DPP v Batich [2013] VSCA 53 — summary determination of charges

On By Kyle McDonaldIn Uncategorized

DPP v Batich [2013] VSCA 53 considered a County Court case where the sentencing judge held he should refer an offence of glassing, charged as recklessly causing serious injury, back to the Magistrates’ Court.

Some indictable offences can be determined summarily, that is, before a court of summary jurisdiction, or before a trial court on indictment (Our UK colleagues refer to such offences as either-way offences).

There are two pathways to summary determination.

The first and most common way is where the accused applies for (and is granted) a summary hearing at the Magistrates’ Court, under Criminal Procedure Act 2009 ss 28 and 29. (These provisions are pretty similar to the UK guidelines found in Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870 available here.)

The second, and far less common, is where the accused applies for and is granted a transfer of the charge from a trial court back to the Magistrates’ Court for summary determination, under Criminal Procedure Act 2009 s 168. (The two sections are dopplegängers.)

The trial judge used that section to remit the offence to the Magistrates’ Court.

Initially, the judge had canvassed the possibility of imposing a suspended sentence, but was reminded that it was no longer possible for a significant offence because of Sentencing Act 1991 s 27(2B). He also considered a community corrections order (CCO) and youth justice centre (YJC) order. He was aware that the Court of Appeal said in Winch that ordinarily, glassing cases would attract a jail sentence.

The DPP unsuccessfully reviewed that decision, first in the Supreme Court — see DPP v Batich [2012] VSC 524, and then to the Court of Appeal, asking:

1. In making the order transferring the charge in Indictment B13063849 to be transferred to the Magistrates’ Court at Melbourne to be heard and determined summarily:

A. Did his Honour make the order for an improper purpose, namely, to circumvent the operation of S.27(2B) of the Sentencing Act 1991, which prohibited him from imposing a suspended sentence in respect of a charge of recklessly cause (sic) serious injury, which required the imposition of a custodial sentence, the determination of which he was seized of in the proceedings before him?

B. Did his Honour in making the order take into account an irrelevant consideration, namely that he had no jurisdiction to pass a suspended sentence in respect of the charge of recklessly causing serious injury, where a custodial sentence was called for, the determination of which he was seized of in the proceedings before him?

C. Has his Honour refused to exercise his jurisdiction to sentence the Respondent?

2. Is his Honour’s order an abuse of process of the County Court?

The Court of Appeal held that the answers to every question should be ‘no’.

At [31] – [44], it rejected the argument that the entire range of sentences that open in this case had to be available to the Magistrates’ Court, but did accept transfer would not be appropriate if only the very bottom of the acceptable sentencing range fell within the Magistrates’ Court jurisdiction. (The Magistrates’ Court may only impose up to two years’ jail on any single offence, and five years’ jail in aggregate.)

Further, in this case, the youth of the offender, the relevance of possible self-defence (at least as a mitigatory consideration, rather than a defence to the charge), lack of criminal history, good prospects of rehabilitation and vulnerability if sentence to adult jail, meant the County Court could properly distinguish the cases relied on by the DPP in arguing that only an immediate jail sentence of more than two years was appropriate.

Although Criminal Procedure Act 2009 s 168(3) meant the Magistrates’ Court couldn’t send the charge back to the County Court — no curial ping-pong here — equally, the remitter didn’t bind the Magistrates’ Court. It could conclude a wholly suspended sentence was appropriate; but equally, it could also conclude that a partial or full jail sentence was necessary, albeit up to no more than 2 years.

Next week, I’ll discuss the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Bill 2013, which proposes removing the County Court’s ability to remit a significant offence to the Magistrates’ Court. (It doesn’t say anything about serious offences, because none of them are triable summarily.)

Despite this, I think Batich will remain an important criminal case because:

  • it highlights at [46] the point raised in Winch (and other glassing cases) that, “[T]he statements in Winch do not lay down a mandatory minimum sentence, rather in that case the court made a statement of principle. Each case will need to be considered individually albeit within the context of current sentencing practices”; and
  • it provides the first judicial consideration of s 29 and 168 considerations for summary determination, clarifying the importance of available range of sentence.
Batich is consistent with Hansford v Judge Neesham [1995] 2 VR 233 — which, interestingly enough, wasn’t mentioned in Batich —but arguably goes one step further it expressly stating it’s not necessary for all of the proper sentencing range to fall within the jurisdictional limits of the Magistrates’ Court. It perhaps overturns the effect of Scrofani v Duke, SC V, 25 Sep 1991, Ashley J, which upheld a refusal of summary jurisdiction though recognising that the appropriate sentence might fall within that open to the Magistrates’ Court.
The only uncertainty I can see that might arise from Batich is where the Court of Appeal said that transfer (and arguably by implication, first-instance granting of summary jurisdiction) is not appropriate if only the very bottom of the proper sentencing range falls within the Magistrates’ Court jurisdiction. The potential for disagreement over what is the ‘very bottom’ of a sentencning range might lead to argument over what is appropriate for summary jurisdiction, though most cases tend to be clearly in or out.

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