J BY HIS LITIGATION GUARDIAN MAXWELL BERNARD VARDANEGA v AUSTRALIAN CAPITAL TERRITORY
[2009] ACTSC 170 (18 December 2009)
ADMINISTRATIVE LAW – sentence of committal to an institution in the Children’s Court – application for an order of habeas corpus, Supreme Court Act 1933 (ACT), s 34B; Court Procedures Rules 2006 (ACT), rr 3506, 3507 – whether sentence ante-dated – whether offender entitled to remissions – order made and offender released pending final determination, Magistrates Court Act 1930 (ACT), s 226 – held no such power to impose and therefore ante-date sentence of imprisonment in the Children’s Court, Children and Young People Act 1999, s 99 – occasion for grant of remissions not yet reached – habeas corpus order set aside and application dismissed – discretion whether to return offender to custody, Magistrates Court Act 1930 (ACT), s 226 – need for exceptional circumstances – receipt of further evidence regarding offender’s conduct while on bail relevant – receipt tantamount to reopening of the case – likely admissible in the “interests of justice” – period of incarceration may now have expired – leave for further submissions as to final orders.
PRACTICE AND PROCEDURE – correction of title of the proceedings – correct form of pleadings – “merging” of sentences for sentencing purposes ultra vires.
Children and Young People Act 1999 (ACT), ss 9, 10, 11, 12, 56, 61A, 96, 98, 99, 127
Criminal Code 2002 (ACT), s 712A
Crimes (Sentencing) Act 2005 (ACT), Chs 4, 5, ss 9, 17, 56, 63, 70, 71
Children and Young People Act 2008 (ACT)
Crimes Act 1900 (ACT), s 9
Supreme Court Act 1933 (ACT), s 34B
Supreme Court Act 1970 (NSW), s 69(1)
Judicial Review Act 1991 (Qld), s 41
Supreme Court (General Civil Procedure) Rules 2005 (Vic), O 56
Evidence Act 1995 (Cth), s 75
Magistrates Court Act 1930 (ACT), Pt 3.10, ss 216, 226,
Criminal Law Act 1967 (UK), s 1
Crimes (Classification of Offences) Act 1981 (Vic)
Crimes Act 1958 (Vic), ss 322B, 322D
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 7
Court Procedures Rules 2006 (ACT), Pt 3.10, rr 275, 3502, 3503, 3504, 3506, 3507, 3553
Crimes Amendment Ordinance 1983 (ACT), s 6
Blackstone W, Commentaries on the Laws of England (Clarendon Press, 1769)
Howes W W, Studies to the Civil Law (Little Brown & Co, 1896)
Sharpe R J, The Law of Habeas Corpus (2nd ed, Oxford University Press, 1989)
Antieau C J, The Practice of Extraordinary Remedies – Habeas Corpus and the Other Common Law Writs (Oceana Publications, 1987)
Rinaldi F, “Consecutive Sentencing in Magistrates’ Courts” (1976) 50 ALJ 77
Warner K, “General Sentences” (1987) 11 Crim LJ 335
Warner K, Sentencing in Tasmania (The Federation Press, 1991)
R v Gilbert [1975] 1 WLR 1012
R v Judge Frederico; Ex parte Attorney General [1971] VR 425
Wills v Webster [1968] Tas SR 195 (NC 21)
R v Bennett [1975] Crim LR 654
Arts and Briggs (1997) 93 A Crim R 56
Associated Provincial Picture Houses Ltd…
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- Case
- [2009] ACTSC 170
- Decision Date
CaseChat Overview and Summary
The court found that the Children's Court had no power to ante-date a sentence of imprisonment, as such action would be ultra vires the court's authority under the Children and Young People Act 1999. The court also determined that the occasion for granting remissions had not yet arisen. Consequently, the habeas corpus order was set aside, and the application was dismissed. However, the court considered the discretion under the Magistrates Court Act 1930 (ACT) to return the offender to custody, noting that exceptional circumstances would be required for such a decision. The court further indicated that the receipt of further evidence regarding J's conduct while on bail could be relevant, though it cautioned that such evidence might amount to reopening the case and could only be considered in the "interests of justice."
The court ordered the title of the proceedings to be corrected to reflect J by his litigation guardian Maxwell Bernard Vardanega as plaintiff and the Australian Capital Territory as defendant. Additionally, the habeas corpus order was discharged, and the application was dismissed. The parties were granted leave to bring in short minutes of order to address any ancillary orders they deemed necessary, consistent with the reasons for judgment provided.
Orders
Orders of the court
1. The title to the proceedings be amended to show J by his litigation guardian Maxwell Bernard Vardanega as plaintiff and the Australian Capital Territory as defendant.
2. The habeas corpus order be discharged and the application dismissed.
3. The parties have leave to bring in short minutes of order as to any ancillary orders that they consider should be made consistent with the reasons for judgment delivered in this matter.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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