MRTC v Tasmania Police
[2024] TASSC 14
•27 March 2024
[2024] TASSC 14
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | MRTC v Tasmania Police [2024] TASSC 14 |
| PARTIES: | MRTC |
| v | |
| TASMANIA POLICE | |
| FILE NO: | LCA 2821/2023 |
| DELIVERED ON: | 27 March 2024 |
| DELIVERED AT: | Launceston |
| HEARING DATE: | 13 March 2024 |
| JUDGMENT OF: | Brett J |
| CATCHWORDS: |
Criminal Law – Sentence – Sentencing of juveniles – Relevant factors – General principles – Objectives and principles under Youth Justice Act 1997 – Court required to specify earliest release date for operative
part of partially suspended sentence of detention.
Aust Dig Criminal Law [3433].
Legislation:
Justices Act 1959
Sentencing Act 1997
Youth Justice Act 1997
Cases Cited:
Evans v Job [2018] TASFC 3
LWR v Lusted [2009] TASSC 3
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
TAP v Tasmania [2014] TASCCA 5
REPRESENTATION:
Counsel:
Applicant: H Goss Respondent: D Laws
Solicitors:
Applicant: Tasmania Legal Aid Respondent: Director of Public Prosecutions
| Judgment Number: | [2024] TASSC 14 |
| Number of paragraphs: | 21 |
Serial No 14/2024
File No LCA 2821/2023
MRTC v TASMANIA POLICE
| REASONS FOR JUDGMENT | BRETT J 27 March 2024 |
1 This review turns on a specific aspect of the operation of the Youth Justice Act 1997 (the Act). In particular, the question which arises is whether in the case of a sentence of a partially suspended period of detention, s 89A requires the court to specify an earliest release date in respect of the operative period of detention, that is that part of the detention period which has not been suspended. If so, the youth would be released under a supervised release order after serving 50% or 3 months, whichever is longer, of the operative part of the order. If not, the youth would be detained for the entire period, that is until release at the commencement of the suspended part of the order.
2 The background of this matter is as follows. The applicant is a 16 year old youth with a history of offending. On 29 June 2023, he came before Magistrate Brown in respect of a number of offences. The commission of those offences breached the conditions of an earlier suspended detention order. His Honour decided to activate four months of the suspended period of detention, and to defer sentence in respect of the offences which were before him. He backdated the four month period of detention to 6 April 2023 and, in accordance with s 89A of the Act specified an earliest release date of 6 July 2023. It seems that the applicant was released from detention on that date.
3 After his release, the applicant committed further offences. These offences were of a serious nature. One involved an aggravated burglary of a home while the occupants were present. The applicant assaulted one of the occupants when that person attempted to apprehend him. He also committed the burglary of a service station in order to steal property, including cigarettes, as well as a number of other offences. The applicant was arrested on 1 August 2023, brought before the Magistrates Court and denied bail. He remained in custody until sentence. On 30 August 2023, after the applicant pleaded guilty to the new offences, the magistrate imposed a global sentence in respect of all offences, including those in respect of which sentencing had been deferred, of a period of 40 weeks' detention, which was backdated to 1 August 2023. His Honour suspended 20 weeks of that sentence on appropriate conditions. He also cancelled a probation order that had been made as part of an earlier sentence.
4 Subsequently, the applicant's counsel applied to the magistrate to correct sentence pursuant to s 100A of the Act. It was submitted that s 89A which requires the magistrate to calculate and specify an earliest release date, applies to the unsuspended period of detention in a partially suspended detention order. His Honour had not specified such a date when handing down the sentence. By s 3, "earliest release date" is defined as "the day immediately following the completion of 50% of the period of detention during which a youth is liable to be detained or 3 months, whichever is the longer". It was submitted that in this case, the earliest release date, based on a detention period of 20 weeks, was 3 months. On this basis, the applicant would become eligible for release on 1 November 2023. The sentence, without specification of that date, would see the applicant released at the end of the 20 week period, about 1 month later.
5 The magistrate rejected this submission, and refused to specify an earliest release date. His Honour concluded that a suspended detention order, notwithstanding that the detention period is only partially suspended, and a detention order, in which none of the detention period is suspended, are treated separately under the Act, and the requirement in s 89A to specify an earliest release date only applies to the latter. The effect of his Honour's construction of the Act is that detention with mandated supervised release on the earliest release date and suspended detention, even where the detention period is only partially suspended, are mutually exclusive sentencing alternatives. The applicant on
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this review argues that the magistrate erred in law in this respect. This is now the sole ground of review. The applicant does not press a further ground which asserted that the sentence imposed was manifestly excessive.
