Director of Public Prosecutions v McIntosh (No 3)

[2022] ACTSC 348

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v McIntosh (No 3)

Citation:

[2022] ACTSC 348

Hearing Date:

13 December 2022

DecisionDate:

13 December 2022

Before:

Mossop J

Decision:

See [8]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of intensive correction order by further offending – interpretation of requirement for court to cancel order where order previously cancelled by the Sentence Administration Board – consideration of need for law reform – offender did not contest cancellation – intensive correction order cancelled and sentence of full-time imprisonment imposed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Title of proceedings – Amendment of title of proceedings following death of the Queen – order made

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT), ss 64, 65, 73

Director of Public Prosecutions Act 1990 (ACT), s 7

Cases Cited:

R v McIntosh [2020] ACTSC 208

R v McIntosh [2022] ACTSC 185

Parties:

ACT Director of Public Prosecutions

Brett Thomas McIntosh (Offender)

Representation:

Counsel

S Janackovic (DPP)

Self-represented (Offender)

Solicitors

ACT Director of Public Prosecutions

Self-represented (Offender)

File Number:

SCC 6 of 2020

MOSSOP J:

Introduction

1. This matter was originally prosecuted pursuant to s 7 of the Director of Public Prosecutions Act 1990 (ACT) in the name of the Queen. The indictment is entitled “the Queen against Brett Thomas McIntosh”. Following the death of the Queen, it has been the practice of the Director to prosecute matters in his own name. That is something which is authorised by s 7. In relation to matters such as this, in which there are proceedings both before and after this change of practice, there is an issue as to whether the proceedings should be titled as they were under the previous practice notwithstanding the death of the Queen or whether the title of the proceedings should be amended so as to reflect the current practice of the Director to prosecute in the Director’s own name. Pursuant to the statute, all prosecutions are in fact conducted by the Director (“The director may prosecute … but nothing … prevents the director from prosecuting … in any other manner”). The change from prosecuting in the name of the Queen to prosecuting in the Director’s own name reflects a change in title rather than a change in substance. The Director now prosecutes in his own name as authorised by that section. So far as proceedings such as this are concerned, there does not appear to be any statutory or other barrier to amending the title of the proceedings so that they reflect the current practice. That can simply be done by noting that the proceedings are now conducted by the Director in his own name. However, in order to ensure that there is no problem in the registry, I will make an order noting that the proceedings are conducted in the name of the Director of Public Prosecutions and any documents filed in the proceedings may be so entitled.

1. The offender was sentenced by Robinson AJ on 6 August 2020 to 19 months’ imprisonment for causing grievous bodily harm by an unlawful act and a further two months’ imprisonment for common assault: R v McIntosh [2020] ACTSC 208. The sentence of imprisonment was suspended upon the offender entering into a good behaviour order for a period of 24 months from 6 August 2020. On 23 December 2021 the offender committed the offence of possessing an offensive weapon with intent. On 17 March 2022 he was sentenced in the Magistrates Court to two months’ imprisonment. As that offending involved a breach of the good behaviour order associated with the suspension of sentence, I dealt with him for that breach on 21 July 2022. He was sentenced to 10 months’ imprisonment to be served by intensive correction along with 50 hours of community service: R v McIntosh [2022] ACTSC 185.

1. On 24 August 2022 he committed the offence of destroying or damaging property not exceeding $5000 in value. This involved him punching a wall and using a baseball bat to cause damage to a door in the residence where he lived with his mother. On 8 November 2022 he was convicted and fined $1500. The magistrate who sentenced him committed him to the Supreme Court to be dealt with under s 65 of the Crimes (Sentence Administration) Act 2005 (ACT). That was because he was, at the time of the offence, serving a sentence by way of intensive correction and s 65 requires the court as soon as practicable to cancel the intensive correction order unless cancellation is not in the interests of justice.

1. However, in parallel to these events, the Sentence Administration Board on 20 September 2022 had conducted a hearing into an alleged breach of condition 5 of the intensive correction order which required the offender to be subject to supervision of the Director-General and obey all reasonable directions. The Board found that breach proved and decided to cancel the intensive correction order.

1. The position is, therefore, one in which an offender is committed to this court in order to cancel an intensive correction order which has already been cancelled. The drafting of the legislation does not appear to contemplate this circumstance. It therefore does not explain how, logically, an intensive correction order which has already been cancelled may be cancelled again. Yet, there is a difference in the consequences of cancellation of an intensive correction order by the Board under s 64 of the Crimes (Sentence Administration) Act and cancellation by the sentencing court under s 65 of the Crimes (Sentence Administration)Act. That is because a Board cancellation may be undone by the Board itself after the offender has served at least 30 days of the sentence by full-time detention: s 73. That does not apply in relation to a cancellation by the sentencing court.

1. Notwithstanding the logical difficulty with cancelling an intensive correction order that has already been cancelled, having regard to the different consequences of cancellation by the Board and cancellation by the sentencing court it is the least undesirable interpretation of the legislation to treat it as permitting cancellation by the court of an intensive correction order previously cancelled by the Board. I observe that similar issues arise in relation to cancellation of good behaviour orders which have already expired and the difference between the legislative simplicity and the messiness of reality may need to be considered by the legislature at some stage.

1. In the present case there was no submission that cancellation was “not in the interests of justice”. I agree that there is no reason why cancellation would not be in the interests of justice. In my view, having regard to the history and nature of the offences committed by the offender cancellation is in the interests of justice. In those circumstances, the court is obliged to cancel the intensive correction order: s 65(2)(a) and order that the remainder of the offender’s sentence be served by full-time detention: s 65(2)(b).

1. The orders of the Court are:

1.Note that the proceedings are now conducted by the Director of Public Prosecutions in his own name and any documents filed in the proceedings may be so entitled.  

2.Pursuant to s 65(2) of the Crimes (Sentence Administration) Act 2005 (ACT) the intensive correction order made by the court on 21 July 2022 in relation to a sentence of imprisonment commencing on 21 July 2022 and ending on 20 May 2023 is cancelled and the remainder of the offender’s sentence is to be served by full-time detention commencing today and ending on 20 May 2023.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 14 December 2022