Court of Appeal (ACT)|2015-04-14|Before: Refshauge J

Quzag v R (No 2) [2015] ACTCA 10 (14 April 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

The Court declines to stay the sentence imposed on 12 February 2015.

CRIMINAL LAW - JURSIDICTION, PRACTICE AND PROCEDURE - Application for bail - Appeal pending - Whether stay necessary - Whether sentence will have been served while on bail

Explanatory Memorandum for the Law and Justice Legislation Amendment Bill 1990 (Cth)

Explanatory Statement for the Supreme Court Amendment Bill 2001

P Nygh and P Butt (eds) Butterworth's Australian Legal Dictionary (Sydney: Butterworths, 1977)

Grey-Pagdin v Duthie (1987) 47 SASR 493

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

Petreski v Cargill (1987) 18 FCR 68

Quzag v The Queen [2015] ACTCA 9

R v Malvaso (No 2) [1989] SASC 1465; (1989) 50 SASR 541

Sherd v The Queen [2011] ACTCA 17; (2011) 5 ACTLR 290

Snaidero v Crampton and O'Sullivan (No 2) [2014] ACTSC 367

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

Citation: [2015] ACTSC 52

1. On 18 March 2015, I granted the Appellant, Mohanad Quzag, bail, pending the hearing of his appeal against the sentence imposed by the Supreme Court: Quzag v The Queen [2015] ACTCA 9.

2. Despite an application claiming a stay of the proceedings, I did not grant a stay. It is not necessary to do so before bail is granted in these circumstances: Sherd v The Queen [2011] ACTCA 17; (2011) 5 ACTLR 290 at 299; [44].

3. A question has arisen, however, as to whether granting bail was appropriate and effective to deal with all the custodial portions of the sentence, in particular, the period of imprisonment to be served by periodic detention.

4. The reason that I held in Sherd v The Queen that a stay is not necessary before granting bail, pending appeal, to a person serving a sentence of imprisonment, was that s 37Q of the Supreme Court Act 1933 (ACT) provided that "any time spent on bail pending the decision on the appeal does not count as part of any term of imprisonment".

5. This provision was designed to overcome the problem identified by the High Court in Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631, where the sentence of imprisonment imposed on the Appellant in that case was held to have been served by the time the appeal was dismissed, even though he was on bail for that period and, therefore, he could not be returned to prison to serve the balance of the period of imprisonment, namely that between the granting of bail to him and the end of the sentence which had been unserved by him in person .

6. This was a consequence of the fact that, absent statutory intervention on a Court order of arrest of judgment or conviction the sentence continued to run even though the Appellant had been granted bail. As White J described in R v Malvaso (No 2) [1989] SASC 1465; (1989) 50 SASR 541 at 543-4:

If the verdict or conviction was not arrested the sentence had to be served and time ran inexorably. It was not possible to release a man from prison once he surrendered or was taken into custody. Even if he escaped, time would run inexorably. He could be separately punished, of course, for escaping. A prisoner out of prison could watch his term running in expiation and 'laugh at the law'. It is not necessary to do more than refer to E Coke's Fourth Institutes, W Blackstone's Commentaries and Stephen's New Commentaries and the confirmation of the common law position by the High Court in Whan v McConaghy ...

See also Grey-Pagdin v Duthie (1987) 47 SASR 493 at 497.

7. Prior to the establishment of the Court of Appeal by the insertion of Pt 2A in the Supreme Court Act from 14 October 2002, the Federal Court of Australia was the appellate court from the Supreme Court.

8. In Petreski v Cargill (1987) 18 FCR 68, the Full Court of the Federal Court of Australia considered itself bound by Whan v McConaghy, such that when it considered an appeal from a decision of the Supreme Court, it made it clear that the Appellant, who had been granted bail pending the appeal, which appeal had not been decided by the time the period of imprisonment had expired and notwithstanding that the Appellant had, as a result, spent no time in custody, could not lawfully be returned to custody.

