O'Brien v Quin - [2003] NTSC 99

O’Brien v Quin [2003] NTSC 99
PARTIES:KENNETH DERMOTT O’BRIEN
v

PAUL KEITH QUIN

TITLE OF COURT:  FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO:JA 94 of 2002 (20209975)
DELIVERED:  12 September 2003
HEARING DATES:  26 August 2003
JUDGMENT OF:  MARTIN CJ, THOMAS & RILEY JJ
REPRESENTATION:
Counsel:
Appellant:M. Powell
Respondent:  W.J. Karczewski QC
Solicitors:
Appellant:North Australian Aboriginal Legal Aid Service
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  ril0325
Number of pages:  9

ril0325
IN THE FULL COURT OF
THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA AT DARWIN
O’Brien v Quin [2003] NTSC 99
No. JA 94 of 2002 (20209975)

IN THE MATTER OF the Justices Act
AND IN THE MATTER OF a reference
by Riley J in the Supreme Court
at Darwin

BETWEEN:
KENNETH DERMOTT O’BRIEN

Appellant
AND:
PAUL KEITH QUIN

Respondent

CORAM: MARTIN CJ, THOMAS & RILEY JJ
REASONS FOR JUDGMENT
(Delivered 12 September 2003)
THE COURT:

The issue to be resolved in this reference is whether a sentencing magistrate erred in imposing a sentence of imprisonment which was partially suspended upon condition that the offender enter into a home detention order.

