Jacka v Australian Capital Territory and Chief Executive of The Department of Justice and Community Safety of The Australian Capital Territory [2013] ACTSC 199

3. The proceedings came before this Court on 6 October 2009. It is not entirely clear what happened between June and October 2009.

4. In any event, it was agreed that the proceedings should be heard with the matter of Lewis v Chief Executive of the Department of Justice and Community Safety [2013] ACTSC 198 (Lewis) and it was so heard on 16 November 2009. I reserved my decision in both cases.

5. The facts in this matter were agreed between the parties and may be summarised as follows.

6. On 26 February 2008, Mr Jacka was convicted of an offence of driving whilst disqualified contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and was sentenced to imprisonment for three months to commence on that day. The court set all of the period of the sentence of imprisonment to be served by periodic detention; the first detention period commenced on 29 February 2008.

7. Mr Jacka attended periodic detention on 29 February 2008 and 7 March 2008 but failed to attend thereafter.

8. A delegate of the chief executive submitted breach reports to the Sentence Administration Board (the Board) about Mr Jacka's failure to attend periodic detention on the dates specified in the report, being the dates on which he failed to attend but for which he had not been granted approval not to have performed periodic detention by the chief executive, her delegate or the Board.

9. On 27 May 2008, the Board conducted a hearing for its inquiry into Mr Jacka's failure to attend periodic detention. The Board cancelled his periodic detention under s 68(2)(f) of the Sentence Administration Act on the basis that s 69 of the Sentence Administration Act applied. The Board also ordered, under s 82 of the Sentence Administration Act, that Mr Jacka be placed in the custody of the chief executive to serve a period of imprisonment of two months, one week and one day, being the balance of the sentence of imprisonment, taking into account the two periods of periodic detention already served.

10. On the same day, the Board issued a warrant under s 82(3) of the Sentence Administration Act to arrest Mr Jacka. Mr Jacka was arrested on 29 May 2008, placed into the custody of the chief executive and imprisoned in full-time detention from 29 May 2008 to 5 August 2008, being the two months, one week and one day referred to above (at [9]).

11. On 8 January 2009, Mr Jacka was convicted of the offence of committing a negligent act causing grievous bodily harm, contrary to s 25 of the Crimes Act 1900 (ACT).

12. The court sentenced Mr Jacka to ten months imprisonment and, in the order, set a period of four months of the sentence of imprisonment to be served by periodic detention from 8 January 2009.

13. The balance of the sentence was suspended from 8 May 2009 and a good behaviour order made for a period of twenty-four months thereafter with a probation condition and certain other conditions relating to rehabilitation programmes and counselling, medical assessments and supply of samples of blood or urine for alcohol and drug testing if directed.

14. Mr Jacka attended periodic detention on 9 January 2009 and 23 January 2009 but failed to attend thereafter.

15. A delegate of the chief executive submitted breach reports regarding his failure to attend periodic detention for periods in respect of which he had not attended and for which he had not been granted approval not to perform periodic detention by the chief executive, her delegate or the Board.

16. The Board conducted a hearing on 17 March 2009 for its inquiry regarding Mr Jacka's failure to attend periodic detention, and cancelled the periodic detention under s 68(2)(f) of the Sentence Administration Act on the basis that s 69 of the Sentence Administration Act applied.

17. The Board then ordered, under s 82 of the Sentence Administration Act, that Mr Jacka be placed in the chief executive's custody to serve the balance of the period of imprisonment that was not suspended, namely three months, two weeks and two days and issued a warrant for his arrest under s 82(3) of the Sentence Administration Act.

18. Mr Jacka was arrested on 19 March 2009 and placed in the chief executive's custody. He served a term of imprisonment in full-time detention from 19 March 2009 to 4 July 2009, being the three months, two weeks and two days referred to above (at [17]).

19. Section 11 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) provides that the court may set a period of a sentence of imprisonment that may be served by periodic detention. The section is as follows:

11 Periodic detention

(1) This section applies if_ - _

(a) an offender is convicted of an offence; and

(b) the court sentences the offender to imprisonment for the offence.

(2) The court may, in the order sentencing the offender to imprisonment, set a period of the sentence of imprisonment (a periodic detention period) to be served by periodic detention.

...

(3) The periodic detention period_ - _

(a) may be for all or part of the offender's sentence of imprisonment; but

(b) must be for a period of at least 3 months and not longer than 2 years.

(4) When the court sets the periodic detention period, the court must state_ - _

(a) when the periodic detention period starts and ends; and

(b) the day the first detention period under the Crimes (Sentence Administration) Act 2005 for the offender is to start.

(5) The court may also recommend any condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate for the offender's periodic detention.

Examples of conditions

see the examples to section 13 (3) (g) (Good behaviour orders)

(6) This section is subject to chapter 5 (Imprisonment).

[notes omitted]

20. Part 5.4 of the Sentencing Act sets out provisions relating to periodic detention. Section 77 provides for eligibility for periodic detention and s 78 for suitability for periodic detention, the suitability by reference, inter alia, to matters set out in s 79. It is not necessary to set out those provisions here.

21. Section 82 of the Sentencing Act provides that the court must ensure that reasonable steps are taken to explain to an offender:

• the reason why a sentence of imprisonment is imposed and the purpose of the sentence;

• if the order sentencing the offender to imprisonment sets a periodic detention period, then, in general terms, the periodic detention obligations of the offender under the Sentence Administration Act and the consequences if the offender breaches those obligations.

