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[2024] ACTSC 42
Supreme Court of the ACT
2024-02-27
Mossop J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Authorised report: 21 ACTLR 59
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Calatzis v Jones Citation: [2024] ACTSC 42 Hearing Date: 13 February 2024 Decision Date: 27 February 2024 Before: Mossop J Decision: See [110] Catchwords: CRIMINAL LAW – PROSECUTION APPEAL AGAINST SENTENCE – Appeal from ACT Magistrates Court – act of indecency – where letter of apology disclosed respondent was not confused about whether victim consented – magistrate erred in finding reduction of moral culpability arising from the circumstances in which the offending occurred – error established – respondent resentenced CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing principles – reduction of sentence – scope of statutory discretion to award discount narrowed by ACT Court of Appeal decisions – emphasis on utilitarian value of plea STATUTES – INTERPRETATION – Statutory construction of s 31(2) Crimes (Sentencing) Act 2005 (ACT) – whether s 31(2) prevents the imposition of a good behaviour order that overlaps with any sentence – where s 31(2) introduced as legislative response to theoretical problem discussed in ACTSC cases – text, content and purpose indicate that s 31(2) applies only in relation to a combination sentence – provision did not apply to sentence imposed by magistrate Legislation Cited: Crimes Act 1900 (ACT), s 60 Crimes (Sentencing) Act 2005 (ACT), ss 10, 12(3), 13, 28, 29, 30, 31, 35, Pt 3.6, Ch 6 Crimes (Sentence Administration) Act 2005 (ACT), ss 108, 110, 149 Legislation Act 2001 (ACT), ss 6(3), 126(1), 140, 145, Pt 14.2 Magistrates Court Act 1930 (ACT), ss 219B(1)(f), 219D(e), 219F Atanackovic v R [2015] VSCA 136; 45 VR 179 Cases Cited: Blundell v The Queen [2019] ACTCA 34 Cranfield v The Queen [2018] ACTCA 3 Director of Public Prosecutions v Earle [2023] ACTSC 93 DPP v Jones (No 2) [2023] ACTSC 99 DPP v Robertson [2023] ACTSC 383 Harlovich v Sebbens [2023] ACTSCFC 3 Millard v Pomeroy [2022] ACTSC 319 Miller v The Queen [2018] ACTCA 21 Monfries v The Queen [2014] ACTCA 46 Peter v Wade [2017] ACTSC 122; 80 MVR 268 R v Ali (No 4) [2020] ACTSC 350 R v Lee [2016] ACTCA 69 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Pumpa [2015] ACTSC 177 R v Ralston [2020] ACTCA 47 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Szabo v MS [2018] ACTMC 9 The Queen v Miller [2019] ACTCA 25 Van Leeuween v Hawke [2012] ACTSC 8; 256 FLR 433 Williams v The Queen [2018] ACTCA 4 Zhao v The Queen [2018] ACTCA 38 Texts Cited: Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 30 November 2017 Explanatory Statement, Crimes Legislation Amendment Bill 2017 (No 2) (ACT) Parties: Paul Calatzis (Appellant) Liam Jones (Respondent) Representation: Counsel T Hickey (Appellant) K Lee (Respondent) Solicitors Director of Public Prosecutions (Appellant) Armstrong Legal (Respondent) File Number: SCA 52 of 2023 Decision Under Appeal: Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 31 August 2023 Case Title: Calatzis v Jones Citation: [2023] ACTMC 33 MOSSOP J:
The decision below
Magistrate’s decision
The magistrate’s reasons were delivered orally and subsequently published: Calatzis v Jones [2023] ACTMC 33.
Unfortunately, at the sentencing hearing the parties did not formally tender any document and no document was marked as an exhibit. Such a course was not appropriate. However, it appears from a review of the transcript that the magistrate had before her and treated as having been admitted into evidence: (a) an agreed Statement of Facts; (b) a criminal history for the respondent; (c) a pre-sentence report; (d) a victim impact statement; and (e) a “defence bundle”, including a letter from the respondent and a number of references.
The magistrate summarised the facts (at [2]-[7]) as follows: 2. The offence occurred against a background of friendship with the victim through their previous employment. That friendship extended to an earlier occasion of consensual touching, including cuddling and kissing in early 2020. 3. On 18 April 2021, after an evening with friends, the victim found herself alone in Civic. She checked her Instagram account and discovered that Mr Jones was also in the city. She messaged him and they agreed to meet. Both were intoxicated. They walked around the city talking and kissing consensually. It was cold; they agreed to go to the victim’s home. She told him “you can come over but we are not having sex”. He responded “yep, that’s ok”. 4. They travelled in an Uber hire car to her home in Campbell. The victim had a housemate; in order to avoid waking that person, they went to the victim’s bedroom. The victim removed her clothing including a bra and stockings but left her underpants on. Mr Jones also removed his clothing leaving his underpants on. They got into bed together side by side. Mr Jones consensually “spooned” the victim, that is cuddled her from behind. She said goodnight to him. 5. Mr Jones then slid his hand inside the victim’s underpants and rubbed her clitoris in a circular motion for about 10-20 seconds. The victim sat up and said “you can’t handle being here”. Mr Jones replied “I know”. 6. The victim got out of bed and ordered Mr Jones an Uber hire car. Both got dressed and went outside to wait for the car. When it arrived, they hugged consensually. Mr Jones left in the car and the victim went back inside. 7. The following day, Mr Jones and the victim exchanged friendly messages.
The magistrate referred to the fact that, at the date of the offence, the respondent had no criminal convictions. However, at the time of sentencing in August 2023, the respondent was serving sentences for separate offences of sexual intercourse without consent and an act of indecency without consent. The aggregate sentence was three years’ imprisonment with a non-parole period of 15 months, expiring on 3 August 2024. The magistrate made reference to a statement in the Chief Justice’s sentencing decision (DPP v Jones (No 2) [2023] ACTSC 99 at [2]), that the range of culpability in sexual offending was “extremely broad”.
