R v Labaro [2004] ACTSC 24 (7 April 2004)

Last Updated: 23 April 2004

THE QUEEN v MICHAEL LABARO [2004] ACTSC 24 (7 APRIL 2004)

EX TEMPORE JUDGMENT

Crimes Act 1900, s 375

Magistrates Court Act 1930 (ACT), s 90A

No. SCC 3 of 2004

Judge: Gyles J

Supreme Court of the Australian Capital Territory

Date: 7 April 2004

IN THE SUPREME COURT OF THE )

) No. SCC 3 of 2004

AUSTRALIAN CAPITAL TERRITORY )

)

CRIMINAL JURISDICTION )

BETWEEN: THE QUEEN

AND: MICHAEL LABARO

ORDER

Judge: Gyles J

Date of order: 7 April 2004

Date of judgment: 7 April 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The indictment be quashed.

2. Pursuant to s 90A(9) of the Magistrates Court Act 1930, the proceedings before the Magistrates Court be continued at the Magistrates Court, Knowles Place, Canberra, ACT, before Magistrate Fryar at 11.30 am on 3 May next.

3. Bail be continued as before to appear at the Magistrates Court on 3 May as aforesaid.

IN THE SUPREME COURT OF THE )

) No. SCC 3 of 2004

AUSTRALIAN CAPITAL TERRITORY )

)

CRIMINAL JURISDICTION )

BETWEEN: THE QUEEN

AND: MICHAEL LABARO

Judge: Gyles J

Date of order: 7 April 2004

Date of judgment: 7 April 2004

Place: Canberra

REASONS FOR JUDGMENT

1. On 8 April 2003 Michael Labaro was charged with a series of offences following the execution of a search warrant at Room 252 of the Quality Inn, Benjamin Way, Belconnen. There were several other persons present at that time.

2. During the search items of property were found consistent with dealing in heroin and $1,208 in Australian currency was in a wallet in the rear pocket of a pair of pants being worn by Mr Labaro. He made admissions to the police concerning his participation in the sale and supply of heroin from about 25 March 2003 until the time of his arrest.

3. Late the evening before or early on that morning the death had taken place of a young female who was described in the evidence as a client of the drug dealing enterprise that was being conducted from the hotel room.

4. The matter came before me on Monday 5 April when an indictment was presented. The accused was arraigned and pleaded guilty. I then proceeded to receive evidence as to sentence.

5. In the course of submissions it became apparent that I had not received the benefit of adequate material concerning the position of the other persons who were connected with the drug dealing on that evening.

6. This was unsatisfactory. First, it would make parity in sentencing difficult, and secondly, it meant that I would be sentencing in isolation from the facts upon which other defendants might have been sentenced. In the case of a joint enterprise such as this, the evils of fragmented sentencing are well understood. Following my indication to that effect the Crown endeavoured to ascertain and put before me the circumstances material to those other matters. It was not assisted by the circumstance that the informant is currently serving overseas.

7. The short position is that there were six people involved on that evening including the present offender. One was sentenced by Magistrate Fryar on 3 November 2003 and I have the sentencing remarks. I need not set them out. The learned Magistrate was of a view that a sentence of 12 months' imprisonment would be appropriate, reduced to eight months because of co-operation that included being prepared to give evidence against co-offenders. In view of the circumstances, and given the prospects for rehabilitation, the sentence was wholly suspended.

8. Two of the other parties are presently remanded to appear before the Magistrates Court on 3 May 2004. One party has not been charged at all. I have not been provided with any explanation for that. I do have a statement of facts in relation to one of the other parties, which indicates that the present offender Labaro was a principal in the syndicate. That, of course, is not evidence against him of that fact but it does indicate the undesirability of fragmented sentencing in a matter such as this.

9. More importantly for present purposes, I was provided with a copy of the transcript of the proceedings before the learned Magistrate in the course of which the order was made committing the matter to the Supreme Court, as a result of which it came before me. It was relevant and necessary for the learned Magistrate before making that order to consider the operation of s 375 of the Crimes Act 1900 in conjunction with s 90A of the Magistrates Court Act 1930.

