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R v Lee [2016] ACTCA 69 | Case summary | Zoe

ACTACTCA

R v Lee [2016] ACTCA 69

[2016] ACTCA 69

Court of Appeal (ACT)|2016-12-15|Before: Murrell CJ, Refshauge and Rangiah JJ

View on the ACT Courts

At a glance

Source facts

Court

Court of Appeal (ACT)

Decision date

2016-12-15

Before

Murrell CJ, Refshauge and Rangiah JJ

Catchwords

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal
against sentence – whether good behaviour order can commence before
associated sentence of imprisonment –interpretation of “any longer
period” – Crimes (Sentencing) Act 2005 (ACT) s 12 –

Source

Original judgment source is linked above.

Catchwords

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appealagainst sentence – whether good behaviour order can commence beforeassociated sentence of imprisonment –interpretation of “any longerperiod” – Crimes (Sentencing) Act 2005 (ACT) s 12 –appeal dismissed

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: R v Lee

Citation: [2016] ACTCA 69

Hearing Date: 31 October 2016

Decision Date: 15 December 2016

Reasons Date: 15 December 2016

Before: Murrell CJ, Refshauge and Rangiah JJ

Decision: Appeal dismissed.

Catchwords: APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentence – whether good behaviour order can commence before associated sentence of imprisonment – interpretation of “any longer period” – Crimes (Sentencing) Act 2005 (ACT) s 12 – appeal dismissed

Legislation Cited: Crimes (Sentence Administration) Act 2005 (ACT) 40, 42, 86, 110 Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) s 2 Crimes (Sentencing) Act 2005 (ACT) 11, 12, 13 Criminal Code 2002 (ACT) s 603 Legislation Act 2001 (ACT) 138, 139, 140, 141 Supreme Court Act 1933 (ACT) ss 37E, 37O

Cases Cited: Everett v The Queen [1994] HCA 49; 181 CLR 295 Green v The Queen [2011] HCA 49; 244 CLR 462 Griffiths v The Queen [1977] HCA 44; 137 CLR 293 House v The King (1936) 55 CLR 499 Miller v Commissioner of Police [2004] NSWCA 356 Parkinson v Alexander [2016] 11 ACTLR 190 Project Blue Sky Inc v ABA [1998] HCA 28; 194 CLR 355 R v Duffy [2014] ACTCA 53 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Lee [2015] ACTSC 415 R v Pumpa [2015] ACTSC 177 Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355

Under s 37E(2)(a) of the Supreme Court Act 1933 (ACT) (Supreme Court Act), the Court of Appeal has jurisdiction to hear “appeals in relation to orders” of a single judge of the Court. Under s 37O, the Court of Appeal has wide powers in relation to the orders that it may make (or decline to make).
On an appeal against sentence, an appellant needs to show a specific error of fact or law, or an implied error: House v The King (1936) 55 CLR 499 at 504–505. In this case, the appellant said that there was a specific error of law relating to the construction of s 12(3) of the Sentencing Act.
The principles governing Crown sentence appeals are well established: see Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 310; Everett v The Queen [1994] HCA 49; 181 CLR 295; Green v The Queen [2011] HCA 49; 244 CLR 462. The purpose of a prosecution appeal is to lay down principles for the governance and guidance of sentencing courts: R v Harrington [2016] ACTCA 10; 11 ACTLR 215 at [8] per Murrell CJ. The principles were discussed in R v Duffy [2014] ACTCA 53.
As this appeal raises the correct interpretation of s 12(3) of the Sentencing Act, a matter about which judges have expressed different views, prima facie it is an appropriate matter for a prosecution appeal.
However, the outcome of the appeal will be of no practical relevance to the respondent. The respondent has completed the six-month periodic detention order and served a substantial part of the suspended sentence. It no longer matters to the respondent whether, while serving periodic detention, he was properly the subject of a good behaviour order. The appellant agreed that, if the appeal was upheld and the respondent was resentenced, the new sentence should have the same practical operation as the sentence under appeal.
Further, as the periodic detention provisions of the Sentencing Act have been removed with effect from 2 March 2016 (Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) s 2(1)), our decision can provide no guidance to judicial officers who may be contemplating the practical advantages of imposing a s 12(3) good behaviour order that runs concurrently with periodic detention. It is true that, in theory, a judicial officer may contemplate imposing a s 12(3) good behaviour order that runs concurrently with full-time imprisonment, but that would serve no purpose and is most unlikely to occur. Indeed, counsel were unable to identify any past occasion when a judicial officer has imposed a s 12(3) good behaviour order that was concurrent with a sentence of full-time imprisonment.
Consequently, the Court was troubled about whether the appeal raised a hypothetical issue or sought an advisory opinion. It is well-established that judicial power should not be used to answer questions that are “merely moot, theoretical, abstract, hypothetical and advisory”: Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355 at [27] per Heydon JA (with whom Sheller JA and Einstein J agreed). A judicial determination must concern a controversy that is real, not academic: Miller v Commissioner of Police [2004] NSWCA 356 at [28] per McColl JA (with whom Mason P and Hamilton J agreed).
In this case, we were persuaded that, as the appeal concerned a sentence that was actually imposed and raised an issue of ongoing theoretical (if not practical) relevance to the interpretation of the Sentencing Act, we should entertain the appeal.

