Director of Public Prosecutions v Gorman
[2024] ACTSC 233
•22 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Gorman |
Citation: | [2024] ACTSC 233 |
Hearing Dates: | 30 May 2024, 4 June 2024, 7 June 2024, 13 June 2024, 19 June 2024 |
Decision Date: | 22 July 2024 |
Before: | Baker J |
Decision: | (1) The applicant’s release date for the sentence of imprisonment imposed by Refshauge J on 5 June 2023 is extended by a period equal to that during which he was unlawfully absent from custody. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender escaped from lawful custody – effect of escape on commencement and end date of offender’s sentence – proper construction of s 30 of the Crimes (Sentence Administration) Act (2005) – s 30 is a self-executing provision – the applicant’s release date for the sentence imposed is extended by a period equal to that which he was unlawfully absent from custody – whether declaratory relief should issue – declaration issued. |
Legislation Cited: | Courts Legislation Further Amendment Act 1995 (ACT) Crimes (Sentence Administration) Act 2005 (ACT), pt 7, ss 10, 11, 13, 23, 24, 30, 32 Crimes (Sentencing) Act 2005 (ACT), pt 5.5, ss 10, 10(2), 62(2), 65, 82 Criminal Appeal Act 1912 (NSW) ss 18(2), 30 Periodic Detention of Prisoners Act 1981 (NSW) ss 8, 33 |
Cases Cited: | Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Aussie Airlines Pty Ltd v Australian Airlines Ltd [1996] FCA 813; 139 ALR 663 Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 Jovanovic v The Queen (1999) FCA 1008; 92 FCR 580 Lewis v Australian Capital Territory [2015] ACTSC 167 R v Hall [2004] NSWCCA 127 Whan v McConaghy [1984] HCA 22;153 CLR 631 |
Parties: | Director of Public Prosecutions ( Crown) Nec Gorman ( Offender) |
Representation: | Counsel D Armstrong ( DPP) N Deakes ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 12 of 2023 SCC 13 of 2023 |
BAKER J:
Introduction
1․On 5 June 2023, Mr Nec Gorman (the applicant) was sentenced by Refshauge J for charges of dishonest taking of a motor vehicle without consent, two charges of dangerous driving, three charges of failing to give required particulars to another driver involved in a collision and three charges of giving a false name and address, burglary, attempted arson, and failing to give particulars to another driver involved in a collision. Justice Refshauge imposed a term of imprisonment of 3 years and 6 months imprisonment, backdated by 244 days to take into account time served by the applicant whilst awaiting sentence. His Honour set a non-parole period of 22 months imprisonment, which was also backdated by 244 days.
2․Shortly after the pronouncement of the sentence, and before he was taken to the court cells by Corrective Services, the applicant absconded from custody and ran from the court building. I was informed by the parties that the offender was at large for 6 days following his escape, and that he was then was in a NSW Correctional Facility for 11 months and four days (presumably in respect of NSW offences). He was subsequently extradited to the ACT and returned to custody on 14 May 2024. He was then charged with an offence of escape from custody.
3․On 30 May 2024, the proceedings were referred to me, as the Duty Judge, by the Registrar, for consideration as to what, if anything, should be done with respect to the sentence that had been imposed by Refshauge J. The proceedings were then adjourned for the parties to give consideration as to whether an application should be filed for declaratory relief, and, if so, the proper contradictor to such an application.
4․On 4 June 2024, the proceedings were again mentioned before me. On this occasion, Mr Deakes appeared on behalf of the applicant. He noted that the fresh charge of escape from custody was listed for mention before the Magistrates Court, and that the applicant intended to enter a plea of guilty to that charge. He submitted that it was important for this Court to make a declaration concerning the applicant’s amended release date, so that the Magistrates Court would then be in a position to properly sentence the applicant for the fresh offending.
5․At this mention, the then counsel for the Director of Public Prosecutions (the Director) submitted that the prosecution’s involvement in the matter “ended” when the applicant was sentenced. To this end, Mr Hancock, of the ACT Government Solicitor, appeared as amicus curiae. In helpful oral submissions, Mr Hancock made reference to two decisions which, he submitted, may be of relevance to the issues before the Court: Whan v McConaghy [1984] HCA 22; 153 CLR 631 and R v Hall [2004] NSWCCA 127. He indicated that if the Director continued to maintain her opposition to appearing as contradictor, his office would represent the Attorney General as “the contradictor of last resort”. The proceedings were adjourned a second time to enable the parties to determine who should be the contradictor.
