“QUOTEWORTHY” 2003

1. On 4 May 2001 Brian Andrew Sutcliffe filed notice of appeal from an order made in the Trial Division on 1 March 2001, the time for appeal having been extended on his application. On 1 March 2001 a judge had allowed an appeal by the Director of Public Prosecutions on behalf of the prosecutor, an appeal brought under s92 of the Magistrates’ Court Act 1989 from an order made by the Magistrates’ Court on 24 July 2000, dismissing a charge against Mr Sutcliffe for stalking. Stalking is an offence created by s21A of the Crimes Act 1958….

5. As recorded in the judge’s reasons for judgment, the parties were proceeding in the Magistrates’ Court upon an agreed set of facts in respect of which no admissions whatsoever were made on the part of the defendant, Mr Sutcliffe. It was on those agreed facts that the magistrate expressed herself as not satisfied that “this Court has jurisdiction to proceed with this charge of stalking”. It is an essential element of the offence, she observed, “that any course of conduct engaged in, by the defendant, actually did have the effect of arousing apprehension or fear in the victim for her personal safety”, yet on the agreed statement of facts this “can only have occurred in Canada”. (The complainant, it appears, was resident in that country). The magistrate continued that, there being “nothing to displace the presumption that a penal statute will be taken not to have extraterritorial operation”, the charge fell to be dismissed.

6. On the Director’s appeal to the judge under s92, the decision of the magistrate was set aside, as I have said, and the matter remitted for hearing and determination according to law. His Honour was of opinion, not only that the Magistrates’ Court had jurisdiction, but also that, on the agreed facts, the conduct of the defendant, within Victoria, was sufficient to establish an offence under s21A on its proper construction. In his Honour’s view the matter was not so much a question of jurisdiction as one of construction of the statute and, from what has been said to us this morning, that appears now to be common ground.

7. As I see it, the difficulty in granting leave to appeal lies in the fact that the parties have thus far been proceeding upon an agreed statement of facts. Nothing has yet been established against the defendant, for no admissions have been made and no evidence has yet been led. While it might have been appropriate, and I offer no opinion on it, for an appeal to be brought under s92 to the Trial Division, it seems to me altogether different when one of the parties insists upon re-litigating the issues in the Court of Appeal.

8. As a general rule this Court sets its face not only against the fragmentation of criminal proceedings but also against the expression of an advisory opinion. That, it seems to me, is what is being sought here. In my opinion it is time now for the parties to go into evidence and to establish the facts upon which this matter depends. Until they have done so, I cannot see how this proceeding can be characterised otherwise than as an application for an advisory opinion.

9. To return to the test by which leave to appeal is commonly granted or refused. In my opinion there can be no injustice in allowing the decision below to stand unreversed while the facts remain undetermined. It will be time to consider the correctness or otherwise of the decision given in the Trial Division if, when the facts have been found, the defendant is convicted, and if, should a further appeal be carried to the Trial Division, the judge then sees fit to follow and apply the decision given on 1 March 2001. But at this stage the basis upon which the applicant seeks to have us proceed seems to me to be wholly academic. I would refuse leave to appeal.
Per Phillips JA in Sutcliffe v DPP [2003] VSCA 34, Court of Appeal, 7 April 2003.

2. 13. The sentencing judge was careful to limit the effect upon the sentence of the lies advanced by the appellant in the course of the plea. His Honour treated the lies as bearing upon the existence of remorse on the part of the appellant and the need for personal deterrence. He said:

“[I]t is not my function to impose sentences in relation to matters forming the basis of the false information in relation to your RMIT status, nor the false documentation tendered to the court in relation thereto.”
His Honour went on to say that he had taken the circumstances “into account as a clear indication that you have no remorse for your criminal conduct” and added:
“Further, despite arrest, interrogation and presentment thereon in relation to these charges before me, he has not been deterred from engaging in further false representations and deceptions. In that regard I am quite satisfied that personal deterrence is necessary.”

14. In my opinion, the sentencing judge was entitled to use the appellant’s conduct during the plea in the way in which he did. It cannot be denied that a judge sentencing an offender may draw conclusions as to the existence and degree of remorse exhibited by the offender in his demeanour and in evidence. Equally, in my view, the sentencing judge can infer from lies told to him that the offender is not sufficiently remorseful to refrain from practising deceit. Remorse and the need for a sentence to deter the offender from like conduct in future are closely related. In my view, the readiness of the appellant to use fraudulent devices for his personal benefit notwithstanding his arrest and convictions for fraud was properly taken into account by the sentencing judge as relevant to the purpose for which a sentence may be imposed, which is set out in s5(1)(b) of the Sentencing Act 1991, namely to deter the offender from committing offences of the same or a similar character.

15. I would dismiss the appeal.
Per Buchanan JA in R v Asad [2003] VSCA 3, Vic Court of Appeal, 12 February 2003.

3. 21. In the course of presenting their respective submissions, counsel for the appellants placed considerable reliance on the fact that both of their clients had developed an addiction to drugs. Each did so at a relatively early age and each almost certainly became so enmeshed in consequence of the deprivation, abuse or disadvantage to which she had been subjected as a young person. I accept that such experiences and drug addiction itself are capable of producing serious corrosive effects that may continue to influence the conduct of the person concerned well into adulthood and from which, in some circumstances, they may never completely escape. That possibility is one which, in my opinion, must be seriously taken into account for a variety of sentencing purposes. These would include the assessment of the moral culpability of an offender with respect to the commission of a specific offence and therefore could assume relevance when considering the significance to be attributed to the notion of retribution for wrongdoing as a sentencing consideration. Of course, it does not follow that individuals who come before the court with the type of history to which I have referred do not make choices or that they cannot be held fully accountable for conduct in which they voluntarily engage or which may be the ultimate product of deliberate lifestyle choices made by them. However, and obviously, in the determination of an appropriate sentence in an individual case, regard must be had to the particular circumstances of the offender concerned. As Buchanan JA has pointed out, the background against which an offence was committed could also possess relevance when a sentencing judge came to consider the offender’s prospects of rehabilitation. It may indicate the presence of a need to endeavour, through the sentencing process, to protect the public and affect the weight given to specific deterrence in the determination of an appropriate sentence.
Per Vincent JA in R v McKee and Brooks [2003] VSCA 16; (2003) 138 A Crim R 88, Court of Appeal, 27 February 2003.

