R v Jamie Griggs [2006] ACTCA 3

Court of Appeal (ACT)|2006-02-14|Before: Crispin P, Lander JJ, Higgins CJ

1. This is a Crown appeal against orders made by the Chief Justice on 29 June 2005. His Honour, in effect, made three orders.

2. First, his Honour rejected a plea of guilty entered by the respondent to a charge of contravening a protection order contrary to section 34 of the Protection Orders Act 2001 (ACT).

3. Second, his Honour ordered that that charge be dismissed.

4. Third, his Honour ordered that a charge of breaching an earlier recognizance also be dismissed.

5. During the course of the proceedings, Mr Refshauge SC, the Director of Public Prosecutions, indicated that he wished to withdraw the appeal against the third of these orders, so I will say nothing more about it.

6. So far as the appeal against the first order is concerned, it seems clear that there was some confusion on the part of counsel, the nature of which need not be presently described, and that as a consequence his Honour was misled. The appeal against that order has now been conceded by Mr Doig, who appears of behalf of the appellant.

7. The appeal on that point having been conceded, it seems to be inevitable that the order dismissing the charge must also be upheld.

8. Mr Doig has indicated that the respondent adheres to his earlier plea of guilty to that charge and it is now appropriate for the respondent to be sentenced in relation to it.

9. The approach that should now be taken in sentencing the respondent is complicated by the manner in which the proceedings before his Honour were conducted, and there has been some debate between counsel concerning this issue.

10. At the time the matter came before the Chief Justice, the appellant was also charged with an offence of assault. Mr Doig, who then, as now, appeared for the respondent, submitted that irrespective of any finding in respect of the charge of breach of the protection order, the penalty imposed upon the respondent should be one that permitted him to continue with the process of rehabilitation upon which he had apparently embarked. Mr Doig adopted a suggestion that his Honour had made in the course of argument to the effect that it may be appropriate to impose a sentence of 3 months' imprisonment but to order that it be wholly suspended. His Honour confirmed that he had a tentative view that this course would be appropriate but, quite properly, indicated that he needed to hear from the learned Crown prosecutor in relation to that proposition.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

IN THE SUPREME COURT OF THE ) No. ACTCA 33- 2005

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

21. I accept that in the circumstance outlined by the President that a conviction for a breach of the protection order is the appropriate result.

22. To sentence Mr Griggs to the rising of the court is not a sentence that should be regarded as anything other than a response to the extraordinary circumstances that surround the proceedings in relation to this offence. And I would wish it to be clearly understood that the sentence is based on the circumstances which are special to this particular matter. I concur in the order proposed by the President.

I certify that the preceding paragraphs numbered twenty-one (21) and twenty-two (22) are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

IN THE SUPREME COURT OF THE ) No. ACTCA 33- 2005

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

23. The respondent pleaded guilty to contravening a protection order and was committed to the Supreme Court of the Australian Capital Territory for sentence under s 90A of the Magistrate's Court Act 1930 (ACT). As the President has described during the course of sentencing submissions to the sentencing judge, a confusion arose as to whether or not s 34 of the Protection Orders Act 2001 (ACT) applied to the respondent. Section 34 only applies in the circumstances mentioned in s 34(1) of the Protection Orders Act. Therefore, it would only have applied to the respondent if he were present when the protection order was made or had been personally served with a copy of the protection order. As it happens, the respondent was personally present when an amended protection order was made, which was the protection order relied upon by the prosecution for the charge which was brought against the respondent and to which the respondent pleaded guilty. There was no dispute that the respondent had contravened the protection order but, because of a confusion at the Bar table, the sentencing judge was led into error and as a result, rejected the respondent's plea of guilty and dismissed the charge.

24. In fact the respondent's plea of guilty should not have been rejected and should have been allowed to stand. If it had been allowed to stand, the respondent would have been dealt with at a far earlier stage than now.

25. As the President has pointed out, the appellant's claim that the order of the sentencing judge rejecting the plea of guilty of the contravention of the protection order and dismissing the charge has to be allowed. As a result of allowing the appeal on that ground it is necessary that the respondent be sentenced in relation to his admitted contravention of the protection order. Ordinarily that would give rise to the imposition of a conviction and a penalty which reflects the seriousness of the offence.

26. There can be no doubt that this court should impose a conviction for the reasons given by the President and Gray J. The question is how to deal with the sentence which is appropriately fair to a respondent who is now faced with a sentence significantly after the event.

27. In the end result I am persuaded by the President that the sentence should be as he has suggested. Ordinarily I think a sentence of imprisonment might not be appropriate in the circumstances of a case such as this. However, this is a special case and should not be relied upon by anyone as any sort of precedent for future cases for contraventions of the Protection Orders Act. For those reasons, I join in on the suggested penalty.

I certify that the preceding paragraphs numbered twenty-three (23) to twenty-seven (27) are a true copy of the Reasons for Judgment herein of his Honour, Justice Lander.

Solicitor for the Appellant: ACT Director of Public Prosecutions

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (2)