22. Supervision and management of periodic detention is dealt with Pt 5.4 of the Sentence Administration Act.

23. In particular, ss 68 and 69 of that Act refer to the Board's powers where the offender has breached his or her periodic detention obligations. Those sections are as follows:

68 Board powers****_ - _breach of periodic detention obligations

(1) This section applies, if after conducting an inquiry under section 66 (Board inquiry - breach of periodic detention obligations) in relation to an offender, the board decides the offender has breached any of the offender's periodic detention obligations.

(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.

(3) An additional condition of a periodic detention must not be inconsistent with a core condition of the periodic detention.

(4) To remove any doubt, if an inquiry under section 66 in relation to an offender is conducted in conjunction with another inquiry under this Act in relation to the offender, the board may exercise its powers under this division with any other powers of the board in relation to the other inquiry.

69 Cancellation of periodic detention - repeated failures to perform

(1) This section applies if_ - _

(a) the chief executive applies to the board under section 59 (Failing to perform periodic detention - referral to board) for an inquiry in relation to an offender; and

(b) at the inquiry, the board decides that section 58 (Failing to perform periodic detention - extension of periodic detention period) applies to the offender in relation to 2 or more detention periods of the offender's periodic detention period.

Examples of s 58 applying to offender

1 or more of the following apply to the offender:

• without approval under section 55 (Periodic detention_ - _approval not to perform etc), the offender fails to report to perform periodic detention for a detention period
• without approval under section 55 (Periodic detention - approval not to perform etc), the offender reports late to perform detention for a detention period and is directed under section 58 not to perform periodic detention and to leave the reporting place
• when reporting to perform periodic detention for a detention period, the offender gives a positive test sample in response to a direction under section 45 (Periodic detention - alcohol and drug tests) and is directed under section 58 not to perform periodic detention and to leave the reporting place

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(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.

[notes omitted]

24. When periodic detention is cancelled, s 82 of the Sentence Administration Act provides for the re-committal of the offender to full-time detention. That section is as follows:

1. Suspension or cancellation of periodic detention - recommittal to full-time detention

(1) This section applies if the board decides to suspend or cancel an offender's periodic detention.

(2) The board must order that the offender be placed in the chief executive's custody to serve the relevant part of the offender's sentence by imprisonment under full-time detention.

Note See s 79 (Periodic detention - effect of suspension or cancellation etc).

(3) If the offender is not in custody, the board may also issue a warrant for the offender to be arrested and placed in the chief executive's custody.

(4) The warrant must -

(a) be in writing signed by the chair of the board; and

(b) be directed to all escort officers or a named escort officer.

(5) An escort officer who arrests the offender under this section must place the offender in the chief executive's custody as soon as practicable.

25. As noted above, Mr Jacka claimed that ss 68(2)(f), 79 and 82 of the Sentence Administration Act were invalid. At the hearing, s 69 was also included in the challenge to the validity of provisions of that Act.

26. The grounds of invalidity were that the sections were said to:

(a) invest in the Board part of the judicial power of the Commonwealth, contrary to the separation of that judicial power prescribed by Ch III of the Australian Constitution; or

(b) invest in the Board the power to interfere with the exercise of the judicial power of the Commonwealth by a court of the ACT, contrary to the separation of that judicial power proscribed by Ch III of the Australian Constitution; or

(c) undermine the independence and authority of the courts of the ACT, in a manner inconsistent with those courts' exercise of the judicial power of the Australian Commonwealth.

27. As those sections were said to be invalid, it was further alleged that the declarations that the orders of the Board on 27 May 2008 and 17 March 2009 did not provide lawful authority for the chief executive to detain Mr Jacka because they were based on those sections which, it was asserted, were invalid, and so could not authorise the orders that were made.

28. These claims were relevantly identical to the constitutional challenges made in Lewis to the same provisions of the Sentence Administration Act.

29. The two proceedings being heard together, the submissions in one were taken as submissions in the other proceeding.

30. In Lewis, I held that the sections were not invalid and dismissed the challenge to them accordingly.

31. In summary, I held that the decisions of the Board were not an exercise of the judicial power because there was no adjudgment of criminal guilt, no imposition of a penalty or sentence for breach of the law and no review, cancellation or variation of a judicial order.

32. I further held that, were I to be wrong about that, such power, even were it to be judicial power, could be invested in the Board, since the Australian Capital Territory, as a polity, was not subject to the doctrine of the separation of powers such as has been held to bind the Commonwealth.

33. Finally, I held that the investment of these powers did not offend against the principles of Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 because the investing of the relevant powers in the Board did not interfere with or impair the institutional integrity of the courts of the ACT.

34. My reasoning for these conclusions is set out in detail in Lewis at [207]-[393]

35. In Lewis, a challenge was also made on administrative law grounds to the proceedings before the Board.

36. The Statement of Agreed Facts in these proceedings did not disclose facts which would show whether the same challenge could be made by Mr Jacka. It was not pleaded. In any event, it seems to me that, since Mr Jacka has now served the terms of full-time detention that would be ordered in a valid hearing, were the hearings before the Board to have been invalid, it would be inappropriate to require the Board to reconsider the matters. Accordingly, I will not consider that issue further.

37. In the circumstances, the proceedings commenced by Mr Jacka must be dismissed.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.

Counsel for the plaintiff: Mr P J Hanks QC and Ms K Walker

Counsel for the Defendants: Mr M A Perry QC and Mr D J C Mossop

Solicitor for the defendants: ACT Government Solicitor