Olsen v Sims

Case [2010] NTCA 8

Olsen v Sims [2010] NTCA 8

PARTIES:OLSEN, James

v

SIMS, Erica Ann

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:AP 5 of 2010 (20632016)

DELIVERED:  30 NOVEMBER 2010

HEARING DATES:  20 OCTOBER 2010

JUDGMENT OF:  MILDREN, SOUTHWOOD & BLOKLAND JJ

APPEAL FROM:  RILEY J

CATCHWORDS:

CRIMINAL LAW & PROCEDURE – statutory interpretation – offence committed against repealed statute provided for mandatory minimum sentence – new Act gave Court a discretion for substantially same offence – whether Court of Summary Jurisdiction obliged to impose a mandatory minimum sentence of imprisonment – whether penalty imposed was greater than allowed by new Act – Criminal Code Act 1983 (NT), s 14; Interpretation Act (NT), s 12

STATUTES – statutory interpretation – Criminal Code Act 1983 (NT), s 14; Interpretation Act (NT), s 12

Criminal Code (NT); s 14; s 14(1); s 14(2)

Criminal Code (Qld); s 11; s 11(2)

Domestic and Family Violence Act 2007; s 4; s 120(1); s 121; s 121(1); s 121(2); s 121(3); s 121(3)(b); s 121(7); s 123(1)

Domestic Violence Act; s 4; s 10(1); s 10(1A)

Interpretation Act; s 3(3); s 12; s 12(2); s 12(c); s 12(d)

Penalties and Sentences Act 1992 (Qld); s 9(2); s 9(2)(a); s 9(6A); s 9(6B); s 161B

Sentencing Act; s 5(1)(a); s 6A; s 121; s 121(2); s 130(1)

Hoare v The Queen (1989) 167 CLR 348; Veen v The Queen (No 2) (1988) 164 CLR 465; followed

Baumer v The Queen (1988) 166 CLR 51; Breeze (1999) 106 A Crim R 441; Cobiac v Liddy (1969) 119 CLR 257; Hansford v His Honour Judge Neesham (1995) 2 VR 233; Nguyen v The Queen (2003) 13 NTLR 62; Olsen v Sims (2010) 239 FLR 405; R v Carlton (2009) 197 A Crim R 220; R v Mason & Saunders (1998) 2 Qd R 186; R v Melville (2003) 27 WAR 224; (2003) 142 A Crim R 38; R v Morton [1986] VR 863; R v Pham (2009) 197 A Crim R 246; R v Truong (2000) 1 Qd R 663; Scott v Cawsey (1907) 5 CLR 132; Siganto v The Queen (1997) 141 FLR 73; (1997) 97 A Crim R 60; Siganto v The Queen (1998) 194 CLR 656; Sillery v The Queen (1981) 180 CLR 353; Trenerry v Bradley (1997) 6 NTLR 175; International Covenant on Civil and Political Rights, Article 15.1; referred to

REPRESENTATION:

Counsel:

Appellant:J Tippett QC

Respondent:  M Grant QC and S Brownhill

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Solicitor for the Northern Territory

Judgment category classification:    A

Number of pages:  42

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Olsen v Sims [2010] NTCA 8

No AP 5 of 2010 (20632016)

BETWEEN:

JAMES OLSEN

Appellant

AND:

ERICA ANN SIMS

Respondent

CORAM:    MILDREN, SOUTHWOOD & BLOKLAND JJ

REASONS…

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Olsen v Sims [2010] NTCA 8
Case
[2010] NTCA 8
Decision Date

CaseChat Overview and Summary

In the case of Olsen v Sims, the appellant, Olsen, was convicted and sentenced by the Court of Summary Jurisdiction for breaching a restraining order under the Domestic Violence Act, which was subsequently repealed and replaced by the Domestic and Family Violence Act. Olsen was charged with two breaches of the restraining order, the first offence occurring prior to the repeal and the second after the repeal but while the former Act was still in force. The sentencing provisions of the repealed Act mandated a minimum sentence of seven days' imprisonment for a second or subsequent offence. Olsen was sentenced to seven days' imprisonment, backdated to account for time already served in custody. Olsen appealed against the sentence, arguing that the mandatory minimum sentence should not apply due to the repeal of the Domestic Violence Act and the enactment of the Domestic and Family Violence Act.

The legal issue before the court was whether the Court of Summary Jurisdiction was correct in applying the repealed Act's sentencing provisions to Olsen's second offence, which occurred after the repeal but before the new Act came into force. The court had to determine if the repealed Act's sentencing provisions continued to apply under the circumstances, and whether the mandatory minimum sentence should be imposed. The court also considered the interaction between sections 12 and 14 of the Interpretation Act and sections 121(1) and (3) of the Domestic and Family Violence Act. The court needed to ascertain whether the repeal of the mandatory minimum sentence constituted a substantive or procedural change and how this affected the sentencing authority under the new Act.