The magistrate then addressed the prosecutor’s submission that the offence in the present case was of an act of indecency at “the more serious end”, given the hand-to-genital contact. The reasons of the magistrate then continued as follows (at [16]-[22]): 16․ In this case the victim had indicated to Mr Jones prior to them attending her home that they would not be having sex. There is no information before me as to why this comment was made but Mr Jones acknowledged and agreed with it so was certainly aware of the victim’s state of mind at that time. Subsequently, they engaged in what might ordinarily be considered the precursors to consensual sex, that is they stripped to near naked, got into bed together and spooned. It is from that point that Mr Jones’ conduct must be assessed. It is put on Mr Jones’ behalf that his failure to consider consent at that point was reckless. It is on that basis that the plea was entered. 17․ Whilst the incident occurred in the victim’s home, not only was Mr Jones invited there, he was also invited into the victim’s bed. The hand to genital contact is in itself a serious act but in circumstances where the pair were already in a consensual skin to skin intimate contact situation, the act must be characterised as an extension of that contact. The context is an important factor in assessing the level of moral culpability for this offence. 18․ I do not accept the submission that the former employment relationship is an aggravating factor given that the employment relationship had ceased some time prior to the offending. 19․ The incident was brief. Mr Jones stopped immediately [after] it was made clear to him that his advance was unwelcome. He complied immediately with the victim’s implied request that he leave. 20․ The prosecution submit that the victim’s level of intoxication rendered her a vulnerable victim. However, the circumstances point to the contrary. She initiated contact with Mr Jones, she set the ground rules for that contact, and when from her perspective those ground rules were breached, she responded immediately to remove him. This speaks to a woman very much in control of the situation. 21․ What of the earlier agreement that there would be no sex between the two that night? The prosecution does not cavil with the defence submission that Mr Jones was reckless as to whether the victim consented to his conduct. He accepts as much by his plea. I am satisfied that the landscape of the arrangement between them had changed markedly from the point at which the victim stated that there would be no sex to the point at which they got into bed together almost naked and spooned. Mr Jones was wrong; this did not mean that the victim consented to him touching her genitals. But his moral culpability must be assessed against the situation in which they found themselves at the time of the act, as well as having regard to what was said at some earlier point. This does not derogate from the need to be clear as to consent. 22․ I assess the offending as a less serious example of an act of indecency.
Grounds of Appeal
The appellant seeks that the sentence be set aside and a new sentence be imposed. The grounds of appeal are: (a) The sentencing magistrate erred in the assessment of objective seriousness. (b) The sentencing magistrate erred in allowing a discount of 25 percent for the defendant’s plea of guilty. (c) The sentencing magistrate erred in contravening s 31(2) of the Crimes (Sentencing) Act 2005 (ACT). (d) The sentence imposed is manifestly inadequate. Ground (a)
This ground asserts that the sentencing magistrate erred in the assessment of the objective seriousness of the offending. It is based upon the magistrate’s assessment that the offending was “a less serious example of an act of indecency”.
The submission of the appellant was essentially based upon the fact that the offending was skin-on-skin contact involving the respondent’s fingers on the victim’s clitoris. The appellant submitted that nothing had occurred between the statement “you can come over but we are not having sex” and the offending which would have given rise to any confusion on the respondent’s part as to whether or not the previous statement continued to apply. There was therefore no basis upon which to reduce the moral culpability of the respondent due to any reduction in the level of awareness of the risk that the victim did not consent.
The respondent contended that an appeal court should be slow to substitute its own view for a sentencing judge’s assessment of objective seriousness: Millard v Pomeroy [2022] ACTSC 319 at [30]. While accepting that there was hand-to-genital contact, the respondent submitted that the offending was spontaneous and reckless, the respondent was not in company, the contact was brief and ceased as soon as it became clear that it was unwanted, there was no violence or threat of violence, no weapon, no injuries, no additional humiliation or degradation and the victim was not particularly vulnerable. There were no other aggravating circumstances. Counsel emphasised the broad range of possible offending covered by the offence.
Counsel also placed emphasis on the finding by the magistrate (at [21]) that the: … landscape of the arrangement between them had changed markedly from the point at which the victim stated that there would be no sex to the point at which they got into bed together almost naked and spooned.
Counsel submitted that this conduct could not be ignored when assessing the respondent’s moral culpability, referring to McCallum CJ’s comment in Earle at [28] that “the issue of consent in sexual relations can be complex, changing, awkward and messy”.
An offence against s 60(1) may be established by recklessness or knowledge of a lack of consent: s 60(5). The respondent pleaded guilty on the basis of recklessness as distinct from knowledge, a fact that was included in the agreed Statement of Facts. Apart from that, there was nothing in the Statement of Facts which casts light on the extent of recklessness or the reasons why he was reckless rather than having knowledge.
Ground (b)
This ground asserts that the sentencing magistrate erred in allowing a discount of 25 percent for the respondent’s plea of guilty. Having regard to the fact that the magistrate did not impose a custodial sentence, any error in assessing the extent of reduction of sentence pursuant to s 35 of the CS Act was of no consequence for the sentence ultimately imposed. The formulation of a percentage reduction that would have applied appears to be a redundancy which responded to submissions made to the magistrate by both parties in anticipation of a custodial sentence, but which played no numerical part in the determination of the sentence.
Having said that, the operation of s 35 may be relevant upon a resentencing of the respondent and, for that reason, it is appropriate to address the submission made by the appellant.
A series of authorities in the Court of Appeal have addressed how s 35 is to operate. In Monfries v The Queen [2014] ACTCA 46, Murrell CJ (with whom Burns and Ross JJ agreed) made reference to percentage discounts that would usually be applied at particular stages of proceedings in the Supreme Court. There was then a series of cases between 2017 and 2019, in which Murrell CJ participated, which settled on the level of discounts that would usually be applied for pleas of guilty at different stages of proceedings.
Toumo’ua pointed out the differences between the equivalent statutory provision in New South Wales (NSW) and that in the Australian Capital Territory. It pointed to the fact that the NSW provision is firmly focused on rewarding offenders for the utilitarian value of the pleas of guilty. The decision attempted to explain the additional considerations which appear in s 35 of the CS Act. The court could discern a rationale for some provisions but not for others. Section 35(2)(c), which relates to negotiations between the prosecution and the defence, was explained by the content of the explanatory statement. It indicated to the court that an offender can benefit from either a substantial discount for the utilitarian value of an early plea, or from a lower sentence flowing from a lesser charge or fewer charges following negotiations, but should not usually benefit in both ways: Toumo’ua at [56].
In relation to the seriousness of the offence, referred to in s 35(2)(d), the court could not work out the significance of this factor or in which direction it should point when considering the extent of discount for a guilty plea: Toumo’ua at [57]-[61]. The position was the same in relation to victim impact, referred to in s 35(2)(e), the court concluding that “it is difficult to know what to make of s 35(2)(e)”: Toumo’ua at [64].
So far as s 35(4) (which precludes a significant discount if the prosecution case is overwhelmingly strong) was concerned, while the court could work out its meaning, it could not work out the rationale for importing that consideration into s 35: Toumo’ua at [70]
In the Supreme Court associated with a “Almost always within the range of criminal case conference 15-20%”: Blundell v The Queen [2019] ACTCA 34 at [12] “15 to 20 per cent”: R v Nicholas; R v Palmer [2019] ACTCA 36 at [52] In the Supreme Court before trial date “At least 15 per cent” – 17% applied: R v fixed Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [81] In the Supreme Court three months “Up to 20%”: Miller v The Queen [2018] before trial ACTCA 21 at [12] In the Supreme Court one week before 10%: Cranfield v The Queen [2018] trial ACTCA 3 at [39]; Zhao v The Queen [2018] ACTCA 38 at [30] “A little over 10 per cent”: R v Nicholas; R v Palmer [2019] ACTCA 36 at [36], [61], [131]
This indicates that, subject to the possibility of departing from the usual level of discount for a particular reason, the timing of the plea and thus its utilitarian value dictates a very predictable result. The predictability of such a result is a significant benefit for the administration of the criminal law, because it encourages resolution of matters at an early stage and that has benefits for police, prosecuting authorities, the court, victims and witnesses: Cranfield at [38]; Nicholas; Palmer at [47]; Blundell at [13].
