CRIMINAL LAW - whether, in the events which have happened and upon the true construction of the Crimes (Sentencing) Act 2005 (ACT) and the Crimes (Sentence Administration) Act 2005 (ACT), the plaintiff's sentence of imprisonment has expired and whether his obligation to serve periodic detention in respect of that sentence has ended

Crimes Act 1900 (ACT), s 23

Crimes (Sentence Administration) Act 2005 (ACT), ss 30, 41, 41A, 42, 47, 48, 55, 58, 59, 66, 68, 69, 77, 79 and 82

Crimes (Sentencing) Act 2005 (ACT), ss 10, 11 and 62

Human Rights Act 2004 (ACT), s 18(6)

Supreme Court Act 1933 (ACT), s 37Q

Lewis v Chief Executive Department of Justice and Community Safety (ACT) [2013] ACTSC 198; (2013) 280 FLR 118

Lewis v Chief Executive of the Department of Justice and Community Safety (ACT) (No 2) [2014] ACTSC 196

Jacka v Australian Capital Territory (2014) 290 FLR 200

McCarthy v The Queen [2012] ACTCA 18

Petreski v Cargill (1987) 18 FCR 68

R v Carrion [2002] NSWCCA 21; (2002) 128 A Crim R 29

R v Hall [2004] NSWCCA 127

Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631

Magistrates Court of the Australian Capital Territory (Second Defendant)

Mr PJF Garrisson SC (Solicitor-General for the Australian Capital Territory) and Mr N Hancock (First Defendant)

1. In this proceeding, the plaintiff, Steven James Lewis, seeks a declaration that an imprisonment order and periodic detention order made against him in January 2008 have both expired or, alternatively, an order permanently staying that sentence of imprisonment and associated periodic detention order. He also claims his costs incurred in this proceeding and in a separate ACT Court of Appeal proceeding (SCA 91 of 2013).

2. The plaintiff's claim for a declaration depends upon the true interpretation of certain provisions in the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and the Crimes (Sentence Administration) Act 2005 (ACT) (Administration Act). His claim for a permanent stay raises questions concerning this Court's powers and jurisdiction as well as discretionary considerations in respect of undisputed facts.

3. When this proceeding was commenced, the only substantive claim made by the plaintiff was for a permanent stay of his sentence. At the hearing before me, I granted leave to the plaintiff to amend his Originating Application so as to add the claim for declaratory relief which he now makes.

4. After the plaintiff commenced this proceeding, the first defendant (ACT) moved to set aside the Originating Application. ACT's application to set aside was then allocated to me and listed before me.

5. When preparing for the hearing of ACT's application to set aside the Originating Application, I formed the view that a final hearing of the whole of the plaintiff's case would not take any longer than a hearing of ACT's application to set aside and would most probably not require the tender of any additional evidence. For this reason, prior to the hearing, I informed the parties of my view and suggested that the upcoming hearing should proceed as a final hearing of the whole matter. The parties agreed to proceed with the final hearing and not to waste time and money with ACT's application to set aside. That application will, therefore, be dismissed.

6. In order to determine the plaintiff's claims for relief, it is necessary to give an account of the plaintiff's dealings with the criminal justice system in the ACT since he was sentenced in January 2008.

7. On 24 January 2008, the plaintiff was convicted in the ACT Magistrates Court of the offence of recklessly inflicting actual bodily harm to another person on 21 September 2007. This is an offence against s 23 of the Crimes Act 1900 (ACT) which is punishable by imprisonment. Apparently, the plaintiff smashed a glass into the victim's face after an altercation with that person and others at a well-known tavern in Fyshwick. The victim was seriously injured.

8. In the formal orders document which recorded the orders of the Magistrate as entered and which is headed "Imprisonment Order" and "Periodic Detention Order", the Presiding Magistrate sentenced the plaintiff to:

... a total term of imprisonment of 12 months. The sentence starts on 24 January 2008, ends on 23 January 2009 and is to be served as periodic detention.

9. Paragraphs 2 and 3 of the same formal Orders document were in the following terms:

The Court orders that:

...

2. The periodic detention period starts on 25 January 2008.

1. The offender is to first report for periodic detention at Symonston Periodic Detention Centre, Mugga Lane, Red Hill, ACT [(the Centre)] on 25 January 2008 at 7 pm.

11. By a separate order styled "Periodic Detention Order" made on the same day (24 January 2008) and signed by the same Magistrate, the Court ordered that the whole of the plaintiff's sentence of 12 months of imprisonment be served by periodic detention and that the periodic detention period start on 24 January 2008 and end on 23 January 2009. In the Periodic Detention Order, the Magistrate also ordered that the first detention period was to start on Friday 25 January 2008 and that the plaintiff was to report for periodic detention at the Centre. The Periodic Detention Order was expressed as having been made pursuant to s 11 of the Sentencing Act.

