Supreme Court of the ACT|2014-10-03|Before: Refshauge J

Snaidero v Crampton and O'Sullivan (No 2) [2014] ACTSC 367 (3 October 2014)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Stephanie Snaidero v Brooke Amy Crampton and Bridget O'Sullivan (No 2)

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Warrants, Arrests, Search, Seizure and Incidental Powers - Warrant - Defect in orders - Whether dismissal of appeal amounts to imposition of sentence - Power of Court to make orders of its own initiative - Appellant failed to appear - Warrant issued

Snaidero v Crampton (2014) ACTSC 242

Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1

ACT Director of Public Prosecutions (First and Second Respondent)

Case Title: Brooke Amy Crampton and Bridget O'Sullvian v Stephanie Snaidero

1. On 28 July 2014, I dismissed an appeal by Stephanie Snaidero against the sentence imposed in the ACT Magistrates Court except insofar as was required to ensure the periods of periodic detention served by Ms Snaidero were to be taken into account in serving the sentence that the dismissal of the appeal meant she was required to serve. See Snaidero v Crampton (2014) ACTSC 262.

2. That required Ms Snaidero to attend for periodic detention on 1 August 2014. I am told she did not do so and, indeed, I am told that, since my decision, she has not attended for periodic detention on any occasion.

3. Under s 69 of the Crimes (Sentence Administration) Act 2005 (ACT), the Sentence Administration Board is required to cancel a periodic detention order if an offender does not attend for two periods of periodic detention or more. If the Sentence Administration Board so acts to cancel a periodic detention order then, under s 82 of that Act, it must order the offender to be placed in the Director-General's custody to serve the relevant part of the sentence by full-time custody.

4. No action has, however, been taken to bring this matter to the attention of the Sentence Administration Board because of what is said to be a defect in the orders that I made, that is to say, I did not comply with s 11 of the Crimes (Sentencing) Act 2005 (ACT). Section 11(4) of the Act is as follows

(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. It appears that when dismissing the appeal, I did not specify when the periodic detention period starts and ends and the day of the first detention period.

6. My dismissal of the appeal ended the stay that had been put into effect by the filing of the Notice of Appeal (s 216 of the Magistrates Court Act 1930 (ACT)).

7. It was submitted that I could deal with this matter under s 61 of the Crimes (Sentencing) Act, which authorises the court, which has made a sentence-related order that is contrary to law or has failed to make such an order that is required to be made by law, to re-open the proceedings for the purpose of making a sentence-related order that is in accordance with law, or amend the sentence.

8. The question is whether my order dismissing the proceedings is a sentence-related order. That term is defined in s 55 of the Crimes (Sentencing) Act and relevantly means "an order imposing a penalty on the offender".

9. My order was to dismiss the appeal. The question is whether my order amounted to the imposition of a sentence. Imposition, so far as sentences is concerned, is a complex issue as is clear from decisions such as Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1 at 1.

10. It may be accepted that my order confirmed the order of the Magistrates Court. This appears to follow from the terms of s 218(1) of the Magistrates Court Act 1930 (ACT) which sets out the powers of the Supreme Court in appeals from the Magistrates Court.

11. That section does not refer to dismissal of the appeal or, indeed, to upholding the appeal. Rather it refers to the power of the Court to "confirm, reverse or vary the sentence, penalty or decision appealed from".

12. The dismissal of an appeal against sentence, accordingly, seems to me to constitute a confirmation of the sentence from which the appeal was taken. Conventionally, the Supreme Court confirms the sentence when dismissing an appeal, but I do not think that that is necessary though it may be desirable.

13. The result of the order confirming the orders of the Magistrates Court is that, under s 218(2) of the Magistrates Court Act, the orders I made have effect as if they were orders of the Magistrates Court and may be enforced by the Magistrates Court.

14. This means, it was submitted, that the declaration and dismissal that I made had an effect as if it were a decision of the Magistrates Court. That does not, however, mean that it is an order of the Magistrates Court itself.

15. The consequence of that provision, it seems to me, is that the making of an order by the Supreme Court on the appeal became the enforceable order itself. If that were not so, s 218(2) of the Magistrates Court Act would not be required.

16. As a result, it seems to me that, by dismissing the appeal, I was imposing the order that required Ms Snaidero to be imprisoned and which imprisonment was to be served by periodic detention.

17. In doing so, it was submitted that, if I had not complied with s 11 of the Crimes (Sentencing) Act, that is, if I did not set out the start and end date and the first period of detention to be served, I did not make an order required by law.

18. In the circumstances, I consider that I have jurisdiction to proceed under s 61 of the Crimes (Sentencing) Act. That section enables the Court to make an order of its own initiative. The proceedings were listed before me today at my request, although after consultation with the prosecutor and with Ms Snaidero through the prosecutor. Ms Snaidero has, in fact, been sent letters and left telephone messages from the Court seeking that she co-operate with the listing of the matter so that it could be brought to a head, though she had not responded.

19. I also had, in Exhibit A, details of contacts that were made by staff at the Office of the Director of Public Prosecutions to ensure that this day was convenient for her. It was said that Ms Snaidero had told the officer involved that she would be in Canberra on 2 October 2014 and be available to attend for Court on 3 October 2014.

21. A notice was also sent to her by the Court, telling her of the listing.

22. In the circumstances, it seems to me that I can issue a warrant directed to her arrest so that she can be brought before the Court so that this matter can be resolved.

23. Accordingly, I will direct that a warrant be issued.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

(Sentence Administration) Act 2005

(Sentencing) Act 2005

Snaidero v Crampton and O'Sullivan

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Judgment (36 paragraphs)

Snaidero v Crampton and O'Sullivan (No 2) [2014] ACTSC 367 (3 October 2014)

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