 18 Category: Principal judgment Parties: Lauren Lucy Roylance – Plaintiff Director of Public Prosecutions (NSW) – Defendant Representation: Counsel: K Ginges – Plaintiff M England – Defendant Solicitors: Aulich Criminal Law – Plaintiff Solicitor of Public Prosecutions (NSW) – Defendant File Number(s): 2018/90371 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court, Byron Bay Jurisdiction: Criminal Date of Decision: 22 August 2017 Before: Magistrate Elliott Judgment – ex tempore (revised) 1. By a summons dated 21 March 2018, the plaintiff seeks a number of orders arising out of a decision made at the Byron Bay Local Court on 22 August 2017. For present purposes it is necessary for me to refer only to paragraph 3 of the summons which seeks an order allowing an appeal against the Court's decision. 2. I have had the benefit of reading the comprehensive and helpful written submissions provided by both parties in advance of the hearing this morning. Counsel for the first defendant in the proceedings, the Director of Public Prosecutions (NSW), has conceded that an error of law has been established and that the principal order sought by the plaintiff, as well as a number of consequential orders, should be made. 3. That concession was, in my view, an appropriate one and I propose to make the orders upon which the parties have agreed. However before doing so, and particularly given the nature of the issue which was raised by the plaintiff in bringing the proceedings, it is necessary that I state my reasons for coming to that view. 4. On 22 July 2017 the plaintiff was detected by police at the "Splendour in the Grass Music" Festival carrying what was described as a small quantity of illicit drugs for personal use. When stopped by police she made full admissions as to her possession of those drugs and was issued with a Court Attendance Notice setting out two charges of possessing a prohibited drug. Both of those charges were brought pursuant to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The first alleged that the plaintiff had in her possession a prohibited drug, to wit 3, 4-Methylenedioxymethamphetamine. The quantity of that drug was constituted by some tablets in her possession. The second charge alleged the possession of a small quantity of cocaine in a powder form. 5. At the time of her apprehension, and in addition to being issued with a Court Attendance Notice, the plaintiff was also issued with a written notice of pleading pursuant to s 182 of the Criminal Procedure Act 1986 (NSW). She subsequently completed that document and forwarded it to the Local Court, thus enabling the matter to be dealt with in her absence. 6. In setting out the matters that she asked the Magistrate to take into account, the plaintiff's notice of pleading stated the following: "I am a 21 year old teaching student at the University of Canberra. I work part-time at a local cafe and live at home, but I support myself. At the Splendour in the Grass on Saturday (22.07.2017) I was caught with possession of prohibited drug. This was extremely out of character for me and I have character references from my boss and my mentor teacher...working alongside with from 2014 to present." 1. That document was forwarded to the Court, along with the character references to which the plaintiff referred. Those references suffered from a number of shortcomings. They included the fact that one of them did not, on its face, disclose that the author was aware of the use to which the reference was to be put. Nevertheless, the references were relied upon by the plaintiff, and she sought that they be taken into account on sentence. 2. The matter came before the Magistrate at the Bryon Bay Local Court on 22 August 2017. The affidavit of Thomas Xavier Taylor of 21 March 2018 which was read in support of the summons filed in this Court annexes a number of documents, including a transcript of the proceedings before the Magistrate. That transcript records a number of formal matters, including the date of the proceedings, the title of the case and a short description of the offences. It also records the appearance of a Police Prosecutor on behalf of the informant, along with the fact that there was no appearance of the plainitff. Beyond that, the transcript is limited to the following: "HIS HONOUR: Lauren Lucy Roylance, she's written in and she's pleading guilty. She's provided some references. In each case she is convicted, in each case she is fined $330.00. Obviously inserting it into her body in that fashion indicated an intent to try and avoid detection." 1. The Magistrate's concluding observation was obviously a reference to the plaintiff's method secretion of the drugs. In any event, what is set out at [8] above constitutes the entirety of the Magistrate's reasons for his decision to record a conviction and impose a fine in each case. 2. The principal submission advanced on behalf of the plaintiff before this Court was that the Magistrate's reasons were inadequate. This, it was submitted, constituted an error of law. There were other submissions made by the plaintiff which were based on asserted errors of mixed fact and law but it is not necessary for me to determine those issues. 