12. Order 2 of the orders as entered records that the periodic detention period referrable to the plaintiff's sentence was to start on 25 January 2008 whereas in the separate Periodic Detention Order the Magistrate specified that both the sentence and the periodic detention period were to start on 24 January 2008. I think that I should accept the statement made in the separate Periodic Detention Order as recording the correct order and treat the relevant periodic detention period as having been ordered to start on 24 January 2008. I do so because it seems to me that the sentencing Magistrate clearly intended that the whole of the plaintiff's sentence be served by periodic detention. I note that the legislation distinguishes between a "detention period" in respect of an offender and "the periodic detention period" in respect of a sentence imposed upon an offender. For present purposes, nothing turns on this small discrepancy as to dates.

13. The plaintiff attended at the Centre and completed periodic detention for the following 11 weekends:

14. Upon the assumption that each of the periods of detention referred to in [13] above comprised two days, the plaintiff actually served 22 days in detention in the period between 25 January 2008 and 11 May 2008.

15. The plaintiff did not perform his periodic detention on any of the following weekends:

All weekends from and after the weekend of 16 May 2008 - 18 May 2008.

16. I have been told that, on one occasion (11 April 2008), he reported under the influence of alcohol and that, on the other four occasions, he failed to attend at all. Although Friday 21 March 2008 was Good Friday in 2008, the plaintiff did not get the benefit of the exemption from attendance contained in s 41(2)(a)(i) of the Administration Act because he did not perform periodic detention for the weekend immediately before and immediately after the weekend of 21-23 March 2008. He did perform periodic detention on the weekend of 14 March 2008 but not on the weekend of 28-30 March 2008.

17. The plaintiff left the ACT on or about 12 May 2008. He travelled to Griffith NSW in order to support his father and his father's wife. His father was seriously ill at that time. He had contracted emphysema and was not able to work as a fruit picker and thus not able to support his wife and himself.

18. The plaintiff returned to Canberra on or about 7 July 2008. He immediately again took up employment with the car detailing business which had employed him immediately before he left Canberra.

19. He had no contact with ACT Corrective Services between 12 May 2008 and 7 July 2008. He did not receive or see any letters from that organisation in that period.

20. When the plaintiff returned to Canberra in July 2008, he resumed living with his mother. He had lived with her for some time prior to travelling to Griffith. He says that, when he returned to his mother's home, there were five or six letters from ACT Corrective Services waiting for him there. He did not look at those letters at that time.

21. Because the plaintiff had failed to perform periodic detention for several detention periods, the relevant director-general was obliged to apply to the ACT Sentence Administration Board (Board) for an inquiry under s 66 of the Administration Act (see s 58 and s 59 of that Act).

22. The director-general made such an application in April 2008 and the Board held an inquiry on 24 June 2008 or on 8 July 2008. Mr Lewis was not present at that inquiry.

23. As a result of its inquiry, the Board decided that the plaintiff had breached his periodic detention obligations and, on 8 July 2008, cancelled his periodic detention pursuant to s 68(2)(f) of the Administration Act. In the circumstances of the present case, by reason of the operation of s 68 and s 69 of the Administration Act, the Board was bound to cancel the plaintiff's periodic detention unless the Board was satisfied that it was appropriate, having regard to the plaintiff's health or any exceptional circumstances, that it should retrospectively approve his absences (up to a maximum of eight absences) (see s 69(2) and s 69(3)). As at 8 July 2008, the plaintiff had failed to attend at the Centre in order to serve his periodic detention on 12 separate occasions or, in the language of the legislation, he failed to attend at the Centre to perform 12 detention periods. On one occasion, he had also attended when he was affected by alcohol and had been sent home. He did not have the prior approval of the director-general under s 55 not to perform periodic detention for any of those 13 detention periods. Upon the true construction of the Administration Act, if that cancellation was invalid, the cancellation order never came into operation and was ineffective right from the start.

24. All of the 13 detention periods where the plaintiff did not perform periodic detention as required are to be found in the period between 1 February 2008 and 8 July 2008, a period of a little over five months and certainly a period of less than six months. For this reason, had his approval been sought (which it was not), the director-general could have approved under s 55 an absence from detention in respect of only two of those 13 detention periods (s 55(3)). The director-general did not have the power to give an approval under s 55 which would operate retrospectively.

25. Because the plaintiff did not attend the inquiry and was not aware that it was to take place, he had no opportunity to seek to avail himself of the retrospective approval pathway found in s 69(3) of the Administration Act. I must say that, in light of the eight absences limit laid down in s 69(3) and the terms of s 69(1) and s 69(2), I find it difficult to accept that, had he known of the inquiry, the plaintiff could have done anything to prevent the inevitable cancellation of his periodic detention.

26. Once the Board had decided to cancel the plaintiff's periodic detention, it was required to order that the plaintiff be placed in the director-general's custody to serve the relevant part of his sentence by imprisonment under full-time detention (s 82(2) of the Administration Act). To this end, the Board was empowered to issue a warrant for the plaintiff's arrest (s 82(3)). Under s 79(2), a decision to cancel an offender's periodic detention takes effect when written notice of the decision is given to the offender under s 77 (s 79(2)(a)) or, if a later date of effect is stated in the notice, on the date stated (s 79(2)(b)). A decision to cancel an offender's periodic detention 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 the date and time when the periodic detention period would have ended apart from the cancellation (s 79(4)(a)) or otherwise in accordance with the sentence.

27. On 8 July 2008, the Board ordered that the plaintiff serve the relevant part of his sentence by full-time imprisonment and also issued a warrant for his arrest.

