Lewis v Australian Capital Territory [2015] ACTSC 167

Lewis v Australian Capital Territory [2015] ACTSC 167 - ACTSC 2015 case summary — Zoe

[90]

41 Periodic detention - meaning of detention period

(1) For this Act, a detention period, for an offender, is each period during the periodic detention period of the offender's sentence of imprisonment that -

(a) starts at the reporting time on the reporting day; and

(b) ends at the finishing time on the 2nd day after the reporting day.

(2) However, a period mentioned in subsection (1) is not a detention period for an offender if -

(a) it includes any part of the following (an excluded period):

(i) Christmas Day, Good Friday or Easter Sunday during which the offender is available to perform periodic detention;

(ii) another day prescribed by regulation; and

(b) the offender has performed, or is taken to have performed, periodic detention for -

(i) the detention periods immediately before and after the excluded period; or

(ii) if the excluded period is the last detention period of the periodic detention period for the offender's sentence of imprisonment - the detention period immediately before the excluded period.

41A Periodic detention - effect on sentence of imprisonment

An offender who performs periodic detention for a detention period is taken to serve 7 days of the offender's sentence of imprisonment.

42 Periodic detention obligations

(1) An offender must serve periodic detention in the offender's periodic detention period in accordance with this part.

(2) To serve periodic detention, the offender must, during the periodic detention period -

(a) perform periodic detention under part 5.3 (Performing periodic detention); and

(b) comply with the core conditions of the offender's periodic detention; and

(c) comply with any additional condition of the offender's periodic detention; and

(d) comply with any non-association order or place restriction order made by the sentencing court for the offender; and

(e) comply with any other requirement under this Act or the Corrections Management Act 2007 that applies to the offender.

Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including a regulation (see Legislation Act, s 104).

(3) To remove any doubt, the offender's periodic detention obligations are not limited to detention periods for the offender's periodic detention.

...

47 Periodic detention - custody of offender etc

(1) While performing periodic detention, an offender is -

(a) taken to be in the director general's custody; and

(b) if under escort by an escort officer - also taken to be in the escort's custody.

(2) An offender is taken to perform periodic detention in a detention period if -

(a) the offender is, otherwise than under subsection (1), in lawful custody for the period; and

(b) the custody is only in relation to the offender's periodic detention obligations.

(3) To remove any doubt, the offender is not taken to perform periodic detention for a detention period if the reason for the custody mentioned in subsection (2) is, or includes, anything other than the offender's periodic detention obligations.

Example of custody in relation to periodic detention obligations

suspension of the offender's periodic detention (see s 79)

Example of other reason for custody

nonpayment of a fine or other amount (including restitution) under a court order

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).

48 Periodic detention - end of

Periodic detention for an offender ends -

(a) at the end of the periodic detention period of the offender's sentence of imprisonment; or

(b) if the periodic detention is cancelled earlier under part 5.4 (Supervising periodic detention) - when the cancellation takes effect.

[92]

(a) For the plaintiff, each "detention period" for the purposes of the Administration Act was each weekend between 24 January 2008 and 23 January 2009 (the plaintiff's "periodic detention period") beginning at 7.00 pm on each Friday and ending at the specified time in the late afternoon of each Sunday (subject to the exclusions mentioned in s 41(2)) (s 41(1));

(b) The "periodic detention period" under the plaintiff's sentence is the period from 24 January 2008 to 23 January 2009 or such extended period as may be determined under Ch 5 of the Administration Act (see the definition of "periodic detention period" in the Dictionary in the Administration Act, s 40 and s 58 of that Act);

(c) The plaintiff was obliged to serve his periodic detention by reporting to the Centre at 7.00 pm every Friday night throughout his periodic detention period;

(d) Each time that the plaintiff actually served a detention period he is to be taken as having served seven days of his 12 months' sentence of imprisonment (s 41A). Section 41A did not apply to the sentence imposed upon the plaintiff but the proposition contained in the section would have been applicable in any event as a result of construing other relevant provisions;

(e) When performing periodic detention, the plaintiff is taken to have been in the director-general's custody (s 47(1)(a));

(f) When the plaintiff was arrested on 5 January 2009 and detained until 27 March 2009, in that period, he was performing or taken to be performing his periodic detention (s 47(2) and s 47(3)); and

(g) If the trial judge's decision to set aside the Board's decision to cancel the plaintiff's periodic detention in Lewis No 1 was correct, then, subject to s 58 of the Administration Act, the periodic detention for the plaintiff ended at the end of the periodic detention period of the plaintiff's sentence of imprisonment (viz 23 January 2009) as extended under Ch 5 of the Administration Act. If, contrary to the trial judge's decision, the Board's cancellation was effective, the periodic detention for the plaintiff ended on 8 July 2008.

[112]

A sentence of imprisonment, like any other court order, must operate in accordance with its terms as interpreted in the context of any statutory provisions pursuant to which it is imposed or framed. If the sentence does not itself direct that the term of imprisonment which the offender is ordered to serve be a period commencing on a particular day or if overriding statutory provisions do not have that effect, the term of imprisonment will ordinarily commence when the offender is taken into custody and begins to serve it. The framing of the sentence or the effect of overriding statutory provision can however, intentionally or inadvertently, be such that the imprisonment to which an offender is sentenced is imprisonment during a period which is identified by reference to a nominated specific commencing date. In such a case, if the offender fails to serve the term of imprisonment imposed, he may be guilty of some further offence (see, e.g., Periodic Detention of Prisoners Act, s. 33). In the absence of statutory provision or valid court order to the contrary however, the term or period during which the offender is sentenced to be imprisoned will commence on the designated day.

On our reading of the Periodic Detention of Prisoners Act, the specification of a commencing date does not itself form part of the sentence. The commencing date must however be identified by the sentencing court in order that the procedures of that Act may be applied to the sentence of imprisonment. Section 8 of the Periodic Detention of Prisoners Act expressly provides that the sentence "shall commence" on the date specified in the order imposing the sentence. There is nothing in the Act which qualifies that clear provision. That being so, its effect is that the period or term of imprisonment which the person sentenced is required to serve is the period or term commencing on that designated date.

The fact that the applicant did not actually commence to serve the sentence of imprisonment did not, in itself, prevent the term of the sentence from commencing to run. In that regard, it is to be recalled that not even escape from custody had the effect, at common law, of preventing a term of imprisonment from continuing to run (In re Court (1871) 2 Q.S.C.R. 171; Wilson v. Attorney-General (N.Z) [1938] N.Z.L.R. 496). It becomes necessary to determine whether the orders for bail which were purportedly made by the Supreme Court operated to prevent the commencement of the term of imprisonment or to interrupt it after it had commenced. Two subsidiary questions immediately arise: the first is whether there was any power under the Bail Act 1978 (N.S.W.) to make the orders in question; the second is as to the effect of such orders, assuming them to have been validly made.

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Judgment (149 paragraphs)

Lewis v Australian Capital Territory [2015] ACTSC 167 (3 July 2015)

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Legislation Cited (12)

Cases Cited (4)