The court held that the appeal against the conviction could not be sustained as it was determined that Olsen was liable to be convicted under section 12 of the Interpretation Act. However, the court found that the Court of Summary Jurisdiction erred in imposing the mandatory minimum sentence. The court reasoned that the repeal of the mandatory minimum sentence was a substantive change, not a procedural one, and that the Domestic and Family Violence Act no longer required the imposition of a mandatory period of imprisonment for a non-harmful breach of a domestic violence order. The court concluded that section 14(2) of the Criminal Code, which limits the extent of punishment an offender can receive, should be interpreted in the context of the repealed Act's sentencing provisions. The court held that while the sentencing court had the authority to impose a sentence of imprisonment under the new Act, it could only do so if the sentence was proportionate to the gravity of the offence. Consequently, the appeal against the sentence was allowed, the sentence was set aside, and the matter was referred back to the Court of Summary Jurisdiction for re-sentencing.

Orders

Orders of the court

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Background

Background to the litigation

This appeal raises a question of the true construction to be given to s 14 of the Criminal Code and its interaction with s 12 of the Interpretation Act in the context of the repeal of the Domestic Violence Act and the enactment of the Domestic and Family Violence Act.The facts On 15 March 2006, a restraining order was made against the appellant under s 4 of the Domestic Violence Act (the former Act). The duration of the order was for a period of 12 months. A copy of the order was served on the appellant the following day. On 17 March 2006, the appellant was convicted of failing to comply with a previously imposed restraining order made under the former Act (the first offence). On 27 December 2006, the appellant was charged with failing to comply with the terms of the order made on 15 March 2006, which was an offence against s 10(1) of the repealed Act (the second offence). The second offence was alleged to have occurred on 14 December 2006. As at 14 December 2006 and until the former Act was repealed, s 10(1A) of the former Act provided:Despite the Sentencing Act, where a person is found guilty of a second or subsequent offence against subsection (1), the Court must sentence the person to imprisonment for not less than 7 days but not more than 6 months. On 1 July 2008, the former Act was repealed and replaced by the Domestic and Family Violence Act (the current Act). Because the appellant did not answer his bail, he did not come to be dealt with in respect of the charge until 9 February 2010. The conduct constituting the alleged breach of the restraining order was that the appellant attended at the residence of the protected person in contravention of a condition of the order.[1] The learned Magistrate, sitting in the Court of Summary Jurisdiction at Wadeye, determined that the sentencing provisions under the former Act had application to the appellant’s circumstances and that he was bound to impose a minimum sentence of at least seven days imprisonment given his previous conviction. Accordingly, he imposed a conviction and sentenced him to seven days imprisonment, backdated to take into account time already spent in custody. On the same day, a Notice of Appeal against conviction and sentence was filed and the appellant was granted bail. On appeal, Riley J (as he then was) held that the appellant was liable to be convicted because of the operation of s 12 of the Interpretation Act. There is no appeal from that part of his Honour’s decision. His Honour also held that the learned Magistrate did not fall into error in the sentence which he imposed and he dismissed the appeal against sentence as well. The appeal to this Court relates only to the question of whether the Court of Summary Jurisdiction was obliged to impose a mandatory sentence of imprisonment in these circumstances.The legislation The current Act provides for what are called Domestic Violence Orders or DVO's rather than restraining orders, although they are similar in effect. As Riley J correctly pointed out, the current Act operates to expand the range of people who could be protected under a Domestic Violence Order and expands the range of people who could be subjected to such an order. It defines the grounds upon which an order might be granted by reference to some criteria not found in the former Act. So far as is relevant to this case, the operative provision of the current Act which creates an offence for a breach of a DVO is s 120(1) which provides:A person commits an offence if: (a)a DVO is in force against the person; and (b)the person engages in conduct that results in a contravention of the DVO.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant’s first ground of appeal cannot be sustained. The case of R v Morton[27] was decided according to the express provisions of s 52 of the Interpretation of Legislation Act 1984 (Vic) and s 4 of the Penalties and Sentences Act 1985 (Vic) in circumstances where there was no repeal of any relevant legislative provision. The decision has no application in this appeal because of the application of s 12 of the Interpretation Act (NT) in circumstances where the Domestic Violence Act was repealed by the Domestic and Family Violence Act. In R v Morton, the Full Court of the Supreme Court of Victoria had no cause to consider any equivalent provision to s 12 of the Interpretation Act (NT). However, as I stated earlier, s 12 of the Interpretation Act must be read subject to the provisions of s 14(2) of the Criminal Code.[28]Conclusion In the circumstances, the appeal against sentence should be allowed, the sentence imposed on the appellant by the Court of Summary Jurisdiction should be set aside and the matter referred back to the Court of Summary Jurisdiction so that the appellant may be re-sentenced.BLOKLAND J:Introduction I have had the benefit of reading earlier drafts of the reasons prepared by both Mildren J and Southwood J. I respectfully agree with and adopt their Honours’ summaries of facts and arguments before this Court and their general consideration of the issues to be determined. All relevant statutory provisions relied on by the parties and considered by the Court are set out in their Honours’ reasons. I will not reproduce those provisions in these reasons. At the commencement of the hearing of this Appeal, leave was granted, (with the consent of the respondent), to amend the Notice of Appeal to include the following ground:The learned appellate court erred in concluding that s 14(2) of the Criminal Code did not apply to the circumstances of the case so as to permit the appellant to contend that he came within the provisions of s 121(3) of the Domestic and Family Violence Act and thereby be relieved of the imposition of a period of mandatory imprisonment. This became the primary ground argued. For the reasons that follow, I have concluded the Appeal should be allowed on this ground. The Nature of a Mandatory Conviction and Mandatory Minimum Term of a Sentence of Imprisonment As the question will ultimately require a consideration of the extent of the sentence the learned Magistrate was authorized to pass on the appellant, I have found it useful to revisit the nature of a mandatory conviction and mandatory minimum term of imprisonment and the circumstances in which a Court is authorized to pass such a sentence. Northern Territory sentencing law requires courts to punish offenders only to an extent or in a way that is just in all the circumstances.[29] A Court is not authorized to impose a minimum mandatory sentence of imprisonment unless the legislature displaces this and other fundamental principles derived from the common law and now enshrined in the Sentencing Act (NT). To effectively displace this principle the legislature must do so clearly and unambiguously.[30] The sole purpose of prescribed mandatory minimum sentences has been said to “require sentencers to impose heavier sentences than would be proper according to the justice of the case”.[31]