28. On 5 January 2009, the plaintiff was arrested at his place of employment by officers of the Australian Federal Police. There is no explanation in the evidence as to why it took from 8 July 2008 to 5 January 2009 for the arrest warrant to be executed. The plaintiff had resumed living with his mother in July 2008 although later in 2008 (October 2008) he left his mother's home and lived elsewhere. The plaintiff's mother's address was known to the relevant authorities. The plaintiff had also taken up work with his previous employer, the identity and location of whom were also known to the relevant authorities. It must have been relatively easy to find him.

29. After his arrest, the plaintiff was detained in prison from 5 January 2009 until 27 March 2009, a period of 82 days if both 5 January 2009 and 27 March 2009 are counted.

30. On 25 March 2009, the plaintiff commenced two sets of proceedings in this Court (proceedings SCC 353 of 2009 and SCC 354 of 2009) in which he claimed orders under s 18(6) of the Human Rights Act 2004 (ACT) to have him brought before the Court to determine the lawfulness of his detention, an order for habeas corpus for his release from detention, a declaration that ss 68(2)(f), 79 and 82 of the Administration Act are all invalid and such other relief as the Court considered appropriate. He did not challenge the validity of s 58 of the Administration Act. He also claimed costs.

31. On 27 March 2009, the former Chief Justice made an habeas corpus order in respect of the plaintiff. The plaintiff was brought before the Court. The Chief Justice then released the plaintiff on bail subject to conditions in relation to residence and reporting pending determination of the two sets of proceedings which the plaintiff had commenced on 25 March 2009.

32. Those proceedings were heard in July and November 2009. Regrettably, judgment was not given until 1 October 2013 (Lewis v Chief Executive Department of Justice and Community Safety (ACT) [2013] ACTSC 198; (2013) 280 FLR 118) (Lewis No 1).

33. The judge who determined those proceedings held that:

(a) Sections 68(2)(f), 69, 79 and 82 of the Administration Act were all valid and that the Legislative Assembly of the ACT had the power to invest the Board with the jurisdiction arising from those sections; and

(b) The decision of the Board to cancel the plaintiff's periodic detention made on 8 July 2008 should be set aside.

34. On 1 October 2013, the trial judge made a formal order giving effect to his conclusion that the decision of the Board made on 8 July 2008 should be set aside. He also granted a declaration as to the validity of the challenged sections of the Administration Act and a declaration as to the legislative power of the ACT Legislative Assembly. He reserved for further consideration whether any other orders should be made in order to give effect to his Reasons for Judgment. Notwithstanding his remarks at 183 [394], the trial judge did not remit the matter to the Board to be reconsidered in light of his Reasons.

35. Subject to one matter, as far as I am aware, no other substantive orders have subsequently been made in Lewis No 1. That one matter is this. I have been told that, on 7 November 2013, the trial judge in Lewis No 1 granted a "temporary stay" of the plaintiff's sentence. I have not been made aware of the precise terms of that temporary stay. I will proceed upon the basis that such a stay has been granted. In light of the foregoing matters, proceedings SCC 353 of 2009 and SCC 354 of 2009 remain on foot part heard before his Honour.

36. In Lewis No 1, the trial judge held that, under the Administration Act, the plaintiff had a right to appear at any inquiry conducted by the Board (151 [194]). He then held that good practice required the Board to make every reasonable effort to have an offender appear where at issue is the question whether his periodic detention should be cancelled (151 [195]). Next, his Honour held that, as a matter of law, it was not necessary for an offender to be present at the inquiry if his non-attendance is the result of a deliberate decision on his part not to attend (151 [196]). Otherwise, so his Honour held, it is necessary for an offender to be present (151-152 [197]). His Honour then held that, in the case of the present plaintiff, he was not satisfied that the plaintiff had had the opportunity that he should have been afforded to decide whether to attend before the Board or not (152-153 [205]). Ultimately, his Honour concluded that, by proceeding in the plaintiff's absence in circumstances where it could not have been satisfied that the plaintiff was aware of the inquiry and had decided not to attend, the Board had denied natural justice to the plaintiff (152-153 [205]-[206]).

37. I have been told that, in light of the decision in Lewis No 1, the plaintiff applied to the ACT Court of Appeal for an extension of time within which to bring an appeal from the sentence passed on him in the ACT Magistrates Court on 24 January 2008 and that that application has been withdrawn. I assume that it is the costs of this Court of Appeal proceeding that are now claimed by the plaintiff in this proceeding.

38. I have also been told that, on 9 September 2014, the plaintiff appealed from that part of the decision in Lewis No 1 by which his Honour rejected the plaintiff's contention that various sections in the Administration Act are invalid on constitutional grounds and also appealed from the costs orders made by his Honour on 14 August 2014 (Lewis v Chief Executive of the Department of Justice and Community Safety (ACT) (No 2) [2014] ACTSC 196. That appeal has not yet been heard.

