Leeuwen v Hawke

[2012] ACTSC 8

NATHAN VAN LEEUWEN v LOUISE HAWKE                
[2012] ACTSC 8 (31 January 2012)

APPEAL – appeal from the ACT Magistrates – appeal against sentence on the ground that two sentences were imposed for the one charge – combination sentences in the form imposed are authorised by the legislation – appeal dismissed

Crimes (Sentence Administration) Act 2005 (ACT), ch 5, ss 68, 75, 79, pt 6.5
Crimes (Sentencing) Act 2005 (ACT), ss 10, 11, 13, 28, 29, 31

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 29 of 2011

Judge:             Burns J
Supreme Court of the ACT

Date:              31 January 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 29 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:NATHAN VAN LEEUWEN

Appellant

AND:             LOUISE HAWKE
  Respondent

ORDER

Judge:  Burns J
Date:  31 January 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.

1. The conviction and sentence imposed by the learned Magistrate are confirmed.

1. On 19 May 2010 the appellant, Nathan John Van Leeuwen, was convicted in the ACT Magistrates Court of one offence of assault occasioning actual bodily harm (CC 10706 of 2009) and one offence of assault (CC 10803 of 2009).  As I understand it, the appellant previously entered pleas of guilty to these charges, and sentencing was adjourned to 19 May 2010 to allow for the preparation of a pre-sentence report.

1. With respect to the charge of assault occasioning actual bodily harm, the appellant was sentenced to 10 months imprisonment to be served by way of periodic detention, and was subjected to a good behaviour order for a period of two years with certain conditions attached to the order.

1. On 1 April 2011 the appellant was granted leave by Master Harper to appeal out of time against the sentence imposed by the learned Magistrate.  A subsequent Notice of Appeal specifies a single ground of appeal from the sentence imposed:

1.        Her Honour erred in imposing two sentences in relation to charge    CC2009/10706 (assault occasioning actual bodily harm).

The Sentence Imposed

1. I have not been provided with a sealed copy of the orders of the Magistrates Court, but I do not think one is necessary to determine this appeal.  I have a copy of the transcript of the learned Magistrate’s sentencing remarks:

So, on the charge of assault occasioning actual bodily harm, 10706, he’ll be convicted.  He’s sentenced to 10 months’ imprisonment.  Had it not been for the plea of guilty, albeit late, he would have been sentenced to 12 months.  Ten months, as I’ve said, the maximum sentence of imprisonment for that offence is five years.  It’s not at the highest end, but to punch somebody in the head five times with a clenched fist, cause bruising to his ear and damage to his nose and blood on his nose, that carries, in my view – that is well and truly worth a sentence of 10 months’ imprisonment, and a lot of people might think that that’s rather lenient.  So he’s sentenced to 10 months’ imprisonment on that charge.

And on the gratuitous violence against Mr Scutris, on that charge, 10803, he’ll also be convicted.  On that charge he’s sentenced to four months’ imprisonment.  Those sentences are cumulative.

MR FLEMING:  Four months’ imprisonment by way of periodic detention, your Honour?

HER HONOUR: Yes, all of them will be by periodic detention.  It’s cumulative upon 10706.  So the total period, 14 months.  And on that charge, had he pleaded not guilty, he would have been sentenced to six months’ imprisonment.

I’m also going to put him – for what it’s worth – on a good behaviour order.  And I say “for what it’s worth”, because he doesn’t comply with them.  Maybe his motivation might change.

So that total sentence is 14 months’ imprisonment to be served – the whole sentence to be served by periodic detention.  That sentence is to start today.  He is to attend for the first detention period on this Friday, being 21 May.  He is to attend the Symonston Periodic Detention Centre at Hindmarsh Drive and Mugga Lane in Symonston on or before 7 o’clock on the evening.  He is also released on a good behaviour order.  I impose that good behaviour order on 10706.

He is to enter into a good behaviour order, give self-surety in the sum of $1000 to be of good behaviour for two years.  He is to be subject to probation supervision for a period of 18 months and to attend such courses and programs as directed.  I’m putting you on this because I’m going to try to keep the community a bit safer from you, Mr Van Leeuwan, so you’re to attend psychological, psychiatric and other programs as directed, drug and alcohol counselling, anger management counselling and any other psychiatric courses or programs that they require you to attend.  On that charge I also impose court costs of $63 and criminal injury compensation levy of $50.  (at p 36-37)

The Legislation

1. Section 10 of the Crimes (Sentencing) Act 2005 (ACT) provides:

10       Imprisonment

(1)This section applies if a court is sentencing an offender convicted of an offence punishable by imprisonment.