The meaning of the expression “or for any longer period” in s 12(3) is not immediately apparent from that provision and “longer” is defined in neither the Sentencing Act nor the Legislation Act.
The appellant submitted that, in the s 12 context, the natural meaning of “longer” applied, and “longer” referred to an extension of duration into the future, beyond the period of the suspended sentence. The respondent submitted that the natural meaning of “longer” is simply “of greater duration.”
While we agree with the latter submission – a period may be “longer” by bringing forward the commencement date, by extending the concluding date, or both – the meaning on any particular occasion will depend on the context.
In order to understand the meaning of “or for any longer period” in s 12(3) it is necessary to consider the purpose of enabling a sentencing court to impose a s 12(3) good behaviour order either for the period during which the sentence is suspended or for a longer period.
The suspended sentence provisions, including s 12(3), and the periodic detention provisions were introduced into the Sentencing Act at the same time. It is only recently that the periodic detention provisions have been removed from the Sentencing Act, with the consequence that, nowadays, the only question is whether a s 12(3) good behaviour order can run concurrently with the period of full-time imprisonment within a combined sentence comprising a period of full-time imprisonment followed by a period of suspension under s 12.
In R v Pumpa [2015] ACTSC 177, an offender came before Penfold J for breach of a good behaviour order that had been expressed to commence on the sentencing date, which made it concurrent with the periodic detention portion of a sentence of imprisonment. For the same reasons expressed by the sentencing judge in this case, her Honour had deliberately imposed the good behaviour order from the commencement of the sentence. However, on the breach proceedings, the prosecution argued that s 12(3) of the Sentencing Act does not permit a good behaviour order to commence before the commencement of the suspended portion of a sentence. Her Honour accepted this submission, stating at [32]:

Under s 12, a suspended sentence must be “partnered” with a good behaviour order. The purposes of a s 12(3) good behaviour order include providing support for rehabilitation (for example, by the imposition of conditions requiring counselling or treatment for substance abuse), ensuring proper supervision of an offender who is serving the sentence in the community (by imposing a supervision condition) and providing stern consequences for breaching the privilege of serving a sentence in the community (under s 110 of the Sentence Administration Act, a breach will require the good behaviour order to be cancelled and may well result in the suspended portion of the sentence being served full-time). All these purposes are directly related to the suspended portion of the sentence rather than to any full-time or periodic detention component of the sentence. Similarly, the core conditions of any good behaviour order that are prescribed by s 86 of the Sentence Administration Act are obviously designed for persons who are in the community.
Under the periodic detention regime, a sentencing court may have considered it desirable that there be a “Sword of Damocles” should the offender misconduct themselves while in the community during the currency of the periodic detention order. However, it was not necessary for the sentencing court to achieve that result by resorting to the good behaviour order associated with the suspended portion of the sentence. Under s 11(5) of the Sentencing Act as it then was, when imposing a periodic detention order, a sentencing court had power to recommend any condition (not inconsistent with the Sentencing Act or the Sentence Administration Act) that it considered appropriate for the offender’s periodic detention, including a supervision condition, and the condition then became an additional condition of the offender’s periodic detention under ss 40 and 42(2)(c) of the Sentence Administration Act as it was at the time. These conditions could then be enforced under that Act in the same way as other periodic detention obligations.
If a good behaviour order ran concurrently with a periodic detention order then s 110 would interfere with the administration of the sentence of periodic detention; the corrective services authorities would be responsible for administering the periodic detention sentence but the court would be responsible for dealing with any breach of the good behaviour order, creating what Penfold J described as “constitutional uncertainty.” Similar problems would arise under the current sentencing regime if an offender was sentenced to full-time imprisonment and the sentencing court imposed a concurrent good behaviour order.
Taking a purposive approach and bearing in mind the need for constitutional certainty, we conclude that, where the expression “any longer period” is used in s 12(3) of the Sentencing Act, it refers to a period that starts on the date when the sentence is suspended but may extend for a period that is longer than the suspended portion of the sentence.
Although the appellant has established an error of law, the parties agree that it would be inappropriate for the Court to impose a sentence that changed the practical effect of the sentence imposed by the sentencing judge. Consequently, in the exercise of our discretion, we dismiss the appeal.