Director of Public Prosecutions v M N; Director of Public Prosecutions v J C; Director of Public Prosecutions v J W
[2009] VSCA 312
•18 December 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 842 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| M N |
No 840 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| J C |
No 841 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| J W |
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| JUDGES | MAXWELL P, ASHLEY JA and COGHLAN AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 21 October 2009 |
| DATE OF JUDGMENT | 18 December 2009 |
| MEDIUM NEUTRAL CITATION | [2009] VSCA 312 |
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CRIMINAL LAW – Appeal – Sentencing – Children’s Court – Director’s appeal – Appeal by way of rehearing – Whether appeal court constrained by sentence imposed below – Children, Youth and Families Act 2005 (Vic) ss 424, 425.
STATUTES – Interpretation – Context – Relevance of legislative history – Relevance of repealed predecessor provisions – Presumption that legislature intended provision to be effective – Appeal provision assumed continuation of repealed sentencing power of Children’s Court – Provision of no operative effect – Children, Youth and Families Act 2005 s 424(8).
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| APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr B Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
| For the First Respondent | Mr O P Holdenson QC | Andrew George Solicitors |
| For the Second Respondent | Mr S A Moglia | |
| For the Third Respondent | Mr A R McKenna with Mr C T Carr |
MAXWELL P
ASHLEY JA
COGHLAN AJA:
There is before the Court a case stated by Judge Thornton of the County Court pursuant to s 425 of the Children, Youth and Families Act 2005 (Vic) (‘the 2005 Act’), concerning the interpretation of s 424 of that Act.
The Director of Public Prosecutions has appealed to the County Court against the sentences imposed on the three respondents by the Children’s Court. Under s 424(3) of the 2005 Act the Director has a statutory right of appeal
against any sentencing order made by the Children’s Court in a proceeding in the Criminal Division if satisfied that an appeal should be brought in the public interest.[1]
[1]As in the case of an appeal under s 424(1) by the person sentenced, the appeal by the Director is to the County Court unless the sentencing order was made by the President of the Children’s Court, in which case the appeal is to the Trial Division of the Supreme Court.
The question of interpretation concerns s 424(8), which provides:
If an appeal is made from a sentencing order of the Court which orders a person to be detained in—
(a) a youth residential centre; or
(b) a youth justice centre—
in respect of two or more offences for an aggregate period which is specified, the County Court or the Supreme Court (as the case requires) may, if it finds the person guilty of the offences or any two or more of them, order—
(c)that the person be detained in a youth residential centre or a youth justice centre (as the case may be) for a period not exceeding the aggregate period; or
(d)that the person be detained in a youth residential centre or a youth justice centre (as the case may be) for a separate period of detention in respect of each offence, but so that the separate periods do not in the aggregate exceed the aggregate period ordered to be served by the Court.[2]
[2]Emphasis added.
Two questions of law have been reserved for consideration and determination by this Court, in the following terms:
1.On the hearing of an appeal instituted under subsection 424(3) of the Act, does subsection 424(8) apply? If answered in the negative, then no further question arises.
2.If answered in the affirmative, then –
Are the sentencing orders of the Children’s Court, that:
On each charge the defendant is convicted and ordered to be detained in Youth Justice Centre for a period of 12 months. Effective total term imposed is 12 months,
orders ‘in respect of two or more offences for an aggregate period which is specified’?
The argument for the respondents is that s 424(8) does apply to these appeals by the Director. Each respondent contends that he was sentenced to be detained in a youth justice centre ‘in respect of two or more offences … for an aggregate period which [was] specified’. That being so, it is said, the Director’s appeal is governed by s 424(8)(c) and (d), which prevent the County Court from imposing a sentence which exceeds ‘the aggregate period ordered to be served by the [Children’s] Court.’
For reasons which follow, we have concluded that these contentions must be rejected. The first of the reserved questions must be answered in the negative. In short, s 424(8) has no work to do under the 2005 Act. This is so because the subsection is premised upon the Children’s Court having a particular sentencing power which it no longer has.
