Maxwell Carroll[1] v The Secretary to the Department of Justice

[2015] VSCA 156

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0058

MAXWELL CARROLL[1]	Appellant
v
THE SECRETARY TO THE DEPARTMENT OF JUSTICE	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGES:	REDLICH, WEINBERG and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 June 2015
DATE OF JUDGMENT:	19 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 156
JUDGMENT APPEALED FROM:	Secretary to the Department of Justice v ‘TBL’ (Unreported, County Court of Victoria, Judge Chettle, 26 February 2015)

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PUBLIC LAW – Appeal – Interim supervision order made under s 53 of Serious Sex Offenders (Detention and Supervision) Act 2009 – Whether appellant an ‘eligible offender’ under s 4 of the Act – Youth Parole Board had directed unexpired portion of sentence of detention in youth justice centre for relevant offences be served in prison – Whether a ‘custodial sentence’ as defined in s 3 of the Act – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R F Edney	Victorian Aboriginal Legal Service
For the Respondent	Mr D Grace QC	Victorian Government Solicitor’s Office

REDLICH JA:

1. I agree with Whelan JA.

WEINBERG JA:

1. I also agree with Whelan JA.

WHELAN JA:

1. By applications filed in the County Court on 11 February 2015 the Secretary to the Department of Justice and Regulation (‘the Secretary’) sought a supervision order in respect of the appellant under s 7 of the Serious Sex Offenders (Detention and Supervision) Act 2009 (‘SSODS Act’) and an interim supervision order under s 50 of the SSODS Act. An interim order was sought because the appellant was due to complete his sentence on 1 March 2015.

1. The application for an interim order was heard on 26 February 2015 and a ruling granting the order was made on the same day.

1. A supervision order can only be made in respect of an ‘eligible offender’. Under s 53 of the SSODS Act an interim order can only be made where, amongst other things, it appears to the court that the documentation supporting the application would, if proved, justify the making of a supervision order. The appellant has a right of appeal against the decision to make an interim supervision order under s 96 of the SSODS Act. The appellant’s ground of appeal is as follows:

There was no power to make the order as the appellant was not an eligible offender. 

Particulars

A court had not imposed a custodial sentence on the appellant in respect of a relevant offence.

The relevant legislation

1. Section 4 of the SSODS Act sets out the requirements which must be met for a person to be an ‘eligible offender’. It is accepted that the appellant meets those requirements, save for that provided for in s 4(1)(b) which relevantly reads:

[A] court has at any time … imposed a custodial sentence on the person in respect of a relevant offence …

1. Another of the requirements, which the appellant did meet but which remains relevant, is that provided for in s 4(1)(c) which relevantly reads:

[A]t the time at which an application is made … the person … is serving in Victoria … a custodial sentence for a relevant offence …

1. Section 3 of the SSODS Act contains definitions. Relevantly, the section provides the following definition:

custodial sentence means —

(a)an order made by a court sentencing an offender to be imprisoned or detained in a prison or police gaol in respect of an offence;  or

(b)that part of an old combined custody and treatment order, … that the offender serves in a prison;  or

(c)any part of an order made by a court sentencing an offender to be detained in a youth justice centre in respect of an offence that the offender serves in prison or police gaol;

…

but does not include —

…

(j)an order referred to in paragraph (c) in respect of any part of the sentence served in a prison or police gaol solely on a temporary basis pending the offender’s return to a youth justice centre;

…

Relevant events

1. The appellant has been subject to a number of sentencing dispositions and administrative actions, but for present purposes the only relevant events are these:

·On 22 February 2010 the Children’s Court of Victoria sitting at Shepparton made orders sentencing the appellant to be detained in a youth justice centre under ss 360 and 412 of the Children Youth and Families Act2005 (‘CYF Act’) in respect of ‘relevant offences’ within the meaning of the SSODS Act (rape x 4: SSODS Act s 3 and Sch 1); and

·on 3 September 2012 the Youth Parole Board directed under s 475 of the CYF Act that the appellant serve the unexpired portion of the sentence imposed by the Children’s Court of Victoria in respect of the relevant offences as imprisonment in a prison.

