R v B, P
[2007] SASC 134
•20 April 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v B, P
[2007] SASC 134
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Layton)
20 April 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appellant sentenced for several sexual offences - appellant serving period of detention pursuant to s 269O of Criminal Law Consolidation Act 1935 when sentenced – whether sentencing judge had power to make order that sentence commenced after period of detention - whether sentence was manifestly excessive – appeal dismissed.
Criminal Law Consolidation Act 1935 s 269O, s269P, s 269Q, s 269T, s 269V, s 269VA; Criminal Law (Sentencing) Act 1988 s 30, s 31, referred to.
R v Colson (1999) 73 SASR 407; R v Davey (2006) 95 SASR 63; R v Tzeegankoff (1998) SASC 6639; R v Weiss (2001) 214 LSJS 364, considered.
R v B, P
[2007] SASC 134Court of Criminal Appeal: Doyle CJ, Debelle and Layton JJ
DOYLE CJ: I have had the benefit of considering the reasons of Debelle J and of Layton J.
I would dismiss the appeal against the sentence imposed by a Judge of this Court.
The appeal raises two issues. The first is whether the sentence imposed is invalid because it is contrary to the provisions of s 30 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). The second issue is whether the sentence is manifestly excessive.
Mr Niarchos, counsel for the appellant, submits that the sentence is invalid by reason of the fact that the Judge ordered that the head sentence and non-parole period were to commence on the expiration of the limiting term of five years to which the appellant was then subject (fixed under s 269O(2) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”)) or upon the appellant’s earlier release from detention (as a result of the Court exercising its power under s 269P of the CLCA in such a way as to bring about the release of the appellant from detention).
I agree with Layton J that the power conferred by s 269P remained available to be exercised after the Judge imposed the sentence and made the orders in question, even though the exercise of the power to order release from detention would result in the sentence of imprisonment imposed by the Judge coming into effect.
It is not necessary to decide what the position would have been had the Judge not made the orders that he made, contemplating the making of an application under s 269P. I acknowledge the force of the views expressed by Layton J on this matter, but prefer to leave this matter for decision when it is necessary to decide it.
The effect of the sentence and orders is that the Court has specified “the date on which, or the time at which, the sentence is to commence …” as required by s 30 of the Sentencing Act. On that point I agree with Debelle J and with Layton J. The sentence is not invalid or ineffective.
Accordingly, I do not accept the submission advanced by Mr Niarchos.
It is not necessary to decide whether and how the terms of s 30(3) of the Sentencing Act affect the sentence imposed by the Judge. It is not necessary because, as Debelle J points out, this provision does not apply to the appellant.
It may be, as Debelle J considers, that for the purposes of s 30(3)(b) the detention ordered under s 269O(1) of the CLCA is to be treated as a sentence of imprisonment. However, there are some difficulties with that approach as Layton J points out. If the need to deal with the application of s 30(3) of the Sentencing Act had arisen, it may be that the problem could have been met by the Judge directing that a warrant of commitment issue but only upon the termination of the period of detention to which the appellant was subject. That would have the effect that the sentence would commence on the day on which the appellant was taken into custody pursuant to the warrant, thus apparently complying with the requirements of s 30(3)(a) of the Sentencing Act. However, these issues can be left until it is necessary to decide them.
It follows from this that the sentence is valid as a matter of form. For the reasons given by Debelle J, the sentence is not manifestly excessive.
It is for those reasons that I would dismiss the appeal against sentence.
DEBELLE J. The appellant was sentenced by Perry J on 5 September 2006 to a period of imprisonment for several sexual offences. At the time he was sentenced, the appellant was subject to orders made pursuant to s 269O of the Criminal Law Consolidation Act 1935 in respect of other offences. The orders under s 269O had been made on 23 November 2000 by Judge David, sitting as a judge of the District Court, who had ordered that the appellant was liable to supervision under Part 8A of the Criminal Law Consolidation Act. On 26 February 2004 Judge David had fixed a limiting term of five years commencing on 26 February 2004 and had ordered that the appellant be committed to detention. When Perry J sentenced the appellant, he ordered that the sentence commence upon the expiry of the period of detention, or, if the appellant was released on licence, on the date of that release.