As can be seen, s 424(8) applies only where the order under appeal is ‘a sentencing order of the Court which orders a person to be detained … in respect of two or more offences for an aggregate period which is specified.’ The Children’s Court did have until 1989, but has not had since that time, the power to make an order ‘for a person to be detained for an aggregate period which is specified’. (We will refer to an order of this kind as an ‘aggregate period order’.)
These conclusions follow from an examination of the language of s 424(8), in the light of the legislative history of the provisions governing appeals from sentences imposed by the Children’s Court. It is, of course, permissible in determining the meaning of a statutory provision to have regard to the legislative history, including – where necessary – to provisions which have been repealed.[3] (In what follows, the Children’s Court Act 1973 (Vic) will be referred to as ‘the 1973 Act’ and the Children and Young Persons Act1989 (Vic) will be referred to as ‘the 1989 Act’.)
[3]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 366-8 (Brennan CJ); Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249, 254 (McHugh, Gummow, Hayne and Heydon JJ); R v Lavender (2005) 222 CLR 67, 81–5 (Gleeson CJ, McHugh, Gummow and Hayne JJ); R v Jennings [1999] 1 VR 352.
Legislative history
Under the 1973 Act, as under each of the later Acts, the Children’s Court had a range of sentencing options available to it. They were set out in s 26(1). Under s 26(1)(f)(ii) of that Act, the Court had express power to make an aggregate period order. Where the person to be sentenced was 15 years of age or older at the time of sentence, the Court could sentence the person:
… to be detained in a youth training centre for a specified period not exceeding two years, or if convicted by a children’s court on any occasion of two or more such offences, without affecting the jurisdiction of the court to sentence him to a separate period of detention for each such offence, order in respect of all such offences, or in respect of any two or more of them, that the child be detained in a youth training centre for a period to be known as an “aggregate period” which shall be specified but shall not exceed three years;[4]
[4]Emphasis added.
Like the later Acts, the 1973 Act made separate provision (in s 52) for appeals against sentences. Section 52(6) provided as follows:
Without affecting the generality of section 75 of the Magistrates’ Courts Act 1971,[5] where an appeal is made from a decision of a children’s court whereby a child is ordered to be detained in a youth training centre in respect of two or more offences for an aggregate period which is specified, the County Court may, if it finds the child guilty of the offences or any two or more of them, order that the child be detained in a youth training centre in respect of such offences for a period not exceeding the aggregate period or may sentence the child to be detained in a youth training centre for a separate period of detention in respect of each such offence but so that the separate periods do not in the aggregate exceed the aggregate period ordered to be served by the children’s court.[6]
[5]As enacted, this provision referred to s 142 of the Justices Act 1958.
[6]Emphasis added.
Three points should be made about s 52(6). First, and most obviously, the language is relevantly identical to that of s 424(8). Secondly, under the 1973 Act an appeal against sentence could be brought only by (or on behalf of) the person sentenced.[7] The Crown had no right of appeal. The office of Director of Public Prosecutions was not created until 1982,[8] and it was not until the 1989 Act that the Director was given a right of appeal from sentences imposed by the Children’s Court.[9] Plainly, therefore, Parliament did not have in contemplation when it enacted s 52(6) that it would have any application beyond an appeal by a person who had been sentenced. The manifest intention of the provision was to ensure that, in an appeal to which it applied, the appellant could not end up worse off.
[7]Children’s Court Act 1973 (Vic) s 52(1). The appeal was governed by Part IX of the Magistrates’ Courts Act 1971 (Vic).
[8]Director of Public Prosecutions Act 1982 (Vic).
[9]Children and Young Persons Act1989 (Vic) s 197(3).