By this means, the Court of Appeal has effectively circumvented the apparently intractable problems of making sense of some of the mandatory discretionary considerations in circumstances where, as indicated in Toumo’ua, the policy intent behind their inclusion cannot be worked out. Since that decision, the Legislative Assembly has not made any attempt to clarify the legislative purpose of those provisions.
In a practical sense, the scope of discretion has been substantially narrowed by the focus upon utilitarian value and the decisions of the Court of Appeal as to the level of discount to be provided at particular stages. However, authorities in this court and in NSW have recognised a number of circumstances which may provide a discretionary reason for departure from those discounts. They include: (a) rare cases involving exceptional complexity and trial duration which may justify a higher discount: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [156], cited with approval in Toumo’ua at [44]; (b) cases in which it is unreasonable to expect an accused to indicate a plea of guilty at the earliest possible stage, such as where fitness to plead needs to be determined: Toumo’ua at [47]; (c) exceptional cases in which the protection of the public or otherwise require that the maximum sentence without any discount be imposed notwithstanding the plea: Toumo’ua at [48]; (d) cases where the prosecution case is “very weak”: Nicholas; Palmer at [51]; and (e) cases where there was an offer to plead guilty at an earlier stage, but that offer was only accepted by the prosecution sometime later: Nicholas; Palmer at [51]; Blundell at [16].
A further category of cases is where the offending is very serious and warrants a very long sentence. In those circumstances, the application of a usual level of discount will, in turn, generate a very large discount. Although that generates a very strong incentive to plead guilty, it may be considered too great a discount to properly reflect the utilitarian value of the plea and to have the effect of reducing the sentence in a manner inconsistent with the purposes of sentencing. That may warrant the giving of less than the usual level of discount. An example of such a case appears to be DPP v Robertson [2023] ACTSC 383 at [42].
The decisions referred to have addressed the extent of discount given for cases which are committed for trial or sentence in the Supreme Court. They have not addressed the circumstances of cases which are disposed of within the Magistrates Court. Within the Magistrates Court, it is usual to draw a distinction between those cases in which a guilty plea has been entered as the first plea of an accused (even if not necessarily on the first occasion the matter is before the court) and those cases in which a plea of not guilty is the first plea entered and there is a subsequent plea of guilty. That distinction is significant because it is the plea of not guilty which, as a practical matter, is a trigger for the police preparing a full brief of evidence. That trigger is significant to the assessment of utilitarian value because the preparation of a full brief of evidence will often require substantial further work by police. A plea of guilty where there has been no prior plea of not guilty will usually attract a discount of 25 percent, whereas where there has been an earlier plea of not guilty and, as a consequence, a brief of evidence has been prepared but the matter has not proceeded further, then a lesser discount of 20 percent is usually applied to reflect the lesser utilitarian value of the plea.
Ground (c)
Introduction
Submissions
The appellant contended that s 31(2) of the CS Act prevented the magistrate from imposing a good behaviour order in circumstances where the respondent was subject to a sentence of imprisonment. The contention was that s 31(2) precluded a good behaviour order being imposed in a way that overlapped with a sentence of imprisonment. The appellant submitted that, even though s 31(2) was contained within Pt 3.6 of the CS Act, which relates to “combination sentences”, it was generally applicable, even where the sentences arose from different offences.
The respondent, on the other hand, submitted that s 31(2) had no application in the present circumstances because the sentence of imprisonment and the good behaviour order were imposed in relation to different offences. They did not, therefore, involve a “combination sentence” within the meaning of Pt 3.6 and a prohibition in s 31(2) had no wider application than to a combination sentence.
Statutory provisions
The power to make a good behaviour order is contained in s 13 of the CS Act, which provides, relevantly: 13 Good behaviour orders (1) This section applies if an offender is convicted or found guilty of an offence. … (2) The court may make an order (a good behaviour order) requiring the offender to sign or give an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a stated period. … (4) A good behaviour order may include 1 or more of the following conditions: … (5) If the offence is punishable by imprisonment, a good behaviour order— (a) may be made instead of imposing a sentence of imprisonment or as part of a combination sentence that includes imprisonment; and (b) may apply to all or part of the term of the sentence. (6) Subsection (5) does not, by implication, limit the sentences that a court may impose under this Act or another territory law. … (9) This section is subject to chapter 6 (Good behaviour orders).
The relevant provisions of Pt 3.6 are as follows:
Part 3.6 Combination sentences 28 Application—pt 3.6 This part applies if an offender is convicted of an offence. 29 Combination sentences—offences punishable by imprisonment (1) If the offence is punishable by imprisonment, the court sentencing the offender may impose a sentence (a combination sentence) consisting of 2 or more of the following orders: (a) an order sentencing the offender to imprisonment as full-time detention; Note A sentence of imprisonment must be served by full-time detention at a correctional centre or detention place unless the court otherwise orders, or the offender is released from detention under this Act or another territory law (see s 10 (3) and s 133H). (b) an intensive correction order (but not in combination with a sentence of full-time imprisonment, a suspended sentence of imprisonment or a good behaviour order); (c) a suspended sentence order; (d) a good behaviour order; Note A good behaviour order may not be set to start at a time when the offender may be serving full-time detention or be on parole (see s 31 (2)). (e) a fine order; (f) a driver licence disqualification order; (g) a reparation order; (h) a non-association order; (i) a place restriction order; (j) an order (however described) imposing another penalty available under any other territory law. Examples The following are examples of sentences that might be imposed on an offender by a court who has been convicted of an offence punishable by imprisonment: 1 a sentence of 18 months as follows: • an order for imprisonment for 1 year with no nonparole period • a fine order directing payment of $500 by stated instalments • a good behaviour order for 6 months (the remainder of the term of the sentence) • a driver licence disqualification order for all of the sentence 2 a sentence of 3 years and 6 months as follows: • an order for 3 years imprisonment with no nonparole period • a good behaviour order for 6 months (the remainder of the term of the sentence) and a concurrent non-association order (2) However, the court must not make an order that forms part of the combination sentence unless the court would have power to make the order otherwise than as part of a combination sentence. 30 Combination sentences—offences punishable by fine … 31 Combination sentences—start and end (1) For a combination sentence, a court may set the start or end of the period of any part of the sentence, or of any order forming part of the sentence, by reference to anything the court considers appropriate, including, for example— (a) a stated day; or (b) the lapse of a stated period of time; or (c) whenever a stated event happens, or whenever the earlier or later of 2 or more stated events happens. Example for par (c) a 5-year combination sentence consisting of the following orders: • an order for imprisonment for 3 years with a 2-year nonparole period • a good behaviour order for 2 years stated to start at the end of the sentence of imprisonment • a place restriction order for 1 year stated to start at the end of the sentence of imprisonment (2) However, the court must not set the start of the period of any part of the sentence that is a good behaviour order on a day when the offender may be serving a period of full-time detention or may be on parole.