The question in this appeal is whether Perry J had power to make the order that the sentence commence after the period of detention. Initially, that was the only ground of appeal. In the course of argument, the appellant’s counsel applied to amend the notice of appeal to include a ground that the sentence was manifestly excessive, the contention being that, if the date of the commencement of the sentence was valid, Perry J had failed to have regard to the totality principle.
There are, therefore, two issues on this appeal. The first is whether Perry J had power to order the sentence to commence at the expiry of the period of detention or when the appellant was released on licence, whichever the earlier date. If that order is valid, the second question is whether the sentence is manifestly excessive.
A History of Offending
The appellant has been tried on three occasions for a series of offences committed in 1998, 2000 and 2001. In chronological order, the alleged offences and the date of commission were as follows:
23.12.1998
Armed robbery
30.12.1998
Armed robbery
30.12.1998
Armed robbery
31.12.1998
Assault with intent to rob whilst armed
31.12.2000
Unlawful sexual intercourse with a girl of the age of 14 years
11.2.2001
Indecent assault of a girl of the age of 14 years
11.2.2001
Unlawful sexual intercourse with a girl of the age of 14 years
11.2.2001
Indecent assault of a girl of the age of 14 years
20.2.2001
Armed robbery
The appellant was arrested on 20 December 2001 and has remained in custody thereafter.
Three Trials
The trials for these offences did not occur in the order in which the appellant had committed the offences.
The appellant was first tried in 2000 for the offending in 1998. He pleaded not guilty relying on the ground of mental incompetence. After a trial before Judge David in the District Court, Judge David made the order on 23 November 2000 declaring that the appellant was mentally incompetent to commit the offences. On 26 February 2004, Judge David, acting pursuant to s 269O of the Criminal Law Consolidation Act, ordered that the appellant was liable to supervision under Part 8A of that Act and fixed a limiting term of five years commencing on 26 February 2004 and further ordered that the appellant be committed to detention. There is no explanation for the delay of more than three years between the declaration of mental incompetence and the making of the orders under s 269O.
The appellant was next tried in 2003 for the charge of armed robbery committed on 20 February 2001. He pleaded not guilty. His defence was that he was mentally incompetent. He admitted the objective elements of the offence. After a trial on the issue of mental incompetence in the District Court, Judge Muecke found that the appellant was mentally competent to commit the crime. He convicted the appellant. On 12 September 2003, he sentenced the appellant to imprisonment for a term of six years with a non-parole period of four years. He further ordered that both sentences commence on 20 February 2001, the date when the appellant was taken into custody. The non-parole period expired on 20 February 2005. However, by that date, the appellant was subject to the limiting term fixed by Judge David.
The appellant was tried by jury before Perry J in 2006 for the sexual offences in 2000 and 2001. He was found guilty. On 1 June 2006 Perry J sentenced him to imprisonment for six years with a non-parole period of four years. He ordered that both sentences commence at the expiry of the period of detention to which the appellant was then subject. The appellant was not then subject to any non-parole period as the non-parole period ordered by Judge Muecke had expired on 20 February 2005. Nevertheless, he had remained in prison because of the overlap between the head sentence ordered by Judge Muecke and the order of detention.
The appellant appealed against the convictions for the sexual offences. The appeal was heard on 20 June 2006. At the hearing, the Court of Criminal Appeal allowed the appeal against the verdict finding the appellant guilty of indecent assault on 31 December 2000 and quashed the conviction. It reserved judgment in respect of the other charges. On 21 June 2006, Perry J revoked the sentence ordered on 1 June 2006 and stood the sentencing over until after the Court of Criminal Appeal had published its decision. On 3 August 2006 the Court of Criminal Appeal dismissed the appeal in relation to the other counts so that the convictions for unlawful sexual intercourse on 11 February 2001 and the two convictions for indecent assault on 11 February 2001 were upheld.
On 5 September 2006 Perry J sentenced the appellant afresh. He ordered that the appellant serve a head sentence of four years six months imprisonment with a non-parole period of three years. He further ordered that both periods commence on the expiry of the period of detention or, if the appellant was released on licence, at the date of that release.