Thirdly, s 52(6) had no application except where the order under appeal was an aggregate period order. As Ashley JA pointed out during argument – and counsel for all respondents accepted – s 52(6) had no application where the Children’s Court had sentenced a person to a separate period of detention for each of two or more offences. That different circumstance was governed by s 26(2)(a) of the 1973 Act, which provided:
Where a court sentences a child to a separate period of detention for each such offence, the court may direct that the separate periods of detention or any part thereof be served concurrently and in the absence of any such direction the periods of detention shall be served cumulatively but in no case shall the aggregate of the periods of detention to be served cumulatively exceed three years.[10]
[10]Emphasis added.
Thus, under s 26 of the 1973 Act the Children’s Court had two quite distinct sentencing options, each having its own upper limit of three years’ detention. The first was the power conferred by s 26(1)(f)(ii), to make an aggregate period order. That was a single order, specifying a single ‘aggregate period’ of detention to be served in respect of two or more offences. The ‘aggregate period’ so specified could not exceed three years. Counsel for the Director suggested that it was the lack of ‘transparency’ in such an order that might explain the special protection afforded by s 52(6) to a person appealing against such an order.
The second was the power to sentence the person ‘to a separate period of detention for each such offence’. This power was expressly recognised by both s 26(1)(f)(ii) and s 26(2)(a). Where separate periods of detention were ordered, s 26(2)(a) created a presumption of cumulation (later reversed);[11] conferred a power to direct full or partial concurrency; and provided that where the individual sentences were (in whole or part) to be served cumulatively, the aggregate of the periods to be served cumulatively must not exceed three years. The phrase ‘the aggregate’ was here used in what we think is its ordinary sense, to mean ‘the total’, ie, that which is arrived at by adding up disparate elements – in this case, the periods to be served cumulatively.[12]
[11]See [19]–[20] below.
[12]The Australian Concise Oxford Dictionary (4th ed, 2004) gives, as the first meaning of ‘aggregate’: ‘A collection of, or the total of, disparate elements.‘
It is clear on the face of the 1973 Act that the term ‘aggregate period’ had the specific meaning given to it by s 26(1)(f)(ii). It was a defined term, meaning a single period of detention specified by the Children’s Court in respect of two or more offences. The modern equivalent is the aggregate sentence of imprisonment, which may be imposed on adult offenders under the Sentencing Act 1991 (Vic). Section 9(1) provides as follows:
If an offender is convicted by a Court of two or more offences which are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character, the Court may impose an aggregate sentence of imprisonment in respect of those offences in place of a separate sentence of imprisonment in respect of all or any two or more of them.
The Children’s Court has no such power,[13] as counsel for all respondents acknowledged.
[13]See R v Beaumont (2000) 117 A Crim R 38.
We note that, under s 9(2) of the Sentencing Act 1991 (Vic), the term of an aggregate sentence of imprisonment must not exceed
the total effective period of imprisonment that could have been imposed in respect of the offences in accordance with this Act if the court had imposed a separate sentence of imprisonment in respect of each of them.
We see here the same fundamental distinction as was apparent in the provisions of s 26 of the 1973 Act – between imposing a single aggregate sentence in respect of multiple offences and imposing individual sentences in respect of each of those offences which can be added together to produce an aggregate. The former is only possible when express statutory power exists; the latter is merely a process of arithmetic, as exemplified by the notion of the ‘total effective sentence’. [14]
[14]See R v Nikodjevic [2004] VSCA 222, [37] (Ormiston JA, with whom Callaway and Vincent JJA agreed).
The 1989 Act
The 1989 Act repealed, and replaced, the 1973 Act. Part 4 of the 1989 Act governed the criminal jurisdiction of the Children’s Court. Division 7 of Part 4 was headed ‘Sentencing Orders’. Section 137(1) set out an exhaustive list of the available sentencing options, expressed as a sentencing hierarchy,[15] as follows:
[15]See s 138.
