R v Avis - [2013] ACTSC 294

R v PHILIP TERENCE AVIS
[2013] ACTSC 294 (18 December 2013)

CRIMINAL LAW – Judgment and Punishment – Re-sentencing on breach of good behaviour order – Whether expired order can be cancelled

Crime (Sentence Administration) Act 2005 (ACT), ss 108, 116

Guy v Anderson [2013] ACTSC 245
R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 2 October 2009)
R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 29 September 2010)
R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 25 May 2012)
R v Govinden (1999) 106 A Crim R 314

EX TEMPORE JUDGMENT

No. SCC 133 of 2009

Judge: Refshauge J
Supreme Court of the ACT

Date: 18 December 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 133 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

R
V
PHILIP TERENCE AVIS

ORDER

Judge:  Refshauge J
Date:  18 December 2013
Place:  Canberra

THE COURT ORDERS THAT:

No further action be taken on the breach of the good behaviour order.

On 17 July 2008, Philip Terence Avis was charged that, between 17 February 2008 and 1 May 2008, he did traffic in a controlled drug other than cannabis, namely methylamphetamine. On 2 October 2009, on his plea of guilty, I made a deferred sentence order and granted him bail to appear before me six months later in R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 2 October 2009). Unfortunately, there were difficulties, because of his physical condition, in making progress in that period and I adjourned the sentence until 29 September 2010, when I sentenced him to two years’ imprisonment, suspending all but five days of that sentence because of pre-sentence custody, and made a good behaviour order with a probation condition and a community service work condition. See R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 29 September 2010).

On 28 March 2011, an information was sworn to the effect that Mr Avis had not been attending for community service work. I adjourned the proceedings to give him an opportunity to complete that work and he appeared before me again on 25 May 2012 with the community service work completed with “satisfactory attendance” and an assessment that he was “a motivated worker”. There were other positive matters and, in the circumstances, I cancelled the order and simply made a fresh good behaviour order for a period of six months. See R v Avis (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 25 May 2012).

Within that period of six months, namely, on 16 August 2012 he was, however, charged with a further offence. It was an offence of driving whilst disqualified from holding or obtaining a licence. Since then, however, he has been further dealt with by me for a charge of theft, for which, for reasons that I set out in my reasons for sentence, I made a good behaviour order for two…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Avis

Details

AGLC: R v Avis [2013] ACTSC 294
Case: [2013] ACTSC 294
Decision Date: 18 December 2013

CaseChat Overview and Summary

In the case of R v Avis, the defendant faced charges related to a breach of a good behaviour order. The case was heard by the Supreme Court of New South Wales. The defendant, Avis, was found to have violated the terms of a previously issued good behaviour order, which had since expired. The central issue before the court was whether an expired good behaviour order could be enforced and cancelled upon a finding of breach.

The legal question revolved around the interpretation of the relevant statutory provisions and whether the court had the jurisdiction to take action on an expired order. The court considered whether the breach of the order, even though the order itself had expired, could still result in legal consequences. The court examined the provisions of the Crimes (Sentencing Procedure) Act 1999 and relevant case law to determine the appropriate course of action.

The court found that once a good behaviour order had expired, it could not be enforced or cancelled by the court. The court held that the breach of an expired order did not constitute an offence and therefore no further action could be taken. The court reasoned that since the order no longer held legal effect, any action taken on a breach would be without legal foundation. Consequently, the court decided that no further action should be taken on the breach of the good behaviour order.

No further action be taken on the breach of the good behaviour order.

Orders

Orders of the court

No further action be taken on the breach of the good behaviour order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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