6 Section 47 of the Act sets out the sentences and other orders that may be imposed by a court. Section 47(1) provides that if a youth is found guilty of an offence, the court may impose one or more of a number of orders listed in the provision. This includes at subpar (h) the power to "make a detention order". Section 3, the interpretation section, defines "detention order" to mean "an order made under s 47(1)(h) requiring a youth to be detained in a detention centre". Section 79 provides that "a detention order is an order that a youth serve the period of detention specified in the order in a detention centre". It is important to observe that the list in s 47(1) does not separately include a suspended detention order.
7 However, s 47(2) provides that in addition to imposing a sentence under subs (1), the court may make one or more of a number of orders. Those orders include "a suspended detention order". Neither that provision nor s 3 defines that term. However, Div 12 is headed "Suspended detention orders". Section 90(1) provides that "A suspended detention order is an order suspending the whole or part of a sentence of a period of detention imposed by a detention order". The balance of the section sets out the mandatory conditions to which the suspension is subject, and provides for other conditions to be imposed in the discretion of the court. Both the mandatory and discretionary conditions make it clear that the youth will be closely supervised during the period of suspension. Section 92 provides that "If the court makes a suspended detention order, the youth only has to serve the period, or that part of the period, of detention that has been suspended if ordered to do so under s 94". Section 94 deals with the consequences of contravention of the conditions of the suspended detention order. There are a number of alternatives available to the court dealing with contravention, one of which is the power to "restore the whole or part of the sentence of detention that was suspended by the suspended detention order and order the youth to serve the restored sentence". There is no other power to activate the suspended detention.
8 The requirement in s 89A to specify "the earliest release date" when making "a detention order", is complemented by s 109, which relevantly provides:
"(1) A youth serving a period of detention under a detention order must be released from detention under a supervised release order on the earliest release date …"
9 A "supervised release order" is defined by s 3 as "an order made by the Secretary under section 110". This section is contained in Part 5, which is headed "Supervised release orders". Section 110 provides for the Secretary to make such an order "in respect of the release of the youth from detention at the time of, or before, the release of the youth". Section 110(3) provides that the supervised release order "has effect until the end of the detention period in respect of which it is made". Section 111 sets out the comprehensive conditions which will be applicable under the supervised release order. As with a suspended detention order, these conditions provide for the close supervision of the youth during the life of the order.
10 A critical component of the reasoning which supported the magistrate's conclusion that s 89A did not apply to a partially suspended period of detention, concerned what his Honour regarded as the dichotomy between a "detention order" and a "suspended detention order". His Honour considered that this construction was supported by the structure and text of the legislation. His Honour took the view that the provisions of s 47 suggested that a detention order and a suspended detention order are separate sentencing orders, made under different provisions. His Honour expressed the view that "that is a clear indication that the Parliament intended those two species of detention to be considered separately". He made it clear that his reference to a suspended detention order in this consideration included an order in which there was partial suspension.
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11 The magistrate also considered the distinction between supervised release and suspended detention to be significant in construing the legislation. He referred to observations made by Porter J in LWR v Lusted [2009] TASSC 3, in which his Honour observed that the supervised release of a detainee after serving the mandated period in detention was "not unlike the adult parole system, with a significant exception that the time of early release is essentially not a discretionary exercise after serving a period set by a court, but one provided for in the Act itself". The magistrate adopted this comparison, extending the analogy to a comparison of suspended detention with suspended imprisonment in the adult system under the Sentencing Act. The point was to highlight the difference between supervised release under a detention order and a suspended detention order. His Honour noted that a practical consequence of the difference is that if a supervised release order applied to a partially suspended detention order, then the youth "so released would then be subject to not one, but two strictures; that is a supervised release order plus the conditions of a suspended detention order. That, in my view, would not in any way make sense".
12 The principles of statutory construction are well understood. Both textual and contextual considerations have importance in determining the meaning of legislation. This was explained by Pearce J in Evans v Job [2018] TASFC 3 at [30]-[31]:
"The question posed by the application involves an exercise of statutory construction in accordance with the principles stated in cases such as Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47] and
Australian Education Union v Department of Education and Children's Services
[2012] HCA 3, 248 CLR 1. The process begins with a consideration of the text itself. The meaning of the text will often require consideration of the context, which includes the general purpose and policy of the provision. Questions of context arise 'in the first instance, not merely at some later stage when ambiguity might be thought to arise': CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 and Independent Commission Against Corruption v Cunneen [2015] HCA 14, 256 CLR 1 at [31] and [57]. Where two or more constructions of a provision are available, the court will prefer a construction that gives the provision a sensible operation: CIC at 408."