137. Sentencing orders
(1)If the Court finds a child guilty of an offence, whether indictable or summary, the Court may—
(a)without conviction, dismiss the charge; or
(b)without conviction, dismiss the charge and order the giving of an undertaking under section 140; or
(c)without conviction, dismiss the charge and order the giving of an accountable undertaking under section 142; or
(d)without conviction, place the child on a good behaviour bond under section 144; or
(e)with or without conviction, impose a fine under section 150; or
(f)with or without conviction, place the child on probation under section 158; or
(g)with or without conviction, release the child on a youth supervision order under section 163; or
(h)convict the child and make a youth attendance order under section 170; or
(i)convict the child and order that the child be detained in a youth residential centre under section 186; or
(j)convict the child and order that the child be detained in a youth training centre under section 188.
The imposition of a youth training centre (‘YTC’) order was, in turn, governed by Subdivision 10 of Division 7 of Part 4 of the 1989 Act. Section 188(1) conferred the power to make such an order, in these terms:
188. Court may make youth training centre order
(1) If—
(a)the Court finds a child guilty of an offence, whether indictable or summary; and
(b)on the day of sentencing, the child is aged 15 years or more but under 18 years; and
(c)the Court is satisfied that no other sentence is appropriate; and
(d)the offence is one punishable by imprisonment (other than for default in payment of a fine)—
the Court may convict the child and order that the child be detained in a youth training centre.
The power to make a YTC order was, in turn, limited by s 189, which relevantly provided as follows:
189. Youth training centre orders
…
(3)If a child is convicted on the same day, or in the same proceeding, of more than one offence—
(a)any period of detention in a youth training centre shall be concurrent with any period of detention in respect of any other of the offences, unless the Court, at the time of sentencing, states that the sentences are cumulative and gives reasons for its decision; and
(b)the aggregate term of detention at a youth training centre which may be required in respect of all of the offences must not exceed 3 years.
This provision is, recognisably, the successor to s 26(2)(a) of the 1973 Act. The notable difference is that, whereas s 26(2)(a) established a presumption of cumulation, s 188(3)(a) established a presumption of concurrency. The maximum period of detention remained fixed at three years.
Conspicuously absent from the 1989 Act, however, was any equivalent of s 26(1)(f)(ii) of the 1973 Act. That is, neither the general sentencing provision (s 137(1)) nor the provisions conferring the power to order YTC detention (Subdivision 10) gave the Children’s Court the power to impose a single ‘aggregate period’ of detention on an offender who had been convicted of two or more offences. Henceforth, the Court could only make an order for detention in respect of an individual offence, subject to the provisions of s 189(3) where such an order was made in respect of (each of) two or more individual offences.
The 1989 Act also introduced a new detention option for younger children. Under s 186, the Children’s Court was empowered to order that a child be detained in a youth residential centre (‘YRC’). Under s 186(1)(b), this power was exercisable only where, on the day of sentencing, the child was aged 10 years or more but was under 15 years. The limits on the exercise of this power were prescribed by s 187 of the 1989 Act, which relevantly provided as follows:
187. Youth residential centre orders
(1)If a child is ordered to be detained in a youth residential centre under section 186, the period of detention in respect of an offence must not exceed the maximum term of imprisonment for the offence if committed by an adult and in any event must not exceed 1 year.
(2)If a child is convicted on the same day, or in the same proceeding, of more than one offence—
(a)any period of detention in a youth residential centre shall be concurrent with any period of detention in respect of any other of the offences, unless the Court, at the time of sentencing, states that the sentences are cumulative and gives reasons for its decision; and
(b)the aggregate period of detention in a youth residential centre which may be required in respect of all of the offences must not exceed 2 years; and
(c)if the Court imposes a sentence of detention in a youth residential centre on a child who has not completed another sentence of detention in a youth residential centre, the Court may direct that the sentence being imposed be served in part concurrently with the other sentence or wholly cumulatively on it.