3. The written submissions of the parties summarised the legal principles regarding the obligation of a judicial officer to provide reasons for his or her decision. The following summary of those principles, which I have drawn from the written submissions filed on behalf of the Director, are set out in a number of decisions: see for example Dee Why Auto Clinic v Roads and Maritime Services [2017] NSWSC 377 at [44] and following; Poliakov v Magistrate Andrew George [2009] NSWSC 1133 at [31] and following; Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492 at [53] and following. 4. A judicial officer is obliged to give reasons for his or her decision. As a general proposition that will require a record of the facts upon which the conclusion is based, and the process of reasoning by which the conclusion is reached. Failure to provide adequate reasons is an error of law. What is adequate must be assessed according to the circumstances of each individual case. 5. There is a need to make proper allowance for ex-tempore decisions delivered in a busy Local Court which has an extremely heavy workload. An appellate Court must read the reasons fairly, making due allowance for the circumstances in which they were delivered, and without overly scrutinizing them. An appellate Court must also recognise the desirability of matters in a busy Local Court being determined expeditiously. Proper allowance must also be made for cases that are heard on an ex-parte basis which are often dealt with informally. 6. In the context of the present case, it is also important to recognise that the obligation of a judicial officer to give reasons extends to sentence proceedings. In R v JCE [2000] NSWCCA 498; 120 A Crim R 18 Fitzgerald JA (commencing at [19]) made a number of observations as to that obligation. His Honour observed that the duty of a sentencing Judge to give reasons for sentence extends to a duty to explain his or her decision, and that this may require discussing sentencing options, and giving reasons as to why particular options were not adopted. That is not to say that it will be necessary for every possibility to be discussed in every case. However, an obligation remains upon a sentencing Judge to explain the reasons why he or she imposed the sentence that was imposed. 7. In the present case the proceedings against the plaintiff were dealt with on an ex-parte basis, following which the Magistrate delivered ex-tempore reasons. Even making allowance for those circumstances, the Magistrate remained under a duty to give reasons in a way which expressed his findings clearly, and which enabled the parties to understand the basis for his decision to record a conviction and impose a fine in each case. In my view, the reasons do not satisfy that test. There is a passing reference to the character references relied upon by the plaintiff, but there is no indication of how (if at all) that material was taken into account. Perhaps even more fundamentally, it is not apparent from the reasons how and why the Magistrate determined that it was appropriate to impose a fine of $330.00 in each case. It would not be possible for either party to determine the basis upon which the Magistrate reached his decision by reading the reasons. 8. There was a suggestion in the written submissions of the plaintiff that the Magistrate ought to have been on notice that the plaintiff was seeking a disposition of both matters pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Whilst I do not accept that submission, it remains the case that in my view the reasons of the Magistrate are inadequate. I have reached that view in circumstances where I have given the greatest possible weight to the workload of the Local Court, and the reduced formality with which ex-parte hearings are often conducted. 9. Having come to that conclusion, it is unnecessary for me to deal with the remaining issues raised by the plaintiff. It is appropriate in those circumstances, even though the matter will be remitted to the Local Court, that the summons filed by the plaintiff be otherwise dismissed. It will be clear from my reasons that I have come to the conclusion that this appeal ought be allowed on the basis that the Magistrate's reasons were not adequate. On remittal, the question of the appropriate sentence, including consideration of any submission which might be made that no conviction be recorded, will obviously be a matter for the Magistrate to determine. 10. The parties have agreed that in all of the circumstances there should be no order as to the costs of the proceedings before this Court. 11. I therefore make the following orders: 1. Pursuant to pt 51B r 6(2)(a) of the Supreme Court Rules New South Wales 1970 (NSW) the time for the plaintiff to bring an appeal against the decision of the Local Court at Byron Bay on 22 August 2017 in the criminal proceedings entitled Police v Lauren Roylance ("the decision") be extended to 21 March 2018, that being the date on which the summons commencing the proceedings was filed. 2. Pursuant to s 52(1) of the Crimes (Appeal and Review) Act 2001 the plaintiff's appeal on a question of law alone is allowed. 3. Pursuant to s 55(1)(b) of the Crimes (Appeal and Review) Act 2001 the decision of the Magistrate of 22 August 2017 is set aside and the proceedings the subject of this appeal are remitted to the Local Court at Byron Bay for re-determination according to law and in conformity with these reasons. 4. There is no order as to the costs of the appeal. 5. The summons filed by the plaintiff seeking leave to appeal is otherwise dismissed. ********** 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: 10 July 2018