(2)The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.

Note 1An order sentencing an offender to imprisonment may be part of a combination sentence together with other sentencing options (see pt 3.6).

Note 2See s 133G for additional matters that apply in sentencing a young offender to imprisonment.

(3)If the court sentences the offender to imprisonment, the sentence must be served by full-time detention at a correctional centre, unless–

(a)       the court orders otherwise; or

(b)the offender is released from full-time detention under this Act or another territory law.

Examples of par (a)

the court makes a suspended sentence order

Examples for par (b)

1the court sets a period of the sentence to be served by periodic detention

2release on parole under the Crimes (Sentence Administration) Act 2005          

Note 1For a young offender who is under 21 years old when the sentence is imposed, se s 133H.

Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which is appears (see Legislation Act, s 126 and s 132).

(4)If the court sentences the offender to imprisonment, the court must record the           reasons for its decision.

(5)Failure to comply with subsection (4) does not invalidate the sentence of imprisonment.

(6)This section also applies subject to any contrary intention in the law that directly or indirectly creates the offence or directly or indirectly affects its scope or operation.

(7) This section is subject to chapter 5 (Imprisonment).

1. Part of the sentence imposed by the learned Magistrate was to be served by way of periodic detention. The imposition of such a sentence is authorised by s 11 of the Crimes (Sentencing) Act:

11       Periodic detention

(1)       This section applies if–

(a)       an offender is convicted of an offence; and

(b)the court sentences the offender to imprisonment for the offence.

(2)The court may, in the order sentencing the offender to imprisonment, set a period of the sentence of imprisonment (a periodic detention period) to be served by periodic detention.

NoteA periodic detention period may be part of a combination sentence together with other sentencing options (see pt 3.6).

(3)       The periodic detention period–

(a)may be for all or part of the offender’s sentence of imprisonment; but

(b)must be for a period of at least 3 months and not longer than 2 years.

(4)When the court sets the periodic detention period, the court must state–

(a) when the periodic detention period starts and ends; and

(b)the day the first detention period under the Crimes (Sentence Administration) Act 2005 for the offender is to start.

1. The second part of the sentence imposed by the learned Magistrate was a good behaviour order. The imposition of such a sentence is authorised by s 13 of the Crimes (Sentencing) Act:

13       Good behaviour orders

(1)       This section applies if an offender is convicted or found guilty of an   offence.

Note     If a good behaviour order is made without convicting the   offender (see s 17), it is also a non-conviction order (see s   17 (2)).

(2)       The court may make an order (a good behaviour order) requiring the offender to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a stated period.

(3)       A good behaviour order may include any or all of the following   conditions:      

(a)       that the offender give security for a stated amount, with or   without sureties, for compliance with the order;

Note     This paragraph does not apply to a young offender (see s   133M)

(b)       a community service condition;

Note     A community service condition must not be included in the   order unless the offender is convicted of the offence (see 87).

(c)       a rehabilitation program condition;

Note     A good behaviour order that includes a rehabilitation program condition must also include a probation condition or supervision condition (see s 95 and s 133V).

(d)       a probation condition;

(e)       that the offender comply with a reparation order;

(f)       a condition prescribed by regulation for this paragraph;

(g)       any other condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate.

Examples of conditions for par (g)

1        that the offender undertake medical treatment and supervision (eg by taking medication and cooperating with medical assessments)

2        that the offender supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing if required by a corrections officer

3        that the offender attend educational, vocational, psychological, psychiatric or other programs or counselling

4        that the offender not drive a motor vehicle or consume alcohol or non-prescription drugs or medications

5        that the offender regularly attend alcohol or drug management programs

Note 1  See s 133M for additional conditions available for young offenders (educational and training conditions and supervisions conditions).

Note 2 An example of part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(4)       If the offence is punishable by imprisonment, a good behaviour order–

(a)       may be made instead of imposing a sentence of imprisonment or as part of a combination sentence that includes imprisonment; and

(b)       may apply to all or part of the term of the sentence.

(5)       Subsection (4) does not, by implication, limit the sentences that a court may impose under this Act or another territory law.

(6)       If the good behaviour order includes a community service condition, it is a community service order.

(7)       If the good behaviour order includes a rehabilitation program   condition, it is a rehabilitation program order.

(8)       This section is subject to chapter 6 (Good behaviour orders).

