CRIMINAL LAW AND PROCEDURE - sentencing - administration of sentencing -periodic detention -whether periodic detention order should be cancelled in respect of conviction or finding of guilt of offence committed before order.

STATUTORY INTERPRETATION - cancellation of periodic detention, s 70 of the Crimes (Sentence Administration) Act 2005 (ACT) - whether the legislation limits the cancellation of periodic detention to convictions while on periodic detention for an offence committed after the offender has been granted periodic detention or whether the legislation provides that periodic detention can be cancelled when an offender is convicted of an offence during the periodic detention period regardless of when the offence is committed - proper construction: legislation limited to convictions for offences committed after offender has been granted periodic detention.

STATUTORY INTERPRETATION - cancellation of periodic detention, s 70 of the Crimes (Sentence Administration) Act 2005 (ACT) - interpretation compatible with Human Rights Act 2004 (ACT) preferred - decision of the Sentence Administration Board set aside.

Administrative Decisions (Judicial Review) Act 1989 (ACT), s 17

Crimes (Sentence Administration) Act 2005 (ACT), ss 6, 7, 12, 42, 43, 59, 66, 68, 70, 73, 75, 79, 80, 82, 150, 171, 172, Ch 5

Crimes (Sentencing) Act 2005 (ACT), s 80, Parts 3, 5

Human Rights Act 2004 (ACT), ss 12, 13, 18, 24, 30

Legislation Act 2001 (ACT), ss 138, 139

R v Fearnside [2009] ACTCA 3; (2009) 165 ACTR 22

R v Momcilovic [2010] VSCA 50; (2010) 265 ALR 751

In the matter of an application for bail by Isa Islam [2010] ACTSC 147 (19 November 2010)

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Blundell v Sentence Administration Board & Ors [2010] ACTSC 151 (2 December 2010)

AND: THE SENTENCE ADMINISTRATION BOARD OF THE AUSTRALIAN CAPITAL TERRITORY

AND: THE CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY

1. An order be made under s 17(1)(a) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) setting aside the decision of 15 December 2009 of the first defendant with effect from the date of this order.

2. The second defendant pay the plaintiff's costs of and incidental to the application.

3. The matter be remitted to the Sentence Administration Board to be dealt with according to law, noting that:

a) The plaintiff has now spent a period of time in custody as a consequence of the order that has now been set aside;

b) The plaintiff has now spent time in custody pursuant to the order of Magistrate Doogan of 1 October 2009;

c) The factual basis of the periodic detention order has accordingly been altered;

d) The plaintiff is unlikely to be able to serve any time remaining of his sentence by periodic detention having regard to the exceptional circumstances affecting him as outlined in a), b) and c) above.

4. Liberty be granted to apply to his Honour on short notice if any matter arises that requires further consideration of this Court.

5. Liberty to apply be granted to have the application for leave to appeal out of time set down before his Honour.

1. The plaintiff, Jamie Griggs, applied for judicial review in respect of a decision of the Sentence Administration Board of the Australian Capital Territory (the Board) made on 15 December 2009 cancelling a periodic detention order applying to him. As a consequence of the Board's decision, the plaintiff was ordered to serve a period of full-time imprisonment of 11 months, three weeks and three days.

2. The proceedings, as amended, joined the Chief Executive of the Department of Justice and Community Safety and the Australian Capital Territory as second and third defendants. The Board was a submitting defendant and the contradictor was the second defendant.

3. When the proceedings came before me for hearing on 29 October 2010, the plaintiff and the second defendant agreed that the Board had erred in cancelling the periodic detention order and that the Board's decision should be set aside. Both parties were agreed on the interpretation to be given to s 70 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act) which was the authority under which the Board purported to act. I also agreed that the Board had acted without jurisdiction and accordingly made the orders requested by the parties. These are my reasons for doing so, which draw heavily upon the written submissions of both parties.

4. On 23 July 2009, the plaintiff was convicted in this Court on charges of attempted escape from lawful custody, common assault, failure to appear following bail undertaking and breach of a good behaviour order and sentenced by Higgins CJ to a total of 13 months imprisonment. One month of full-time custody was backdated to 22 June 2009. The balance of the term of imprisonment (12 months) was to be served by way of periodic detention. The first period of periodic detention was to commence on 24 July 2009.

