Commonwealth DPP v Costanzo & Anor

ADMINISTRATIVE LAW - JUDICIAL REVIEW AT COMMON LAW - EXCESS OF POWER AND DEFECTIVE USE OF POWERS - LACK OR EXCESS OF JURISDICTION - where first respondent is a magistrate and second respondent is a defendant sentenced by the first respondent - where the second respondent pleaded guilty to an offence against s 135.2 of the Criminal Code (Cth) - where the first respondent sentenced the second respondent to an Intensive Drug Rehabilitation Order under the Drug Rehabilitation (Court Diversion) Act 2000 (Qld) - where the first respondent found himself to have jurisdiction to impose the order pursuant to s 20AB of the Crimes Act 1914 (Cth) - whether the first respondent had such jurisdiction

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS - where s 20AB of the Crimes Act 1914 (Cth) provides jurisdiction for State courts to make specified State sentences and orders or "a similar sentence or order" for federal offences - whether an Intensive Drug Rehabilitation Order is "a similar sentence of order"

Australian Constitution, ss 71, 76(ii), 77(iii)

Crimes Act 1914 (Cth), ss 3B(2)(a), 4H, 16D, 20, 20AB, 20AC

Crimes Amendment Act 1982 (Cth)

Crimes Legislation Amendment Act (No 2) 1989 (Cth)

Drug Rehabilitation (Court Diversion) Act 2000 (Qld), ss 19, 20, 22, 26, 30-31, 33-35A, 36

Judicial Review Act 1991 (Qld), s 41

Judiciary Act 1903 (Cth), ss 39, 68(1), 68(2), 79

Justices Act 1886 (Qld), s 10

Penalties and Sentences Act 1992 (Qld)

Adams v Carr (1987) 26 A Crim R 372, cited

Corporate Affairs Commission of NSW v Yuill [1991] HCA 28; (1991) 172 CLR 319, cited

Craig v South Australia (1994 - [1995] HCA 58; 1995) 184 CLR 163, followed

Maunsell v Olins [1975] AC 373, cited

Putland v R [2004] HCA 8; (2004) 78 ALJR 440, followed

Solomons v District Court of NSW [2002] HCA 47; (2002) 211 CLR 119, followed

Szelagowicz v Stocker (1994) 35 ALD 16, cited

Commonwealth Director of Public Prosecutions for the applicant

[1] WILSON J: This is an application for review under Part 5 of the Judicial Review Act 1991 (Qld) in which the applicant seeks orders in the nature of -

(i)

certiorari to quash and set aside an order made by the first respondent on 3 November 2004 sentencing the second respondent pursuant to s 20AB of the Crimes Act 1914 (Cth) to an Intensive Drug Rehabilitation Order under the Drug Rehabilitation (Court Diversion) Act 2000 (Qld);

(ii)

mandamus to remit the decision to the first respondent for it to be dealt with according to law; and

(iii)

a declaration that the order of the first respondent is void and of no effect.

[2] The second respondent was charged with an offence against s 135.2 of the Criminal Code (Cth), namely that she failed to accurately declare earnings from casual employment to Centrelink, thereby obtaining a financial advantage in the amount of $3,942-19 for herself from the Commonwealth. She indicated that she intended pleading guilty to the offence. There was evidence that she was drug dependent and that the dependency had contributed to the commission of the offence.

[3] Under the Drug Rehabilitation (Court Diversion) Act 2000 (Qld) a number of Magistrates Courts (including Southport) have been declared "pilot program courts". If a person charged with a "relevant offence" appears before a magistrate in such a court and there is evidence that he or she is drug dependent and otherwise an "eligible person", the magistrate may refer the person for assessment of his or her suitability for rehabilitation and the preparation of a proposed rehabilitation program.

[4] The second respondent fulfilled the criteria for eligibility for assessment, and the offence was a relevant offence. She appeared in the Magistrates Court at Southport on 9 June 2004, when Magistrate Austin made an order for referral for assessment pursuant to s 16 of that legislation and remanded her to appear before a "pilot program magistrate" on 16 June 2004.