1. With respect to the charge of assault occasioning actual bodily harm, the learned Magistrate imposed a combination of a sentence of imprisonment to be served by periodic detention, and a good behaviour order. This approach is apparently authorised by ss 28 and 29 of the Crimes (Sentencing) Act:

28       Application–pt 3.6

This part applies if an offender is convicted of an offence.

29Combination sentences–offences punishable by imprisonment

(1)If the offence is punishable by imprisonment, the court sentencing the           offender may impose a sentence (a combination sentence) consisting of 2 or more of the following orders:

(a)an order sentencing the offender to imprisonment (whether as full-time detention, periodic detention or a combination of those kinds of imprisonment);

NoteA sentence of imprisonment must be served by full-time detention at a correctional centre or detention place unless the court otherwise orders, or the offender is released from detention under this Act or another territory law (see s 10 (3) and s 133H).

(b)       a suspended sentence order;

(c)       a good behaviour order;

(d)       a fine order;

(e)       a driver licence disqualification order;

(f)       a reparation order;

(g)       a non-association order;

(h)       a place restriction order;

(i)        an order (however described) imposing another penalty available under any other territory law.

Examples

The following are examples of sentences that might be imposed on an offender by a court who has been convicted of an offence punishable by imprisonment:

1        a sentence of 18 months as follows:

·     a 12-month periodic detention period

·     a fine order directing payment of $500 by stated instalments

·     a good behaviour order for 6 months (the remained of the term of the sentence) that includes conditions requiring the offender to undertake 240 hours community service work

2        s sentence of 3 years and 6 months as follows:

·     an order for 2 years imprisonment with no nonparole period

·     a 1-year periodic detention period and a concurrent non-association order

·     a good behaviour order for 6 months (the remained of the term of the sentence) and a concurrent non-association order

3        a sentence of 2 years as follows:

·     a 1-year periodic detention period and a concurrent place restriction order

·     a good behaviour order for 1 year (the remainder of the term of the sentence)

·     a driver licence disqualification order for all of the sentence.

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appear (see Legislation Act, s 126 and 132).

(2)However, the court must not make an order that forms part of the combination sentence unless the court would have power to make the order otherwise than as part of a combination sentence.

Appellant’s submissions

1. On a plain reading of s 29 of the Crimes (Sentencing) Act, the sentence imposed by the learned Magistrate would appear to be one that was open to her at law to impose. However, the appellant submits otherwise. He submits that s 29 is to be interpreted in such a way that a good behaviour order imposed as part of a combination sentence in which a sentence of imprisonment is also imposed can only be imposed so as to commence at the conclusion of the term of imprisonment. To put it another way, a good behaviour order cannot operate concurrently with a term of imprisonment, however that term is to be served.

1. In support of this proposition, the appellant offers one argument: the incongruity of two bodies, one judicial and one executive, having power to administer or supervise the sentence at the same time if s 29 is given its plain meaning. In that regard, the appellant points to the provisions of Chapter 5 of the Crimes (Sentence Administration) Act 2005 (ACT) which provides for the supervision of sentences of imprisonment served by way of periodic detention by the Sentence Administration Board, and gives to the Board power to cancel an offender’s periodic detention: see Crimes (Sentence Administration) Act, ss 68 (2) and 75 (1). On the other hand, a breach of a good behaviour order is to be dealt with by a court: see Crimes (Sentence Administration) Act, pt 6.5.

1. The appellant submits that it cannot be permissible for a combination sentence to be imposed if the terms of the sentence would result in both the Sentence Administration Board and the courts having concurrent responsibility for administering breaches of the sentence, or components thereof.  He points to the possibility of both bodies, the Sentence Administration Board and the courts, unknown to each other, dealing with the offender at the same time.

1. The appellant did not refer to any authorities in support of his submission.  I particularly note that the appellant did not seek to argue that the legislature could not vest in a non-judicial body the power to cancel a periodic detention order (indeed, his submission is premised on the proposition that it can and has done).  Nor did the appellant suggest that the legislature could not provide for a good behaviour order to be in force concurrently with a term of imprisonment, however served.  It was the appellant’s submission that as a matter of statutory interpretation I should conclude that the legislature has not done so.