5. On 20 August 2009, the plaintiff was convicted in the Magistrates Court of the ACT on a charge of unlawful possession of stolen property and sentenced by Special Magistrate Cush to a term of one month imprisonment to be served by way of periodic detention consecutively upon the sentence imposed by Higgins CJ on 23 July 2009. The offence to which this conviction and sentence related was committed on 11 October 2008.

6. On 22 August 2009, an application under s 59 of the Sentence Administration Act was made for an inquiry in respect of allegations that the plaintiff had failed to attend for periodic detention on 24 and 31 July 2009 and 7, 14 and 21 August 2009 and applied to the Board. Further reports alleging that the plaintiff had failed to attend on 28 August 2009 and 4, 11 and 18 September 2009 followed. The Board notified the plaintiff that it would conduct inquiries into the alleged breaches to review his periodic detention. On 29 September 2009, the Board resolved to hold a hearing for the purposes of the inquiries and gave the plaintiff notice to attend.

7. On 1 October 2009, the plaintiff was convicted in the Magistrates Court on two charges of minor theft and on a charge alleging a breach of a good behaviour order and sentenced by Magistrate Doogan to a total of 10 months imprisonment to be served by way of full-time detention. The two theft offences were committed in September and December 2008.

8. The Board held a hearing on 17 November 2009 which was adjourned to 15 December 2009 due to some confusion in relation to an appeal by the plaintiff against the sentence imposed by Magistrate Doogan on 1 October 2009.

9. On 15 December 2009, the Board decided that, as a result of the fact that the plaintiff had been convicted of an offence and sentenced to a term of imprisonment by Special Magistrate Cush on 20 August 2009 while already serving a sentence of imprisonment by way of periodic detention, the Board was obliged by s 70 of the Sentence Administration Act to cancel the plaintiff's periodic detention and resolved to do so. The Board resolved to take no further action in relation to the alleged breaches of the plaintiff's periodic detention obligations by failing to attend of periodic detention between 24 July and 18 September 2009. The Board then made an order under s 82 of the Sentence Administration Act recommitting the plaintiff to full-time detention and issued a warrant for imprisonment under s 12 of the Sentence Administration Act.

10. Part 3.2 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) deals with sentences of imprisonment. Section 11 provides that, if an offender is convicted of an offence and sentenced to a term of imprisonment, the court may set a period of the sentence of imprisonment to be served by periodic detention. The periodic detention period may be for all or part of the sentence of imprisonment, but must be for a period of at least three months and not longer than two years.

11. Part 5.4 (ss 76-80) of the Sentencing Act makes provision for the eligibility and suitability of offenders for periodic detention. Significantly, s 80 contemplates the imposition of a sentence of periodic detention upon an offender who is already serving periodic detention and provides that the new period must end no later than two years after it was made, no matter when the new period is to take effect.

12. Chapter 5 of the Sentence Administration Act makes provision for the performance of sentences of imprisonment by periodic detention, including an offender's periodic detention obligations, and the supervision and management of an offender's periodic detention by the Board and the second defendant.

13. An offender's periodic detention obligations include the obligation to perform periodic detention under Part 5.3 of the Sentence Administration Act and to comply with the core conditions and any additional conditions of the offender's periodic detention: s 42(2)(a)-(c). The core conditions of every offender's periodic detention are set out in s 43(1). Section 43(1)(a) and (b) provides:

43 Periodic detention - core conditions

(1) The core conditions of an offender's periodic detention are as follows:

(a) the offender must not commit -

(i) an offence against a territory law, or a law of the Commonwealth, a State or another Territory, that is punishable by imprisonment; or

(ii) an offence outside Australia against a law of a place outside Australia that, if it had been committed in Australia, would be punishable by imprisonment;

(b) if the offender is charged with an offence against a law in force in Australia or elsewhere - the offender must tell the chief executive about the charge as soon as possible, but within 2 days after the day the offender becomes aware of the charge;

...

14. The Board is established by s 171 of the Sentence Administration Act and has the functions set out in s 172, which include functions given to it under Chapter 5 of the Act in relation to periodic detention.