[5] Under Part 5 of the Drug Rehabilitation (Court Diversion) Act (Qld) a pilot program magistrate may make an "intensive drug rehabilitation order" ("IDRO") for an offender if the criteria in s 19 of the Act are satisfied. The contents of such an order are dealt with in s 20 of the Act, which provides -

If the pilot program magistrate decides to make an intensive drug rehabilitation order for the offender, the order must contain -

(i) sentencing the offender to serve a term of imprisonment (the "initial sentence"); and

(ii) suspending the whole of the term of imprisonment under this Act; and

(c) a rehabilitation program decided by the pilot program magistrate for the offender."

There is provision for supervision of the offender's compliance with the order both by an authorized corrective services officer and by the pilot program magistrate (s 22). Such an order may be made only if the offender agrees to its being made and agrees to comply with it (s 26). The Act goes on to provide for a system of rewards and sanctions (ss 30 - 32), for the amendment or termination of the rehabilitation program (ss 33 - 35A), and ultimately for the imposition of a final sentence upon completion or termination of the rehabilitation program (s 36).

[6] The first respondent received submissions on whether he could make an IDRO for someone charged with a federal offence. On 20 October 2004 he ruled that he had the necessary jurisdiction.

[7] On 3 November 2004 the first respondent purported to sentence the second respondent under s 20AB of the Crimes Act (Cth) to an IDRO. He ordered that she be sentenced to 9 months imprisonment, wholly suspended, with a further condition that she undertake a rehabilitation order.

[8] The applicant submitted that the order of 3 November 2004 was made without jurisdiction and was otherwise an error of law. To understand this submission, and the second respondent's submission to the contrary, it is necessary first to review how the offence came to be dealt with in a state court, and the law to be applied by such a court in sentencing someone who has transgressed federal law.

[9] The offence was one under s 135.2 of the Criminal Code (Cth). The maximum penalty which could be imposed was 12 months imprisonment. Thus it was a "summary offence" as defined in s 4H of the Crimes Act (Cth).

[10] A Queensland Magistrates Court had jurisdiction to adjudicate upon the charge by virtue of ss 71 and 77(iii) of the Australian Constitution, ss 39 and 68(2) of the Judiciary Act 1903 (Cth) and s 10 of the Justices Act 1886 (Qld).

[11] Sections 68(1) and 79 of the Judiciary Act (Cth) pick up and apply state and territory procedural laws to federal prosecutions in state courts. Section 68(1), which provides that the law of the relevant state or territory is to be applied to arrest, custody, bail, summary conviction, committal hearings, trial on indictment and appeals, is concerned with the content of the powers to be exercised under the jurisdiction conferred by s 68(2): Solomons v District Court of NSW [2002] HCA 47; (2002) 211 CLR 119 at 134; Putland v R [2004] HCA 8; (2004) 78 ALJR 440 at 447. The High Court has held that "conviction" in s 68(1) includes the imposition of a sentence: Putland at 447. Section 79 provides that the law of the relevant state or territory, including in relation to procedure, evidence and competency of witnesses, is to be binding on courts exercising federal jurisdiction. Thus state and territory sentencing laws may be picked up and applied as federal law by , unless otherwise provided by federal law: at 442. See generally Australian Law Reform Commission [3.27] - [3.34].

[12] In addition to the operation of the Judiciary Act (Cth), Part 1B of the Crimes Act (Cth) expressly picks up and applies certain aspects of state and territory law in sentencing federal offenders. Part 1B was included in the Crimes Act (Cth) by the Crimes Amendment Act 1982 (Cth); it was amended by the addition of subsections (1A) and (1B) of s 20AB by the Crimes Legislation Amendment Act (No 2) 1989 (Cth) following the decision in Adams v Carr (1987) 26 A Crim R 372.

[13] In deciding that he could impose an IDRO the first respondent relied on s 20AB of the Crimes Act (Cth) which provides -

(1) Where under the law of a participating State or a participating Territory a court is empowered in particular cases to pass a sentence or make an order known as a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention or an attendance order, or to pass or make a similar sentence or order or a sentence or order that is prescribed for the purposes of this section, in respect of a State or Territory offender, such a sentence or order may in corresponding cases be passed or made by that court or any federal court in respect of a person convicted before that first-mentioned court, or before that federal court in that State or Territory, of a federal offence.