The offender pleaded guilty to 4 counts of receiving property believing it to have been obtained by means of a crime. The maximum penalty for that offence is imprisonment for 7 years. On 30 September 2002 the court imposed the following sentence:
(i) An aggregate term of 6 months imprisonment suspended after 3 weeks. An operational period of 3 years from the date of release was set.
(ii) In addition the appellant was to be the subject of a home detention order for the period of 6 months from the date of his release.
The power to make a home detention order is found in s 44 of the Sentencing Act. That section is located within Division 5 of the Act which addresses the issue of custodial orders. Subdivision 1 of Division 5 deals with suspended sentences of imprisonment and subdivision 2 with home detention orders. S 44(1), which is in subdivision 2 of the Act, provides as follows:
“A court which sentences an offender to a term of imprisonment may make an order suspending the sentence on the offender entering into a home detention order where it is satisfied it is desirable to do so in the circumstances.”
In the remaining sections of subdivision 2 various matters are dealt with, including the circumstances in which a home detention order may be made, the power of the court to review a home detention order and what is to occur in the event of a breach of the order.
On the hearing of the appeal the respondent joined the appellant in submitting that the appeal must be allowed. In so doing the respondent provided detailed and helpful written submissions. It was the submission of both parties that the legislature intended that suspended sentences as provided for in subdivision 1 of Division 5 of the Act and home detention orders as provided for in subdivision 2 of Division 5 of the Act be separate and distinct dispositions under the Act. If that be so, it was submitted, a home detention order can only be made under subdivision 2 and is not available as a condition of a suspended sentence made under subdivision 1.
In our opinion, the submissions made by the parties are correct. A consideration of each of the subdivisions reveals an intention on the part of the legislature that they provide for sentencing regimes that are both separate and distinct.
The intention of the legislature is most clearly seen when the consequences of a breach of an order under each subdivision is considered. The respective subdivisions provide for quite different and inconsistent outcomes in that event.
A suspended sentence of imprisonment is able to be imposed pursuant to s 40 of the Act and will only be available under that section where the offender is sentenced to a term of imprisonment of not more than 5 years. The court may suspend whole or part of the sentence and impose such conditions “as the court thinks fit”. In suspending a sentence the court is required to fix an operational period of not more than 5 years. If there be a breach of the order within the operational period the terms of s 43 of the Sentencing Act provide for the consequences. Under that section the court is presented with a range of options including restoring the sentence or part-sentence, restoring part of the sentence or part-sentence, extending the operational period and making no order with respect to the suspended sentence. Some further guidance is provided by s 43(7) which requires the court to restore the sentence or part-sentence “unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence and, if it is of that opinion, the court shall state its reasons”.
By way of contrast, a court, when permitting an offender to enter into a home detention order, does not fix an “operational period” but, rather, is required to specify the period of the home detention order which is not to exceed 12 months. The consequences that flow from a breach of a home detention order will depend upon the nature and circumstances of the breach. In circumstances where the offender commits an offence against a law in force in the Territory or elsewhere during the term of the order, then the court “must revoke the order” and “the offender must be imprisoned for the term suspended by the court on the making of the order as if the order had never been made and despite any period that the offender may have served under the order” (s 48(6)). In other circumstances of breach, such as those detailed in s 48(1)(a) to (g), the court may direct that the home detention order continue, it may vary the terms and conditions of the order or it may direct that a further home detention order be undertaken.
In addition, there are different limitation periods that apply to the prosecution of breaches under subdivision 1 and subdivision 2. In relation to subdivision 1, s 43(1) of the Sentencing Act provides that proceedings for breach, where the breach alleged is that the offender committed another offence punishable by imprisonment, must be commenced within 2 years after the expiry of the operational period of the suspended sentence. There is no such limitation period applicable to alleged breaches under subdivision 2.
The contrasting provisions for dealing with breaches of orders made under subdivision 1 and subdivision 2 strongly indicate that the regimes are not intended to operate together. If a court was permitted to impose both a suspended sentence with an operational period and a home detention order, the offender would be subject to two separate and contradictory enforcement regimes, at least during the operation of the home detention order. In such circumstances, what would happen if the offender committed an act which was in breach of both orders?
The legislature has provided a detailed scheme for dealing with breaches of suspended sentences pursuant to subdivision 1 of Division 5 of the Act, and a quite separate regime for dealing with breaches of home detention orders made under subdivision 2 of Division 5.
The situation is not dissimilar from that discussed by Mildren J in O’Connor v Ryan [2001] NTSC 112 where his Honour dealt with the question of whether a fine could be imposed as a condition of a suspended sentence. His Honour held that it could not and, in so finding, observed:
“… when one considers the way fines are to be enforced, it is clear that the statutory machinery provided cannot be made to apply where the fine is attached as a condition of a suspended sentence … I think it is clear that the elaborate machinery provided for by the legislature displays an intention that the power to fine must be used as a separate sentencing order and not as a condition of an order for suspending a sentence.”
Further, it was submitted by both parties that the sentencing disposition provided for in subdivision 2 does not contemplate the partial suspension of a sentence and therefore a home detention order can only be made in conjunction with a fully suspended sentence. The argument in support of the submission relied upon a comparison between s 40 and s 44 of the Sentencing Act. S 40(1) of the Act permits a court to “make an order suspending the sentence”. That section is followed by s 40(2) which empowers the court to “suspend the whole or a part of the sentence”. Whilst s 44(1) of the Sentencing Act permits a court to “make an order suspending the sentence” upon the offender entering into a home detention order, there is no equivalent of s 40(2) enabling a court to suspend part of the sentence in those circumstances. Similarly, as the respondent points out, s 7(g) of the Act allows the court to “order that the offender serve a term of imprisonment that is suspended by it wholly or partially”, whereas s 7(h) allows the court to “order that the offender serve a term of imprisonment that is suspended on the offender entering into a home detention order”. The omission from s 7(h) of the words “wholly or partially” indicates that the legislature did not intend the joinder of a partially suspended sentence with a home detention order as a valid sentencing disposition.
Given that both parties to these proceedings were in agreement as to the view we should take of Division 5, there was no true contradictor. However, the respondent quite properly drew our attention to an argument which may be presented to the contrary of the agreed position. The wording of s 7 of the Sentencing Act permits a court to “make one or more of the following sentencing orders” and goes on to provide the available options including:
“(g) record a conviction and order that the offender serve a term of imprisonment that is suspended by it wholly or partly;” and
“(h) record a conviction and order that the offender serve a term of imprisonment that is suspended on the offender entering into a home detention order”.
The section on its face permits a court to make one or more of the sentencing orders mentioned. However it does not permit those orders to be combined, for example by making a home detention order part of a suspended sentence. As is noted above, in O’Connor v Ryan (supra) Mildren J examined the validity of combining an order for payment of a fine, provided for in s 7(e), with a suspended sentence of imprisonment (s 7(g)) and concluded that, on a proper construction of the Act, a fine could not be imposed as a condition of a suspended sentence. We agree with the conclusion of his Honour and with his reasoning.
In the present case the offender was sentenced to an aggregate penalty of imprisonment for 6 months in respect of the 4 counts to which he pleaded guilty. S 52 of the Sentencing Act permits a court to impose “one term of imprisonment” in respect of 2 or more offences joined in the same information, complaint or indictment. A partially suspended sentence of imprisonment is, by virtue of s 40(8), to be taken for all purposes to be a sentence of imprisonment. Similarly a fully suspended sentence of imprisonment coupled with a home detention order is also a term of imprisonment. S 52 permits the court to impose only one term of imprisonment in respect of all offences and, in proceeding as he did, the learned sentencing magistrate has erred in imposing an aggregate term of imprisonment which includes two terms of imprisonment.
It is not entirely clear whether the learned sentencing magistrate made the home detention order as a condition of imposing a suspended sentence under s 40 of the Act or whether he imposed a home detention order on a partly suspended sentence under s 44 of the Act. In our opinion, whichever approach was adopted, the learned sentencing magistrate erred. It would be an error to impose a sentence that involved making a home detention order as one of the conditions of a suspended sentence. If, as has also been suggested, his Worship sought to impose a home detention order on a partly suspended sentence, he would be in error.

We expressed these conclusions at the hearing of the matter and, at that time, proceeded to make the following orders:
(a) the appeal is allowed;
(b) the matter is remitted to the Court of Summary Jurisdiction to be dealt with according to law.

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