15. Section 66 of the Sentence Administration Act provides that the Board may, at any time, on its own initiative or on the application of the second defendant, "conduct an inquiry to decide whether an offender has breached any of the offender's periodic detention obligations". Section 68 of the Sentence Administration Act sets out what the Board may do if, after conducting a s 66 inquiry in relation to an offender, it decides that the offender has breached any of his or her periodic detention obligations. It provides, in s 68(2):

(2) The board may do 1 or more of the following:

(a) take no further action;

(b) give the offender a warning about the need to comply with the offender's periodic detention obligations;

(c) give the chief executive directions about the offender's supervision;

(d) change the offender's periodic detention obligations by imposing or amending an additional condition of the offender's periodic detention;

(e) suspend the offender's periodic detention for a stated period, but not past the end of the offender's periodic detention period;

(f) cancel the offender's periodic detention.

Note Section 69 and s 70 require the board to cancel the offender's periodic detention in certain circumstances.

16. Section 70 of the Sentence Administration Act provides:

70 Cancellation of periodic detention on further conviction etc

(1) This section applies if the board decides that, since an offender was sentenced to serve periodic detention, the offender has been convicted or found guilty of -

(a) an offence against a territory law, or a law of the Commonwealth, a State or another Territory, that is punishable by imprisonment; or

(b) an offence outside Australia against a law of a place outside Australia that, if it had been committed in Australia, would be punishable by imprisonment.

(2) The board must, as soon as practicable, cancel the offender's periodic detention under section 68.

(3) To remove any doubt, this section does not limit the circumstances in which the board may cancel the offender's periodic detention under section 68.

17. If the Board decides to cancel an offender's periodic detention, the cancellation ends the periodic detention period of the offender's sentence of imprisonment and the offender must serve the remainder of the sentence by full-time detention until when the periodic detention period would have ended apart from the cancellation (s 79(4)(a) of the Sentence Administration Act) and the Board must make a re-committal order: s 82 of the Sentence Administration Act. Section 80 of the Sentence Administration Act provides that if the Board decides to suspend or cancel an offender's periodic detention and the offender is, at that time, subject to periodic detention under another sentence of imprisonment, whether concurrent or consecutive with the first and whether for the same or another offence, the Board may exercise its powers under Part 5.4 of the Sentence Administration Act in relation to the other periodic detention.

18. The plaintiff contends that the Board's decision to act under s 70 of the Sentence Administration Act to cancel the plaintiff's periodic detention order and recommit him to full-time detention was invalid. The plaintiff further submits that the correct interpretation of s 70 of the Sentence Administration Act does not authorise the Board to cancel periodic detention where the conviction or guilty finding which enlivens s 70 is for an offence committed before the offence in respect of which periodic detention was ordered.

19. It is said that s 70 of the Sentence Administration Act is ambiguous. It may refer to any offence committed in the past or to an offence committed during the periodic detention order.

20. The legislative framework of the Sentence Administration Act, the reasons why a sentence be served by way of periodic detention, and common sense are all factors upon which the plaintiff relies as to why s 70 of the Sentence Administration Act only applies to convictions for offences committed during the period of detention.

21. If the proper interpretation of s 70 of the Sentence Administration Act allows for the cancellation of the periodic detention for an offence at any time in the past, then the plaintiff submits that this would be inconsistent with the Human Rights Act 2004 (ACT) (Human Rights Act). Reference was made to ss 12 (privacy and reputation), 13 (freedom of movement), 18 (right to liberty and security of person) and 24 (right not to be tried or punished more than once).

22. The second defendant submits that the preferred interpretation of s 70 of the Sentence Administration Act is that it only applies to offences that were committed since the offender had been sentenced to serve periodic detention. This submission is consistent with the plaintiff's interpretation. The second defendant submitted that this interpretation is consistent with the legislative framework of the Sentence Administration Act, preserves an appropriate balance between the Board and the Courts and preserves the intended effect of s 80 of the Sentencing Act.

23. The second defendant also submits that if s 70 of the Sentence Administration Act bears the meaning contended for by both the plaintiff and the second defendant, it is unnecessary to consider the potential effect of the Human Rights Act on the plaintiff's rights protected by that Act.

