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 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 behaviour order attached to a suspended term of imprisonment that was imposed by the Supreme Court on 12 February 2020. An issue arises as to what is to occur with the breach of this Supreme Court order by this offence. This offence was committed during the course of an order attached to a suspended sentence that was imposed by the Supreme Court on 12 February 2020 that was imposed following a resentence following a successful appeal from the Children’s Court. The offender was sentenced pursuant to s 12 of the Crimes (Sentencing) Act to a period of two months’ imprisonment suspended immediately for eight months with a good behaviour order; see KD v Gillard [2020] ACTSC 144.
The breaching offence was committed some six months into that good behaviour order. The parties are not in agreement as to what should occur with this breach in circumstances – in terms of which court jurisdiction should appropriately deal with the breach. I have had regard to Robertson v Leferve [2012] ACTSC 22 as well as the relevant sections of the legislation, including any definitions of the relevant terms where that is available. I have concluded that I must act in accordance with an application of the clear terms of the statute and I am not able to circumvent those even if the practical effect will be that the Supreme Court is to consider a breach that is not of significance and for which no action will potentially be taken and the Supreme Court will be considering a breach in circumstances where the original Supreme Court sentencing exercise arose only because of an appeal from the Children’s Court.
Section 107(2) clearly provides that the offender must be committed to the Supreme Court to be dealt with under Part 6.5 of the breach of the offender’s good behaviour obligations where the Magistrates Court, or in this case the Children’s Court, finds an offender guilty of an offence. I am not persuaded that because the maximum penalty is a fine only that this does not amount to an offence for the purposes of s 107. The terms of s 31 of the Road Transport (Driver Licensing) Act, in particular subsection (3) and subsection (4) as well as ss 133, 135, and 190 of the Legislation Act and what is said in Part 3.8 as well as the meaning of summary conviction in the Magistrates Court Act, lead me to this conclusion. I should note that if I am wrong in my conclusion, it can be expected that the Supreme Court when it comes to consider the breach matter will assist with guidance on how such a circumstance is to be dealt with in the future.
Consideration
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:
85 Good behaviour obligations
An offender must—
(a) comply with the offender’s good behaviour order, including—
(i) the core conditions of the order; and
(ii) any additional condition of the order …
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.
I agree with the parties’ submissions that there are at least three features of the relevant statutory regime which tend to support this. Firstly, the effect of s 107 is to clarify the circumstances in which breaches of an offender’s good behaviour obligations can or must be dealt with by the Supreme Court. Section 107 is entitled “Offence committed while under good behaviour order”. That title does not reflect the more limited ambit of the section. In Robertson v Leferve [2012] ACTSC 22; 258 FLR 1, 5 at [22]–[23], Refshauge J described the effect of the section in the following way:
22. … Under s 107(1), where the Supreme Court has found an offender guilty, it can deal with a breach of a good behaviour order constituted by that finding, whether the order was made by the Magistrates Court or the Supreme Court. Under s 107(2), however, the Magistrates Court in the same situation can only deal with a breach of a good behaviour order if the order has not been “made or changed” by the Supreme Court, that is, it must have been made in the Magistrates Court and not “changed”. The reference to “changed” must include or mean changed on appeal; that would be the normal way in which an order of the Magistrates Court would be changed. I note that it could also be “changed” were the Supreme Court to exercise the power under s 107(1), resulting in the changing a good behaviour order made by the Magistrates Court following the Supreme Court’s finding of guilt of the offender.
23. The significance of this section is the legislative intent that could possibly be divined that where the Supreme Court is seized of a matter then it should deal with it and that a breach constituted by the commission of an offence must, where the Supreme Court has disturbed (that is “changed”) a sentence by making or varying a good behaviour order, be dealt with by the Supreme Court.
As was submitted, to construe the word “offence” as meaning “any offence” would result in offences not triggering breaches of an offender’s good behaviour order being captured by the section. Adopting this construction in the context of s 107(1), while cumbersome, would not be of significant moment. However, as discussed further below, where s 107(2) requires a committal of an offender to the Supreme Court, such an interpretation would produce absurd results.
Secondly, when one examines s 107 in its immediate statutory context, s 107 falls under Part 6.5 of the Sentence Administration Act. The power to deal with an offender “under this Part” (referred to in both ss 107(1) and (2)) must therefore be read in conjunction with other provisions within Part 6.5, particularly ss 108 and 110. Sections 108 and 110 empower a court to exercise certain powers with respect to an offender or the offender’s good behaviour order. However, they require as a precondition to the exercise of those powers that the court be “satisfied the offender has breached any of the offender’s good behaviour obligations” (ss 108(1)(a) and 110(1)(b) of the Sentence Administration Act). Thus, if no good behaviour obligations have been breached, a court’s power to deal with an offender under Part 6.5 is not enlivened.
Thirdly, a more limited interpretation of the word “offence” in s 107(2) is consistent with the terms of that subsection itself. The purpose of a committal under s 107(2) is for “the offender … to be dealt with under this part for breach of the offender’s good behaviour obligations.” When read in conjunction with this purpose, it is clear that the terms of the subsection presuppose that the type of “offence” referred to is one that, if committed in the relevant circumstances, would constitute a breach of an offender’s good behaviour obligations. As is apparent from the terms of ss 85 and 86 of the Sentence Administration Act, the commission of an offence not punishable by imprisonment does not fall within that class of “offence”.
To construe the word “offence” in s 107(2) as denoting any offence would divorce it from the purpose of a committal to the Supreme Court under that subsection. It would, from time to time, require the Magistrates Court to commit an offender to this Court in circumstances where there would be no relevant breach to be dealt with. That construction would produce an absurd result.
Conclusion
For the above reasons, the meaning to be ascribed to the word “offence” in s 107 must be limited to the type of offences described in s 86(1)(a) of the Sentence Administration Act. There was no requirement under s 107(2) for the young person to be committed to this Court.
Orders
The order of committal to the Supreme Court pursuant to s 107 of the Crimes (Sentencing Administration) Act 2005 (ACT) is quashed.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Norrish. Associate: Date: 13 April 2023 |
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