39. A constitutional challenge in the same terms as that litigated by the plaintiff in Lewis No 1 was rejected by the ACT Court of Appeal in a separate case involving a different plaintiff (Jacka v Australian Capital Territory (2014) 290 FLR 200). The High Court refused special leave from that decision on 17 April 2015. It would appear to be inevitable that the Court of Appeal will now move to dismiss the plaintiff's constitutional challenge to ss 68(2)(f), 79 and 82 of the Administration Act given its decision in Jacka and given the High Court's refusal to grant special leave from that decision.

40. Apparently, on 14 October 2014, the first defendant in Lewis No 1 purported to file a Cross-Appeal in the Appeal instituted by Mr Lewis on 9 September 2014. By that Cross-Appeal, the first defendant in Lewis No 1 seeks to overturn the trial judge's decision in Lewis No 1 to set aside the Board's decision of 8 July 2008. It also seeks an order confirming that decision. That Cross-Appeal has not yet been determined.

41. It may be that the Cross-Appeal to which I have referred was filed out-of-time. Apparently, that is the plaintiff's contention. I need not comment further on that possibility. The Appeal itself was commenced within time because the time within which the plaintiff might appeal from the declarations made in Lewis No 1 was extended by the Court on 14 August 2014. The important matter to note for present purposes is that there are extant challenges to all of the orders made by the trial judge in Lewis No 1 including, in particular, the order setting aside the Board's decision to cancel the plaintiff's periodic detention made on 8 July 2008.

42. Although there is no evidence on the matter, I assume that the plaintiff continues to be out of detention and on bail. Thus, at the date of publication of these Reasons, the plaintiff will have been on bail continuously for over six years. Further, there is no suggestion that the plaintiff failed duly to observe any of the conditions which were imposed upon the grant or extensions of bail.

43. When the plaintiff's time in detention actually served (22 days) (as to which, see [13] above) is added to the time served by him in full-time imprisonment in the period from 5 January 2009 to 27 March 2009 (82 days) (as to which, see [28]-[31] above), the plaintiff has been deprived of his liberty for a total period of 104 days as a result of his conviction on 24 January 2008 and his subsequent conduct.

44. Had he actually served all of the periods of periodic detention ordered by the Magistrates Court on 24 January 2008, he would have been detained for 104 days in total (being 52 weekends between 25 January 2008 and 23 January 2009).

First Issue - Has the Plaintiff's Sentence Expired?

45. It was submitted on behalf of the plaintiff both orally and in writing that the sentence imposed on the plaintiff on 24 January 2008 had well and truly expired by the date of the hearing of this proceeding (27 October 2014).

46. Against this, ACT submitted that, when proper regard is paid to the Sentencing Act and to the Administration Act, the plaintiff's sentence has not yet expired.

47. Both parties accepted that, in the circumstances of the present case, s 58 of the Administration Act operated to extend the plaintiff's sentence. The issue between them was: By how much?

48. Senior Counsel for the plaintiff submitted that:

(a) The decision in Lewis No 1 did not address or determine any part of the plaintiff's claims in this proceeding. For this reason, there was no impediment to my determining those claims.

(b) The decision of the High Court in Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631 (Whan) governs the present case. In that case, the High Court held that, under the relevant legislation which it was interpreting, the term of imprisonment under consideration in that case commenced to run on the date specified in the sentence as the commencement date and continued thereafter uninterrupted notwithstanding that the offender did not actively commence to serve his sentence. By the time that the NSW Court of Appeal came to determine the matter before it, the sentence had expired. For that reason, the Court of Appeal had no jurisdiction to order that the unserved term of imprisonment commence on some future date. In the present case, the plaintiff's sentence began on 24 January 2008, as specified in the order, and, after due allowance is made for the necessary extensions, expired on 2 October 2009. The core proposition advanced by the plaintiff was that the grant of bail did not operate to affect the plaintiff's periodic detention period.

(c) In Petreski v Cargill (1987) 18 FCR 68, which is a decision of the Full Court of the Federal Court of Australia sitting on appeal from a decision of a former Chief Justice of this Court, the Full Court applied the reasoning of the High Court in Whan to similar circumstances arising under the periodic detention legislation then in force in the ACT (see esp the Reasons at 81-82).

49. For ACT, the Solicitor-General explained the relevant statutory provisions in order to support his ultimate submissions that:

(a) By dint of the relevant statutory provisions, the plaintiff's sentence has been extended as a result of his failure to perform periodic detention as ordered by the sentencing Magistrate on 24 January 2008;

(b) Whan is distinguishable;

(c) At the present time, the plaintiff has "around" 200 days left to serve; and

(d) There may be other ways for the plaintiff to try to ameliorate the effect of the relevant legislation upon his sentence but he is not entitled to the declaration which he seeks.

50. ACT had some reservations as to whether the claims made by the plaintiff in this proceeding are truly separate from those made in Lewis No 1 and that the disposition of the present claims for relief may touch upon matters already decided in Lewis No 1 and matters left outstanding in Lewis No 1. However, ACT did not wish "... to push the point". However, ACT did not argue that any issue estoppel or Anshun estoppel had arisen. I note that the defendant parties in Lewis No 1 are not the same persons or entities as are the defendant parties in this case. I see no impediment or obstacle to my determining the claims for relief made by the plaintiff in this proceeding.