4. 34. Striking out orders of a different nature to the order under consideration have been held to be interlocutory. There is no doubt on the authorities that the striking out of a statement of claim or other pleading is interlocutory. Likewise, “it has been accepted that an order striking out or dismissing a proceeding on the ground that it is scandalous, vexatious or an abuse of process or because it discloses no reasonable cause of action, is interlocutory”. (See Chernov JA, in Brereton v Sinclair [2000] VSCA 211. para 12; (2000) 2 VR 424; (2000) 118 A Crim R 366).

35. In R v McGowan and Anor [1984] VicRp 78; [1984] VR 1000 Kaye J gave consideration to the effect of an order made by a Magistrate striking out an information under the Magistrates (Summary Proceedings) Act 1975. He held that a magistrate had inherent power to set aside an order striking out an information and to order its re-instatement.

36. The issue as to whether or not an order striking out charges brought in the criminal jurisdiction of the Magistrates’ Court should be considered in the same way as the striking out of proceedings in the civil jurisdiction of the Court has caused me some concern. I can find no authority directly on the point apart from the decision of Kaye J in McGowan referred to above which relates to informations issued under the previous legislation. However, I have little doubt that an order striking out a civil proceeding would not be a final order as it does not dispose finally of the rights of the parties. There is ample authority to demonstrate that civil proceedings the subject of such an order are capable of being re-instated.

37. There is, of course, little doubt that the order striking out the charges against the respondent brought the proceedings before the Magistrate to an end from a practical point of view. This is because the steps required under ss33 and 34 of the Act to have the matter proceed to hearing were no longer capable of being undertaken. Mr McArdle submits that in this sense the practical effect of the order made by the Magistrate is the same as the legal effect. He submits that, “The matter between the parties has been finally determined” in the respondent’s favour. However, it appears to me that I am bound by authority to conclude that the order made by the Magistrate was not a final order and thus is not amenable to appeal pursuant to s92 of the Magistrates’ Court Act. I have come to this conclusion because notwithstanding the practical circumstances which were created by the order of the Magistrate, the order itself does not finally dispose of the rights of the parties in the principal proceedings. The Magistrates’ Court did not determine the matter on its merits. No evidence was called before the Magistrates’ Court as to the merits of the proceeding. The Court did not make any order dealing with the substantive issue leading either to conviction or to dismissal of the charges brought before it. In my view, it is theoretically open for an application to be made to re-instate the proceeding, futile though such an application is likely to be in the present circumstances.

38. The order, not having been a final order, the appropriate course if the applicant was aggrieved about any failure of the Magistrate to exercise his jurisdiction was to seek judicial review pursuant to Order 56 of the Rules of this Court. It follows that the appeal should be dismissed as incompetent.
Per Kellam J In DPP v Sabransky [2002] VSC 143, Vic Sup Ct, 30 April 2002.

5. “Ordinarily, pleas of guilty are to be taken as evidence of some remorse quite apart from the value they have in saving expense and inconvenience to the community. See Siganto v The Queen [1998] HCA 74;  (1998) 194 CLR 656, at 663-664; (1999) 159 ALR 94; (1998) 19 Leg Rep C 1, but they would be worthy of a significant sentencing discount even if the only factor worthy of being given particular weight was the avoidance of expense and inconvenience of a trial. (See R v Duncan [1998] 3 VR 208.) In this case they were early pleas of guilty, made in circumstances of full confessions and co-operation with police, and were supported by other evidence (some of which his Honour elsewhere quoted) that suggested positively that the brothers were remorseful. It would be a very unfortunate impression to convey, and one for which there is no legal basis, that the value to be derived from a plea of guilty as an indicator of remorse is reduced or removed entirely if the offender has prior convictions. It is in the interests of the criminal justice system and of the community generally that offenders with a history of prior offending should be encouraged to admit their guilt at the earliest opportunity, where they are guilty, and to then plead guilty.”
Per Eames JA in R v Tasker [2003] VSCA 190;(2003) 7 VR 128, Vic Sup Ct., Court of Appeal, 28 November 2003.

6. “His Honour described as “profound” the slur which the appellants cast upon the magistrate. He was entirely right in doing so. No holder of any office has a more important duty than the duty of a judicial officer to uphold the rule of law. There can be no clearer breach of that duty than the acceptance of a bribe in return for the grant of a favour which, by virtue of the office, the judicial officer is, in the exercise of his or her authority, in a position to bestow. Such behaviour should be exposed. Those who indulge in it are totally unfit to sit in judgment upon others.

It is vitally important, however, that due recognition be given to the obverse of this proposition. For the very reason that the authority of the law rests on public confidence and that judicial corruption is so serious an offence, false accusations of its commission are “calculated” (that is, likely) to cause profound damage not only to the personal and professional life of the judicial officer against whom they are directed, but also, and more importantly, to the administration of justice itself.”
Hoser & Anor v R, Vic Sup Ct., Court of Appeal, Batt and Vincent JJ A, and Harper AJ A [2003] VSCA 194, 15 December 2003.