(1A) Where the law of a participating State or a participating Territory requires that before passing a sentence, or making an order, of the kind referred to in subsection (1) a court must first pass another sentence or make another order (whether or not that other sentence or other order is suspended upon the making of the first-mentioned sentence or order), then, a court is not required, before passing or making that first-mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order.

(1B) A court is not precluded from passing a sentence, or making an order, under subsection (1) only because the court is empowered under section 20AC, in relation to a person who has failed to comply with such a sentence or order, to take action that is, or may be, inconsistent with action that, under the law of a participating State or participating Territory, a court of that State or Territory is empowered to take for such a failure by a State or Territory offender.

(2) Where a court proposes to pass a sentence, or make an order, under subsection (1), it shall, before passing the sentence or making the order, explain or cause to be explained to the person in respect of whom it is proposed to pass the sentence or make the order, in language likely to be readily understood by him:

(a) the purpose and effect of the proposed sentence or order;

(b) the consequences that may follow if he fails, without reasonable cause or excuse, to comply with the proposed sentence or order or with any requirements made in relation to the proposed sentence or order by or under the provisions of the laws of the relevant State or Territory that will apply in relation to the proposed sentence or order by virtue of subsection (3); and

(c) if the proposed sentence or order may be revoked or varied under those provisions--that the proposed sentence or order may be so revoked or varied.

(3) Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).

(4) Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person convicted of an offence against the law of the Commonwealth, the court may also do all or any of the following:

(a) impose any fine or other pecuniary penalty that the court is empowered to impose on the person for the offence;

(b) make any order requiring the person to make reparation or restitution, or pay compensation, in respect of the offence that the court is empowered to make;

(c) make any other order that the court is empowered to make.

(5) Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the sentence or order to be reduced to writing and a copy of the sentence or order to be given to, or served on, the person.

(6) Subsection (1) does not permit a court (including a federal court) to pass a sentence, or make an order, that involves detention or imprisonment, in respect of the conviction of a person before the court of a minimum non-parole offence mentioned in section 19AG."

[14] Queensland is a "participating state" for the purposes of s 20AB(1) of the Crimes Act (Cth): see s 3B(2)(a) of that act and the arrangement between the Commonwealth and Queensland appearing in the Commonwealth of Australia Gazette No S87, 10 April 1990; No S221, 3 August 1990.

[15] There are 3 categories or sentence referred to in subsection (1) of s 20AB of the Crimes Act (Cth) -

(i) an order known as a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention or an attendance order;

(iii) a sentence or order that is prescribed for the purposes of the section.

An IDRO is not within with the first or the third category. The issue before the first respondent and before this court is whether it falls within the second category - namely, a "similar sentence or order". The first respondent held that it does, and went on to impose such an order on the second respondent.

[16] The applicant seeks an order in the nature of certiorari reviewing the first respondent's imposition of the IDRO. It was common ground that this court can review a decision of a Magistrates Court exercising federal jurisdiction: Australian Constitution s 76(ii); Judiciary Act (Cth) s 39(2); Judicial Review Act (Qld) s 41.

[17] Certiorari is available on a number of distinct established grounds, most importantly jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud, and error of law on the face of the record: Craig v South Australia (1994 - [1995] HCA 58; 1995) 184 CLR 163 at 175 - 176.

[18] Counsel for the applicant's primary submission was that an IDRO is not a "similar sentence or order" within s 20AB of the Crimes Act (Cth) and that accordingly the first respondent had no jurisdiction to make the order the subject of the application for review.

[19] I do not accept the submission of senior counsel for the second respondent that what the first respondent did was within his jurisdiction: that he had to carry out a "characterisation exercise" to determine whether an IDRO was a "similar sentence or order", that he had power or jurisdiction to carry out that exercise, and that certiorari is not available because this court may have determined that characterisation issue differently. What is sought to be reviewed is the imposition of the IDRO, not the first respondent's determination of the preliminary issue of jurisdiction. The characterisation issue is the key to jurisdiction (to adopt senior counsel for the second respondent's pithy statement of the argument contrary to the one he advanced). The first respondent clearly acted within the general area of his jurisdiction, but if an IDRO was not a sentencing option open to him, he fell into jurisdictional error when he imposed such an order. See the discussion in Craig v South Australia at 176 - 178.