24. Further, the second defendant says that if the favoured interpretation of s 70 of the Sentence Administration Act is accepted, that does not mean the Board does not have the power to cancel an offender's periodic detention where an individual has been found guilty or convicted of an offence prior to the imposition of that periodic detention period. The second defendant submits that this could be done pursuant to ss 73 and 75 of the Sentence Administration Act which provides for the Board to use their discretionary powers to cancel a periodic detention order. This aspect was not the subject of submissions by the plaintiff and I do not consider that I should do anything but note the submission.

Principles of interpretation and the Human Rights Act

1. The interaction of the Human Rights Act to the approach to be taken in construing legislation is still to be definitively resolved. Section 30 of the Human Rights Act provides:
   1. Interpretation of laws and human rights

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

1. In R v Fearnside [2009] ACTCA 3; (2009) 165 ACTR 22 (at [97]-[98]), Besanko J, with whom Penfold J and I agreed, proposed a general approach of ascertaining the meaning in accordance with the ordinary principles of statutory construction before determining whether the meaning is apparently inconsistent with a relevant right or freedom under the Human Rights Act and then proceeding, if the meaning is apparently inconsistent, to determine whether the inconsistency is a reasonable limit that can be justified in terms of s 28 of the Human Rights Act. In R v Momcilovic [2010] VSCA 50; (2010) 265 ALR 751 (R v Momcilovic), the Victorian Court of Appeal preferred an approach which gave the Victorian equivalent to s 30 of the Human Rights Act the status of other common law and statutory interpretation principles and provisions. In In the matter of an application for bail by Isa Islam [2010] ACTSC 147 (19 November 2010) (Islam), that approach commended itself to Penfold J who gave detailed consideration as to why she preferred that approach.
2. R v Momcilovic is the subject of an application for special leave to appeal to the High Court.
3. In the context of this case, I do not consider that it is necessary to do other than note the approaches so clearly elucidated in Islam. The present case does not have the nuances of interpretation that troubled Penfold J and I do not need to resolve the differences in approach for the purposes of determining the matter before me.

The interpretation of s 70 of the Sentence Administration Act

1. In the present case, I consider that the approach mandated by ss 138 and 139 of the Legislation Act 2001 (ACT) enables the provision to be interpreted in the way contended for by the parties in this case. Sections 138 and 139 provide:
   1. Meaning of working out the meaning of an Act

In this part:

working out the meaning of an Act means -

(a) resolving an ambiguous or obscure provision of the Act; or

(b) confirming or displacing the apparent meaning of the Act; or

(c) finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d) finding the meaning of the Act in any other case.

1. Interpretation best achieving Act's purpose

(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

(2) This section applies whether or not the Act's purpose is expressly stated in the Act.

_Note T_he Human Rights Act 2004, s 30 (1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.

1. The preamble to the Sentence Administration Act provides:

1. The inherent dignity of all human beings, whatever their personal or social status, is one of the fundamental values of a just and democratic society.
2. The criminal justice system should respect and protect all human rights in accordance with the Human Rights Act 2004 and international law.
3. Sentences are imposed on offenders as punishment, not for punishment.
4. The management of sentenced offenders, and people remanded or otherwise detained in lawful custody, should contribute to the maintenance of a just and democratic society, particularly as follows:

(a) by ensuring justice, security and good order in the correctional system;

(b) by ensuring that the harm suffered by victims, and their need for protection, are considered appropriately in making decisions about the management of offenders;

(c) by promoting the rehabilitation of offenders and their reintegration into society;

(d) by ensuring that offenders, remandees and other people detained in lawful custody are treated in a decent, humane and just way.

1. The object and principles of the Sentence Administration Act are set out in ss 6 and 7:
   1. Main object of Act

The main object of this Act is to ensure, as far as practicable, that sentences are given effect in accordance with this Act and the Corrections Management Act 2007.

(1) Functions under this Act in relation to a sentenced offender must be exercised, as far as practicable, as follows:

(a) to respect and protect the offender's human rights;

(b) to ensure the offender's decent, humane and just treatment;

(c) to preclude torture or cruel, inhuman or degrading treatment;

(d) to promote the offender's rehabilitation and reintegration into society.