10. The practical effect of the combined operation of those provisions was that the matter could not be committed to the Supreme Court unless an opinion were formed that the matter could not properly be disposed of summarily by reference to the particular matters referred to in subsection (8) of s 375. Those particular matters are representations made by the defendant, relevant representations made by the prosecutor in the presence of the defendant, whether the Court is empowered to impose an adequate penalty having regard to the circumstances and, in particular, to the degree of the seriousness of the case and, pursuant to subsection (d), any other circumstances that appear to the court to make it more appropriate for the case to be dealt with on indictment rather than summarily. These considerations are broadly matched in subsection (7) of s 90A of the Magistrates Court Act 1930.

11. In the proceedings before the learned Magistrate there were no relevant representations made by or on behalf of the defendant or the prosecutor in the presence of the defendant that favoured the course of indictment rather than summary disposal. There is of course a statutory limit to the sentences that can be imposed. Subsection (10) of s 375 provides that the Court may not impose a sentence of imprisonment exceeding two years nor a fine exceeding $5,000.

12. Although both the prosecutor and the accused consented to the matter being dealt with summarily, the transcript records the following:

"HER WORSHIP: Well, in fact I recall Ms Andric making the application in relation to bail and I recall vaguely what I said on the last occasion, and that was that it was premature in my view. The Supreme Court saw fit to give Mr Labaro bail on these conditions, and in my view they've interfered in the sentencing process and I have every intention to commit Mr Labaro for sentence to the Supreme Court today. They can do with him what they like there."

I leave out some intervening questions and answers.

"HER WORSHIP: It just seems to me that my hands are now tied by what the Supreme Court's done. And if they want to become involved in that then that's fine, they're entitled to, but - - -

MR PERKINS: I hear what you're saying but it is my instructions to have sentencing proceedings completed in this jurisdiction ...(indistinct)... your Worship.

HER WORSHIP: I know, but I get the final say."

13. That was followed by a formal committal for sentence on all the charges other than a charge in relation to proceeds of crime which was re-listed before the learned Magistrate.

14. It is perfectly clear that in making the order for committal that was made, the learned Magistrate did not form the relevant and necessary opinions pursuant to s 375 of the Crimes Act 1900 and s 90A of the Magistrates Court Act 1930. Indeed, it is apparent that the reason given by the learned Magistrate for committing to the Supreme Court was foreign to, and not in accordance with, either of those provisions. It is, to say the least, unfortunate that, for what appears to have been a capricious reason, the learned Magistrate did not attend to the requirements that the law placed upon her in those circumstances.

15. For the reasons that I have outlined above, it is most inappropriate that this offender be sentenced separately from those other persons involved who have not yet been dealt with. In my view, the order for committal to this court should never have been made and it is doubly unfortunate that I was not aware of the relevant facts and circumstances prior to the presenting of the indictment and arraigning of the accused.

16. In my opinion this unusual situation makes it appropriate to quash the indictment notwithstanding that a plea has been taken and evidence led. See Archbold, Criminal Pleading, Evidence and Practice, 2004 Edition, paragraph 1-240. That means that the indictment has not been effectively presented and no plea has effectively been taken. In those circumstances the appropriate order is to be made pursuant to subsection (9) of s 90A of the Magistrates Court Act.

17. For the reasons that I have advanced, I deem it fit to order that the proceedings before the Magistrates Court be continued at the Magistrates Court, Knowles Place, Canberra, ACT, before Magistrate Fryar at 11.30 am on 3 May next. The consequence is that there is no plea of guilty at this point. In making this order, I do not in any sense seek to second guess or indicate what, in the event that a guilty plea is again entered, the Magistrate might be inclined to do having properly directed herself as to the elements of the relevant statutory provisions.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gyles.

Associate:

Date: 23 April 2004

Counsel for the Crown: C Todd

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the accused: A Doig

Solicitor for the accused: Darryl Perkins

Date of hearing: 7 April 2004

Date of judgment: 7 April 2004

Date of reasons: 23 April 2004