Cases leading up to the enactment of s 31(2)
Section 31(2) was introduced following the decision of Murrell CJ in Peter v Wade [2017] ACTSC 122; 80 MVR 268. Before turning to that decision and the legislative response to it, it is useful to refer, in chronological order, to the decisions referred to in that case which provide the context for the decision.
In Van Leeuwen v Hawke [2012] ACTSC 8; 256 FLR 433, a sentence of periodic detention was imposed. At the same time, a good behaviour order was made in relation to the same offence, which commenced at the commencement of the period of periodic detention. A submission was made that s 29 of the CS Act, which relates to combination sentences, did not permit a good behaviour order to be imposed which commenced prior to the conclusion of the term of imprisonment. In other words, a good behaviour order could not operate concurrently with a term of imprisonment, however that term was to be served. The appellant pointed to the incongruity of two bodies, one judicial and one executive, having power to administer and supervise the sentence: Van Leeuwen at [10]. This argument was rejected. Burns J said that it was inconsistent with s 13(4) (now s 13(5)), which said that a good behaviour order “may apply to all or part of the term of the sentence”, and s 31, which allowed “any order forming part of the sentence” to start or end at any time that the court considers appropriate.
In R v Pumpa [2015] ACTSC 177, Penfold J dealt with an allegation of a breach of a good behaviour order that had been combined with a suspended sentence of imprisonment. The first 12 months of the sentence were to be served by periodic detention and the balance suspended. A good behaviour order had been made from the commencement of the sentence. The regime for periodic detention included within it a requirement to comply with core conditions and the capacity to impose additional conditions. The structure of the core and additional conditions was similar to that currently provided in relation to good behaviour orders.
The Crown submission was that s 12(3) (which related to good behaviour orders made as a condition of a suspended sentence) did not permit the court to make a good behaviour order that commenced before the suspension of the sentence took effect: Pumpa at [25]. This was said to be because there was no need for a good behaviour order to cover a periodic detention period and that it would avoid the potential for a resentencing following a breach of the good behaviour order to reverse the effect of a decision of the Sentence Administration Board to cancel an offender’s periodic detention. The contrary argument pointed out that if good behaviour orders were limited in that way, then there would be only limited consequences that would flow from further offending committed prior to the suspension of the sentence.
Penfold J accepted the Crown submission, saying (at [32]): … there is no good reason to conclude that the Crimes (Sentencing) Act is intended to allow good behaviour orders attached to suspended sentences to commence before the suspension takes effect, and good reason to conclude that such an approach introduces unnecessary complexity, including arguably a constitutional uncertainty, into the sentencing process and accordingly should be rejected.
Explanatory statement and presentation speech
The explanatory statement for the Crimes Legislation Amendment Bill 2017 (No 2) discussed both the addition of a note to s 29(1)(d) and the insertion of s 31(2). In relation to the new note to s 29(1)(d), it provided: This clause inserts a new note into section 29 of the Crimes (Sentencing) Act. Section 29 allows a sentencing court to create combination sentences, selecting from two or more of a list of options. The two relevant options for the purposes of these amendments are subsection (1)(a) ‘an order sentencing the offender to imprisonment’, and subsection (1)(d) ‘a good behaviour order’. The note being inserted summarises the changes made to section 31, clarifying that a good behaviour order may not be set to start when an offender may either be serving full-time detention or be on parole.
The explanatory statement in relation to the new s 31(2) provided: Section 31 gives the sentencing court the power to set the start and end dates of any part of the sentence. The clause inserts new section 31(2) which states that a sentencing court cannot commence a good behaviour order during a period when the offender may be serving a period of full-time imprisonment or be on parole. When an offender is given a sentence with a [non-parole] period, the offender can apply to be released from full-time imprisonment at the conclusion of the non-parole period. Applications for parole are made to the Sentence Administration Board (the SAB). If the SAB approves an application for parole, the offender is released subject to a parole order. Breaches of a parole order are heard by the SAB, while breaches of good behaviour orders are heard by the court. When a good behaviour order runs concurrently with a parole order, the offender is subject to two separate sets of conditions, some of which may be consistent across the two orders and some of which may not. In the case of Peter v Wade [2017] ACTSC 122, Chief Justice Murrell stated that where a good behaviour order runs concurrently with a parole order, there is potential for ‘… conflict between decisions made by the executive and the judiciary’. This can lead to confusion and inefficiency in the sentence administration process. It is intended that if a sentencing court makes a good behaviour order, new section 31(2) will require the court to set the date of commencement for the good behaviour order to be at least at the end of any full sentence of imprisonment, including any period of possible parole.
In the Legislative Assembly, the Attorney-General, Mr Ramsey, said: This bill also responds to issues raised in our courts about the way court sentences interact with parole orders. In the case of Peter v Wade of 2017, Chief Justice Murrell of the Supreme Court stated that where a good behaviour order runs concurrently with a parole order, there is potential for “… conflict between decisions made by the executive and the judiciary”. This can lead to confusion and inefficiency in the sentence administration process. Breaches of these orders are dealt with by different bodies. Parole orders are addressed by the Sentence Administration Board, whereas breaches of a good behaviour order are dealt with by the court. Further, an offender may be subject to two separate sets of conditions, some of which are consistent across the two orders and some of which are not. This bill will address these issues by ensuring that a good behaviour order and a parole order cannot be served concurrently. Consideration and decision Text and legislative context
The issue
All of these features indicate that s 31 addresses the circumstances of combination sentences and the reference to “the sentence” is a reference to a combination sentence. The issue then becomes whether the reference to “serving a period of full-time detention or may be on parole”: (a) is limited to periods of full-time detention or parole pursuant to the combination sentence referred to in the subsection; or (b) extends to periods of full-time detention or parole being served pursuant to other sentences (which may or may not be combination sentences).
Put somewhat differently, do the references to periods of full-time detention or parole refer to such periods that exist outside an individual sentence imposed pursuant to Pt 3.6, or do they extend to such periods imposed on other sentences, including other combination sentences imposed pursuant to Pt 3.6 as well as non-combination sentences?
A third articulation of the interpretive issue is to identify the question as being whether the subsection should be read as if it included the words at the end “as a result of that sentence”, so as to confine its operation to orders made in relation to a single offence which is to be dealt with by a combination sentence. Conclusion
For the following reasons, I reach the conclusion that the reference to serving a period of full-time detention or parole at the end of s 31(2) should be read as limited to serving that detention or parole pursuant to the combination sentence which incorporates the good behaviour order. In other words, I adopt option (a) at [86] above or read the provision as if it said, “as a result of that sentence”.
