Director of Public Prosecutions v Brasher [2016] NSWSC 1707

Director of Public Prosecutions v Brasher [2016] NSWSC 1707

The Magistrate erred in law by failing to re-sentence the First Defendant after revoking the community service order, misconstruing his jurisdiction under s 115(3) of the Crimes (Administration of Sentences) Act and failing to take into account relevant sentencing principles such as deterrence and prior convictions.

Parties
Plaintiff: Director of Public Prosecutions (NSW); First Defendant: John Robert Brasher; Second Defendant: The Local Court of New South Wales
Jurisdiction
Australia
Judgment Date
07 December 2016
Procedural Posture
Judicial Review / Principal Judgment
Outcome
Application for judicial review allowed; order revoking community service order quashed; declaration of legal error; matter remitted for re-sentencing; costs awarded to Plaintiff.
Legal Topics
Revocation of Community Service Order, Resentencing, Failure to Attend Community Service Work, Breach of Bond, Jurisdictional Error, Certiorari, Mandamus
Criminal Law Judicial Review Revocation of Community Service Order Resentencing Failure to Attend Community Service Work Breach of Bond Jurisdictional Error Certiorari +1 more

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Parties

Director of Public Prosecutions (NSW)

Plaintiff

John Robert Brasher

First Defendant

The Local Court of New South Wales

Second Defendant

Procedural Posture

Judicial Review / Principal Judgment

Legal Issues

  1. 1 Whether the Magistrate erred in law by failing to re-sentence the offender after revoking the community service order
  2. 2 Whether irrelevant considerations were taken into account
  3. 3 Whether relevant considerations were omitted

Ratio Decidendi

The Magistrate erred in law by failing to re-sentence the First Defendant after revoking the community service order, misconstruing his jurisdiction under s 115(3) of the Crimes (Administration of Sentences) Act and failing to take into account relevant sentencing principles such as deterrence and prior convictions.

Court Disposition

Application for judicial review allowed; order revoking community service order quashed; declaration of legal error; matter remitted for re-sentencing; costs awarded to Plaintiff.

Orders

  • Order that the record of proceedings in Wyong Local Court on 6 January 2016 against the First Defendant for breach of 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...
  • 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.