When sentencing the appellant on 5 September 2006, Perry J referred to and adopted the sentencing remarks he had made on 1 June 2006. In those earlier remarks he had said:
The offences are serious. As a friend of the victim’s family, you were in a position of trust towards the victim. You abused that trust. Your repetition of indecent handling of the victim a relatively short time after the incident puts your offending into a serious category.
A primary policy of the criminal law is to protect children from offences of this kind, and I must have paramount consideration to the need for deterrence.
I exercise my power to propose a single penalty with respect to the four counts. I have reduced somewhat the sentence which might otherwise have been imposed by reference to the fact that it is cumulative upon the balance of the period of detention.
On that occasion the judge did not allow for the possibility of an earlier release day as he did in his remarks on 5 September 2006. More importantly, it is clear that he regarded the offending as a serious breach of trust. It is to be noted that he intended that the sentence should be cumulative upon the period of detention. His sentencing remarks show that he knew that the period of detention would not expire until 26 February 2009.
Specifying the Commencement Date
Section 30 of the Criminal Law (Sentencing)Act 1988 (“the Sentencing Act”) requires a court which imposes a sentence for imprisonment to specify the date on which the sentence shall commence. If the court fails to do so, s 30(6) determines the commencement date. Section 30(1) displaces the common law rules as to when a sentence of imprisonment commences. It is intended to confer a general power to specify a day or time for the commencement of a sentence, which may be the date and time when the sentence was imposed or some earlier or later date or time: R v Colson (1999) 73 SASR 407 at [24]. The common law rule and the legislative antecedents of s 30(1) are noted by Doyle CJ in R v Colson at [16] to [23]. It is clear, therefore, that Perry J had power to order that the sentence commence at a time later than 5 September 2006.
It is apparent from the two sets of sentencing remarks of Perry J that he intended that the sentence should be cumulative upon the period of detention. Section 31 of the Sentencing Act authorises the court to order that one sentence be cumulative upon another. It is doubtful whether a limiting term fixed pursuant to s 269O of the Criminal Law Consolidation Act is a sentence of imprisonment as defined in the Sentencing Act. However, it is unnecessary to determine that question in this case given that s 30 of the Sentencing Act invests the court with power to order the sentence to commence later than the date on which it is pronounced.
The Provisions of Part 8A
The next question is whether the terms of Part 8A of the Criminal Law Consolidation Act state any limit upon the power in s 30 to fix a later commencement date.
Section 269P authorises the court, at any time during the limiting term, to vary or revoke a supervision order and, if the order is revoked, to make in substitution for the order any other order that the court might have made in the first instance. It is apparent from s 269Q and from other provisions in Part 8A that the scheme of Part 8A is that there shall be a review, at least once in each year, of the mental health of those who are subject to supervision orders with power in the court to make such fresh orders as are appropriate in the circumstances. The factors to which regard must be had when making these orders are listed in s 269T. The court may make an order releasing the person unconditionally, releasing the person on licence on conditions specified in the licence, or reducing the limiting term. If the person is released on licence but later contravenes a condition of the licence, the court may review the supervision order and confirm it, cancel the release on licence, or amend the conditions of the licence: s 269V. If the person is released on licence and, while on licence, commits an offence and is sentenced to imprisonment for that offence, the supervision order is suspended for the period while that term of imprisonment is served: see s 269VA.
The scheme of Part 8A makes no express provision for the fact that, after a supervision order has been made, a person might be sentenced for other offences or that the person is already subject to a term of imprisonment. If the person who is subject to a term of imprisonment is later the subject of a supervision order for which a limiting term has been fixed, the sentence of imprisonment might affect the capacity of that person to apply to vary or revoke the supervision order. The non-parole period ordered by Judge Muecke on 12 September 2003 was due to expire on 20 February 2005. Judge David made the orders pursuant to s 269O of the Criminal Law Consolidation Act on 26 February 2004. Thus, for the first year of the term of that non-parole period it might not have been possible for the appellant to have applied to vary the terms of the supervision order made by Judge David. It is not necessary to decide this question. Depending on the terms of the order of imprisonment, if after a supervision order has been made and a limiting term has been fixed, the person subject to the limiting term is then sentenced to a period of imprisonment, the sentence of imprisonment might affect the capacity of that person to apply to vary or revoke the supervision order. In this case, the sentence ordered by Perry J did not prevent the appellant from applying to vary or revoke the supervision order because Perry J ordered that the sentence not commence until the expiry of the period of detention, that is to say, the limiting term, or if the appellant was released on licence, at the date of that release. In that way, the order made by Perry J expressly allowed for the possibility of a variation or revocation of the limiting term. Had Perry J ordered that the sentence commence on 5 September 2006, the date when he imposed sentence, there might have been an interesting question whether the order would have prevented any application to vary or revoke the licence. However, the issue was not argued and the resolution of that request is not necessary to determine the only issue on this appeal, namely, whether Perry J had power to fix the commencement date in the way that he did.