First, to the extent that there was a problem, that problem did not clearly require a generally applicable prohibition on the overlap between good behaviour orders and sentences of full-time detention or parole. The difficulty that the cases prior to the enactment of s 31(2) raised was the potential for two separate bodies to be dealing with, and making potentially different decisions about, how to address breaches of orders relating to a single offence. It is only where the orders relate to a single offence that there is the potential for such a situation to arise. It could be illustrated by the situation in Pumpa, where the Sentence Administration Board was statutorily required to cancel a periodic detention order upon further offending and hence impose a period of full-time imprisonment, yet the court, in dealing with the same facts arising from a breach of a good behaviour order that was also imposed, may conclude that resentencing in the same terms as the original sentence, not involving full-time detention, would be appropriate.
Such a conflict would not arise where the good behaviour order was imposed on a sentence for a different offence from that involving full-time detention or parole. While there remains the potential for two different bodies to address the consequences of a breach of parole and a breach of a good behaviour order, respectively, where those breaches relate to sentences for different offences there is less potential for conflicting outcomes. For example, if a prison sentence with a non-parole period was imposed upon one charge and a good behaviour order imposed on another charge covering the same period as the prison sentence, then further offending during the parole period would constitute grounds for the revocation of parole by the Sentence Administration Board as well as for action in relation to the good behaviour order under s 108 of the Crimes (Sentence Administration) Act.
The provision did not apply in any event
Ground (d)
This ground asserts that the sentence imposed was manifestly inadequate.
For the reasons given in relation to ground (a), specific error has been established. For the purposes of determining whether to resentence, it is not necessary, where specific error has been established, to also establish that the sentence imposed as a result of that error was manifestly inadequate: R v Ralston [2020] ACTCA 47 at [84]-[88].
Therefore: (a) it is unnecessary to consider ground (d) because specific error has already been established; (b) it is unnecessary to be satisfied that the sentence imposed was manifestly inadequate in order to reach a conclusion that resentencing is appropriate; and (c) as a consequence, it is not necessary to determine the manifest inadequacy issue.
Residual discretion
Counsel for the respondent pointed out that Harlovich v Sebbens [2023] ACTSCFC 3 determined that it is open to this court to dismiss an appeal both pursuant to the residual discretion available in relation to prosecution appeals and on the basis that there has been “no substantial miscarriage of justice”, referred to in s 219F(5) of the Magistrates Court Act.
Counsel relied upon evidence in an email dated 7 February 2024 indicating that, pursuant to the respondent’s current sentence, he has completed the Sex Offender Preparatory Program and that it was likely that he would be a participant in a 22-week Sex Offender Program commencing later in February. Counsel submitted that there would not be much difference between the sentence imposed by the magistrate and any sentence on a resentence. He submitted that the prosecutor had accepted that the plea was an early one, even if he did submit that “the defendant would not receive the full discount”.
I do not consider that this is a case in which the residual discretion or the discretion under s 219F(5) should result in the dismissal of the appeal.
So far as the residual discretion is concerned, there was no delay in the bringing of the appeal. The prosecution did not lead the magistrate into error or otherwise conduct itself in a way that might favour the dismissal of the appeal. I consider that the position adopted by counsel for the prosecution in relation to the level of discount was consistent with the way in which it approached the matter in this court. The evidence as to the respondent’s rehabilitation since the magistrate’s decision whilst in custody on the earlier sentence is consistent with the proper administration of the earlier sentence, but not so significant as to warrant the dismissal of the appeal. For reasons explained below, I consider that the s 10 threshold has been passed and I consider that the change from a non-custodial to a custodial sentence is a significant one in terms of general deterrence, the denunciation of his conduct and recognition of harm done to the victim and the community. I consider this to be not so minor a change to the appropriate sentence that it would be merely “tinkering”. Therefore, in my view, there is no appropriate basis upon which to dismiss the appeal notwithstanding that error has been established.
So far as s 219F(5) is concerned, the magistrate erred in her assessment of the objective seriousness of the matter in a way that had a substantial effect on the sentence, shifting it from what would otherwise be a custodial sentence to a completely non-custodial one. I do not consider that the circumstances are consistent with a conclusion that there has been “no substantial miscarriage of justice”.
Resentence
The respondent had an uneventful upbringing. He has a supportive family. He has a supportive partner. He has a history of employment. He also has a history of depression. He has prosocial companions and no history of illicit substance use. He is currently serving a significant sentence of imprisonment for more serious offending committed subsequent to the offence currently before the court. As indicated in the evidence tendered in this court, that sentence will include a rehabilitation program for sex offenders.
Having regard to the subsequent offending, I would assess the respondent’s prospects of rehabilitation only slightly less optimistically than the magistrate did. I would characterise him as having good prospects, rather than “excellent prospects”, for rehabilitation.
In my view, largely because of my different characterisation of the objective circumstances of the offending, the s 10 threshold is passed, but not in a way which would preclude a wholly suspended sentence. In my view, the appropriate starting point is a sentence of imprisonment of five months reduced to four months on account of the plea of guilty. Having regard to the various ways in which that sentence could be served, it is appropriate, given that this was his first offending, that it be wholly suspended subject to a good behaviour order which operates for the balance of the period during which the previously imposed good behaviour order would operate.
In adopting this approach, I reject the submission made on behalf of the appellant that there would be an inadequacy if the good behaviour order associated with the sentence only extends for a limited period beyond the end of the existing sentence. Any breach of the order would expose him to imposition of the custodial penalty, pursuant to s 110 of the Crimes (Sentence Administration) Act. That there might be other consequences flowing from a breach of parole if the offending occurred during the parole period of the existing sentence does not affect the exposure that he has to further custodial punishment. It would be up to the court that was required to address any breach of the good behaviour order associated with the suspended sentence to work out the appropriate relationship between the existing sentence and any sentence that was imposed by reason of the breach of the good behaviour order.
Orders
Orders will be made to give effect to the resentence that I have indicated. The respondent is entitled to have his costs of the appeal paid by the appellant pursuant to s 219F(8) of the Magistrates Court Act.
The orders of the Court are: 1. The appeal is allowed. 2. The sentence imposed by the Magistrates Court on 31 August 2023 is set aside and the respondent resentenced as follows: On the count of act of indecency without consent (CAN 10730/2022), Liam Jones is sentenced to imprisonment for four months which sentence is wholly suspended forthwith upon him entering into a good behaviour order which commences on the date of this order and ends on 30 August 2026. 3. The appellant is to pay the respondent’s costs of and incidental to the appeal.
I certify that the preceding one-hundred and ten [110] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 27 February 2024
Calatzis
Jones [2024] ACTSC 42
The magistrate then went on to assess the subjective circumstances of the respondent. She referred to references given by his mother, his general practitioner and his current partner.
She referred briefly to his history of employment.