Consistently with the provisions of s 189(3)(a) in relation to YTC orders, s 187(2)(a) established a presumption of concurrency in relation to YRC orders. In establishing that presumption, the two provisions used exactly the same phraseology: ‘(a) any period of detention … shall be concurrent with any period of detention in respect of any other of the offences …’. Where s 187(2) differed from s 189(3), however, was in the language used to set the maximum period of detention. Section 187(2)(b) provided that ‘the aggregate period of detention’ in a YRC must not exceed two years. Under s 189(3)(b), by contrast, it was ‘the aggregate term of detention’ in a YTC which must not exceed three years. There is no apparent reason for this linguistic difference.
Appeals under the 1989 Act were governed by Division 8 of Part 4. The provision which corresponded with s 52 of the 1973 Act was s 197, which relevantly provided as follows:
197. Appeal to County Court or Supreme Court
(1)A child may appeal to the County Court against any sentencing order made against that child by the Children’s Court in a proceeding in the Criminal Division.
...
(3)The Director of Public Prosecutions may appeal to the County Court against any sentencing order made by the Children’s Court in a proceeding in the Criminal Division if satisfied that an appeal should be brought in the public interest.
(4)The Director of Public Prosecutions must not bring a further appeal against a sentencing order made by the County Court.
…
(7)If an appeal is made from a sentencing order of the Court which orders a child to be detained in—
(a)a youth residential centre; or
(b)a youth training centre—
in respect of two or more offences for an aggregate period which is specified, the County Court may, if it finds the child guilty of the offences or any two or more of them, order—
(c)that the child be detained in a youth residential centre or a youth training centre (as the case may be) for a period not exceeding the aggregate period; or
(d)that the child be detained in a youth residential centre or a youth training centre (as the case may be) for a separate period of detention in respect of each offence, but so that the separate periods do not in the aggregate exceed the aggregate period ordered to be served by the Court.
It can be seen that – apart from the inclusion of references to detention in a YRC – the language of s 197(7) was practically identical to that of s 52(6) of the 1973 Act. Like its predecessor, s 197(7) applied only where ‘an appeal [was] made’ from a sentencing order that a person ‘be detained … in respect of two or more offences for an aggregate period which is specified.’ In such a case, the appeal court had the same power under s 197(7) as it had had under s 52(6). That is, the Court could (if it found the person ‘guilty of the offences or any two or more of them’)[16] order that the person be detained either:
·for a period not exceeding the aggregate period; or
·for a separate period of detention in respect of each [such] offence but so that the separate periods do not in the aggregate exceed the aggregate period ordered to be served by the [Children’s] Court.[17]
[16]The appeal has always been by way of a hearing de novo: see Neillv County Court of Victoria [2003] VSC 328, [14]; s 424(5) of the 2005 Act.
[17]The words in square brackets appear in the 1973 Act but not in the 1989 Act.
It is, of course, the conferral of a right of appeal on the Director (by s 197(3) of the 1989 Act) which has ultimately given rise to the questions before the Court. Section 424 of the 2005 Act is the successor of s 197 of the 1989 Act.[18]
[18]Section 424(1) is the equivalent of s 197(1), s 424(3) corresponds with s 197(3), and s 424(8) corresponds with s 197(7) of the 1989 Act.
The question to which argument in this Court was directed concerned the intention of Parliament in enacting s 197(7) of the 1989 Act and, subsequently, in enacting s 424(8) of the 2005 Act. Senior counsel for the first respondent (whose submissions were adopted by counsel for each of the other respondents) accepted that s 197(7) (and, in turn, s 424(8)) replicated the language of s 52(6) of the 1973 Act. Counsel also accepted that neither the 1989 Act nor the 2005 Act included, amongst the sentencing options available to the Children’s Court, power to make an aggregate period order of the kind provided for by s 26(1)(f)(ii) of the 1973 Act.