51. Under s 10(2) of the Sentencing Act, the trial Court may, by order, sentence the offender to imprisonment for all or part of the term of the sentence, if the Court is satisfied, having considered possible alternatives, that no other penalty is appropriate. The Court can only sentence an offender to imprisonment if the offender is convicted of an offence punishable by imprisonment (s 10(1)).

52. Under s 10(3), if the Court sentences an offender to imprisonment, the sentence must be served by full-time detention at a correctional centre unless:

(a) The Court orders otherwise; or

(b) The offender is released from full-time detention under the Sentencing Act or under another ACT law.

53. An example given in s 10 of the operation of s 10(3)(b) (release of the offender under another ACT law) is where the Court sets a period of the sentence to be served by periodic detention. Section 11 of the Sentencing Act provides for periodic detention.

54. At all times in the period from 1 January 2008 until the date in 2014 when the Crimes (Sentencing) Amendment Act 2014 (ACT) commenced in operation, s 11 of the Sentencing Act provided:

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.

Note A periodic detention period may be part of a combination sentence together with other sentencing options (see pt 3.6).

(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)

Note 1 A condition recommended by the Court is, under the Crimes (Sentence Administration) Act 2005, an additional condition of the offender's periodic detention (see that Act, s 40, def additional condition, par (a)).

Note 2 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).

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

Note See, in particular, pt 5.4 about eligibility and suitability for, and other matters in relation to, periodic detention.

55. Here, the terms of s 11 were complied with when the plaintiff was sentenced. In particular, the sentencing Magistrate did state when the plaintiff's periodic detention period was to start (24 January 2008) and when it was to end (23 January 2009, the date when the sentence of imprisonment itself was to expire).

56. Section 62 of the Sentencing Act provides:

62 Start and end of sentences - general rule

(1) A sentence of imprisonment starts -

(a) on the day the sentence is imposed; or

(b) if an offender is not in custody - on the day the offender becomes subject to lawful custody.

(2) However, subsection (1) is subject to -

(a) the following provisions of this Act:

(i) section 11 (Periodic detention);

(ii) section 31 (Combination sentences - start and end);

(iii) section 63 (Start of sentences - backdated sentences);

(iv) part 5.3 (Imprisonment - concurrent and consecutive sentences); and

(b) the Crimes (Sentence Administration) Act 2005.

(3) A sentence of imprisonment that starts on a day starts at the beginning of that day.

(4) A sentence of imprisonment that ends on a day ends at the end of that day.

(5) In this section:

sentence of imprisonment does not include a sentence of imprisonment that is fully suspended.

57. Section 30 of the Administration Act provides:

30 Unlawful absence by offender - extension of sentence

If an offender is unlawfully absent from a correctional centre or other place during the term of the offender's sentence of imprisonment, the absence is not to be counted in working out the period of the sentence served by the offender.

Examples of unlawful absence

the offender fails to return to a correctional centre as required after community service work or approved leave

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).

58. Section 30 does not directly apply to periods of periodic detention. However, it does have the effect of extending an offender's sentence if the offender absconds during the term of his sentence of imprisonment. Here, the plaintiff did not abscond during the term of his sentence of imprisonment in a manner which engaged s 30.

59. Sections 41, 41A, 42, 47 and 48 of the Administration Act provide:

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.

60. With the exception of s 41A of the Administration Act, which was inserted into that Act on 14 December 2011, all of the sections referred to at [56]-[59] above were in the form extracted in those paragraphs throughout 2008, 2009 and 2010.

(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.

62. At all relevant times, s 58 of the Administration Act provided:

58 Failing to perform periodic detention - extension of periodic detention period

(1) This section applies to an offender for a detention period if -

(a) the offender fails to report to perform periodic detention for the detention period and has not been given approval under section 55 not to perform detention for the detention period; or

(b) the offender reports to perform periodic detention for the detention period and is given a direction under subsection (2) or (3).

(2) If the offender reports to perform periodic detention for the detention period more than 4 hours late, the director general must direct the offender, orally or in writing, not to perform periodic detention for the detention period and to leave the reporting place.

(3) If the offender reports to perform periodic detention for the detention period (but not more than 4 hours late), the director general may direct the offender, orally or in writing, not to perform detention for the detention period and to leave the reporting place if any of the following happen:

(a) the offender reports to perform periodic detention up to 4 hours late without approval under section 55;

Note The director general may not give an offender approval in relation to more than 2 detention periods in any 6-month period (see s 55 (3)).

(b) when reporting to perform periodic detention, the offender fails to comply with any reporting requirement mentioned in section 49 (Periodic detention - reporting for etc);

(c) when reporting to perform periodic detention, the offender gives a positive test sample in response to a direction under section 45 (Periodic detention - alcohol and drug tests).

(4) For each detention period of the offender to which this section applies -

(a) the offender is taken not to perform periodic detention; and

(b) the periodic detention period of the offender's sentence of imprisonment, and the term of the sentence, are automatically extended by 1 week.

63. By failing to perform periodic detention for each of the detention periods specified in [15] above for the particular reasons identified at [23] above, the plaintiff engaged both limbs of s 58(1). Subsection (2) and subs (3) of s 58 are only relevant in respect of one detention period which the plaintiff failed to perform: They apply when an offender reports to perform periodic detention but does so late or is affected by alcohol or drugs and is, for that reason, directed not to perform periodic detention on that occasion.