She then referred to his expressions of remorse and indicated that she accepted his genuine remorse, which extended to his regret in failing to appreciate the victim’s position on consent and the impact of his offence upon her. She said that the recognition of the loss of friendship does not derogate from his broader expression of remorse.
She also referred to his plea of guilty as evidence of remorse. In that context, she referred to the submissions made as to the percentage discount that should be applied, recording the prosecution submission as that “the full 25% discount ought not be applied” and counsel for the respondent submitting that a “20-25% discount was appropriate”. She then referred to the decision in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 concerning pleas after negotiations and concluded (at [31]) that: “I am satisfied that a 25% discount is properly applied”.
She then made reference to other decisions to which she had been referred: Director of Public Prosecutions v Earle [2023] ACTSC 93, R v Ali (No 4) [2020] ACTSC 350, Szabo v MS [2018] ACTMC 9 and the contents of the ACT Sentencing Database which indicated that over 60 percent of cases attracted a sentence of imprisonment in some form and approximately 40 percent were served by way of full-time custody.
She then made reference to the discussion of sentencing principles in Earle and The Queen v Miller [2019] ACTCA 25. She said that the offence was “effectively the offender’s first offence” and that, despite his subsequent offending, he had “excellent prospects for rehabilitation”. She also indicated that she had to consider what sentence was practically available given his current incarceration and said that, had he been dealt with for this offence prior to his later offending, then “I am reasonably confident that the latter offending would not have occurred”.
She indicated, despite the submissions of both the prosecutor and the defence, that she did not consider that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) (CS Act) had been crossed. She considered that a financial penalty was inappropriate and that community service could not be performed while he was in custody. She indicated that, had it not been for the later offending and the existing sentence, she would have imposed a lengthy good behaviour order with conditions to address any likelihood of further offending. However, she concluded (at [47]): Having regard to all of the circumstances, I consider that a good behaviour order is the most appropriate sentence as any breach, for example whilst Mr Jones is on parole in due course, leaves open the option of resentencing if my optimism as to [Mr Jones’] rehabilitation transpires to be ill-founded.
She therefore imposed a three-year good behaviour order with the core conditions only.
Central to the magistrate’s assessment of the objective seriousness of the offending was the proposition that the “landscape … had changed markedly” between the statement that there was to be no sex and the semi-naked spooning in the bed. Against that, the appellant pointed out that there was nothing said expressly and nothing in the conduct of the victim that would give rise to a doubt about her continuing lack of consent. The appellant pointed in particular to the fact that the victim was facing away from the respondent, had said good night and lay still while trying to go to sleep. The total time from arrival at the house to the respondent’s departure was only 20 to 30 minutes.
The Statement of Facts provides an agreed framework for sentencing but, not unusually, lacks subtle details which would shed light on the appropriate complexion of those facts. That makes it more difficult to resolve conflicts about the appropriate characterisation of the facts. In the present case, there is some additional information about the respondent’s state of mind which comes from his letter of apology which was tendered. That letter, which was significant for the purposes of her Honour’s assessment of his prospects of rehabilitation, included the following statement about the offending: I feel extremely shameful about my actions that occurred the night and early morning with [the victim]. Disgust is another emotion I feel, knowing that I took advantage of one of my closest friends at the time whilst both of us were under the influence of alcohol, knowing that despite [the victim] stating that we will not have sexual intercourse and myself accepting that, I still went back on my word and touched her. I feel anger at myself for putting a close friend, [the victim], through what she went through on that early morning, angry at myself for doing what I did.
What is significant about this statement is that there is no suggestion of any confusion or change in circumstances that could provide a foundation for a conclusion that there was a reduction in his moral culpability. That was consistent with the approach taken by counsel for the respondent before the magistrate, who did not submit that the “landscape … had changed markedly” between the victim’s statement and the act of indecency. Had there been some evidence about the respondent’s state of mind other than that which was contained in the agreed Statement of Facts, the characterisation of the circumstances reached by the magistrate may have been one which was available. However, having regard to the admissions in the letter from the respondent, such a characterisation is not available. The evidence in the letter as to his state of mind is inconsistent with a state of mind which is less culpable by reason of any change in circumstances.
In the absence of that reduction in moral culpability, the case is one of reckless skin-on-genital touching. It involves a significant betrayal of trust. It is correct to say that aggravating features such as premeditation, acting in company, an act that was other than brief, any threats of violence or the use of a weapon, any humiliation or degradation or the ignoring of warnings or protests by the victim were not present. However, the physical acts and the betrayal of trust involved in them mean that they were not appropriately characterised as “a less serious example of an act of indecency”. Given the very broad range of conduct that an offence under s 60(1) may cover, the offending in this case could not be characterised as less than a mid-range offence. However, the specific label used to characterise the offence is less significant than the substantive point that it was incorrect to assess the objective seriousness by reference to there being a marked change in the landscape that would lessen the degree of recklessness and hence the respondent’s moral culpability.
This ground of appeal is therefore established. While the establishment of this error is, subject to the question of residual discretion, sufficient to warrant a resentencing, it is, for reasons which are explained below, appropriate to say something about two of the other grounds of appeal.
By the time of Cranfield v The Queen [2018] ACTCA 3, the court concluded (at [38]) that: [t]he context and terms of s 35(2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea.
In that case and the subsequent decisions in Williams v The Queen [2018] ACTCA 4, Miller v The Queen [2018] ACTCA 21, Blundell v The Queen [2019] ACTCA 34, and R v Nicholas; R v Palmer [2019] ACTCA 36, the Court of Appeal established levels of discount which would usually be applied at different stages of proceedings in the Supreme Court. They were consistent with the approach indicated by Murrell CJ in Monfries, but also addressed the then newly established practice of criminal case conferences. While the court professed that there was “no table of set discounts”: Williams at [47], and no “mandated practice”: Blundell at [8] (see also Miller at [77] per Wigney J), the approach taken by the court tended to indicate the opposite. The outcome of the cases is summarised in the table below. In each case, the level of discount was challenged, and the court reached the result indicated. Timing Discount
When matters are committed to the Supreme Court for sentence, it has not been uncommon for a 25 percent discount to be applied to any plea entered in the Magistrates Court prior to committal. Given that committals now rarely involve any substantial hearing, their avoidance is not a matter which is significant for assessing the utilitarian value of the plea and hence preparation of the brief of evidence will be the most significant factor in assessing the utilitarian value of a plea. That has not been uniformly recognised in Supreme Court decisions, which have often treated any guilty plea in the Magistrates Court as warranting a 25 percent discount.
In light of the focus upon utilitarian value, there does not appear to be a good reason to ignore the burden of preparing a prosecution brief in the Magistrates Court when assessing the utilitarian value of a plea. Having regard to the decisions of the Court of Appeal summarised in the table at [35] above, it would make sense to reserve the 25 percent discount to those cases in which the burden of preparing a prosecution brief has been avoided by a plea of guilty in the first instance. A 20 percent discount for a plea of guilty in the Magistrates Court after the preparation of a prosecution brief is reasonably consistent with the availability of discount up to that level for pleas in the Supreme Court well in advance of trial.
