Stoneham v Director of Public Prosecutions (NSW) [2021] NSWSC 735

Stoneham v Director of Public Prosecutions (NSW) [2021] NSWSC 735 · Read the judgment on AustLII

Catchwords: Local Court sentences – jurisdictional limit – adjourning to circumvent limits

This single-judge decision provides that it will be an error if a Magistrate adjourns a sentence to get around the Local Court 5-year jurisdictional limit for offenders already serving a sentence.

The plaintiff was serving a variety of sentences imposed by the District Court amounting to 6 years. Whilst on parole towards the end of that period, he committed fresh serious driving offences. The DPP decided to leave those fresh charges in the Local Court.

By the time the fresh charges came on for sentence, the plaintiff had about six weeks left on the original 6-year District Court sentence. The Magistrate expressed the view that the only appropriate sentence for the fresh charges was fulltime imprisonment, but noted that he was constrained by s 58 of the Crimes (Sentencing Procedure) Act. Broadly speaking (the exact meaning is in issue in this very judgment), that s 58 provides that ordinarily the Local Court cannot impose a new sentence if the combined sentences would result in the offender serving a total of more than 5 years in custody. So, rather than imposing the sentence the Magistrate adjourned the matter until after the District Court sentence had expired, then imposed a new sentence of 3 years and 2 months, with a non-parole period of 2 years. The overall impact was that the plaintiff would be subject to a continuous period of imprisonment of 9 years and 2 months. The plaintiff appealed on bases which essentially asserted that the Magistrate’s decision to adjourn the matter to circumvent s 58 amounted to a jurisdictional error.

The appeal was heard by Ierace J, sitting alone. The respondent conceded that the Magistrate had fallen into jurisdictional error (at [28]), and that accorded with Ierace J’s ultimate finding: The decision to adjourn the sentence in order to defeat the legislative intention in s 58 was not a valid exercise of power. Whilst one could readily appreciate the Magistrate’s concern with the limitations which s 58 imposed, he was nevertheless required to exercise his sentencing discretion within the bounds of s 58 (at [31]).

There had also been an issue about whether s 58 applied from the date that the new Local Court sentence was imposed, as distinct from when it would commence. His Honour considered that s 58 obliges a sentencing magistrate to make their determination as to whether a new sentence of imprisonment would exceed the jurisdictional constraints of the provision as of the date that the sentence is to be imposed (at [33]).

With the increasing number of matters being finalised in the Local Court, this issue will arise more often. Section 58 suffers from pretty inscrutable drafting; the most important thing is that wherever a defendant is already serving a sentence (whether in custody or on parole), and commits a fresh offence, practitioners will need to suffer through reading the section. Then they will need to insist on its application, with a view to ensuring that the effective sentence is less than 5 years – and any attempt to adjourn the proceedings in order to get around that effect should be resisted.