He submitted, however, that this Court should strain to avoid the conclusion for which the Director contended, namely, that s 197(7) and, in turn, s 424(8) were inoperative provisions. According to the Director’s submission, each of those provisions could be seen to have been enacted on the basis of an erroneous assumption that the Children’s Court continued to have the power to make an aggregate period order. That power having been repealed and not re-enacted when the 1989 Act came into force, the provisions had no work to do.
Senior counsel for the first respondent rightly emphasised the presumption of statutory interpretation – reaffirmed by the High Court in Project Blue Sky Inc & Ors v Australian Broadcasting Authority[19] – that Parliament intended that meaning should be given to every word of a statute. There was, he submitted, every reason to think that the presumption was applicable here, given that Parliament had not once but twice (first in the 1989 Act and then in the 2005 Act) enacted the relevant provision. It would be a ‘very dramatic’ step to conclude that the provision was ineffective, although such a conclusion would not be unprecedented.[20] That being so, he argued, the court should interpret s 424(8) (that being the current form of the relevant provision) so as to give it meaningful operation.
[19](1998) 194 CLR 355, 382.
[20]See R v Jennings [1999] 1 VR 352, 359 (Brooking JA).
Counsel acknowledged that, for s 424(8) to be given such application, it was necessary to identify, from amongst the sentencing options now available to the Children’s Court, that form of sentence which would enliven s 424(8) when an appeal was brought. Plainly, s 424(8) could only apply where an appeal was made from a sentencing order of the Children’s Court which could be characterised as an order that
a person … be detained in—
(a) a youth residential centre;
or
(b) a youth justice centre—
in respect of two or more offences for an aggregate period which is specified …
Counsel’s submission was that the Children’s Court made an order of that character when it made orders for detention in a YRC or in a YTC in respect of more than one offence. (In the case of detention in a YRC, sentencing for multiple offences is governed by s 411(2), which is in identical terms to the corresponding provision of the 1989 Act, s 187(2).[21] In the case of detention in a YTC, sentencing for multiple offences is governed by s 413(3) of the 2005 Act, which is in identical terms to the corresponding provision of the 1989 Act, s 189(3).)[22]
[21]See [22] above.
[22]See [19] above.
In the case of a YRC order, the argument focused on s 411(2)(b), which provides that ‘the aggregate period of detention in a youth residential centre which may be required in respect of all of the offences must not exceed two years; …’ In the case of a YTC order, the argument focused on s 413(3)(b), which provides that ‘the aggregate term of detention in a youth justice centre which may be required in respect of all of the offences must not exceed three years.’
The submission can best be understood by reference to the circumstances of the present case. Each respondent pleaded guilty to multiple counts and was sentenced by the Children’s Court on each count ‘to be detained in youth justice centre for a period of 12 months’. After imposing sentence on the individual counts, the court stated ‘effective total term imposed is 12 months’. There being no direction for cumulation, the periods of detention were all to be concurrent with each other, in accordance with the statutory presumption.
According to the respondents’ argument, what the Children’s Court described as the ‘effective total term’ – being the period of 12 months – was ‘the aggregate term of detention’ for the purposes of s 413(3)(b). Thus understood, the aggregate term was well within the statutory maximum of three years fixed by that paragraph. Relevantly for the purposes of s 424(8), the Children’s Court should be viewed as having thus ordered each respondent to be ‘detained in a youth justice centre in respect of two or more offences for an aggregate period which is specified’, that being the period of twelve months.
Asked how the order of the court could be characterised as involving the ‘specification’ of an aggregate period of detention, senior counsel submitted that the court’s statement ‘effective total term imposed is twelve months’ should be regarded as the act of specification. This was said to be so notwithstanding that there was full concurrency between the sentences on the individual counts and hence no ‘aggregate period’ in the sense of sentences being added together.