So far as discounts for proceedings in the Magistrates Court which are able to be finalised in that court are concerned, those discounts may be worked out by reference to the discounts available for matters in the Supreme Court.
In the present case, the plea of guilty was entered in the Magistrates Court after preparation of the prosecution brief. The magistrate dealt with the question of discount as follows (at [30]-[31]): 30․ His plea of guilty may also be characterised as evidence of remorse. He initially pleaded not guilty to two charges and a brief of evidence was prepared, the matter was resolved at the pre-hearing mention stage. The prosecutor submitted that as the plea of guilty to the offence was entered following negotiations resulting in withdrawal of a charge of sexual intercourse without consent, the full 25% discount ought not be applied. Mr Jones submitted that a 20-25% discount was appropriate, noting the utilitarian benefit of the plea. 31․ I note the observations of the Court of Appeal in R v Toumo’ua [2017] ACTCA 9 to the effect that an offender may benefit from the utilitarian value of an early plea, or from a lower sentence or fewer charges following negotiations, but that they should not benefit from both. This case is not one in which two charges of differing severity could be applied to the same conduct. On the facts in this case, the charge of sexual intercourse without consent could not have been made out. It is an unfortunate reality that in the ACT, a defendant is often not provided with evidence of the case against them until they enter a not guilty plea meaning that fulsome legal advice cannot be given at an earlier stage. Here the guilty plea was entered on the first occasion after service of the full brief. I am satisfied that a 25% discount is properly applied.
The appellant submitted that this approach involved two errors. The first was treating the statement in Toumo’ua as only applying where the prosecution proceeds with a lesser charge in substitution for a more serious one. The appellant submitted that the principle in the case could not be limited in that way because Toumo’ua itself did not involve the substitution of a lesser charge for a more serious one, but instead involved dropping some charges and agreeing that others would be ‘rolled up’ charges. In the present case, there was no indication of a willingness to plead guilty to any charge at the earliest possible stage.
The second was distinguishing Toumo’ua on the basis that the sexual intercourse without consent charge could not have been made out. The submission was that there was no basis upon which that conclusion could have been reached.
The respondent submitted, correctly, that having regard to the sentence imposed, the issue of quantifying the level of discount did not arise. Counsel submitted that the issue was a discretionary one. He pointed to the availability of a 20 percent discount if the plea had been entered in the Supreme Court, whereas in the present case, the guilty plea was entered in the Magistrates Court on the first occasion after service of the prosecution brief. He submitted that a 25 percent discount was not reserved for the earliest possible plea, but may also be applied to an “early plea”.
The magistrate’s reasons indicate that it was significant for the decision as to the extent of discount that the charge of sexual intercourse without consent “could not have been made out”. This appears to have been based upon the content of the agreed Statement of Facts. To rely upon the Statement of Facts that were agreed as part of the negotiated process for a guilty plea to the lesser of two charges in order to reach a conclusion as to what might have been proved had the matter gone to trial was erroneous. Given that there was no information before the court as to the content of the prosecution brief, it was not possible to reach a conclusion that, in effect, the more serious charge “could not have been made out”.
The position is that the respondent did not enter a plea of guilty at the earliest possible stage. The utilitarian value of his plea was not as high as it would have been had he pleaded guilty to the act of indecency charge prior to entering a plea of not guilty and requiring the prosecution brief to be prepared. Consistently with Toumo’ua, a plea to a subset of the charges arrived at after negotiations is not to be treated as a plea at the earliest possible opportunity. There were no other circumstances which would warrant treating him as if he had pleaded guilty at the earliest possible opportunity, such as an indication of a willingness at that earliest stage to plead guilty to the charge that he ultimately did or some other reason making such a course appropriate.
In those circumstances, for the purposes of any resentence I would apply a reduction of 20 percent on account of the plea of guilty.
Her Honour exercised a power to correct her original sentence so that the good behaviour order did not overlap with the custodial part of the sentence and that meant that there was no breach of any good behaviour order.
Having regard to the statutory regime that was then in place, there was clearly a degree of administrative awkwardness in having two separate regimes that applied to a single sentence, one arising from the administration of the periodic detention order and the other arising from the administration of the good behaviour order. However, her Honour introduced a concept which, as will be seen, was relied upon in subsequent cases: “arguably a constitutional uncertainty”.
It is not clear how something which is “arguably a constitutional uncertainty” could be a matter relevant to the interpretation of a statute. Arguable propositions are not propositions which may inform the interpretation of the law. If a proposition is to be one which informs the interpretation of the law, then it must be a legally or factually correct proposition. Similarly, “a constitutional uncertainty” is not, per se, a matter directly relevant to the interpretation of the statute. If the constitutional issue has not been resolved, then some “uncertainty” may be relevant if it is relevant to “working out the meaning of an Act” under Pt 14.2 of the Legislation Act 2001 (ACT). It might, for example, be something which the court would be prepared to infer that the Legislative Assembly wished to avoid. However, whether or not that is the case will be very much dependent upon the circumstances of the particular provision in question and it cannot be assumed in advance that “a constitutional uncertainty” was something which the Legislative Assembly intended to avoid.
If all that was meant by her Honour’s comment was that there was the possibility of different entities exercising different powers in ways that might be inconsistent, then that would be an understandable concept. It could be examined, and the significance of any conflicts of authority or administrative inconvenience determined. However, it is not useful to elevate such problems by describing them as “a constitutional uncertainty”.
R v Lee [2016] ACTCA 69 was an appeal from Burns J. His Honour had imposed a partially suspended sentence of imprisonment. The imprisonment was to be served by way of periodic detention. The good behaviour order commenced on the day that the sentence was imposed. The Court of Appeal (Murrell CJ, Refshauge and Rangiah JJ) was interpreting s 12(3) of the CS Act, which permits “a good behaviour order for the period during which the sentence is suspended or for any longer period that the court considers appropriate”. The court held (at [32]) that the reference to “any longer period” in s 12(3) “refers to a period that starts on the date when the sentence is suspended but may extend for a period that is longer than the suspended portion of the sentence”. The reasons of the court (at [31]) referred to the potential for the corrections authorities to be responsible for administering the periodic detention sentence, but the court to be responsible for dealing with any breach of the good behaviour order. The court said that this would create what Penfold J described as “constitutional uncertainty”. It said that similar problems would arise if an offender was sentenced to full-time imprisonment and the sentencing court imposed a concurrent good behaviour order.
What the court understood by “constitutional uncertainty” was not made clear, but it was significant for the ultimate result, the court saying (at [32]): Taking a purposive approach and bearing in mind the need for constitutional certainty, we conclude that, where the expression “any longer period” is used in s 12(3) of the Sentencing Act, it refers to a period that starts on the date when the sentence is suspended but may extend for a period that is longer than the suspended portion of the sentence.
