Dimech v Watts
[2016] ACTSC 221
•16 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Dimech v Watts |
Citation: | [2016] ACTSC 221 |
Hearing Date: | 15 August 2016 |
DecisionDate: | 16 August 2016 |
Before: | Elkaim J |
Decision: | i. The appeal is allowed to the extent set out in the following order.
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Catchwords: | CRIMINAL LAW – PRACTICE AND PROCEDURE – appeal from Magistrates Court – statutory interpretation – application of principle of Expressum facit cessare tacitum – imposition of a community service order by a State or Territory Court under Commonwealth legislation |
Legislation Cited: | Criminal Code 1995 (Cth), s 135.2(1) Crimes Act 1914 (Cth), ss 20, 20(1)(a), 20(1)(b), 20(1)(a)(iv), 20AB, 20AB(1), 20AB(3) |
Cases Cited: | Adams v Carr (1987) 47 SASR 205 Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282 R v Shambayati (1999) 105 A Crim R 373 |
Parties: | Julie Dimech (Appellant) Beverly Ann Watts (Respondent) |
Representation: | Counsel Ms G Nott (Appellant) Mr R Davies (Respondent) |
| Solicitors Commonwealth Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) | |
File Number: | SCA 30 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 14 December 2015 Case Title: Dimech v Watts Court File Number: 176805 |
ELKAIM J:
This is an appeal by the Commonwealth Crown against a sentence imposed in the ACT Magistrates Court on 14 December 2015.
The appeal is unusual because it carries the support of the respondent. There is agreement between both parties that the appeal should be allowed and of the sentencing orders that should follow. Notwithstanding this agreement, it is necessary for the court to be satisfied that the suggested course is appropriate.
The respondent pleaded guilty to two charges of obtaining a financial advantage knowing or believing that she was not eligible to obtain that advantage contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth).
The sentences imposed were as follows:
(a)For the offence of obtaining a financial advantage between 22 December 2009 and 5 March 2010, the respondent was convicted and released pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) without passing sentence, upon entering into a recognisance in the amount of $1,000 to be of good behaviour for a period of two years.
(b)For the offence of obtaining a financial advantage between 15 April 2010 and 5 July 2013, the respondent was convicted and sentenced to 3 months imprisonment, to be released forthwith pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), on entering into a recognisance in the amount of $1,000 to comply with the following conditions:
(i)To be of good behaviour for a period of 2 years;
(ii)To be subject to the supervision of the Director-General and obey all reasonable directions for a period of 2 years or such lesser period as deemed appropriate; and
(iii)To perform 160 hours of community service within 12 months.
This appeal only applies to the second offence (CC2015/41156).
On 9 March 2016 the appellant applied to the ACT Magistrates Court for the reopening of the sentencing proceedings in order to correct an error at law. The error was said to be the imposition of a community service order as a condition of the recognisance order.
The application was dismissed on 6 April 2015. On 6 May 2016 the appellant was granted leave to appeal out of time.
There is only one ground of appeal. It is that:
1.The imposition of community service as a condition of a Commonwealth recognizance order under section 21(1)(b) of the Crimes Act 1914 (Cth) constitutes an error at law.
Although three reasons for upholding the single ground of appeal were put forward a principle of statutory interpretation is at the core of the argument. This is the principle stated as ‘Expressum facit cessare tacitum’. Translated almost literally, the principle states: what is expressly made excludes what is tacit. More practically stated the principle is that the express mention of a person or thing excludes a person or thing of the same class that is not mentioned.
10. The starting point for the appellant’s argument is s 20 of the Crimes Act 1914 (Cth). This section is as follows:
(1)Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:
(a)by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(i)that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;
(ii)that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
(A)on or before a date specified in the order; or
(B)in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs--by specified instalments as provided in the order;
(iii)that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order;
(iv)that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or
Example: A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period.
(b)sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).
(1A)If the court specifies under paragraph (1)(a) or (b), as mentioned in subparagraph (1)(a)(iv), the condition that the person will, during the specified period:
(a)be subject to the supervision of a probation officer appointed in accordance with the order; and
(b)obey all reasonable directions of the probation officer;
the court must also specify the condition that the person will not travel interstate or overseas without the written permission of the probation officer.
(2)Where a court proposes to release a person by order made under paragraph (1)(a), it shall, before making the order, explain or cause to be explained to the person, in language likely to be readily understood by him or her:
(a)the purpose and effect of the proposed order;
(b)the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the conditions of the proposed order; and
(c)that any recognizance given in accordance with the order may be discharged or varied under section 20AA.
(2A) A person is not to be imprisoned for a failure, under an order made under subsection (1), to pay an amount by way of reparation, restitution or compensation or an amount in respect of costs.
(3)Where a person is released in pursuance of an order made under subsection (1) without sentence being passed on him or her, there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or each offence in respect of which the order is made as there would have been if the manner in which he or she is dealt with had been a sentence passed upon his or her conviction for that offence.