6․On 7 June 2024, the applicant’s counsel filed an application in proceeding seeking orders adjusting the commencement and end date of his sentence to reflect the time that he was not in lawful custody. On 13 June 2024, counsel for the Director informed the Court that the Director accepted that she was the proper contradictor for the proceedings. Orders were then made for the exchange of written submissions.
7․On 12 July 2024, following the exchange of written submissions, the parties provided brief oral submissions to the Court. As outlined below, both parties agreed that the Court should issue an amended form of the declaration sought.
The parties’ submissions
8․In her submissions, counsel for the Director, citing the decision in Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564, accepted that the Court has jurisdiction to issue the declaratory relief sought.
9․Noting that this Court was functus officio following the pronouncement of sentence (see Jovanovic v The Queen [1999] FCA 1008; 92 FCR 580), the Director contended that the application should have been filed as an originating process, rather than as an application for interlocutory orders in the previous proceedings. However, the Director’s counsel indicated that she took no objection to the application being treated as an originating oral application for a declaration.
10․In helpful written submissions, counsel for the Director set out the statutory provisions which governed the administration of sentences of imprisonment where an offender is unlawfully at large for a period of the term imposed.
11․In particular, counsel referred to s 30 of the Crimes (Sentence Administration) Act 2005 (ACT) (CSAA), which provides that an offender’s unlawful absence from a correctional facility is “not to be counted in working out the period of the sentence served by the offender”. The Director submitted that s 30 is a “self-executing” provision, whereby “the consequences for [an] offender’s release date following their return to lawful custody are automatic and the necessary adjustments to their release date is managed by the director-general who administers the sentence imposed by the Court”.
12․The Director accepted that the applicant has a “real interest” in seeking the declaratory relief sought. In her written submissions, the Director’s counsel queried whether the declaration would produce any “real consequences for the parties” (citing Aussie Airlines Pty Ltd v Australian Airlines Ltd [1996] FCA 813; 68 FCR 406 at 414-415), and submitted that the Court might decline to issue a declaration on this basis.
13․However, in her oral submissions, counsel for the Director acknowledged that ACT Corrective Services had previously queried whether the director-general had power to adjust the end date of the sentence. In these circumstances, she accepted that the issuing of a declaration would have utility. She contended that the declaration should be made in the following terms: “the release date of the sentence of imprisonment, which was imposed on 5 June, is extended to a term equal that Mr Gorman was unlawfully absent from custody”.
14․Mr Deakes, who appeared for the applicant, agreed with the Director’s submissions.
Determination
The relevant legislative provisions
15․Section 30 of the CSAA provides as follows:
30 Unlawful absence by offender—extension of sentence
If an offender is unlawfully absent from a correctional centre or other place during the term of the offender’s sentence of imprisonment, the absence is not to be counted in working out the period of the sentence served by the offender.
Examples of unlawful absence
the offender fails to return to a correctional centre as required after community service work or approved leave
16․It is necessary to read s 30 in the context of the other provisions of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and the CSAA which govern the imposition and administration of sentences of imprisonment.
17․The starting point is s 10 of the Sentencing Act, which applies where a court is sentencing an offender who has been convicted of an offence punishable by imprisonment. Section 10(2) relevantly provides that the court may, “by order, sentence the offender to imprisonment for all or part of the term of the sentence…” (emphasis added). The word “term” is defined in the Dictionary to the Sentencing Act to include “the sentence as amended” where the term of the sentence is amended under the CSAA.
18․Part 5.1 of the Sentencing Act deals with the “start and end” of sentences of imprisonment. Section 62(1) of the Sentencing Act provides that a sentence of imprisonment starts “on the day the sentence is imposed, or, if an offender is not in custody - on the day the offender becomes subject to lawful custody”. This provision is expressed to be “subject to” the CSAA: s 62(2)(b) of the Sentencing Act.
19․Section 65 of the Sentencing Act deals with non-parole periods. Where an offender is sentenced to a term of imprisonment of one year or longer, or two terms of imprisonment that total one year or longer, s 65(2) requires the court to set a non-parole period during which the offender is not eligible to be released on parole. The court is required to state the start and end dates of the non-parole period: s 65(3).