Ruling of the County Court

1. The judge in the County Court found that the appellant was ‘an eligible offender’ on the basis that paragraph (c) of the definition of ‘custodial sentence’ applied so that the requirement in s 4(1)(b) of the SSODS Act was met.[2]  He found paragraph (c) of the definition difficult to construe.  Reflecting the submissions which had been made to him by both parties, he observed that he knew of no order which provided for a combination of imprisonment and detention in a youth justice centre.  He nevertheless held that paragraph (c) applied because it was Parliament’s clear intention that such circumstances should constitute a ‘custodial sentence’ and in that respect he cited this Court’s decision in DPP v Leys.[3]

   [2]Secretary to the Department of Justice v ‘TLB’ (Unreported, County Court of Victoria, Judge Chettle, 26 February 2015).

   [3][2012] VSCA 304; (2012) 296 ALR 96.

1. The judge emphasised that his finding was based upon his analysis of Parliament’s intention.  He said:

It [referring to Parliament] did not intend that people sentenced to Youth Justice Centre orders alone would be eligible offenders under the [SSODS] Act.  It is clear that you need to be an offender, eligible offender, has to serve a period of time in adult custody or gaol.

That is the case here.  He has served a portion of the order, or sentence made by the magistrates’ court for the offence of rape, or the Children’s Court for an offence of rape, in adult custody, as a result of a determination by the Parole Board.

The argument put by the respondent is that this covers only orders made by a court, not orders made administratively such as the order of the Parole Board.

I do not believe that was Parliament’s intention.  In my view, the section is designed to cover a sentence that originally started as Youth Justice Centre, but became a sentence that was served in a prison or police gaol.

Submissions on appeal

1. Counsel for the appellant submitted that the appellant was not an ‘eligible offender’ because no court had imposed upon him a ‘custodial sentence’. This was said to be so notwithstanding that the appellant may have been serving a custodial sentence after being transferred from the youth system to prison. The critical distinction was submitted to be that s 4(1)(b) of the SSODS Act required a custodial sentence to be imposed by a court. By contrast, s 4(1)(c) dealt with the position where a custodial sentence was being served.  It was submitted that the custodial sentence the appellant was serving had not been imposed by a court but rather had been imposed by a direction of the Youth Parole Board.

1. Counsel for the appellant emphasised that the defined term ‘custodial sentence’ was relevant to both the requirement in s 4(1)(b) of the SSODS Act that a court impose a custodial sentence for a relevant offence and the requirement that the person be serving a custodial sentence at the time of the application as provided for in s 4(1)(c). It was argued that the defined term ‘custodial sentence’ has ‘two different roles to play’. The submission was that certain aspects of the definition of ‘custodial sentence’ are, to adopt the words of the appellant’s written case, ‘intended to, and can, only apply in the context of one of those roles’.

1. The appellant submitted that the judge below had erred and that implicit in his ruling was a conclusion that some meaning had to be given to paragraph (c) of the definition in the context of s 4(1)(b). It was submitted that applying paragraph (c) of the definition to the requirement in s 4(1)(b) was ‘inapt’ because ‘the court has not imposed a custodial sentence; the court has imposed a YJC order, which administrative action has later altered the manner of service of, to that of a custodial sentence’.

1. It was submitted that, by contrast, paragraph (c) of the definition was ‘well designed’ to apply to the requirement in s 4(1)(c) that a person is serving a custodial sentence. Thus, it is not a position where paragraph (c) would have no work to do if it did not apply to s 4(1)(b). Paragraph (c) is directed to s 4(1)(c) and not s 4(1)(b).

1. In the Secretary’s written case it was submitted that the drafting of s 4(1)(b) of the SSODS Act and paragraph (c) of the definition had created a ‘conundrum’. The submission stated:

It is clear that the sentence imposed by the Shepparton Children’s Court was not a sentence to be served in prison.  It was not imposed as a sentence, part of which was required by reason of the Court’s order to serve in an adult prison.