Consideration
In our view, these submissions must be rejected. The language of s 424(8) (and, before it, of s 197(7) of the 1989 Act) gives the clearest indication that Parliament’s intention did not change. That is, Parliament did not intend the phrase ‘an aggregate period which is specified’ in s 424(8) to have a meaning different from its meaning in s 52(6) of the 1973 Act.
The key lies in the terms of the appeal court’s power in an appeal to which s 424(8) applies. As noted earlier, in such a case the appeal court may order:
(c)that the person be detained … for a period not exceeding the aggregate period; or
(d)that the person be detained … for a separate period of detention in respect of each offence, but so that the separate periods do not in the aggregate exceed the aggregate period ordered to be served by the Court.
Plainly, these paragraphs draw a distinction between orders of two quite different kinds. It is precisely the same distinction as appeared in s 26 of the 1973 Act[23] and as is still evident in s 9(2) of the Sentencing Act 1991 (Vic).[24]The first kind of order, contemplated by sub-paragraph (c), is a single order in respect of multiple offences, being an order that the offender be detained ‘for a period not exceeding the aggregate period’. This is, unmistakeably, an order of the kind which the Children’s Court could itself have made under s 26(1)(f)(ii) of the 1973 Act. Since the appeal court (then as now) conducted a hearing de novo, it made perfect sense under the 1973 Act for that court to have the power to make an order of the same kind, provided that the aggregate period fixed by the appeal court could not exceed the aggregate period fixed by the Children’s Court at first instance.
[23]See [13]–[14] above.
[24]See [16] above.
The second type of order, provided for by sub-paragraph (d), is a series of individual orders for detention in respect of the individual offences. Where the appeal court took this approach under s 52(6), the single ‘aggregate period of detention’ ordered by the Children’s Court in respect of multiple offences would be replaced by ‘separate periods of detention in respect of each offence’, subject to the proviso that those separate periods could not ‘in the aggregate’ exceed the aggregate period ordered at first instance.
The very same distinction is thus embodied in sub-paragraph (d) itself. That paragraph confers on the appeal court the power to order ‘separate periods of detention in respect of each offence’ which can be added together to make an ‘aggregate’. At the same time, the sub-paragraph assumes that the Children’s Court sentence under appeal is an order of a different kind, that is, an order for ‘an aggregate period … to be served’. It is the latter which imposes an upper limit on the former.
The preservation of this clear distinction – between the aggregation of separate periods of detention and the fixing of a single aggregate period of detention – renders the respondents’ argument untenable. As we have explained,[25] their argument depended on establishing that this distinction had disappeared and that the two had become synonymous.
[25]See [34]–[35] above.
Although it might seem an improbable result, we are constrained by the language of s 424(8), construed in the context of the legislative history, to conclude that the provision is incapable of having any effective operation. Its starting premise – that the sentence under appeal is an ‘aggregate period order’ – can never be fulfilled, since the Children’s Court has no power to make such an order. (We note that, as counsel for the Director pointed out, s 362A(1)(d) of the 2005 Act perpetuates the same error.)
Other considerations point to the same conclusion. As Ashley JA pointed out in the hearing, if s 424(8) were applied as the respondents contend it can be, it would have a limiting operation in relation to orders for separate periods of detention for separate offences, when its predecessor (s 52(6)) had no such application in the 1973 Act. That is, s 52(6) of the 1973 Act had no application to the cumulative effect of individual period sentences, as provided for by s 26(2)(a) of that Act, yet on the respondents’ argument s 424(8) would apply to the cumulative effect of individual period sentences, now governed by s 413(3) of the 2005 Act.
Counsel for the respondents argued that the limitation on Director’s appeals imposed by s 424(8) was mitigated by s 427 of the 2005 Act, which enabled the Director to appeal to the Supreme Court on a question of law. The short answer to that submission, in our view, is that a general provision like s 427 cannot be used to circumvent a specific restriction of the kind (putatively) imposed by s 424(8).[26]
[26]Saraswati v R (1991) 172 CLR 1, 23–4 (McHugh J).
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