(4)Where an order is made under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the order to be reduced to writing and a copy of the order to be given to, or served on, the person.
(5)The maximum amount of the penalty that a court may specify in respect of the offence or each offence in an order made under subsection (1) in relation to a person is:
(a)where the offence is punishable by a fine--the amount of the maximum fine that the court is empowered to impose on the person for the offence; or
(b)where the offence is not punishable by a fine:
(i)if the court is not a court of summary jurisdiction--300 penalty units;
or
(ii)if the court is a court of summary jurisdiction--60 penalty units.
(6)Paragraph (1)(b) does not apply in relation to a minimum non-parole offence mentioned in section 19AG, or offences that include one or more such minimum non-parole offences. This subsection has effect despite subsection (1) and sections 19AC, 19AE and 19AR (which permit or require a court to make a recognizance release order in certain circumstances).
Note: If the court sentences the person to imprisonment for a minimum non-parole offence, it must fix a non-parole period under section 19AG.
11. The next relevant section is s 20AB of the same Act, which states:
(1)A court may pass a sentence, or make an order, in respect of a person convicted before the court in a participating State or participating Territory of a federal offence, if:
(a)subsection (1AA) applies to the sentence or order; and
(b)under the law of the State or Territory, a court is empowered to pass such a sentence, or make such an order, in respect of a State or Territory offender in corresponding cases; and
(c)the first-mentioned court is:
(i)empowered as mentioned in paragraph (b); or
(ii)a federal court.
(1AA) This subsection applies to a sentence or order that is:
(a)known as any of the following:
(i)an attendance centre order or attendance order;
(ii)a community based order;
(iii)a community correction order;
(iv)a community custody order;
(v)a community service order;
(vi)a community work order;
(vii)a drug or alcohol treatment order or rehabilitation order;
(viii)a good behaviour order;
(ix)an intensive correction order;
(x)an intensive supervision order;
(xi)a sentence of periodic detention or a periodic detention order;
(xii)a sentence of weekend detention or a weekend detention order;
(xiii)a work order; or
(b)similar to a sentence or order to which paragraph (a) applies; or
(c)prescribed for the purposes of this subsection.
(1A)Where the law of a participating State or a participating Territory requires that before passing a sentence, or making an order, of the kind referred to in paragraph (1)(b) a court must first pass another sentence or make another order (whether or not that other sentence or other order is suspended upon the making of the first-mentioned sentence or order), then, a court is not required, before passing or making that first-mentioned sentence or order in respect of a person convicted by that court for a federal offence, to pass that other sentence or make that other order.
(1B)A court is not precluded from passing a sentence, or making an order, under subsection (1) only because the court is empowered under section 20AC, in relation to a person who has failed to comply with such a sentence or order, to take action that is, or may be, inconsistent with action that, under the law of a participating State or participating Territory, a court of that State or Territory is empowered to take for such a failure by a State or Territory offender.
(2)Where a court proposes to pass a sentence, or make an order, under subsection (1), it shall, before passing the sentence or making the order, explain or cause to be explained to the person in respect of whom it is proposed to pass the sentence or make the order, in language likely to be readily understood by him or her:
(a)the purpose and effect of the proposed sentence or order;
(b)the consequences that may follow if he or she fails, without reasonable cause or excuse, to comply with the proposed sentence or order or with any requirements made in relation to the proposed sentence or order by or under the provisions of the laws of the relevant State or Territory that will apply in relation to the proposed sentence or order by virtue of subsection (3); and
(c)if the proposed sentence or order may be revoked or varied under those provisions--that the proposed sentence or order may be so revoked or varied.
(3)Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).
(4)Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person convicted of an offence against the law of the Commonwealth, the court may also do all or any of the following:
(a)impose any fine or other pecuniary penalty that the court is empowered to impose on the person for the offence;
(b)make any order requiring the person to make reparation or restitution, or pay compensation, in respect of the offence that the court is empowered to make;
(c)make any other order that the court is empowered to make.
(5)Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person, the court shall, as soon as practicable, cause the sentence or order to be reduced to writing and a copy of the sentence or order to be given to, or served on, the person.
(6)Subsection (1) does not permit a court (including a federal court) to pass a sentence, or make an order, that involves detention or imprisonment, in respect of the conviction of a person before the court of a minimum non-parole offence mentioned in section 19AG.
Note: If the court sentences the person to imprisonment for the minimum non-parole offence, it must fix a non-parole period under section 19AG.
12. As already noted, the appellant advanced three reasons for upholding the single ground of appeal. I will deal with each in turn.
13. The appellant’s first submission is that when s 20 and s 20AB are read together,
The legislation provides that the only direct mechanism by which a person can be ordered to perform community service following conviction for a federal offence is a sentence pursuant to s 20AB. This, therefore, excludes the possibility that community service could be ordered pursuant to a Commonwealth recognisance release order. (Appellant’s written submissions, paragraph 12).