20․Part 5.5 of the Sentencing Act requires an explanation to be provided to the offender where an offender is sentenced to a term of imprisonment for an offence. Two of the matters which must be explained are:
(i)“the day when the sentence starts or is taken to have started” (s 82(1)(e)); and
(ii)the earliest day (“on the basis of the information currently available to the court”) that the offender will become entitled to be released from detention or be eligible to be released on parole…” (s 82(g)).
21․The administration of a sentence of imprisonment is dealt with under the CSAA. Section 10 of the CSAA defines a “committal order” as an order of a court sentencing an offender to “imprisonment, that under a territory law, must be served by full-time detention”. The committal order “authorises the director‑general to have custody of the offender under the order”; and requires the director‑general to “take the offender into custody” and “keep the offender imprisoned under full-time detention until released under [the CSAA] or another territory law”: s 11 of the CSAA .(See also s 13 of the CSAA, which similarly provides that “the director‑general must keep the offender imprisoned under full‑time detention under this Act and the Corrections Management Act 2007 until released under [the CSAA] or another territory law”.)
22․An offender “must serve the period of imprisonment set by the sentencing court by full-time detention in accordance with this Act and the Corrections Management Act 2007”: s 24 of the CSAA.
23․Section 32(1) of the CSAA provides that an offender must be released on the offender’s “release date”. Section 23 defines the “release date”, for an offender for a sentence to mean “the day the term of the sentence ends” (emphasis added). The word “term (of a sentence)” is similarly defined in the Dictionary to the CSAA to include “the term as amended under a law of the ACT (including this Act,) the Commonwealth, a State or another Territory”.
Application
24․As outlined above, when a court sentences an offender to imprisonment, the court is required to impose a “term” of imprisonment: s 10 of the Sentencing Act. The offender is then required to serve the “period” of imprisonment set by the court: s 24 of the CSAA. Conversely, the offender is entitled to release on the day that the “term” of the sentence ends: ss 23 and 32 of the CSAA.
25․It is also apparent from the structure of the Act, and the text of the provisions that the requirement for the Court to set a start and end date for the sentence, and to specify the end date of the non-parole period is by way of an explanation to the offender.
26․As the Director submitted, the effect of these provisions is that when the court sentences an offender to full-time imprisonment it does so by imposing a term of imprisonment, the offender is not sentenced to be imprisoned for particular dates. Similarly, the authority of the Director General of ACT Corrective Services (the Director General) to keep an offender in custody is governed by the term of imprisonment that is imposed, rather than by reference to the start and end date specified by the court.
27․In these circumstances, s 30 operates as a ‘self-executing’ provision, which does not require a court order to take effect. Section 30 relevantly provides that where an offender is unlawfully absent from a correctional centre “during the term of the offender’s sentence of imprisonment”, the absence is “not to be counted” in working out the period of the sentence served by the offender. In this way, s 30 has the effect of “extending an offender’s sentence if the offender absconds during the term of his sentence of imprisonment”: Lewis v Australian Capital Territory [2015] ACTSC 167; 301 FLR 102 at [58].
28․As a result of s 30, the offender’s actual release date may be different to that indicated on the initial warrant of imprisonment. It may be observed that a similar consequence arises where there has been a breach of parole, and the Director General is required to apply parole time credit (Part 7.5 of the CSAA).
29․Accordingly, as the Director submitted, as both the applicant’s obligation to serve full time custody and the Director General’s custody of the applicant are governed by the term of imprisonment imposed by the Court (namely, a term of 3 years and 6 months imprisonment), the applicant’s release date is determined by when that period of imprisonment has in fact been served. It is the responsibility of the Director General, as the custodian of the offender, to determine when the period of imprisonment has in fact been served.
30․Before turning to consider the relief that should be granted, it is appropriate to briefly address the authorities referred to by the ACT Government Solicitor, namely Whan v McConaghy and Hall, in the early mention of these proceedings (see at [5] above). In her oral submissions, counsel for the Director submitted that these decisions were distinguishable, because the legislation there considered is in different terms to the CSAA. I agree.
