SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Australian Capital Territory v Lewis |
Citation: | [2016] ACTCA 34 |
Hearing Date: | 10 May 2016 |
DecisionDate: | 4 August 2016 |
Before: | Penfold, Burns and Jagot JJ |
Decision: | 1.The appeal be dismissed. 2. The first appellant pay the respondent’s costs of the appeal, as agreed or taxed. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – appeal from single judge of the Supreme Court – primary judge held that sentence of periodic detention not extended where respondent had not performed periodic detention whilst on bail – whether respondent failed to perform periodic detention for the purposes of s 58(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) – whether grounds for a permanent stay of respondent’s sentence existed – appeal from discretionary order for costs. |
Legislation Cited: | Bail Act 1978 (NSW) Bail Act 1992 (ACT), ss 5, 6, 6(1)(b), 6(2), 6(2)(a), 6(2)(b), 9E, Dictionary pt 1 (definition of “accused person”) Supreme Court Act 1933 (ACT), ss 20(1)(a), 37Q |
Cases Cited: | CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 House v The King [1936] HCA 40; (1936) 55 CLR 499 |
Parties: | Australian Capital Territory (First Appellant) Magistrates Court of the Australian Capital Territory (Second Appellant) Stephen James Lewis (Respondent) |
Representation: | Counsel Mr P Garrisson SC with Ms H Younan (Appellants) Mr J Purnell SC and Dr J Stellios (Respondent) |
| Solicitors ACT Government Solicitor (Appellants) Ken Cush & Associates (Respondent) | |
File Number: | ACTCA 31 of 2015 |
Decision under appeal: | Court: ACT Supreme Court Before: Foster J Date of Decision: 3 July 2015 Case Title: Lewis v Australian Capital Territory Citation: [2015] ACTSC 167 |
PENFOLD J:
I have had the opportunity to read in draft the judgment of Burns and Jagot JJ. I agree with the orders their Honours propose, although for reasons that are in some respects significantly different.
Appeal grounds…
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- Case
- [2016] ACTCA 34
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the respondent had failed to perform periodic detention for the purposes of s 58(1)(a) of the *Crimes (Sentence Administration) Act 2005* (ACT), as that provision was in force in 2009. It also considered whether grounds for a permanent stay of the respondent's sentence existed and reviewed a discretionary order for costs made by the primary judge.
The Court reasoned that s 58(1)(a) applied to a person who did not report to perform periodic detention when there was an extant legal obligation to do so. This interpretation was derived from the provision itself, read in context, and did not require the addition of qualifying words. The Court noted that s 42(1) of the Act mandates that an offender must serve periodic detention within their designated period, and s 40 defines this period as the originally ordered term or as extended under Chapter 5. The Court contrasted this with a situation where an order for periodic detention is stayed, in which case s 58(1)(a) would not apply because there would be no legal obligation to attend. The appeal was dismissed, and the Australian Capital Territory was ordered to pay the respondent's costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The first appellant pay the respondent’s costs of the appeal, as agreed or taxed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
As noted by their Honours, the first issue for determination is the operation of s 58 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Administration Act) as in force in 2009. That provision has been repealed but retains a transitional operation. It extended a sentence that includes periodic detention if the offender “fails to report to perform periodic detention” for a detention period. That section was relevantly as follows: In the current case, the Sentence Administration Board (the Board) purported to cancel the respondent’s periodic detention in June or July 2008 after earlier failures to attend; he was arrested in January 2009 and detained in full-time custody for nearly three months. After that, in late March 2009, he was granted bail by a judge in the Supreme Court (the bail judge) pending the determination of proceedings he had instituted challenging the lawfulness of that custody, was released from full-time custody, and did not thereafter report to perform periodic detention. In October 2013, the respondent’s challenge to the lawfulness of his custody was determined. The judge found that the Board’s decision to cancel the periodic detention was invalid and should be set aside because the Board failed to give the respondent an opportunity to appear before the Board when it considered his non-attendance for periodic detention on several occasions. In 2015, another judge (the primary judge) determined an application by the respondent for: The primary judge, among other things, found that the sentence of imprisonment had expired and that the periodic detention in respect of that sentence had ended. The orders giving effect to those conclusions are challenged in this appeal. I agree with Burns and Jagot JJ that s 58(1)(a) of the Administration Act applies to a person who does not report to perform periodic detention when there is an extant legal obligation to do so, and I also agree with their Honours that such an interpretation of the provision is available from the provision itself read in context and does not require any extra or qualifying words to be read in. Section 42(1) of the Administration Act specifies that an offender “must serve periodic detention in the offender’s periodic detention period in accordance with this part”. An offender’s periodic detention period is defined by s 40 as the period originally ordered to be served by periodic detention, or that period as extended under Ch 5 of the Administration Act. It is clear, for instance, that if an order to an offender to serve periodic detention had been stayed under s 216 of the Magistrates Court Act 1930 (ACT) by the filing of an appeal against that order, s 58(1)(a) would not apply during the term of that stay because the offender would not have a legal obligation to attend. On the other hand, the stay would have ensured that the sentence order did not continue to run such that in due course it might have expired without any further performance of periodic detention or return to custody.