It was submitted that there were three alternative dates on which the sentence could commence.
·The first was 5 September 2006, the date of the sentence. On that footing, the non-parole period would end on 5 September 2009, a date some seven months after the limiting term would end on 26 February 2009. The appellant would then have been in custody since 21 February 2001, a period of eight years. The issues relating to that commencement date have been noticed already.
·The second alternative was to commence the sentence on 20 February 2007, the date when the head sentence as ordered by Judge Muecke would have expired. The non-parole period ordered by Perry J would, therefore, expire on 19 February 2010, a little more than 12 months after the expiry of the limiting term. On that footing the total period which the appellant would have been in custody would be nine years.
·The third alternative was to order, as Perry J did, that the sentence commence at the expiry of the limiting term. On that basis, if the appellant is released on parole at the end of the non-parole period, the non-parole period will expire on 25 February 2012, three years after the end of the limiting term. This would result in the appellant serving a total period in custody of 11 years.
It is apparent that each of those three alternatives cuts across, to a greater or lesser extent, the régime established by Part 8A and in particular the orders made under s 269O.
This is an unusual set of circumstances and in all likelihood it will rarely occur again. Given the vagaries and vicissitudes of human experience, it would be imprudent to say that it will not occur again. In all the circumstances, I believe that Perry J was at liberty to adopt the course he did. Where a person has committed a number of offences and has been declared to be mentally incompetent to commit some of those offences but not others, he cannot expect that a sentence will not commence after a period of detention under Part 8A of the Criminal Law Consolidation Act. In other words, the appellant must accept the consequences of his offending. Indeed, that proposition is plainly the rationale for the terms of s 269VA which suspends the operation of a supervision order when a person is sentenced for an offence committed while released on licence. In this particular case, the sentence of imprisonment has been ordered in respect of crimes committed two years after the crimes in respect of which the appellant was declared to be mentally incompetent. Perry J was, therefore, at liberty to order that the sentence commence at the end of the limiting term.
It is necessary to consider also the terms of s 30(3) of the Sentencing Act. It provides:
Where a court imposes a sentence of imprisonment on a defendant who is not present in court, the court must direct that the sentence is to commence –
(a)on the day on which the defendant is taken into custody pursuant to the warrant of commitment issued in respect of the sentence; or
(b)if the defendant is subject to some other sentence of imprisonment – on the completion of that other sentence of imprisonment or at some earlier time fixed by the court.
By its terms, it does not apply to the appellant because he was present in court when Perry J pronounced the sentence. However, it would be anomalous if it did not also apply in the case of a defendant present in court. There does not appear to be any reason why the same principles of sentencing should not apply whether the person sentenced is or is not present in court. As the parties did not refer to s 30(3) or present any argument as to its effect, I prefer not to express a final view on that issue. I assume for the purposes of this appeal that s 30(3) applies to the appellant.