13 As was said in Project Blue Sky Inc:
"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'.
...
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions."
14 There is no question, therefore, that the magistrate was correct to consider both the text and the legislative scheme when construing the relevant legislation. However, I respectfully disagree with his Honour's conclusions.
15 I agree with the applicant's counsel that the starting point for identification of the relevant scheme is in the overall purpose of the legislation, which in this case is informed by the objectives and principles set out in ss 4 and 5 of the Act. There is no question that the primary focus of the operation of the Act, including sentencing, is rehabilitation of the youthful offender. This was confirmed by the Court of Criminal Appeal in TAP v Tasmania [2014] TASCCA 5, in which Porter J, with whom Blow
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CJ and Wood J agreed, after referring to the objectives stated in s 4 and the general principles of youth justice set out in s 5, said:
"There is no need to set out those provisions. Those relevant to sentencing restate the relevant principles concerning the sentencing of juvenile offenders which have long been established by the courts. The principles are that the rehabilitation of the offender is always an important, if not the dominant, consideration, and that any sentence should be tailored with greater emphasis on the welfare of the youth; the emphasis on rehabilitation is consistent with the broader sentencing goal of community protection: LWR v Lusted (2009) 19 Tas R 233 at [26] citing JA (A child) v State of Western Australia [2008] WASCA 70 at [29]-[30]."
16 In respect of custodial sentences, this emphasis manifests expressly in s 80 which provides that a court may only make a detention order if the court has considered all other available sentences and is satisfied that no other sentence is appropriate in the circumstances of the case.
17 This is not controversial, and is consistent with the magistrate's approach. However, I take a different view to his Honour in relation to the effect of the text and the structure of the legislation. In particular, I am of the opinion that these aspects do not support the conclusion that a detention order and a suspended detention order are separate sentencing orders. If this were so, it would be expected that a "suspended detention order" would be included in the list of orders contained in s 47(1). It is clear to me that the text and structure of the Act support the conclusion that a suspended detention order is intended to modify, and operate in respect of, a detention order made under s 47(1)(h). Further, it is clear that the provisions which apply to a suspended detention order, in particular those set out in Div 12, relate only to that part of the sentence which is suspended.
18 There are a number of textual elements that support this construction. I have already referred to the structure of s 47. In particular, I note that the orders in subs (2) may be made "In addition to imposing a sentence under subsection (1)". This suggests that suspension, as with the other orders mentioned in the subsection, are intended to complement or add to the sentence, in this case the sentence of detention. Further, this interpretation is supported by the definition in s 90 of a suspended detention order, in particular that it is "an order suspending the whole or part of a sentence of a period of detention imposed by a detention order". (My emphasis.) Finally, the wording in s 94(4)(e) whereby a court has power upon a contravention of the order, to "restore the whole or any part of that amount of the sentence that was suspended by the suspended detention order", and in s 94(4)(f) to revoke "the suspended detention order and the detention order to which it relates" support the view I have reached in respect of the intended relationship between the orders.
19 An important consequence of this interpretation is that, in the case of a partially suspended detention order, the remaining custodial component retains its character as a detention order made pursuant to s 47(1)(h). It follows that the provisions of Div 11 apply to that custodial period. This is significant because the logical extension of the dichotomy relied upon by the magistrate and adopted by the respondent would result in the custodial part of the suspended detention order being dealt with under Div 12. It is apparent that Div 12 does not provide for that outcome. On the contrary and critically, s 89A is contained in Div 11. The "detention order" referred to in that section clearly encompasses the custodial part of a partially suspended order. That, in itself, is enough to resolve this motion in favour of the applicant.
20 However, in addition to these textual considerations, the interpretation explained above is consistent with the intended operation of the Act, and the underlying legislative scheme. I make the following observations:
The magistrate relied on the proposition that the specification of an earliest release date in respect of the custodial part of the order, would necessarily lead to the youth being subject concurrently to the separate conditions and procedures relevant to a supervised release order and a suspended
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detention order. His Honour concluded that this could not have been Parliament's intention. However, the concurrent operation of the two regimes is not a necessary outcome. Section 110(3) provides that a supervised release order has effect until the end of the detention period in respect of which it is made. On the interpretation which I have explained above, this would mean that the supervised release order would remain in effect until the custodial part of the order has come to an end. In respect of the suspended part of the order, s 91 provides that "the court must specify in the order the period during which the order has effect". Section 91(2) provides for the upper limit of that period, but of course the court can also specify when the period commences. By way of analogy, it is very common in my experience in the adult jurisdiction for the sentencing order to specify that the suspension and the conditions of suspension will take effect from a date which is after the commencement of the custodial part of the order. Hence, any conflict could be avoided by simply providing that the suspension takes effect from the end of the custodial period, which also coincides with the termination of the supervised release order. Further, and in any event, I do not think that the operation of two concurrent supervisory regimes is necessarily inconsistent with the overall operation of the Act nor contrary to its intentions. For example, s 47(1) makes it clear that a probation order can be imposed with other orders, and could therefore operate concurrently with a suspended detention order or a supervised release order. The mandatory conditions of a suspended detention order and a supervised release order are entirely complementary, if not practically identical, and I cannot detect any aspect which would make their concurrent operation unworkable. Of course, the court can ensure that any special conditions imposed under each are consistent.
