Haddara v Corrections Victoria
[2018] VCC 914
•11 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00266
| FADI HADDARA | Applicant |
| v | |
| CORRECTIONS VICTORIA | Respondent |
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JUDGE: | Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 May 2018 | |
DATE OF JUDGMENT: | 11 May 2018 | |
CASE MAY BE CITED AS: | Haddara v Corrections Victoria | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 914 | |
REASONS FOR JUDGMENT
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Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P. Dunn QC | Pica Criminal Lawyers |
| For the Respondent | Ms F. Holmes | Victorian Government Solicitors Office (on behalf of Corrections Victoria) |
| Mr S. Devlin | Office of Public Prosecutions |
HER HONOUR:
1 On 8 May 2018 I dismissed an application by Mr Haddara to vary the terms of a Community Correction Order (CCO). These are my reasons.
2 On 17 September 2015 I sentenced Mr Haddara to 23 months imprisonment, followed by 3 year CCO.
3 Mr Haddara was released, following expiration of the term of imprisonment on 16 August 2017. The CCO commenced that day.
4 Mr Haddara has now made application to vary the CCO. The application to vary the CCO is in these terms:
I want the order varied because: the rehabilitation of the offender would be advanced by continuing to pursue his religious observances as well as furthering links with his extended family. The offender wishes to participate in the Islamic pilgrimage known as the Hajj in Saudi Arabia with his mother and attend upon relatives with her in Lebanon immediately after participating in the pilgrimage. It is sought to leave on or around 8 August 2018 from Australia for a period of approximately 4 weeks.
5 The application was supported by a testimonial from Shiekh Mohamed Aljibaly, Imam at Australian Islamic Centre, Newport Islamic Society. Somewhat surprisingly, in light of Mr Haddara’s extensive criminal convictions, he deposed that Mr Haddara has always conducted himself with great respect for other people, respect for the law and authorities. He expressed the view that Mr Haddara was a great community contributor and that he had always known him to be honest and trustworthy. Mr Dunn QC foreshadowed he would be adducing oral evidence from Shiekh Mohamed Aljibaly in support of the application. That became unnecessary as I dismissed the application without making any determination on the merits of the application.
6 I did not make a determination on the merits as in my view the court does not have the jurisdiction to deal with the CCO by varying it in the manner sought, that is, to make orders permitting Mr Haddara to leave Victoria for the purpose of undertaking the pilgrimage.
7 In short this is because s 45(1)(e) of the Sentencing Act 1991 (Vic) (the Sentencing Act) provides that it is a term of every CCO that the offender not leave the state of Victoria without the permission of the Secretary. The court is given no discretion to determine whether that term is attached to any particular CCO at the time of making it. It comes with, or is an indispensable part of the order. Although the sentencing court has power to deal with a CCO by varying it after it has been made, in my view that does not – absent any express statutory authority, permit the court to vary a CCO once made by removing a mandatory term.
8 That is in my view enough to dispense with the application. However if I am wrong on that, it is still my view that the application is doomed to fail. A person subject to a CCO can leave the state if they have been granted permission to do so. However it is the Secretary (or delegate) who is given the power by s 45(1)(e) to decide whether to grant permission. There is no provision in the Sentencing Act permitting a review of or an appeal against a refusal of the Secretary to grant permission to leave the state.
9 Even if the power conferred on a sentencing court to deal with a CCO by varying it after it had been made extended to the removal of a mandatory term, this application is in effect a request to review or appeal against the refusal by the delegate of the Secretary, to grant permission to leave the state. Or, to substitute a decision of the court in relation to permission to leave the state, for that of the Secretary or delegate.
10 If judicial review is available in relation to the refusal of the Secretary to grant permission, it is for the Supreme Court, in the exercise of its powers of prerogative relief or under the Administrative Law Act 1978 (Vic) to determine such an application.
11 In order to explain why I have reached these conclusions, it is necessary to canvass the provisions of Part 3A of the Sentencing Act in relation to CCOs in some detail.
12 Division 1 declares the purposes of a CCO, Division 2 sets out circumstances in which a CCO can be made, and prescribes the maximum period for which an order can be made.
13 Division 3 is concerned with the terms and conditions of an order. Section 45(1) relevantly provides:
(1) the following terms are attached to each community corrections order-
(a) the offender must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(ab) the offender must comply with any obligation or requirement prescribed by the regulations;
(b) the offender must report to, and receive visits from the secretary during the period of the order;
(c) the offender must report to the community corrections Centre specified in the order within two clear working days after the order coming into force;
(d) the offender must notify the Secretary of any change of address or employment within two clear working days after the change;
(e) the offender must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(f) the offender must comply with any direction given by the secretary that is necessary for the secretary to give to ensure that the offender complies with the order.