[20] Section 20AB extends the sentencing options available to a state court in respect of someone convicted of a federal offence. Those further sentencing options are picked up by s 20AB(3) so far as they are not inconsistent with the laws of the Commonwealth: that is, they are deemed part of federal law. If one of those sentences is imposed, it is deemed imposed under the Crimes Act (Qld) and not under the corresponding state legislation. If the offender does not comply with such a sentence, it is to s 20AC of the Crimes Act (Cth) that resort is had for the consequences of the non-compliance, and not the corresponding state legislation.

[21] The first category of sentences in subsection (1) comprise a fairly broad array of sentences. They all allow the offender to spend time in the community while his or her punishment is running. They might all be said to have rehabilitative as well as punitive aspects (although in theory at least the more traditional forms of punishment such as continuous imprisonment, fines and pecuniary penalties also have such features). Importantly, they are all final orders in the sense that once such an order is imposed, the court's sentencing power is spent; its further powers to deal with non-compliance (s 20AC) may be subsequently invoked.

[22] Counsel for the applicant submitted that a "similar sentence or order" (the second category in subsection (1)) must be one in existence when s 20AB was enacted in 1981; that is, that the phrase is not to be given an ambulatory meaning. In his submission this is clear from "the architecture of the section": the third category allows for the incorporation of new sentencing options by express prescription under regulation. I do not accept this submission. It is a rule of construction that ordinarily words of a statute are to be read in their current sense; this rule is expressed in the following way in Bennion on Statutory Interpretation at 355 -

"While it remains law, an Act is to be treated as always speaking. In its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law."

See Szelagowicz v Stocker (1994) 35 ALD 16 at 22**.** Of course, the ultimate task of statutory interpretation is to discern the legislature's intention and while rules of construction can provide a guide to that intention, they do not have binding force. See Maunsell v Olins [1975] AC 373 at 382 per Lord Reid; Corporate Affairs Commission of NSW v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 347 per McHugh J. There is no basis either in the language of the provision or in its clear purpose to extend sentencing options to restrict its operation in the way for which the applicant contends. (That purpose is abundantly clear from the legislation itself, without the need to refer to extrinsic material.) It is significant that 2 of the orders specified (namely, the work and attendance orders) were not in existence anywhere in Australia when s 20AB was enacted in 1981. Further, sentencing legislation is frequently amended, sometimes with respect to fine points of detail and sometimes by the introduction of new options. It is unlikely that the legislature intended that the availability of a sentencing option should depend on comparison with precise forms of sentence as they existed in 1981. The presence of the third category extends sentencing options beyond those identified in the first and second categories, and provides further flexibility: a new form of sentence not of sufficient similarity to the first category to come within the second category might be prescribed under the third category.

[23] Does an IDRO have sufficient similarity with any of the sentences specified in the first category to be a "similar sentence or order"? It is a question of degree, which must be considered in the context of the legislation as a whole, and in particular Part 1B, and in the light of the legislative purpose to extend sentencing options. The outstanding distinguishing feature between an IDRO on the one hand and the other sentencing options in Part 1B divisions 2- 5 (including those in the first category in subsection (1) of s 20AB) is the interim or provisional nature of an IDRO. The other options are all final in nature. Some of the other options make provision for non-compliance: for example, s 20A deals with non-compliance by a person discharged without conviction upon his or her giving security to comply with certain conditions (s 19B) or a person released after conviction after giving security to comply with certain conditions (s 20). Further s 20AC makes provision for non-compliance with a sentence passed or order made under s 20AB. In such cases of non-compliance there is provision for bringing the offender back before the court either on summons or by warrant, and the court is given wide powers, including powers to revoke the initial sentence or order, to impose some alternative sentence or order or to take no action. Such a process of the imposition of a final sentence or order, breach proceedings consequent upon non-compliance, and the exercise of powers of revocation, resentence, etc is fundamentally different from the process under the Drug Rehabilitation (Court Diversion) Act (Qld), namely, the imposition of an interim or provisional sentence, the suspension of that sentence, prescription of a rehabilitation program, supervision by the court and corrective services officers, a system of rewards and sanctions, and the ultimate termination or completion of the rehabilitation program which was an integral part of the interim sentence, followed by the imposition of a final sentence. The final sentence imposed on someone who initially received an IDRO may not be a custodial one; in such a case, in the event of non-compliance, provisions of the Penalties and Sentences Act 1992 (Qld) not dissimilar from and of the (Cth) would operate in the case of someone who had committed a state offence.

