1. The sentences and orders made by the Magistrates Court on 19 August 2015 are confirmed.
2. It is declared that, for the purpose of those sentences and orders, the period of time from 20 August 2015 to 16 September 2015, when CL was in custody, shall count as time served under those sentences and orders.

APPEAL - Criminal law - jurisdiction, practice and procedure - appeal from the Magistrates Court - Galambany Court - Div 3.10.2 and Div 3.10.3 of the Magistrates Court Act 1930 (ACT) - stay of proceedings - affect of a stay upon sentence - the need to confirm sentences upon dismissal of an appeal

Crimes (Sentence Administration) Act 2001 (ACT), s 116ZM

Crimes (Sentencing) Act 2005 (ACT), ss 12, 13

Magistrates Court Act 1930 (ACT), s, 216, Div 3.10.2, 3.10.3

Baily v Marinoff [1971] HCA 49; (1971) 125 CLR 529

Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218

DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226

Hadba v The Queen [2004] ACTSC 62; (2004) 182 FLR 472

Hall v CL [2015] ACTSC 286

Legal Aid ACT (Respondent)

1. On 16 September 2015, I dismissed the informant's appeal against a sentence imposed on the respondent, CL, imposed on him on 19 August 2015. See Hall v CL [2015] ACTSC 286.

2. In that decision, I raised the issue of whether the appeal had been brought under Div 3.10.2 of the Magistrates Court Act 1930 (ACT) ('the Act') or under Div 3.10.3. While the process and, probably, the principles for the conduct of the appeals were the same, there were some consequential differences.

3. Without investigating the matter in depth, I considered that it was at least likely that the informant could bring the appeal under either Division of the Act and accepted the assertion of Mr M Fernandez, counsel for the informant appellant, that it was brought under Div 3.10.2. That had the curious consequence that under s 216 of the Act, the filing of the informant's Notice of Appeal stayed the enforcement of the sentence pending the hearing of the appeal.

1. Stay of execution pending appeal in certain cases

(1) If a person (the appellant) appeals under this division -

(a) the enforcement or execution of the decision, conviction, order, sentence or penalty that is the subject of the appeal is stayed until the appeal is decided or is abandoned or discontinued; and

(b) if the appellant is in custody - the appellant may, if not detained for another reason, apply for bail under the Bail Act 1992.

(2) Unless the appellant is detained for another reason, the appellant remains in the custody of the person who had custody of the appellant immediately before the enforcement or execution of the conviction or sentence was stayed until -

(a) the appellant is granted bail under the Bail Act 1992; or

5. Section 216(2) suggests that the provision is not applicable to prosecution appeals but this is not the occasion to give detailed consideration to that or its implications.

6. The consequences of the stay imposed by the section, as I noted in Hall v CL at [14], had sometimes to be taken into account when the appeal is decided.

7. When I delivered judgment on the appeal, no party submitted that I should make any consequential orders when dismissing the appeal.

8. Later, however, when re-reading the reasons I had delivered orally for the purpose of appropriate editing prior to publication, I realised that the issue of the statutory stay and any consequences had not been directly addressed.

9. Accordingly, I re-convened the Court to consider what, if anything, needed to be done. I am grateful to counsel for making themselves available for this purpose and appreciate the assistance they have given me.

10. On 19 August 2015, CL was sentenced as follows:

(i) Driving without a driver licence: $400 fine with no time to pay;

(ii) Dishonestly taking someone else's motor vehicle without consent: 6 months imprisonment (reduced from 8 months for the plea of guilty) to commence on 14 April 2015;

(iii) Robbery: 18 months imprisonment (reduced from 24 months for the plea of guilty) to commence on 14 April 2015 and be suspended on 13 October 2015 with a good behaviour for two years.

11. Under s 12 of the Crimes (Sentencing) Act 2005 (ACT), it is required that when a sentence of imprisonment is suspended (a suspended sentence order), the court must also make a Good Behaviour Order under s 13 of that Act. The Court did so. I described the relevant terms in Hall v CL at [89] as follows:

It was a term of the Good Behaviour Order that Mr CL was required to submit to urinalysis for drug testing, to attend programs at Relationships Australia and the Winnunga Nimmityah Mens' Group for grief counselling and parenting and family support from Gugan Gulwan. It is important to note that Winnunga Nimmityah and Gugan Gulwan are specifically culturally relevant aboriginal organisations.

12. The Notice of Appeal was filed on 20 August 2015. Thus, under s 216 of the Magistrates Court Act, the sentence the subject of the appeal was stayed on and from that date.

13. That stay may affect the first sentence, for, having regard to s 116ZM of the Crimes (Sentence Administration) Act 2001 (ACT), the fine was to be discharged at the rate of $500 for each day of imprisonment. As the stay commenced on 20 August 2015, it would seem that CL would have served the one day in prison which would discharge the whole of the fine, but I cannot be absolutely sure.

14. The stay, however, appears more likely to affect the other two sentences; the second sentence would not have been fully served by the time the stay became operative and, similarly, the period of full-time custody of the third sentence would not have been served by the time the stay became effective.

15. It seems to me that the terms of s 216 of the Magistrates Court Act mean that upon the dismissal of the appeal the stay is lifted by operation of the section.

16. That would mean that, for the period from 20 August 2015 to 16 September 2015, CL was not serving the second or third sentence, though he was still in custody.

17. For the second sentence, the effect of this would be that, while the intention of the Magistrates Court sentence was to have the end of the second sentence coincide with the end of his re-set non-parole period (see Hall v CL at [90]), it will now expire on 4 November 2015, being the earliest date on which he could be released, unless the period of custody pending the appeal is to be taken into account.

18. In Hadba v The Queen [2004] ACTSC 62; (2004) 182 FLR 472, the Full Court of this Court held that s 218 of the Magistrates Court Act enabled the Court to vary a sentence appealed from, even on the dismissal of an appeal, so as to prevent any injustice that might otherwise arise.

19. It seems, in any event, that that section requires that, at least as good practice, when dismissing an appeal, the Court should confirm the sentences the subject of the appeal.

20. As to the third sentence, it is slightly less clear what effect the stay may have, for the sentence specifies a date on which the sentence is suspended, not making that suspension depend upon the passage of time or a specified period of imprisonment.

21. Nevertheless, it seems to me that I should resolve any possible ambiguity by making an appropriate order in relation to that sentence also.

22. The only other question to resolve is whether I can now take the proposed step. In my view, I am not functus officio for, although I have dismissed the appeal, the order has not yet been sealed. That may well be the determinant because ordinarily that is regarded as the time until which the Court can rectify a judgment in wide terms: DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 244; [34].

23. This principle appears to apply to criminal appeals. See Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at 225; [22].

24. In any event, it seems to me that, having raised the issue in my reasons, the failure to address it could well be addressed under the slip rule in any event. See Baily v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 535.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.