64. Section 58(4) applies to an offender who fails to report to perform his periodic detention as well as to an offender who reports but who does so late or is affected by alcohol or drugs. In every case, the offender is "... taken not to perform periodic detention ..." (s 58(4)(a)). Of course, in the case of an offender who does not report to perform his periodic detention at all, there is no need to "deem" him or "take" him as not having performed that periodic detention. In such a case, as a matter of simple and obvious fact, he will not have performed his periodic detention because he did not report at all for the purpose of doing so.

65. Section 58(4)(b) provides that, for each detention period of the offender to which s 58 applies, the periodic detention of the offender's sentence of imprisonment and the term of the sentence, are automatically extended by one week. That is, the periodic detention period and the term of the sentence itself are, by operation of s 58(4)(b) without more, extended by one week.

66. In the present case, the plaintiff failed to report at the Centre to serve his periodic detention or was affected by alcohol in reporting to serve his periodic detention on 13 occasions prior to 8 July 2008 (as to which, see [15] and [23] above).

67. If the Board's decision to cancel the plaintiff's periodic detention is ultimately held to be valid and effective, his periodic detention came to an end on 8 July 2008 (s 48(b) and s 79(4) of the Administration Act).

68. At the moment, the Board's decision has been set aside by order of the Court made in Lewis No 1. However, as I have already mentioned, the judgment in Lewis No 1 is under appeal. That Appeal has not yet been determined.

69. There are, therefore, two possible outcomes in respect of the Board's decision to cancel the plaintiff's periodic detention. These are:

(a) The decision of the primary judge in Lewis No 1 is upheld. In that event, the trial judge will need to determine whether any consequential relief should be granted. There may then be further action taken by the Board. What that might be is a matter of pure speculation.

(b) The decision of the primary judge in Lewis No 1 is overturned with the consequence that the decision of the Board cancelling the plaintiff's periodic detention is confirmed.

70. I do not intend to predict the outcome of the Appeal and Cross-Appeal from Lewis No 1 or to predict future action on the part of the Board. Nor would it be appropriate for me to do so.

71. The first scenario with which I intend to deal is that which assumes that the decision of the trial judge in Lewis No 1 setting aside the Board's decision to cancel the plaintiff's periodic detention was correct and that the effect of that order was to set aside the Board's cancellation decision ab initio. Upon that assumption, the plaintiff's periodic detention obligations continued until brought to an end by reason of the operation of the relevant statutory provisions. In those circumstances, the onlyway in which the plaintiff's periodic detention could have ended would be when the periodic detention period of the plaintiff's sentence of imprisonment came to an end (s 48(a) of the Administration Act).

72. After his arrest on 5 January 2009 and up to his release on bail on 27 March 2009, the plaintiff was held in full-time imprisonment. By reason of the operation of s 47 of the Administration Act, the plaintiff is taken to have performed his periodic detention throughout that period - a period of 11½ weeks. Therefore, as at 27 March 2009, when the plaintiff was released on bail, he had failed to perform his periodic detention for a total of 39 weeks comprising:

(a) The five specific weekends identified at [15] above; and

(b) All weekends from and after the weekend of 16 May 2008 up to 5 January 2009 (34 weekends).

73. Section 58(4)(b) of the Administration Act provides that both the term of the plaintiff's sentence and the periodic detention period of the plaintiff's sentence of imprisonment are both automatically extended by one week for each detention period to which s 58 applies.

74. For the above reasons, upon the assumption that the Board's decision made on 8 July 2008 never had any effect, the term of the plaintiff's sentence and the periodic detention period of his sentence of imprisonment were both extended by 39 weeks, that is to say, up to 23 October 2009.

75. In my judgment, the reasoning of the High Court in Whan applies to the circumstances of the present case with the consequence that the plaintiff's sentence continued to run while he was on bail. That is to say, the plaintiff's sentence continued to run at all times after 27 March 2009 notwithstanding that the plaintiff was on bail.

76. At [48(b)] above, I have referred briefly to the essence of the High Court's decision in Whan. I will now refer to that decision in a little more detail.

77. At 635.7, the plurality (Mason, Murphy, Wilson and Deane JJ) said that the question in the case was whether, in the circumstances, the term of imprisonment which the applicant was sentenced to serve had expired. They then said:

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.

Notwithstanding that, in its modern garb, bail may operate more as a form of conditional liberty than as a form of alternative custody (as it used to do when the bailed person was given over into the custody of his sureties), and thereby assume a character more akin in effect to a stay of execution of an order, it does not of itself interfere with the operation of the order: R. v. Brooke ((1788) [1788] EngR 57; 2 T.R. 190, at p. 196 [1788] EngR 57; [100 E.R. 103, at p. 106]). A stay of execution, as its name implies, operates directly on the judgment or order the subject of the stay. Bail, in the absence of the exercise of any associated or supplementary powers that may be available, merely authorizes the accused person to be at liberty notwithstanding the operation of the sentence. That being so, in the circumstances of the present case, at the time when the Court of Appeal purported to direct that the sentence of the applicant commence on a new and future date, the sentence of three months imposed had already run its term.