In Peter, Murrell CJ dealt with an appeal from the Magistrates Court. One ground of appeal was that the magistrate erred in imposing good behaviour orders which ran concurrently with the parole period applying to those offences. This was described as the “Constitutional uncertainty ground”. Murrell CJ started with the text of ss 29 and 31, saying (at [18]) “it seems clear that the Magistrate was empowered to impose the sentence that her Honour imposed”. Nevertheless, her Honour said “a question arises as to whether the apparent meaning of ss 29 and 31 of the Sentencing Act should be read down to avoid ‘constitutional uncertainty’”. She said (at [20]): It is easy to see how embarrassing conflicts could arise. They could arise because parole conditions imposed by the Sentence Administration Board (SAB) conflicted directly with good behaviour conditions imposed by a court. Even if there was no direct conflict with court-imposed good behaviour conditions, SAB parole conditions could impose an additional burden on an offender that was oppressive.
Her Honour pointed to the possibility of a parolee being convicted of an offence punishable by imprisonment which would lead to an automatic cancellation of parole under s 149 of the Crimes (Sentence Administration) Act 2005 (ACT) but in relation to which the relevant court may choose to take no further action. She then referred to the previous decisions in Pumpa, Lee and Van Leeuwen, saying (at [24]) “the general difficulty adverted to in Pumpa and Lee remains a very real one”. She said that “[i]n this case, it is not necessary to determine whether there is ‘constitutional uncertainty’, or whether such uncertainty means that ss 29 and 31 should be read down”. That was because the magistrate had failed to give any explanation for the decision to impose “an inherently problematic sentence” and this involved an error of law which required the appellant to be resentenced.
Van Leeuwen addressed the relationship between a good behaviour order made under s 13 of the CS Act and a sentence to be served by periodic detention. It did not involve a partially suspended sentence.
Pumpa addressed the relationship between a good behaviour order and a partially suspended sentence of imprisonment to be served by periodic detention.
Lee involved a partially suspended sentence of imprisonment to be served by periodic detention with a good behaviour order.
Peter involved good behaviour orders operating during the parole period for combination sentences imposed for two offences.
Each involved combination sentences, that is, sentences for a specific offence that included more than one type of penalty. None of the cases involved considering whether a sentence of imprisonment on the one charge affected or precluded the making of a good behaviour order when sentencing for a different charge.
It was in this context that a note to s 29(1)(d) and s 31(2) were inserted.
The starting point for the interpretive exercise must be the text of s 31(2).
The two concepts within s 31(2) that must be understood are “any part of the sentence that is a good behaviour order” and “may be serving a period of full-time detention or may be on parole”.
It is significant that the general prohibition in s 31(2) commences with the word “However”, and refers to “the sentence”. It is thereby clearly referring back to an earlier provision, namely s 31(1), in order to describe what “the sentence” is and in order to work out what is being qualified by the use of the word “However”. That direction in the text of s 31(2) is in addition to the general legislative command that, in working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole: Legislation Act s 140.
The opening words of s 31(1) clearly indicate that it is limited to a combination sentence (“For a combination sentence …”). Section 31(2) operates as a qualification on the power in s 31(1) to set the start or end of the period of “any part of the sentence, or of any order forming part of the sentence” by reference to anything the court considers appropriate. The emphasised references to “the sentence” are references back to the “combination sentence” referred to in the opening words of s 31(1). They also make clear that the reference to “the sentence” in s 31(2) is the combination sentence being described in s 31(1).
The reference to a “combination sentence” refers back to the definition of a combination sentence in s 29, namely, a sentence “consisting of 2 or more of the following orders”, as set out in the balance of the subsection.
Further, s 29 only has any application in the circumstances defined by s 28, namely, “if an offender is convicted of an offence”. Although, as a general matter, a reference to the singular “an offence” can include the plural (Legislation Act s 145), that is not a determinative provision, and hence it can be displaced by a contrary legislative intention: Legislation Act s 6(3). Having regard to the legislative purpose of combination sentences, namely, allowing sentencing orders of different types to be included within a sentence for a single offence, the context in which the reference to “an offence” appears in s 28 is such as to indicate that it can only be read in the singular.
Finally, regard must be had to the fact that combination sentences are dealt with in a discrete part of the Act, Pt 3.6. The court is obliged to have regard to the heading to the part (Legislation Act s 126(1)), but also to the structure of the Act, which deals with the topic of combination sentences discretely and separately from sentences which are not combination sentences.
However, there remains the possibility of there being conflicting obligations under a good behaviour order and conditions of parole, which could exist in the circumstances postulated. This was something which appeared to concern Murrell CJ in Peter at [20]. However, it appears to be a theoretical rather than actual problem. The problem was not manifested in any of the cases referred to earlier and there is no reference to any such problem having actually arisen in the explanatory statement or the remarks of the Attorney-General.
Second, the explanatory materials are not determinative. It is true to say that the explanatory statement and, even more so, the terms of the presentation speech, provided some support for a broader application of the prohibition in s 31(2). The statement of the Attorney-General that the bill would ensure “that a good behaviour order and a parole order cannot be served concurrently”, if accepted at face value, would indicate a broad intention to rule out the possibility of overlap. However, as pointed out above, because the prohibition only applies to combination sentence good behaviour orders and not to other good behaviour orders, it is not as broad as the language of the Attorney-General would suggest. I treat the Attorney-General’s statements as explaining the general nature of the perceived problem and not fully engaging with the actual language proposed to be enacted within a part of the CS Act dealing with combination sentences. It is that language, in the context in which it appears in the Act, which is ultimately of most significance.
Third, not all good behaviour orders would be covered by the provision. If s 31(2) was interpreted so as to preclude a good behaviour order in a combination sentence overlapping with a period of detention or parole in another sentence, then that would only cover a subset of the circumstances in which good behaviour orders would overlap with detention or parole. That is because good behaviour orders may be imposed on their own, not as part of a combination sentence, and there is no prohibition in s 31(2) or elsewhere on such a good behaviour order overlapping with detention or parole. If the legislative purpose was to prevent good behaviour orders overlapping with detention or parole on other sentences, then it would not make sense to limit the good behaviour orders that were covered to combination sentence good behaviour orders. Instead, the prohibition would be a general one in relation to good behaviour orders and included amongst the provisions that are applicable generally in relation to good behaviour orders, namely, s 13 and Ch 6.
Fourth, given that: (a) the cases leading up to the enactment of s 31(2) each dealt with combination sentences; (b) the provision is included in a part of the Act dealing only with combination sentences; and (c) even if interpreted as applying to non-combination sentences involving full-time detention or parole, it would not avoid the potential for overlap between good behaviour orders and full-time detention or parole, the legislative purpose of s 31(2) should be understood as being limited to individual combination sentences and not applying as between combination sentences involving good behaviour orders and sentences on other charges involving full-time detention or parole. Given that legislative purpose, s 31(2) should be interpreted in the manner indicated at [89] above.