The Respondent’s submissions

1. The respondent submits that the sentence imposed by the learned Magistrate is a combination sentence authorised by s 29 of the Crimes (Sentencing) Act.  It submits that there is no incongruity in having a breach of part of a combination sentence (periodic detention) dealt with by the Sentence Administration Board and breach of another part (the good behaviour order) dealt with by the courts.  Indeed, the respondent submits, there are good reasons why the legislature would provide for a good behaviour order to be combined with a periodic detention order.  When a sentence of imprisonment is being served by way of periodic detention, the offender is in actual detention only two days per week.  If the appellant is correct, for the remaining five days the offender could not be subject to supervision by Corrections or required to undergo any counselling or treatment, no matter how great the need for these for the benefit of the accused or the community.

Consideration and conclusion

1. In my opinion, the submission made by the appellant has no merit. The appellant’s submission is not only contrary to a plain reading of s 29 of the Crimes (Sentencing) Act, it also ignores the provision of s 13 (4) and s 31 of the Crimes (Sentencing) Act. Section 13 (4), set out in par 7 above, provides that where an offence is punishable by imprisonment, a good behaviour order may be imposed as part of a combination sentence that includes imprisonment and may apply to all or part of the term of the sentence. Section 31, dealing with the start and ending of a combination sentences, provides:

31       Combination sentences–start and end

For a combination sentence, a court may set the start or end of the period of any part of the sentence, or of any order forming part of the sentence, by reference to anything the court considers appropriate, including, for example –

(a)       a stated day; or

(b)       the lapse of a stated period of time; or

(c)       whenever a stated event happens, or whenever the earlier or later of 2   or more stated events happening.

Examples for par (c)

a 5-year combination sentence consisting of the following orders:

·     an order for imprisonment with a 3-year nonparole period

·     a good behaviour order and a place restriction order, stated to start whenever (if at all) the offender is released on parole and to end at the end of the 5-year term of the sentence

·     a driver licence disqualification order, also stated to start whenever (if at all) the offender is released on parole and to end at the end of the 5-year term of the sentence

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appear (see Legislation Act, s 126 and 132).

(emphasis added)

1. Section 13 (4) of the Crimes (Sentencing) Act makes it very clear that a good behaviour order may be imposed as part of a combination sentence that includes imprisonment and may apply to all of the sentence, including that part comprising imprisonment. Of course, as a matter of practicality there would be little purpose in imposing a good behaviour order that ran concurrently with a period of full-time detention. Section 31 of the Crimes (Sentencing) Act allows a court imposing a combination sentence to start or end any part of the sentence, including a good behaviour order, at any time the court considers appropriate.

1. The terms of those provisions are inconsistent with the restricted interpretation of s 29 of the Crimes (Sentencing) Act urged by the appellant.  This is sufficient to dispose of the appeal.

1. However, I will go further and express my opinion that there is no incongruity in the Sentence Administration Board and the courts having concurrent responsibility for dealing with breaches of different components of a combination sentence. It is for the legislature to determine how a breach of a sentencing disposition is to be dealt with. When a court imposes a combination sentence including imprisonment to be served by periodic detention, it does so in the knowledge that in certain circumstances the periodic detention may be cancelled by the Sentence Administration Board, leaving the offender liable to serve a term of full-time imprisonment. That term of full-time imprisonment is limited to the remaining term of imprisonment that would otherwise be served by way of periodic detention: s 79 Crimes (Sentence Administration) Act. There is no injustice or incongruity in this approach. 

1. A suspended sentence is, by its nature, a sentence which does not involve an actual period of detention.  The offender is subject to supervision in the community, which may explain why the legislature saw the courts as the appropriate body to deal with the breaches of such an order.  On the other hand, a periodic detention order requires an offender to serve part of the sentence by way of full-time detention, which may explain why the legislature saw fit to give the Sentence Administration Board responsibility for dealing with breaches of those orders.

1. In any event, no incongruous result arises from this division of responsibility.  The concern expressed by Mr Sharman, that the courts and the Sentence Administration Board may simultaneously, and unknowingly, deal with breaches of different components of a combination sentence, is unlikely to occur, but even if it did no incongruity arises.  The Sentence Administration Board can only deal with that component of the combination sentence comprising a sentence of imprisonment to be served by way of periodic detention.  The courts may only deal with a breach of the remaining components of the combination sentence.  Inconsistency between orders of the Sentence Administration Board and of the courts is therefore impossible.

1. The sentence imposed by the learned Magistrate is a combination sentence authorised by ss 28 and 29 of the Crimes (Sentencing) Act.  The appeal is dismissed.

   I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:

   Date:   31 January 2012

Counsel for the appellant:  Mr T Sharman
Solicitor for the appellant:  Rachel Bird & Co
Counsel for the respondent:  Mr S Drumgold
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  16 December 2011
Date of judgment:  31 January 2012