79. The plurality then went on to test the proposition which they had outlined at 638 by reference to the way in which the controller of the gaol would deal with a warrant recording a sentence of three months to be served by way of periodic detention commencing on the specified date (19 August 1983).

From what has already been said it will be seen that our conclusion is based on the following propositions: (1) that the concurrent sentences of three months' imprisonment imposed by the District Court judge commenced on 19 August 1983; (2) that, in the absence of a stay of execution, the bail orders did not have the effect of suspending or postponing the operation of the sentences; (3) that the sentences continued to run notwithstanding that the applicant did not commence to serve the term of imprisonment to which he was sentenced; and (4) that the Court of Appeal (a) had no inherent jurisdiction to substitute a fresh order of commitment for a sentence which had expired, and (b) had no statutory power, similar to that possessed by the Court of Criminal Appeal, to vary the sentence so as to take account of the period spent on bail. The effect of those propositions is that the appellant's sentence had run its course by the time the Court of Appeal heard and determined the proceedings before it and that the Court of Appeal lacked jurisdiction to make an order to the effect that the term of imprisonment commence on some future date. We note that that conclusion is in accordance with the unreported decision of Humphreys J. in the case of Sinnott (Unreported; Divisional Court, 4 May 1943) which was discussed in Ex parte Blyth ([1944] K.B. 532, at pp. 539·540) but which apparently was not cited in argument before the Court of Appeal.

81. The High Court held that the sentence imposed in Whan commenced on the date specified in the sentencing order as the commencement date and that, in the absence of a stay of execution, the bail orders did not have the effect of suspending or postponing the operation of the sentence notwithstanding that the applicant had never served any part of the term of imprisonment to which he had been sentenced.

82. In a separate judgment, Brennan J held that the grant of bail in Whan effectively cancelled the sentence and allowed the applicant "to escape from punishment and laugh at justice". Although that consequence was unintended, so his Honour held, it did not follow that the Court of Appeal had inherent jurisdiction to impose a sentence to make up for the sentence avoided (at 642).

83. The Solicitor-General submitted that Whan was distinguishable but did not develop that submission. His submission was that s 58(4)(b) extends an offender's sentence by express statutory terms and that this aspect somehow distinguishes the present case from the reasoning in Whan.

85. The effect of s 58(4)(b) is to extend the term of an offender's sentence and also to extend the periodic detention period of the offender's sentence of imprisonment. It does not speak to or say anything about the question of whether that sentence and that period of periodic detention continue to run when the offender is on bail. The position would be different if a stay of the sentence is in place. Here, however, no stay was in place until 7 November 2013.

86. In Petreski v Cargill, the Full Court of the Federal Court (at 81-82) applied the reasoning in Whan to the periodic detention legislation then in force in the ACT notwithstanding certain textual differences between the NSW legislative scheme for periodic detention and the ACT scheme for such detention.

87. Whan was applied by the NSW Court of Criminal Appeal in R v Hall [2004] NSWCCA 127 and has been applied in other NSW cases. The Solicitor-General relied upon R v Carrion [2002] NSWCCA 21; (2002) 128 A Crim R 29. In that case, the NSW Court of Criminal Appeal made brief reference to Whan (at 40-41 [45]-[48]). At those paragraphs, the Court distinguished Whan. For the same reasons that the Court distinguished Whan in that case, Carrion is distinguishable from the present case.

88. In my judgment, provided there is no stay of the sentence in place, s 58(4)(b) does not operate to prevent a sentence of imprisonment continuing to run while the offender is on bail. It does not modify the principles articulated by the High Court in Whan and does not have the same effect as s 37Q of the Supreme Court Act 1933 (ACT) (as to which see McCarthy v The Queen [2012] ACTCA 18).

89. In the present case, once the plaintiff was granted bail, he was not obliged to attend at the Centre and report to serve either full-time imprisonment or periodic detention. To require him to do so would be absurd. Such an hypothesis involves the proposition that the plaintiff would need to present himself at the Centre, explain that he was on bail and then be sent home, week in, week out, and all this in addition to reporting under his bail conditions.

90. For all of the above reasons, if this first scenario is the way in which the matter finally plays out in the future, the following propositions apply in the present case:

(a) Both the term of the plaintiff's sentence of imprisonment and the periodic detention period of the plaintiff's sentence of imprisonment were extended to 23 October 2009 by reason of the operation of s 58(4)(b) of the Administration Act;

(b) The plaintiff's sentence of imprisonment continued to run uninterrupted up to 23 October 2009 and ended on that day;

(c) No stay of the plaintiff's sentence of imprisonment was ordered until 7 November 2013;

(d) In the absence of a stay, the grant of bail on 27 March 2009 did not operate to affect the periodic detention period; and

(e) By the time the stay had been ordered, the plaintiff's sentence had expired.

91. The second possible scenario is that the trial judge's decision to set aside the Board's cancellation order made on 8 July 2008 is overturned with the consequence that the Board's cancellation order is confirmed and will have been operative at all times from 8 July 2008.