31․Whan concerned an offender who was sentenced to imprisonment for three months, to be served by way of periodic detention. The offender appealed against the sentence (first, by way of a Notice of Appeal, and later, by way of an application for prerogative relief when it became apparent that the appeal was incompetent). He was granted bail pending the appeal. The New South Court of Appeal ultimately dismissed the application for a prerogative writ, and ordered that the time that the offender had been on bail should not count as part of his sentence. The Court of Appeal directed that the sentence should commence on 16 December 1983.
32․The High Court allowed an appeal by the offender, holding that s 8 of the Periodic Detention of Prisoners Act 1981 (NSW) had the effect that the term of imprisonment commenced on the date that it was set. In so holding, the Court (Mason, Murphy, Wilson and Deane JJ) held (at 634 - 635):
A sentence of imprisonment, like any other court order, must operate in accordance with its terms as interpreted in the context of any statutory provisions pursuant to which it is imposed or framed. If the sentence does not itself direct that the term of imprisonment which the offender is ordered to serve be a period commencing on a particular day or if overriding statutory provisions do not have that effect, the term of imprisonment will ordinarily commence when the offender is taken into custody and begins to serve it. The framing of the sentence or the effect of overriding statutory provision can however, intentionally or inadvertently, be such that the imprisonment to which an offender is sentenced is imprisonment during a period which is identified by reference to a nominated specific commencing date. In such a case, if the offender fails to serve the term of imprisonment imposed, he may be guilty of some further offence (see, e.g., Periodic Detention of Prisoners Act, s.33). In the absence of statutory provision or valid court order to the contrary however, the term or period during which the offender is sentenced to be imprisoned will commence on the designated day.
33․Whilst the specification of the commencement date in the Periodic Detention of Prisoners Act did not itself form part of the sentence, it was necessary for a commencement date to be identified so that the procedures of the Act could be applied to the sentence of imprisonment (at 636). Section 8 of that Act provided that the sentence “shall commence” on the date specified in the order. As there was “nothing in the Act” that qualified that “clear provision”, its effect was that the term of imprisonment that was required to be served was the term that commenced “on that designated date” (at 636).
34․Their Honours held that the fact that the offender did not in fact commence serving the sentence of imprisonment “did not, in itself, precent the term of the sentence from commencing to run”, noting that at common law, an escape from custody did not have that effect (at 636, citing In re Court (1871) 2 QSCR 171 and Wilson v Attorney-General [1938] NZLR 496).
35․The Court further held that bail orders that had been made did not operate to prevent the commencement of the term of imprisonment, or to interrupt the term after it had commenced (at 636). Accordingly, by the time the Court of Appeal came to determine the matter, the sentence had expired. In those circumstances, the Court held that the Court of Appeal had no jurisdiction to order that the unserved term of imprisonment commence on a future date (at 632). Their Honours concluded (at 639):
The statute does not authorise the gaoler to adopt a new commencement date for that specified by the District Court and in the absence of a court order staying the execution of the sentence it would expire on the expiration of three months from the specified commencing date.
36․The decision in Whan was applied by the New South Wales Court of Criminal Appeal in R v Hall [2004] NSWCCA 127. The appellant in Hall had been sentenced to a term of imprisonment to be served by way of periodic detention. He was granted bail pending the determination of his appeal against that sentence. However, the legislation considered in Hall differed to that under consideration in Whan, in part because the appeal in Hall was under the Criminal Appeal Act 1912 (NSW), whereas the application in Whan was for prerogative relief (it being accepted that an appeal under the Criminal Appeal Act was not competent in Whan). Whilst there had been no provision authorising a “gaoler to adopt a new commencement date” in Whan, in Hall, s 18(2) of the Criminal Appeal Act 1912 (NSW) provided:
The time during which an appellant is at liberty on bail (pending the determination of his or her appeal) does not count as part of any term of imprisonment under the appellant’s sentence.
37․In holding that the Court had no power to restart the sentence, and that the appellant was only bound to serve the balance of his original sentence, Handley JA (with whom Dowd and Greg James JJ agreed) referred at length to the legislative history of s 18(2). This history, which was described as resulting in a “sorry mess” (at [23]), included that s 18 had previously contained the following two subsections (extracted at [37] of the judgment):
[The time during which an appellant, pending the determination of the appellant’s appeal, is at liberty on bail … shall not count as part of any term of imprisonment … under the appellant’s sentence.] [Any imprisonment … under such sentence, whether it is the sentence passed by the court of trial or the sentence passed by the court shall, subject to any directions which the court may give as aforesaid, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and if the appellant is not in custody as from the day on which the appellant is received into prison, under the sentence.]