Ratio Decidendi

Legal Principle Established

With regard to the latter submission, I have had the benefit of reading a draft of Mildren J’s reasons for decision and I agree with his Honour’s reasons for decision that the submission cannot be sustained. In my opinion, the repeal of a mandatory minimum custodial sentence is not a procedural change. It is a substantive change. The manner in which s 121(3) is drafted does not alter the fact that a court is no longer required to impose a mandatory period of imprisonment for a second or subsequent breach of a domestic violence order where no harm is caused to the protected person.Consideration of the application of s 14(2) of the Criminal Code In determining the correct application of s 14(2) of the Criminal Code, it is necessary to start with the text of the subsection and then go on and consider the text of the relevant provisions of the Domestic and Family Violence Act. When interpreting a provision such as s 14(2) of the Criminal Code, a court should be specially careful to ascertain and apply the actual commands of the legislature.[26] Critical to the resolution of this appeal is the statement in s 14(2) of the Criminal Code that, “the offender cannot be punished to any greater extent than is authorised by the latter law”. Subsection 14(2) of the Criminal Code expressly refers to notions of ‘punishment’ and ‘authority’. Had Parliament chosen to do so it could have stated, “the offender cannot be sentenced to a greater sentence than the maximum penalty specified by the latter law”. It did not do so. The Macquarie Dictionary definition of “authorise” is “to give authority or legal power to; empower (to do something)”. Under s 121(1) and (3) of the Domestic and Family Violence Act a sentencing court is expressly empowered to impose a sentence of imprisonment up to a maximum of two years imprisonment. However, the authority or power to impose a punishment within the sentencing range specified by the maximum penalty of two years imprisonment is an authority to impose a sentence which does not exceed that which is proportionate to the gravity of the offence. The “particular circumstances of the offence” referred to in s 121(3) of the Domestic and Family Violence Act must include the objective circumstances of the offence. So while it is true that a sentencing court may impose a sentence of seven days imprisonment on a person for a non-harmful breach of a domestic violence order, it is only authorised to punish a person to that extent if such a sentence does not exceed that which is proportionate to the gravity of the offence.The first ground of appeal The appellant’s first ground of appeal cannot be sustained. The case of R v Morton[27] was decided according to the express provisions of s 52 of the Interpretation of Legislation Act 1984 (Vic) and s 4 of the Penalties and Sentences Act 1985 (Vic) in circumstances where there was no repeal of any relevant legislative provision. The decision has no application in this appeal because of the application of s 12 of the Interpretation Act (NT) in circumstances where the Domestic Violence Act was repealed by the Domestic and Family Violence Act. In R v Morton, the Full Court of the Supreme Court of Victoria had no cause to consider any equivalent provision to s 12 of the Interpretation Act (NT). However, as I stated earlier, s 12 of the Interpretation Act must be read subject to the provisions of s 14(2) of the Criminal Code.[28]Conclusion