14 Section 47 requires a court, when imposing a CCO, to impose at least one condition. Those conditions are contained in Division 4, and Division 2 of Part 3BA. They include conditions such as unpaid community work, supervision, assessment and treatment for mental health, or drug and alcohol abuse.
15 It can be seen that there is a clear distinction between the mandatory terms[1] which by s 45(1) are a part of every CCO, and the requirement to impose one or more of a suite of the optional conditions[2] set out in Division 4, or Division 2 of Part 3BA. Whilst there is a mandatory requirement to include a condition, the court is otherwise given a broad discretion under s 47 as to which of those to attach to any particular order.
[1]Emphasis added.
[2]Emphasis added.
16 The opening words of s 45(1) make it clear that the terms itemised in subparagraphs (a), (ab), (b) (c), (d), (e) and (f) are “attached to” each CCO.
17 In other words they are mandatory terms which Parliament has directed are to be attached to all CCOs. There is no power given to a judge to dispense with or vary these mandatory terms when a CCO is imposed. This is to be contrasted with the language and scheme of s 47. Whilst the court must impose at least one of the conditions contained in Division 4, or Division 2 of Part 3BA, the sentencer is given a broad discretion as to which condition or conditions are to be attached to the order, and the extent of those conditions. For example, if an unpaid community work condition is imposed, the number of hours of unpaid work which are required to be undertaken, or if a curfew condition is imposed, the hours each day the offender must be within doors, the place or places where the offender must be during the curfew hours, and the period of time the offender must be subject to the curfew.
18 The term that Mr Haddara seeks to have varied in this application is one of the mandatory terms contained in s 45(1), not one of the discretionary conditions contained in Division 4 or Division 2 of Part 3BA, and required to be imposed by s 47.
19 Mr Haddara sought the permission of the secretary to leave Victoria for the purpose of going on the pilgrimage in August of this year. I have been provided with an undated letter from Mr Brendan Money, Deputy Commissioner Operations, Corrections Victoria. He advised:
Decisions relating to applications for overseas travel has been delegated from the secretary to the Deputy Commissioner, operations.
Your request to travel overseas to Saudi Arabia from 8 August 2018 to 20 September 2018, for a religious pilgrimage has been considered. At this time your request for travel has been denied.
20 The letter went on to set out the circumstances considered by him in making his decision to refuse Mr Haddara permission to leave Victoria for the identified purpose.
21 Division 5 makes provision for the court to vary or otherwise deal with an order, once made. The Court of Appeal in the guideline judgement of Boulton[3] at [158] observed, “The conferral of the powers to vary or cancel a CCO, or one or more of the conditions attached to the order, represents a radical change in the court’s sentencing function.” That is because generally, that function ceases once sentence is imposed or appeal rights are exhausted. Any variation or cancellation thereafter is by operation of executive, not judicial power.
[3]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342.
22 The court further observed (at [159]):
The legislature has expressly contemplated that it will be appropriate for the court to consider cancelling a CCO if the offender is either unwilling or unable to comply with the order (or one or more of its conditions), and to consider whether the continuation of the CCO, or particular conditions is:
· advancing ‘the rehabilitation and reintegration of the offender’;
· in the interests of the community; and/or
· in the interest of the offender.
23 Section 48M(1) relevantly provides:
(1) On an application under section 48N, the court which made a community correction order may decide to deal with the order under subsection (2) if the court is satisfied that –
…
(d) the rehabilitation and reintegration of the offender would be advanced by the making of the decision to deal with the order.
24 Section 48M(2) relevantly provides:
(2) If satisfied of the matters set out in subsection (1), the court may decide to deal with the order in one or more of the following ways -
(a) by confirming the order or a part of the order; or
(b) by cancelling the order and dealing with the offender for the offence or offences with respect to which the order was made in any manner in which the court could deal with the offender if it had just found him or her guilty of that offence of those offences; or
(c) by cancelling the order and making no further order in respect of the offence or offences with respect to which the order was originally made; or
(d) by varying the order; or
(e) in relation to a condition of the order, by cancelling, suspending, varying, or reducing the condition; or
Example
An example of a variation of a condition of the order that may be made under paragraph (e) is a reduction of the number of hours under an unpaid community work condition.