38․Justice Handley noted that when the Courts Legislation Further Amendment Act 1995 (ACT) repealed s 18(3), and replaced its first limb with s 18(2), the legislature failed to re-enact the second limb of the former s 18(3): Hall at [40].
39․His Honour observed that s 18(3) had been referred to in Whan as an example of a statutory power that enabled the substitution of “a fresh order of commitment to prison for one the term of which had expired”: Hall at [41], citing Whan at 635 [35]. His Honour held that as a result of the failure of the legislature to re-enact the second limb of s 18(3), the Court had no power to adjust and restart the appellant sentence and periodic detention order: Hall at [47].
40․It is clear from the High Court’s decision in Whan that the determination of the start and end dates of a sentence of imprisonment is ultimately a question of statutory construction, which requires an analysis of the particular statutory provisions that apply to the sentence. As with all questions of statutory interpretation, this task is informed by a consideration of the text of the legislation, assessed against its purpose, context and legislative history: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408.
41․In Whan, there was no equivalent provision to s 30 of the CSAA, which expressly adjusts the counting of time in the circumstances to which it applies. In Hall, there was a provision in similar terms to s 30 (s 18 of the Criminal Appeal Act). However, the effect of that provision had to be understood against its peculiar legislative history. That legislative history included the enactment, and repeal of part provision (s 18(3)), which indicated that time spent at liberty “does not count” was not sufficient, of itself, to permit the adjustment of the start or end date of the term of imprisonment; rather a further “deeming” provision was required.
42․Although s 30 of the CSAA is in similar terms to the provision considered in Hall, it falls to be considered in a very different statutory context, including a very different legislative history to the legislation considered in Hall.
43․Section 30 was enacted as a part of the Crimes Sentence Administration Bill 2005 (ACT). The explanatory memorandum for that Bill explained the purpose and effect of that section as follows:
Clause 30 – unlawful absence by offender – extension of sentence
Clause 30 applies to offenders.
Clause 30 clarifies that any unlawful absence of an offender from a prison or other correctional centre is discounted from time served to complete a sentence of imprisonment. For example, a prisoner is sentenced to 24 months imprisonment and begins their sentence on 2 January 2006. On 2 January 2007 the person escapes and is at large until 2 February 2007. The person is then taken as having 12 months imprisonment remaining to complete their sentence. The sentence would normally finish on 2 February 2008.
44․As can be seen from the extrinsic materials, the clear purpose of s 30 was to ensure that where an offender is unlawfully absent, the end date of the sentence is to be extended by the period that the offender was unlawfully at large. When read in the context of the legislation as a whole, it is clear that s 30 takes effect automatically when an offender is unlawfully absent from a correctional centre. There is no need for any further court order or for the Court to reissue of the warrant.
45․The question that remains is whether a declaration should issue, and if so, in what terms. Both parties agree that s 30 of the CSAA is a self-executing provision. That agreement suggests that a declaration should not be made: Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334; 161 ALR 399 at [48]; Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 581-583. However, as noted above, ACT Corrective Services has previously queried whether the Director General had power to adjust the end date of a sentence. (I was informed that ACT Corrective Services was advised of these proceedings, but declined to appear.) Further, the applicant is to be sentenced for the offence of escape before the Magistrates Court later today. In order to sentence the applicant for the fresh offence, the Magistrate will need to be apprised of the applicant’s current release date. In these circumstances, both parties agreed that it was appropriate for the declaration to issue.
46․I was initially minded to make the declaration in a form that specifies the applicant’s new release date. However, I only have submissions from the bar table, and not evidence, as to the date that the applicant absconded, and the date of his return. In those circumstances, I have determined that the declaration should issue in the form suggested by the Director, which is agreed to by the applicant, namely that the applicant’s release date for the sentence of imprisonment imposed by Refshauge J on 5 June 2023 is extended by a period equal to that during which he was unlawfully absent from custody.
Orders
47․For the above reasons, the following declaration is made:
(1)The applicant’s release date for the sentence of imprisonment imposed by Refshauge J on 5 June 2023 is extended by a period equal to that during which he was unlawfully absent from custody.
| I certify that the preceding forty seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A Watson Date: 22 July 2024 |
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