14. The appellant then says, in paragraph 16:
The Legislature has explicitly given a power to Section 20AB of the Act which prescribes the mode in which options that are available under State or Territory sentencing regimes should be imposed. This includes the imposition of a Community Service Order. Section 20AB operates to exclude the imposition of a Community Service Order as a condition recognisance order pursuant to s 20(1)(b). The only conditions that are able to be imposed on a recognisance orders pursuant to s 20(1)(b) are those set out in s 20(1)(a). The construction of the legislation excludes the ability to combine a s 20(1)(b) recognisance order with a state or territory sentencing option.
15. Thus an order for community service purportedly made under s 20(1)(b), as is the case here, is inconsistent with s 20AB because it is only the latter section that allows a State or Territory court to order community service as a condition of a recognisance order. An order under s 20(1)(b) may be subject to conditions but only those included in s 20(1)(a).
16. I agree with this interpretation but I think it also necessary to add a word about s 20(1)(a)(iv), because on first reading, this subsection might be seen to encompass a community service order. However, having regard to the example given in the legislation, it is my view that the scope of the subsection does not encompass a sentencing option not already covered, although would allow for a condition going to, for example, rehabilitation.
17. The second reason given by the appellant was that, as a matter of practicality, any community service order made under s 20(1)(b) could not be enforced because s 20AB(3) limits the application of enforcement provisions to sentences imposed under s 20AB(1). I think this submission is correct and should be viewed as a consequence of the findings made above.
18. The argument before me is the same argument that was advanced before the magistrate on the application to revisit the sentence. The difficulty facing the appellant was that the point had already been decided in this court, in the matter of Dowling v Hamlin [2006] ACTSC 117. This was a decision of the then Chief Justice (Higgins CJ).
19. This gives rise to the third reason put forward by the appellant in support of the appeal. It was submitted that the apparent support the Chief Justice drew from a decision of the Court of Appeal of Queensland, R v Shambayati (1999) 105 A Crim R 373, was misplaced.
20. With great respect, I agree. The Chief Justice said this at paragraph 32 of Dowling:
However, as from 2 June 2006, it has been open to a court in this Territory to impose a community service obligation as a term or condition of release on recognisance. In R v Shambayati the Court of Appeal of Queensland, as noted above, considered that such an order was compatible with s 20AB of the Crimes Act 1914, if the appellant has consented to it as the State Act required. Such a condition may, therefore, now be imposed in this Territory as a condition of a recognisance under s 20(1) of the Crimes Act 1914, such an option now being available under the laws of this Territory.
21. In my view the above quoted passage is inconsistent with the Queensland Court of Appeal in particular as stated in paragraph 16 of Shambayati:
The performance of community service is not specifically mentioned in that section but the terms of it are wide enough to include community service. However community service has no meaning or regime for its performance except relevantly under the Penalties and Sentences Act, and s 20, unlike s 20AB, does not incorporate the relevant provisions of that Act. We would conclude therefore that the only way in which community service may be imposed for a federal offence is by an order made pursuant to s 20AB which, as we have mentioned, can only be made with the consent of the offender.
22. The learned magistrate’s reluctance to depart from the decision in Dowling is of course understandable. It is however open for me to do so. In my view, the law as stated in Shambayati is consistent with the approach I have followed above in respect of the interpretation of s 20AB. I note here, once again, the respondent’s concurrence with this interpretation.
23. Shambayati has been referred to in two other appellate courts. It was considered in South Australia in Adams v Carr (1987) 47 SASR 205 and more recently mentioned in New South Wales in Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282. Neither of these decisions is directly on point. In fact in Ede the court said, at paragraph 37, that it was not necessary to deal with “the suggested conflict” between Shambayati and Adams.
24. In addition, as correctly pointed out by the Chief Justice in Dowling, the South Australian case considered an inconsistency between a state law and a Commonwealth provision as opposed to inconsistencies within the Commonwealth legislation. Further, as the Chief Justice said in paragraph 31:
It is also clear that, for the reasons Mr White advanced, the orders the learned magistrate made were, as were the orders in Adams v Carr (supra), noncompliant with s 20(1)(a) Crimes Act 1914. An order under s 408(1)(a) and 408(2)(g) could be made under s 20AB, though not under s 20(1) Crimes Act 1914. The terms of s 408(2)(g) are not sufficient to add a power to s 20(1) to impose a condition as to community service, though they do add to s 403(1) the option of adding a community service order to a recognizance release order though not making compliance with such an order a term or condition of it.
25. I am therefore satisfied that, for the reasons advanced by the appellant, the appeal should be allowed.
26. I discussed with the parties the consequential orders that should be made. They agreed that I should make the following orders:
(i)The appeal is allowed to the extent set out in the following order.
(ii)The sentence imposed for the performance of 160 hours of community service in matter No CC 2015/41156 is set aside.
27. Had it been necessary for the respondent to be resentenced in respect of the whole of the conviction, the same sentence as that stated by the magistrate, but excepting the community service component, would have been imposed.
28. I note that the respondent has already performed in excess of 100 hours of the community service.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: Date: 16 August 2016 |
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