(f) by attaching a new condition on the order; or
(g) in relation to a program that must be undertaken under the order, by cancelling, suspending, varying or reducing the program; or
(h) by imposing a new program that must be undertaken under the order.
25 Section 48M(3) relevantly provides:
The court must make a decision under subsection (2) on the basis of its assessment of the extent to which the offender has complied with the order.
26 It follows that even if I were satisfied that the rehabilitation and reintegration of Mr Haddara would be advanced by the making of a decision to deal with the order, my power to deal with the order is limited by s 48M(2).
27 Although the written application was for a variation of the order, that is apparently in reliance on s 48M(2)(d), Mr Dunn QC in his oral submissions also sought to rely on the power to suspend a condition of the order under s 48M(2)(e). However as argument progressed, it was accepted by him that s 48M(2)(e) only applied to conditions, that is those imposed under s 47, and not to terms that is those attaching to a CCO by operation s 45.
28 It was Mr Dunn’s submission that if satisfied that granting permission to travel outside Victoria in order to attend the pilgrimage would advance the rehabilitation and reintegration of Mr Haddara, that I could vary the order. Although initial discussion turned around whether the court could vary the s 45(1)(e) term by the court granting Mr Haddara permission to leave Victoria for the purpose of undergoing the pilgrimage, ultimately if I understood correctly, Mr Dunn’s primary submission was that the court should vary the order by removing the prohibition on leaving the state without permission of the Secretary (the s 45(1)(e) term) for the period during which Mr Haddara wished to be absent.
29 I do not consider the court has the power to remove, or vary a s 45(1) term of a CCO. There are no express words to that effect in the Statute. It is in my view, significant that in relation to the s 45(1)(e) term, parliament has made express provision for a variation of the general term a person subject to a CCO is not to leave the jurisdiction. Permission to leave can be given, but the power to grant permission is vested in the Secretary (or delegate), not the court. Had parliament wanted to confer the power on the court, instead of, or as well as on the Secretary it could have done so. Had parliament wanted to confer on the court a power to remove, or suspend the operation of a s 45(1) term, it could have made express provision to do so in s 48M(2). It did not.
30 In the alternative, Mr Dunn submitted that, if satisfied that attending the pilgrimage would advance Mr Haddara’s rehabilitation and reintegration, I could vary the order under s 48M(2)(d) by suspending the CCO in its entirety for the period Mr Haddara wished to leave the state for the purpose of attending the pilgrimage.
31 This last submission was advanced after it became clear, if Mr Haddara were given permission to leave Victoria for the four weeks sought, that there would be a consequential effect on other conditions of the CCO. For example, he is currently subject to once weekly supervision appointments, and is required to submit to random drug tests when directed by the Secretary or delegate. He would be unable to attend supervision appointments, or to submit to drug testing during any period of absence from the jurisdiction. Again, it is for the Secretary or delegate, not the court to give directions in relation to the manner in which an offender is to perform the terms and conditions of the order.
32 Mr Dunn acknowledged there was no express provision to vary a CCO by suspending its operation in its entirety for a period. It was his submission that once there was a power to vary an order, there was nothing to indicate it was limited to or adding, removing or varying conditions, or reducing its duration, but could extend to suspending it for a period.
33 In my view, s 48M(2) does not permit the making of an order suspending the order in its entirely for a period (here, the duration of the pilgrimage). Section 48M(2) is prescriptive in its terms. It sets out in eight separate subparagraphs the ways in which a court can deal with an order if satisfied one of the bases for dealing with an order under s 48M(1) is made out. It does not include suspension of the operation of an order in its entirety.
34 If I am wrong in this interpretation of the extent of the power to vary an order under s 48M(2) by substituting the decision of the court for that of the Secretary under s 45(1)(e), or suspending its operation in its entirety, it would not follow in my view that s 48M(2), or any other provision of the Act would permit what is in effect an appeal from, or review of the decision of the Secretary or delegate to refuse Mr Haddara’s application for permission to leave Victoria. There is nothing in the Act which would permit me to substitute my decision for that of the Secretary or delegate refusing permission to leave the state.
35 As I have already noted, the manner in which an order or any conditions of the order can be varied or cancelled under s 48M is set out, in an exhaustive, and prescriptive list in s 48M(2) (a) - (h).
36 For these reasons, I am satisfied the court does not have the power to vary the order in the manner sought, and the application is dismissed.
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