9. As a result, the Federal Court of Australia Act 1976 (Cth) was amended to insert a new s 29A, which was, relevantly, in the same terms as s 37Q of the Supreme Court Act. The Explanatory Memorandum for the Law and Justice Legislation Amendment Bill 1990 (Cth), circulated by the authority of the Attorney-General for the Commonwealth, made it clear at [152] that the amendment was introduced to overcome the decision in Petreski v Cargill. When, by the Supreme Court Amendment Act 2001 (No 2) (ACT), the Court of Appeal was established, the section inserted into the Supreme Court Act which is now s 37Q was, at the time, numbered s 37R. The Explanatory Statement for the Supreme Court Amendment Bill 2001, which Bill became the amending Act, made (at p 7) express reference in its explanation of s 37R to s 29A of the Federal Court of Australia Act.

10. This history makes it clear that s 37Q of the Supreme Court Act was intended to address the consequences of the decision in Whan v McConaghy and, in my view, did so effectively.

11. Thus, s 37Q of the Supreme Court Act clearly overcomes any problems in this case for the period of full-time custody. The question that arose, however, was whether it was also apt to deal with the period of periodic detention. This involved two questions:

(a) Did the grant of bail mean that Mr Quzag did not have to attend to complete the period of periodic detention?

(b) Was s 37Q of the Supreme Court Act effective to address the period of periodic detention? If not, is there any other provision that does so?

12. In my view, the answer to both questions is in the affirmative. These are my reasons.

13. "Bail" is not defined in the Bail Act 1992 (ACT), although that Act, especially s 9E, applies to bail granted in the circumstances of this case.

14. In R v Collins [2002] SASC 2; (2002) 127 A Crim R 95 at 99; [10], Gray J accepted the definition of bail in P Nygh and P Butt (eds) Butterworth's Australian Legal Dictionary (Sydney: Butterworths, 1977) as follows:

... the right to be released from custody granted to a person charged with an offence, on the condition that he or she undertakes to return to the court at some specified time, and any other conditions that the court may impose.

15. That seems to me to describe bail for these purposes quite accurately.

16. There is no doubt that the grant of bail that I made entitled Mr Quzag to be released from full-time custody pending the hearing of his appeal and that, if his appeal were to be dismissed, he will be required, by operation of s 37Q of the Supreme Court Act, to serve the portion of his sentence consisting of full-time custody which is unserved in custody because of the grant of bail.

17. So far as periodic detention is concerned, it seems to me that the same position applies.

18. Originally introduced in this Territory by the Periodic Detention Act 1995 (ACT), the sentence of periodic detention was expressed in s 4 to be imposed "instead of sentencing the person to imprisonment". That Act was, however, repealed on 2 June 2005 and the sentence of periodic detention instead provided for by s 11 of the Crimes (Sentencing) Act 2005 (ACT). That section provided that a term of imprisonment imposed by the court could be served by periodic detention. The section is as follows:

(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.

19. I set out the history of the legislation and its structure in Lewis v Chief Executive of the Department of Justice and Community Safety of the ACT [2013] ACTSC 198; (2013) 280 FLR 118 at 124-30; [14]- [47] and, after satisfying myself (at 126; [28]) that a sentence of imprisonment, including a direction that the imprisonment be served by periodic detention, was still a sentence of imprisonment, concluded (at 130; [47]) that the sentence may be characterised as follows:

The order of the Courts setting a period of periodic detention is the authority for a person on whom a sentence of imprisonment has been imposed (where the offender, who attends at the place of detention every weekend on which he or she has not been granted a leave of absence and while he or she complies with the other conditions, including directions legally given to him or her) to serve a term of imprisonment imposed on them by detention between 7:00 pm each Friday until 4:00 pm the following Sunday, but otherwise in full-time detention.

20. Accordingly, I am satisfied that a sentence under s 11 of the Crimes (Sentencing) Act is a sentence of imprisonment and that the length of the imprisonment thereby imposed, including any period to be served by periodic detention, is, for the purposes of s 37Q of the Supreme Court Act, the "term of imprisonment".

21. Applying the definition of the nature of bail set out above (at [15]), the grant of bail would conceptually relieve Mr Quzag from attendance at the periodic detention centre, for that was a period of custodial confinement from which the grant of bail would give him the right to be released.

22. I am fortified in that approach by the fact that the imprisonment in Whan v McConaghy was, in fact, to be served by periodic detention. The High Court there proceeded on the clear basis that the grant of bail released the offender from any custodial obligations to serve the periods of periodic detention.

23. In that case, s 5 of the Periodic Detention of Prisoners Act 1981 (NSW) was in relevantly the same terms as s 11 of the Crimes (Sentencing) Act, making the High Court's assumption directly applicable.