A further matter raised by the magistrate and relied upon by the respondent, concerns the comparison between supervised release under the Act and parole in respect of adult sentencing. This is the analogy discussed by Porter J in LWR v Lusted. The magistrate correctly observed that supervised release operates in a similar way to parole, and that the fixing of a release date for supervised release in a partially suspended detention order is unnecessary because the magistrate can determine the release date as part of the order. Mr Laws who appeared as counsel for the respondent, argued that this is the intended and preferred operation of the legislation, and that therefore there is no need for the operation of s 89A to apply to the custodial period. However, the argument is flawed to the extent that it relies on comparison with the adult system. In adult sentencing, partially suspended sentences of imprisonment are both authorised by the legislation, and a commonly used sentencing alternative. In respect of such a sentence, the Sentencing Act clearly anticipates and permits the fixing of a non-parole period under s 17 in respect of the custodial part of the order. Section 17(8) provides that in the case of a wholly or partly suspended sentence of imprisonment, only the operative sentence is to be taken into account for the purposes of s 17. Subsection (9) defines "operative sentence" to mean "a part of a sentence of imprisonment which has not been suspended". It is common practice for a non-parole period to be fixed in respect of the operative sentence in a partially suspended sentence of imprisonment. In my view, it can be inferred that the intention of the legislature was, in fact, to provide for mandated supervised release in respect of any period that a youth is required to actually serve in detention, including where the period of actual detention is contained in an order in which the balance of the detention has been suspended. On this interpretation, the Youth Justice Act is entirely consistent with the parole system provided for in the Sentencing Act.
A further, and in my view critical, point is that on the interpretation adopted by the magistrate, it would follow that the court could impose a harsher sentence by partly suspending the period of detention, than if none of the sentence was suspended. If the actual release date coincides with the commencement of the suspended part of the sentence, then simply by suspending a period of detention which is less than 50% of the sentence, the effect would be that the youth would be required to remain in custody for a longer period than is the case with a detention order, without any suspension. In the former case, the court would have a discretion as to when it sets the release date. In the latter case, the court does not have such a discretion and must specify the earliest
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release date in accordance with the relevant provisions of the Act. The existence of such a discretion is patently inconsistent with the legislative intent that a mandatory fixed period be served before supervised release. The clear legislative choice to mandate this period would be completely undermined, and its application would, in practice, simply become a matter of discretion for the sentencing court. Supervised release after a mandated period is an important part of the legislative scheme, intended to promote the underlying objectives and principles of the legislation. The ability of a court to alter this period by partially suspending a sentence of detention is inconsistent and not in harmony with the provisions of the Act generally. Mr Laws' response to this potential effect was that its inappropriate application could be controlled by this Court on review, thereby ensuring that the discretion is properly exercised. However, this submission, with respect, misses the point. The legislative scheme removes discretion in respect of this question. That is achieved by the interpretation urged on behalf of the applicant, and directly inconsistent with that adopted by the magistrate and contended for by the respondent.
21 I am satisfied, therefore, that the learned magistrate erred by failing to specify an earliest release date in respect of the custodial part of the order. As counsel for the applicant has noted, because 50% of the custodial part of the order would be less than three months, the default minimum of three months is applicable. I am told that in order to avoid injustice arising from a delay in the hearing of this motion, the applicant was in fact released after the expiration of the three month period and granted bail until this motion was determined. He has appeared today, and accordingly it is appropriate that I allow the motion and re-sentence him. I have the power under s 110(2) of the Justices Act 1959 to do so. Accordingly, the orders I make are as follows:
(a) The motion is allowed. (b) The sentence imposed by the learned magistrate on 30 August 2023 remains in effect except that it is amended by specifying, pursuant to s 89A of the Youth Justice Act 1997, an earliest release date as 1 November 2023.
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