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

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

The Magistrate's refusal to revoke the s 12 bond on the basis of effluxion of time constituted an error of law, as s 98(3) requires the bond be revoked unless a breach is trivial or there are good reasons for excusing it; setting aside the bond order also requires setting aside the suspended sentence imposed for drug possession due to s 12(2).

Parties
Plaintiff: Director of Public Prosecutions (NSW); First Defendant: Brodie Gene Dwyer; Second Defendant: Local Court of New South Wales
Jurisdiction
Australia
Judgment Date
11 December 2017
Procedural Posture
Local Court Appeal / Judgment on Appeal Against Magistrate's Orders
Outcome
Orders of Magistrate set aside; proceedings remitted to Local Court; no order as to costs.
Legal Topics
Good Behaviour Bonds, Breach of Bond, Suspended Sentences, Appeal From Local Court, Error of Law
Criminal Law Appeals Good Behaviour Bonds Breach of Bond Suspended Sentences Appeal From Local Court Error of Law

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Parties

Director of Public Prosecutions (NSW)

Plaintiff

Brodie Gene Dwyer

First Defendant

Local Court of New South Wales

Second Defendant

Procedural Posture

Local Court Appeal / Judgment on Appeal Against Magistrate's Orders

Legal Issues

  1. 1 Whether the Magistrate erred in refusing to revoke s 12 bond in circumstances required by s 98(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  2. 2 Whether the sentence imposed for possession of prohibited drug was affected by error due to failure to comply with s 98(3)
  3. 3 Consequential effect on suspended sentence due to unresolved bond breach

Ratio Decidendi

The Magistrate's refusal to revoke the s 12 bond on the basis of effluxion of time constituted an error of law, as s 98(3) requires the bond be revoked unless a breach is trivial or there are good reasons for excusing it; setting aside the bond order also requires setting aside the suspended sentence imposed for drug possession due to s 12(2).

Court Disposition

Orders of Magistrate set aside; proceedings remitted to Local Court; no order as to costs.

Orders

  • Order pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside the Magistrate's orders of 30 June 2017 regarding the s 12 bond and sentence for possession of prohibited drug.
  • Order pursuant to s 69 of the Supreme Court Act 1970 (NSW) remitting proceedings to the Local Court to be dealt with according to law.