Section 30(3)(b) states the position if the defendant is subject to some other sentence of imprisonment. When sentenced by Perry J, the appellant was subject to the sentence of imprisonment ordered by Judge Muecke. That provides one commencement point. The next question is whether the limiting term of five years detention ordered by Judge David is also a period of imprisonment for the purposes of s 30(3)(b). If it is, it provides the alternative of a later commencement point. Although a limiting term fixed under s 269O of the Criminal Law Consolidation Act is not to be regarded as punishment: R v Davey (2006) 95 SASR 63, that proposition does not necessarily mean that an order pursuant to s 269O committing a defendant to detention under Part 8A of the Criminal Law Consolidation Act for the period of a limiting term should not be regarded as a term of imprisonment for the purposes of s 30(3)(b). Section 269O provides for alternative forms of order. If a supervision order is made, the defendant is subject to an order either committing him to detention or releasing him on licence. Both orders operate for the period of the limiting term subject to any later variation or revocation of the order pursuant to s 269P of the Criminal Law Consolidation Act. The common feature of both a sentence of imprisonment and a detention order is the deprivation of liberty in an institution, where, as Oscar Wilde said, “the wall is strong”. Both “detention” and “imprisonment” denote keeping a person confined in custody. The fact that the court could pursuant to s 269P vary or revoke an order committing a defendant to detention does not affect the matter since the defendant remains in custody until the order is varied or revoked. Should s 30(3) be relevant, it does not require any different conclusion. Perry J ordered that the sentence commence at the expiry of the period of detention. His order will operate whenever that period determines. The terms of s 30(3) do not invalidate the order made by Perry J.
The fact that Perry J did not fix a specified date does not affect the validity of the commencement date. Section 30(6) of the Sentencing Act fixes commencement dates by reference to events. There is no reason why a court should not also be at liberty to adopt the same practice.
Manifestly Excessive?
The remaining issue is whether the sentence was manifestly excessive. The sentence was well within the proper exercise of the sentencing discretion for sexual offending of this kind and counsel for the appellant did not challenge the sentence on that ground. Instead, it was contended that, if regard was had to the totality principle, the total period spent in custody, be it pursuant to a period of imprisonment or a limiting term, was unduly harsh for all of the appellant’s offending.
As noted earlier, while a period of detention ordered as a part of a supervision order is not punishment: R v Davey, it is nevertheless a period in custody. It is appropriate, therefore, to have regard to a period of detention when determining whether the totality of a period of detention and other sentences of imprisonment results in a sentence which is crushing. The effect of the orders of Perry J is the appellant will remain in custody for a period of 11 years. As Perry J said, the offending is serious and must be viewed against the fact that the appellant has a record of other offending. While his record is not unduly long, it is relatively substantial and includes a sentence of six years for five counts of fraudulent conversion in 1994 and a sentence of three years imprisonment for robbery with violence. Furthermore, when he sentenced the appellant, Judge David made the period of detention concurrent with the final year of the non-parole period ordered by Judge Muecke. All of the offending the subject of the three sentences is serious. It occurred on quite separate occasions. Perry J took the view that the sexual offences were sufficiently serious to warrant any sentence being cumulative. The offending constituted a serious breach of trust. Although the total period that the appellant will be in custody is long, I do not believe that it is so long that it is manifestly excessive.
For these reasons I would dismiss the appeal.
LAYTON J.
I have had the opportunity of reading the helpful draft reasons for decision of Debelle J. Whilst I agree with the conclusion, I respectfully differ with three important aspects of his Honour’s reasons. The unusual factual background and circumstances are set out in his Honour’s reasons and there is no need to repeat them.
The first important aspect on which I differ is in relation to his Honour’s interpretation of Part 8A of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). In his Honour’s view, if after a supervision order has been made and a limiting term has been fixed, the person is then sentenced to a period of imprisonment, that sentence of imprisonment could affect the capacity of the person to apply to vary or revoke the supervision order. In my opinion this interpretation does not take into account the two spheres of operation within the criminal justice system in respect of persons charged with criminal offences. The first being statutory provisions enabling the court to punish persons found guilty of crimes by imposing sentences pursuant to the Criminal Law Sentencing Act 1988 (SA) (‘the Sentencing Act’). The second being statutory provisions for court orders made in respect of persons who are either unfit to plead or not criminally responsible for acts, by reason of mental impairment, pursuant to Part 8A CLCA. These two spheres of operation are mostly separate, but there are occasions where they intersect or interrelate, such as in the setting of the limiting term under s 290O(2) CLCA.
Unlike the purpose for sentencing for a crime, Part 8A of the CLCA is not concerned with punishment, but instead reflects “a humane regime for the treatment of the mentally impaired”.[1] The regime enables a court to either release a defendant unconditionally, or make a supervision order which must include a limiting term: (s 269O(1)(2)).
[1] R v Davey (2006) 95 SASR 63 at 74 [51].