1. In the written case the Secretary submitted that this ‘conundrum’ could be resolved by reading additional words into paragraph (c) of the definition or by adding words to s 4(1)(b). It was submitted that this was both justified and required in accordance with this Court’s decision in DPP v Leys and with the recent decision of the High Court in Taylor v The Owners — Strata Plan No 11564.[4]

   [4][2014] HCA 9; (2014) 306 ALR 547 (‘Taylor’).

1. In oral submissions the primary position put on behalf of the Secretary was that paragraph (c) of the definition should be construed as applying to an order made by a court for detention in a youth justice centre where the circumstance subsequently arose that part of that detention was served in prison. It was submitted that it was not a requirement of paragraph (c) that the court impose prison in the order. In oral submissions what had been said in the written case concerning the addition of words to paragraph (c) of the definition or to s 4(1)(b) was relied upon only if the submission made as to the proper construction of paragraph (c) of the definition was rejected.

1. Counsel on behalf of the appellant submitted that the ‘elaborate revision’ of the applicable provisions proposed on behalf of the Secretary did not meet the requirements in DPP v Leys and in Taylor.

The proper construction of paragraph (c) of the definition

1. The judge below, consistently with the submissions put by both sides before him, found paragraph (c) of the definition perplexing.  This was because it was thought to be addressing an order providing for detention in a youth justice centre in part and detention in prison in part.  As the judge below observed, and as both counsel agreed before us, no such order is possible under the relevant legislation.  It seems to me, however, that paragraph (c) of the definition is not properly read and construed in that manner. 

1. Paragraph (c) of the definition of ‘custodial sentence’ includes as a ‘custodial sentence’ an order made by a court sentencing an offender to be detained in a youth justice centre where, as matters transpire, part of that sentence is served in prison. This is hardly surprising given that the provisions of the CYF Act provide for that very eventuality.[5] 

   [5]Transfers are dealt with in Pt 5.6 of the CYF Act. The appellant was transferred pursuant to Div 6 of Pt 5.6.

1. This construction seems to me to be required for the following reasons:

1 While the drafting could be clearer, that is the plain meaning of the text. When read with s 4 of the SSODS Act and the relevant provisions of the CYF Act, the meaning is clear.

2 The definition ought to operate consistently in relation to both s 4(1)(b) and s 4(1)(c) of the SSODS Act. I do not accept the appellant’s contention that paragraph (c) of the definition is to be read as applying to s 4(1)(c) but not to s 4(1)(b) when the same defined term is used in both provisions.[6]

3         Paragraph (j) of the definition supports this construction.  The reason it is necessary to provide that temporary imprisonment pending return to a youth justice centre is not to be included as a ‘custodial sentence’ is because it otherwise would be under paragraph (c).

[6]It is a fundamental principle of statutory construction that as far as possible the same words should be given the same meaning:  see D C Pearce and R S Geddes, Statutory Interpretation in Australia (Lexus Nexis Butterworths, 8^th ed, 2014) [4.6].

1. It seems to me that the approach taken by the appellant, and indeed by the Secretary prior to the oral submissions on the appeal, involves the misconception that paragraph (c) addresses a position where it is the order itself which provides for the imprisonment.  That is not what paragraph (c) of the definition says.  The order does not provide for imprisonment, the order provides for detention in a youth justice centre.  That sentence falls within the definition upon the circumstance occurring that the offender serves part of the sentence in prison.  Paragraph (c) applies notwithstanding that that circumstance arises, not as a result of imposition by court order, but rather as a result of a direction by the Youth Parole Board.

1. Given my conclusions on the proper construction of the relevant provisions, it is unnecessary to address the Secretary’s alternative submissions concerning the addition of words to either paragraph (c) of the definition or s 4(1)(b).

1. The appeal should be dismissed.

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