Director of Public Prosecutions v XK (No 2)

[2024] ACTSC 215

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v XK (No 2)
Citation:	[2024] ACTSC 215
Hearing Date:	31 July 2024
Decision Date:	31 July 2024
Before:	Baker J
Decision:	(1) The order of Special Magistrate Richter dated 9 July

2024 committing the offender to the Supreme Court to be

dealt with for breach of the offender’s good behaviour

obligations is set aside.

Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender
.
committed to the Supreme Court for breach of suspended
sentences – s 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT) – finding of guilt a necessary precondition to
committal under s 107(2).
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 107(2)
Parties:	Director of Public Prosecutions (Crown)
XK (Accused)
Representation:	Counsel
C Muthurajah (DPP) A Qvist (Accused)
Solicitors
ACT Director of Public Prosecutions Fortify Legal (Accused)
File Number:	SCC 43 of 2023
BAKER J:

EDITED EX TEMPORE JUDGMENT

Introduction

1․	The offender, XK, has pleaded guilty in the Magistrates Court to offences of fight in a
public place, possess a knife and an aggravated common assault (the fresh offences).
At least one of those offences was committed in breach of suspended sentences that
were imposed by McWilliam J in this Court on 8 June 2023: DPP v XK [2023] ACTSC
141.
2․	The sentence proceedings for the fresh offending were heard before a Special
Magistrate on 9 July 2024. After hearing submissions from the parties, the Special
Magistrate determined that the appropriate course was to commit the offender to this
Court in respect of the breach of the suspended sentences, and for that matter to be
dealt with prior to the imposition of sentences by his Honour for the fresh offences.
3․	Section 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT) authorises the
course that was sought to be adopted by the Special Magistrate. Section 107(2) provides
as follows:

(2) If the Magistrates Court finds an offender guilty of an offence committed
during the term of the offender's good behaviour order, and the order was
made or changed by the Supreme Court, the Magistrates Court must, in
addition to dealing with the offender for the offence, commit the offender to the
Supreme Court to be dealt with under this part for breach of the offender's
good behaviour obligations.

4․	The difficulty that arises is that the Special Magistrate did not make a formal finding that
the offender was guilty of an offence committed during the term of the offender's good
behaviour order. I am of the view, and both parties agree, that the making of a formal
finding of guilt is a precondition to the exercise of the committal power under s 107(2).
In those circumstances, both parties accept that the appropriate course is for this Court
to make an order formally setting aside the order of the Special Magistrate.
5․	I was informed that the proceedings have been listed for mention before the Special
Magistrate on 16 August 2024. On that occasion it will be open to his Honour, after
making any finding in accordance with s 107(2), to then recommit the offender to this
Court to be dealt with under s 107(2) and so the offender can then be dealt with for
breach of the offender's good behaviour obligations.

Orders

6․ The order of the Court is as follows:

(1)	The order of Special Magistrate Richter dated 9 July 2024 committing the
offender to the Supreme Court to be dealt with for breach of the offender's good
behaviour obligations is set aside.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 2 August 2024