Australian Capital Territory v Lewis - [2016] ACTCA 34

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”) Crimes (Sentence Administration) Act 2005 (ACT), ss 40, 42, 55, 58, 58(1)(a), 58(3)(c), 58(4), 58(4)(b), 59, 66, 901(2) Crimes (Sentencing) Act 2005 (ACT), s 11(2) Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) Legislation Act 2001 (ACT), s 139 Magistrates Court Act 1930 (ACT), s 216 Periodic Detention of Prisoners Act 1981 (NSW), s 33(2) Periodic Detention of Prisoners (Amendment) Act 1985 (NSW) 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 Lewis v Australian Capital Territory (No 2) [2015] ACTSC 343 Lewis v Australian Capital Territory [2015] ACTSC 167; (2015) 301 FLR 102 Lewis v Chief Executive Department of Justice and Community Safety and Sentence Administration Board of the Australian Capital Territory [2013] ACTSC 198; (2013) 280 FLR 118 Quzag v R (No 2) [2015] ACTCA 10 R v Carrion [2002] NSWCCA 21; (2002) 128 A Crim R 29 R v Hall [2004] NSWCCA 127 The Queen v Quzag [2015] ACTCA 36 United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] ACTCA 34
Decision Date: 4 August 2016

CaseChat Overview and Summary

The Australian Capital Territory Court of Appeal heard an appeal from a decision of a single judge of the Supreme Court concerning the administration of a periodic detention sentence. The dispute arose after the respondent failed to perform periodic detention following his release on bail. The primary judge had found that the respondent's sentence of imprisonment had expired and that his periodic detention had ended, orders which the Australian Capital Territory sought to challenge.

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

Full text does not contain this section.

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.