[24] Subsection (1A) of s20AB of the Crimes Act (Cth) provides that a court imposing a sentence or order under subsection (1) does not have to apply state and territory laws that require the making of another order before such a sentence can be imposed - for example, a state law that a person be sentenced to imprisonment before an order for periodic imprisonment can be made. In its Issues Paper 29 - Sentencing of Federal Offenders at [7.111] footnote 157 the Australian Law Reform Commission cites as an example the provisions of the Crimes (Sentencing Procedure)Act 1999 (NSW) under which periodic detention can be ordered only where an offender has been sentenced to a term of imprisonment of not more than 3 years. Senior counsel for the second respondent submitted that the imposition of a sentence of imprisonment and it suspension "prior to making an IDRO" under s 20 of the Drug Rehabilitation (Court Diversion) Act (Qld) was a process anticipated by s 20AB(1A) of the Crimes Act (Cth). I do not accept this submission. Under s 20 of the state act, the imposition of term of imprisonment by way of "initial sentence' and its suspension are elements of the IDRO itself, and not precursors to it. Further, under so 20 of the state act, the imposition of a term of imprisonment is provisional only in nature.

[25] I accept that there are some similarities between a community service order and an IDRO: in each case obligations with punitive and rehabilitative objects must be performed over time, and in each case there is potential for resort to other sentencing options if those obligations are not satisfied. However, under a community service order, if the obligations are satisfied, that will be the end of the matter, whereas under an IDRO satisfaction of the obligations can lead to rewards on an interim basis, and influence the final sentence ultimately to be imposed. That difference is critical.

[26] In short, I consider that an IDRO is not a "similar sentence or order" within the meaning of subsection (1) of s 20AB of the Crimes Act (Cth).

[27] Counsel made submissions on what is meant by "inconsistency" in subsection (3) of s 20AB. Given my earlier conclusion that an IDRO is not a "similar sentence or order", I do not find it necessary to determine this finally. Suffice it to say I accept the submission of senior counsel for the second respondent that it is a different question from whether the provisions of a state sentencing law providing for an alternative form of sentence differ from what is otherwise in the Crimes Act (Cth), since the whole point of s 20AB is to introduce sentencing options which are not otherwise in the Crimes Act (Cth). Inconsistency would, at least, include provision for something which is proscribed by federal law (for example, corporal punishment which is proscribed by s 16D of the Crimes Act (Cth)).

[28] It follows that I consider the first respondent lacked jurisdiction to impose an IDRO on the second respondent. I will hear counsel on the form of the order and on costs.

[29] Counsel for the applicant and senior counsel for the second respondent subsequently agreed that orders in the following form were appropriate in light of this decision.

1. The order made on 3 November 2004 by the first respondent to sentence the second respondent, pursuant to section 20AB of the Crimes Act 1914 (Cth), to an Intensive Drug Rehabilitation order under the Drug Rehabilitation (Court Diversion) Act 2000 is quashed and set aside.

2. The order made by the first respondent is declared to have been made without jurisdiction and void.

3. The matter of the sentence hearing of Debra Suzan Smith is remitted to the Magistrates Court of Queensland at Southport to be dealt with according to law.

4. The matter of the sentence hearing of Debra Suzan Smith be listed for mention at the Magistrates Court of Queensland at Southport on 20 April 2005 at 9.00am.