(2) Also, functions under this Act in relation to an offender serving a sentence of imprisonment (whether by full-time or periodic detention) must be exercised, as far as practicable, to ensure -

(a) the offender is not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention; and

(b) the offender's conditions in detention comply with the requirements under the Corrections Management Act 2007.

1. The mandatory cancelling of periodic detention in respect of conviction or finding of guilt in respect of offences that occurred before the order for periodic detention was made does not, in my view, serve any of the purposes to be gleaned, from the preamble or objects of the Sentence Administration Act.
2. This is particularly so when regard is had to a core condition of an offender's periodic detention set out in s 43(1)(a) of the Sentence Administration Act (see [13]). It may be noted that s 43(1)(b) requires the offender to tell the chief executive about the charge as soon as possible but within two days after the day the offender becomes aware of the charge. The section does not require the offender to notify that the offender has committed an offence. It is under this regime that s 70 of the Sentence Administration Act operates. It follows that an offence committed before the date on which the periodic detention was imposed is not a breach of a periodic detention condition but it is clear that it is intended that one committed during the periodic detention period constitutes a breach of the offender's obligations.
3. Despite the extensive provisions concerning the Board's supervisory functions for breach of an offender's periodic detention obligations or review of the periodic detention, it is s 70 of the Sentence Administration Act which makes it mandatory for the Board to cancel the offender's periodic detention for conviction or finding of guilt in respect of an offence. In context, that may sensibly be achieved by limiting the effect of s 70 to those offences to which the core condition refers. To construe it otherwise would result in an arbitrary curtailment of the limited liberty granted by the order for periodic detention. I do not think that the provision should be construed to have that effect.
4. The Sentencing Act also envisages a sentencing court dealing with pending criminal matters during the period of detention. Section 80 of that Act provides:

80 Periodic detention - concurrent and consecutive periods

(1) This section applies if -

(a) the court is considering whether to set a periodic detention period (a new period) for the offender; and

(b) the offender is currently serving a sentence of imprisonment for another offence by periodic detention.

Note Pt 5.3 deals with the imposition of 2 sentences of imprisonment on the offender.

(2) If the court sets a new period, the new period must be stated to end no later than 2 years after the day it is made (no matter when the new period is to take effect).

1. In cases where a sentencing court is contemplating concurrent or consecutive periods of periodic detention for offences committed before the initial periodic detention period (as in the present case), mandates a revocation of the original order and renders nugatory s 80 of the Sentencing Act. As the second defendant points out, to do so would be contrary to the principle that legislation "must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at 381-382 [70]) per McHugh, Gummow, Kirby and Hayne JJ).

1. Since drafting these reasons, I have been apprised of the decision of Refshauge J in Blundell v Sentence Administration Board & Ors [2010] ACTSC 151 (2 December 2010) (Blundell). His Honour was dealing with somewhat comparable provisions of the Sentencing Administration Act having the effect of revoking parole on a conviction or finding of guilt made during the period that an offender was on parole.
2. Section 150 of the Sentence Administration Act provides:

150 Cancellation of parole order for non-ACT offence

(1) This section applies if, while an offender's parole order is in force, the board decides that the offender has been convicted or found guilty of -

(a) an offence against a law of the Commonwealth, a State or another Territory that is punishable by imprisonment; or

(b) an offence outside Australia against a law of a place outside Australia that, if it had been committed in Australia, would be punishable by imprisonment.

(2) Without limiting section 148 (Board powers - breach of parole obligations), the board must cancel the offender's parole order as soon as practicable under that section.

As a result, I hold that s 150 requires and authorises the Board to cancel a parole order only when an offender, in respect of whom a parole order is in force, is convicted, while that order is in force, of an offence of a kind set out in s 150(1)(a) and (b), and which was committed while the parole order was in force.

1. As far as I am able to discern, the approach and reasoning taken by his Honour in Blundell is consistent with what the parties have put to me in this matter and those parts of their submissions which I have accepted.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Counsel for the plaintiff: Mr J Burnside QC with Mr S Gill

Counsel for the defendants: Mr K Archer with Mr A Pound

Solicitor for the defendants: ACT Government Solicitors Office