24. That conclusion, however, does not completely answer the second question, though at first blush, s 37Q of the Supreme Court Act would seem apt to do so.

25. In Whan v McConaghy, however, the plurality pointed out (at 638) that the grant of bail "does not of itself interfere with the operation of the order" imposing the sentence and referred to R v Brooke [1788] EngR 57; (1788) 2 TR 190 at 196; [1788] EngR 57; 100 ER 103 at 106.

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 of 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.

27. There is no direct equivalent to s 8 of the Periodic Detention of Prisoners Act in the Crimes (Sentencing) Act so this comment may not be directly applicable. Section 62 of the Crimes (Sentencing) Act does provide that a sentence shall start on the day that it is imposed, subject to, inter alia, ss 11 and 63 of the Act. Section 63 permits a sentence to be backdated, especially to take account of pre-sentence custody.

28. The reference to s 11 is a little curious for that section can only be relevant to any start date of a sentence, if it is intended to refer to the specification of the start of the periodic detention period (s 11(4)(a)), and the day of the first detention period (s 11(4)(b)), but neither would seem to constitute the start of a sentence, unless one construes each part of a combination sentence (e.g. the full-time custody part, the periodic detention part, the suspended sentence part) as separate sentences. This, however, is not relevant here.

29. This may, however, mean that, taken together, ss 63 and 11 do specify the commencement of the sentence in the same way as s 8 of the Periodic Detention of Prisoners Act does. If that is so, then s 37Q of the Supreme Court Act may not be sufficient to prevent the expiration of the sentence of periodic detention.

30. In R v Hall [2004] NSWCCA 127, Handley JA, with whom Dowd and Greg James JJ agreed, held that where a sentence order specifies expressly the start date of a sentence, a general provision (there s 18(3) of the Criminal Appeal Act 1912 (NSW) in similar terms to s 37Q of the Supreme Court Act) was not sufficient to permit the Court of Criminal Appeal to alter the express terms of the sentence order which set the dates for commencement of the sentence.

31. In Snaidero v Crampton and O'Sullivan (No 2) [2014] ACTSC 367, I considered that, even on dismissal of an appeal, the alteration of the express terms of a sentence was possible in this jurisdiction because of the width of power of the court on such dismissal, explained in Hadba v The Queen [2004] ACTSC 62; (2004) 146 A Crim R 291.

32. In any event, it seems to me that, failing the making of such an order, s 58 of the Crimes (Sentence Administration) Act 2005 (ACT) would be apt to deal with that situation. Indeed, reliance on that provision may have been the answer to the problem identified in Snaidero v Crampton and O'Sullivan (No 2).

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.

34. It is clear to me that this section would apply to the situation of Mr Quzag were his appeal to be dismissed. That is to say, he would be a person who, in terms of s 58(1)(a) of the Crimes (Sentence Administration) Act, had failed to report and not been given approval under s 55 of that Act (which permits the Director-General to give approval not to perform periodic detention). The grant of bail is not approval under s 55.

35. Thus the periodic detention period is extended once, statutorily, his bail is ended so as to require him to serve the periods which he did not serve because he was on bail.

36. Accordingly, I am satisfied that the grant of bail that I ordered on 18 March 2015 will not have the unintended consequence that, should the appeal commenced by Mr Quzag be dismissed, he will be required to serve in full the period of his term of imprisonment to be served by periodic detention. It will also entitle him not to serve his periodic detention until his bail is revoked.

37. In the circumstances, it is not necessary to make a stay of the sentence imposed on 12 February 2015 to avoid unintended consequences.

38. Whether the specification of the commencement date of the good behaviour order needs to be addressed if his appeal is dismissed is not a matter that I need to consider, for that will not commence until well after the appeal is conceivably likely to be heard and can be dealt with by the Court of Appeal under the powers identified in Hadba v The Queen.

39. Accordingly, I decline to make a stay of the sentence.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Periodic Detention Act 1995(ACT)

(Sentence Administration) Act 2005

(Sentencing) Act 2005

Court of Australia Act 1976

Detention of Prisoners Act 1981

Court Amendment Act 2001

Quzag v R

At a glance

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Judgment (76 paragraphs)

Quzag v R (No 2) [2015] ACTCA 10 (14 April 2015)

Parties

Legislation Cited (9)

Cases Cited (6)