KD v Gillard (No 2) - [2023] ACTSC 77

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	KD v Gillard (No 2)
Citation:	[2023] ACTSC 77
Hearing Date(s):	13 April 2023
DecisionDate:	13 April 2023
Before:	Norrish AJ
Decision:	The order of committal to the Supreme Court pursuant to s 107 of the Crimes (Sentencing Administration) Act 2005 (ACT) is quashed.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Committal to Supreme Court – Conviction for driving unlicenced whilst under a good behaviour order – meaning to be given to ‘offence’ in s 107 of the Crimes (Sentencing Administration) Act 2005 (ACT) – appropriate basis for committal to the Supreme Court pursuant to s 107 – committal to Supreme Court quashed
Legislation Cited:	Crimes (Sentencing Administration) Act 2005 (ACT) ss 85, 86, 107, 108, 110 Road Transport (Driver Licensing) Act 1999 (ACT) s 31 Magistrates Court Act 1930 (ACT) Legislation Act 2001 (ACT) ss 133, 135, 139, 140, 190
Cases Cited:	KD v Gillard [2020] ACTSC 144 Robertson v Leferve [2012] ACTSC 22; 258 FLR 1 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362
Parties:	Director of Public Prosecutions ( Crown) KD (Offender)
Representation:	Counsel A Brown ( Crown) T Kelliher (Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Tim Sharman Solicitors ( Offender)
File Number:	SCA 64 of 2019

Norrish AJ:

Introduction

KD (the young person) has been committed to this Court from the Magistrates Court for purported breaches of three good behaviour orders attaching to suspended sentences of imprisonment that were imposed by Burns J in KD v Gillard [2020] ACTSC 144.

On 17 March 2023, Special Magistrate Christensen sentenced the young person for an offence of driving unlicensed, as a first offender, having never been the holder of an Australian driver licence, contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) (the “unlicensed offence”). The maximum penalty for an offence against that section (for a first offender) is 20 penalty units. This offence was committed on 14 August 2020, whilst the young person was subject to the good behaviour orders imposed by Burns J. The offender was fined $300 in the Magistrates Court.

Following the sentence, Special Magistrate Christensen committed KD (the young person) to this Court under s 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (‘Sentence Administration Act’) for this Court to deal with the breached orders. Section 107(2) provides that:
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 [Part 6.5] for breach of the offender’s good behaviour obligations.
The reasons provided by her Honour for the committal were:

This offence was committed during the course of an eight-month good…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KD v Gillard (No 2)

Details

AGLC: KD v Gillard (No 2) [2023] ACTSC 77
Case: [2023] ACTSC 77
Decision Date

CaseChat Overview and Summary

The case of KD v Gillard (No 2) involved the young person, KD, who was committed to the Supreme Court by Special Magistrate Christensen following a finding of guilt for an unlicensed driving offence. The case raised a significant legal question about the interpretation of section 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT), which pertains to the committal of offenders to the Supreme Court when they commit an offence during the term of a good behaviour order. The issue at hand was whether section 107(2) mandates the Magistrates Court to commit an offender to the Supreme Court, even if the subsequent offence is not punishable by imprisonment. The parties agreed that the commission of the unlicensed driving offence did not breach the orders imposed by Burns J, and thus, there was no breach for the Supreme Court to address under Part 6.5 of the Sentence Administration Act. However, the Supreme Court needed to determine the correct interpretation of the term "offence" in section 107(2) of the Act.

The court examined the statutory context and purpose of section 107(2) of the Sentence Administration Act, alongside sections 85 and 86 of the same Act. Section 85 outlines the "Good behaviour obligations", and section 86(1) lists the core conditions of a good behaviour order, including the requirement that the offender must not commit an offence that is punishable by imprisonment. The court acknowledged that the commission of the unlicensed offence did not constitute a breach of the young person’s good behaviour orders. However, the court also considered that the use of the word "offence" in section 107(2) does not necessarily encompass all offences, but rather should be limited to those described in section 86(1)(a) of the Sentence Administration Act. This interpretation was supported by the principles set out in the Legislation Act 2001 (ACT) and the case of SZTAL v Minister for Immigration and Border Protection.

In summary, the court held that section 107(2) of the Sentence Administration Act requires the Magistrates Court to commit an offender to the Supreme Court only if the subsequent offence is one that is punishable by imprisonment. As the unlicensed driving offence in this case was not punishable by imprisonment, the court did not need to deal with the breach under Part 6.5 of the Sentence Administration Act. Consequently, the Supreme Court determined that there was no breach to address, and the committal was not required under section 107(2) of the Act. The court's decision clarified the scope of the term "offence" in section 107(2) and provided guidance on the interpretation of the relevant statutory provisions.

Orders

Orders of the court

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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

Following the sentence, Special Magistrate Christensen committed KD (the young person) to this Court under s 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT) (‘Sentence Administration Act’) for this Court to deal with the breached orders. Section 107(2) provides that: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 [Part 6.5] for breach of the offender’s good behaviour obligations. The reasons provided by her Honour for the committal were: It is agreed by the parties that the commission of the unlicensed driving offence did not breach the orders imposed by Burns J. There is thus no breach for this Court to deal with under Part 6.5 of the Sentence Administration Act. However, a further issue in this matter, identified by the learned Director to be resolved by this Court, is whether s 107(2) of the Sentence Administration Act requires the Magistrates Court to commit an offender to the Supreme Court following a finding of guilt for an offence (the “subsequent offence”) committed during the term of a good behaviour order made or changed by the Supreme Court notwithstanding that the subsequent offence is not punishable by imprisonment. This issue turns on the meaning to be given to the word “offence” in s 107. As submitted by the learned prosecutor, s 107 of the Sentence Administration Act falls within Chapter 6 of that Act, which deals with good behaviour orders. Sections 85 and 86 also fall within Chapter 6. Section 85 is entitled “Good behaviour obligations”. It relevantly provides that: The core conditions of a good behaviour order are set out in s 86(1) of the Sentence Administration Act, and relevantly include a requirement that “the offender must not commit … an offence against a territory law, or a law of the Commonwealth, a State or another Territory, that is punishable by imprisonment”. The only alleged breach of the good behaviour orders imposed by Burns J is a breach occasioned by the commission of a Territory offence during the term of the orders. However, as it is submitted by the Crown, it is clear from the terms of ss 85 and 86 that the commission of the unlicensed offence did not constitute a breach of the young person’s good behaviour orders. As submitted by the Crown the use of the word “offence” in s 107(2) does not distinguish between offences that are punishable by imprisonment and those that are not. It does not automatically follow, however, that the meaning of the word “offence” is thereby unconstrained. Instead, a consideration of the statutory context and purpose suggests that the meaning of the word “offence” in s 107(2) ought to be limited to the type of offences described in s 86(1)(a) of the Sentence Administration Act: see Legislation Act 2001 (ACT) ss 139 and 140; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362, 368 at [14].This is accepted by the offender as are the further submissions of the Crown.