Jeffrey v Schubert & Anor [2012] VSC 144: sentencing indications available only where summary jurisdiction applies

On review, Forrest J ruled in Jeffrey v Schubert & Anor [2012] VSC 144 that s 60 of the Criminal Procedure Act 2009 only empowers a magistrate to give a sentencing indication where the Magistrates’ Court has jurisdiction. An accused who requests a sentencing indication for indictable offences triable summarily (IOTS) in the Magistrates’ Court must first consent to the charges being heard summarily.

In Jeffrey v Schubert, the accused was charged with possessing and trafficking amphetamine. A committal hearing took place before Magistrate Bolger in September 2011. Despite the consent of the prosecution, her Honour remained unconvinced that the circumstances allowed for a sentencing indication to be given at a committal, and refused to give an indication.

A request for a summary hearing of a matter listed in the committal stream must be made in writing: Chief Magistrates’ Direction No 3 of 2008. This had not been done. To the contrary, it had been flagged to the magistrate that, should the proposed indication not be successful in resolving the matter, the committal hearing would proceed with the cross-examination of witnesses. If committed to trial, the charges would proceed to the County Court.

In these circumstances it was doubtful that the Magistrates’ Court had jurisdiction to give a sentencing indication, even though the charges were of a type that could be heard IOTS. The provisions relating to sentencing indications are found at s 60 of the Criminal Procedure Act 2009.

60. Court may give sentence indication

At any time during a proceeding for a summary offence or an indictable offence that may be heard and determined summarily, the Magistrates’ Court may indicate that, if the accused pleads guilty to the charge for the offence at that time, the court would be likely to impose on the accused-

(a) a sentence of imprisonment that commences immediately; or

(b) a sentence of a specified type.

On review the plaintiff (the accused in the committal) sought an order in the nature of mandamus that the magistrate must consider giving him the sentencing indication he had asked for. The Supreme Court determined that the magistrate had been correct in refusing the request for an indication.

Forrest J [at 25 and 26]:

I accept that, on its face, s 60 may permit a sentence indication in the course of a committal hearing where summary jurisdiction has not yet been accepted by the Magistrates’ Court. In this case, the proceeding was in relation to indictable offences which were capable of being “heard and determined summarily” as provided by ss 28 and 29 of the CPA. Notwithstanding this conclusion, I am of the opinion that s 60 was only intended to apply to an indictable offence which could be heard and determined summarily in circumstances where the Magistrates’ Court had in fact the power (at the time of the application for a sentence indication) to determine that offence summarily.

In other words, the constituent parts necessary for a summary hearing in such a case: (a) the relevant offence falls within s 28; (b) a determination by the magistrate to hear the matter summarily; and (c) the consent of the accused, must be present before the sentence indication provisions of s 60 and s 61 are engaged.

An accused who requests a sentencing indication in the Magistrates’ Court must, it appears, consent to IOTS charges being heard summarily. This raises a number of procedural issues. For example, when a sentencing indication for an indictable offence triable summarily is requested, it seems a magistrate must first satisfy themselves that the matter can, and is appropriate to, be dealt with summarily. If not, the indication could not be given.

It’s also unclear what would occur if an accused sought an indication, received it, and then decided they wanted their jury trial.

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