92. If that is the ultimate outcome, by reason of the operation of s 48(b) of the Administration Act, the periodic detention for the plaintiff will have ended on 8 July 2008. Upon that assumption, the plaintiff would have had no further obligation to attend and report at the Centre in order to serve detention periods pursuant to the periodic detention order made on 24 January 2008.

93. As explained above, upon the cancellation of the plaintiff's periodic detention, he became liable to arrest and was required thereafter to serve the balance of his sentence by way of full-time imprisonment.

94. As at 8 July 2008, the plaintiff had not performed 13 detention periods as required under the periodic detention order made in respect of his sentence.

95. In those circumstances, s 58(1) of the Administration Act was engaged and s 58(4) was also engaged. By reason of the operation of s 58(4)(b) of the Administration Act, the term of the plaintiff's sentence of imprisonment and the periodic detention period of the plaintiff's sentence of imprisonment had, as at 8 July 2008, been extended by 13 weeks, that is to say, up to and including 24 April 2009 (if Good Friday is to be included) or, at the latest, up to and including 1 May 2009.

96. For the same reasons as I have explained at [72]-[90] above, the plaintiff's sentence continued to run while he was released on bail and, upon the basis that the Board's cancellation order stands, expired on 1 May 2009, at the latest.

97. For all of the above reasons, I have come to the view that the plaintiff's sentence of imprisonment expired by no later than the end of October 2009, long before any stay of that sentence was granted by the Court and that this conclusion will not be affected by the outcome of the Cross-Appeal in Lewis No 1. In those circumstances, I consider that the plaintiff has made out a case for the making of declarations now, notwithstanding that there is still some uncertainty as to which of the potential outcomes will ultimately apply in the present case. Accordingly, I will make appropriate declarations now.

98. Detailed Written Submissions were made by each of the parties addressing the question of whether the Court has power, in the circumstances of the present case, to stay permanently the plaintiff's sentence and, if so, whether that power should be exercised in favour of the plaintiff.

99. Given the conclusion to which I have come in relation to the first issue, I do not propose to canvas those submissions in detail. They will remain with the Court file.

100. However, I will state my conclusions in relation to the second issue in summary form:

(a) The Court has power to stay permanently the plaintiff's sentence in the circumstances of the present case; and

(b) The plaintiff has a very strong case for the exercise of that power in the present circumstances. Although initially there was considerable fault on the part of the plaintiff in not attending to his periodic detention obligations, he has suffered enormously at the hands of the criminal justice system by being kept on tenterhooks for 6½ years and by being required to meet bail conditions throughout that period in circumstances where he has already served 104 days in prison, 104 days being the number of days he would have served had he performed his periodic detention as originally ordered. In effect, for a very long time, there have been constraints upon his freedom of movement which should not continue.

101. The Solicitor-General filed a Written Submission as to the correct approach to the calculation of time in relation to the plaintiff's sentence. That Submission did not engage with the approach which I consider to be the correct approach in the present matter. Rather, it focussed upon days already served versus days that might remain to be served having regard to ACT's reckoning of the extensions imposed upon the plaintiff's sentence by reason of the operation of s 58(4). I have not addressed that submission in any detail as I consider it to be reflective of a flawed approach to the real question in the case.

102. Senior Counsel for the plaintiff also made submissions as to a number of limitations upon potential future action by the Board upon the assumption that Scenario 1 is the ultimate outcome in the case. I do not propose to comment upon those submissions. It may be that there remain live issues in relation to the powers of the Board although, for the reasons outlined by Senior Counsel for the plaintiff, I very much doubt it.

103. Once the declarations which I have foreshadowed are made, it seems to me that the plaintiff's bail should be revoked because there will no longer be any underlying sentence in respect of which he might be admitted to bail. I will not make any order concerning bail at this stage although I intend to raise it with the parties' legal representatives when judgment is delivered.

104. I propose to order that the first defendant pay the plaintiff's costs of this proceeding. There is some question as to whether that should be upon the basis of indemnity costs or the ordinary basis. For this reason, I shall reserve the question of costs at the moment and invite the parties to address the question of indemnity costs in due course.

105. The plaintiff also seeks an order that the first defendant pay the costs of Court of Appeal proceeding No SCA 91 of 2013. No real effort was made to justify that claim and I refuse it.

106. I will therefore make declarations substantially as sought and reserve the question of costs. I will then consider further any additional matters concerning costs as well as the question of bail.

107. I now set out the orders and declarations which I make.

(1) ORDERS that the Application in Proceeding filed by the first defendant on 28 March 2014 be dismissed.

(2) DECLARES that the sentence of imprisonment imposed upon the plaintiff by the Magistrates Court of the Australian Capital Territory on 24 January 2008 in respect of the plaintiff's conviction of the offence of recklessly inflicting actual bodily harm to another person on 21 September 2007 has expired.

(3) DECLARES that the periodic detention for the plaintiff ordered on 24 January 2008 in respect of the said sentence has ended.

(4) ORDERS that the plaintiff's claim for an order that the first defendant pay the costs of proceeding SCA 91 of 2013 in the Court of Appeal of the Australian Capital Territory be refused.

(5) RESERVES for further consideration the question of costs, the question of the plaintiff's bail and any other consequential relief to be granted to the plaintiff.

I certify that the preceding One hundred and eight [108] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Foster.