In fixing the conditions of a limiting term, the court is required to have regard to matters set out in s 269T CLCA. As indicated in that section, the court must have regard to the nature of the mental impairment; whether the defendant is likely to endanger another person or other persons generally; the adequacy of resources available for treatment and support; and whether the defendant is likely to comply with the conditions of a licence.
Section 269S CLCA importantly sets out the principles on which the court is required to act and it provides:
In deciding whether to release a defendant under this Division, or the conditions of a licence, the Court must apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 269P CLCA enables an application to be made by a defendant or other named persons to vary or revoke a supervision order. The power to revoke an order also enables the court to substitute in its place any order that the court might have made under this Division in the first place. This refers to the powers in s 269O CLCA, which enables the court to impose an unconditional release or alternatively a supervision order, which may include either detention or release on licence.
The principles relevant to an application to revoke an order for detention and to instead release on licence were discussed in R v Weiss (2001) 214 LSJS 364, which applied R v Tzeegankoff (1998) SASC 6639. In the latter case Bleby J stated:
The only justification for a person being detained after a finding of not guilty on the ground of insanity is for the protection of himself and of the community – to ensure that the disease of the mind from which he suffers cannot adversely affect others.
…
It must be clearly understood that a person who has been the subject to a detention order … is entitled to enjoy a regime that is the least restrictive of his freedom and personal autonomy as is consistent with the safety of the community. That relaxation is not dependant upon his having served an appropriate period of “punishment”. That is not just a relevant consideration.
In R v Weiss, Gray J expressed the view that although the principles referred to in R v Tzeegankoff concerned the previous statutory regime, they were nonetheless apposite to the current statutory scheme.
In considering the way in which the two separate regimes may intersect, an example is contained within s 269VA CLCA. This section specifically provides for the effect of supervening imprisonment, where a person who has already been released on licence then commits an offence whilst on licence. This section provides for the supervision order to be suspended for the duration of the imprisonment. Thereafter, when determining the term of the supervision order, the period of suspension is not be taken into account. There are no provisions which specifically address the effect of a supervening sentence of imprisonment for a crime committed before a supervision order is made, or a supervening sentence of imprisonment imposed prior to being released on licence.
In the absence of a special provision, the principle which I consider should apply is that the separate operation of the two regimes should appropriately be taken into account. In particular I note that the period of detention under Part 8 has nothing to do with punishment but is instead concerned with the safety of the community, and the treatment and safety of the defendant.
In the circumstances of this case, the position which existed at the time of sentencing by Perry J was two-fold. First, a sentence of imprisonment had been imposed on 20 February 2001 with the head sentence to finish on 20 February 2007, the non-parole period having expired on 20 February 2005. The second was a supervening supervisory order with a limiting term of five years imposed by Judge David (as he then was) which, absent release on licence, required detention until 26 February 2009.
The order and reasons made by Perry J expressly recognised that the limiting period was not due to expire until 26 February 2009. They also expressly recognised that there could be an earlier release of the appellant on licence prior to that date.
This recognition can also be seen in the discussions which occurred during submissions.
His Honour commenced by indicating what he proposed to do:
I propose to set a sentence to commence at the expiration of the limiting term or early release on licence (T83) –
Thereafter it was submitted by counsel for the prisoner:
MR NIARCHOS: Setting a sentence which would commence on the expiration of the limiting term would be harsh and would be contrary to principle given that the limiting term concerns issues of mental health and supervision under the terms of the order made by Judge David. Your Honour could set a term to commence either now or on the expiration of the term set by Judge Muecke or a new non-parole period and allow the limiting term to be dealt with under the appropriate –
HIS HONOUR: The new non-parole period would not be worth anything unless it starts to operate after the period of detention he is serving at the moment. It would be a swipe in the air. He can’t be released on parole while he still has to serve out the detention he has.
MR NIARCHOS: That is the detention imposed by Judge Muecke?
HIS HONOUR: Yes.
MR NIARCHOS: That is so. That is an actual term.
HIS HONOUR: If he got, for example, 402, the non-parole period would be a nonsense because he has to be kept in custody during the detention period unless he is released on licence.
It can be seen from the above that the concern of his Honour was to ensure that the new sentence would commence at a time after the expiration of the head sentence set by Judge Muecke and after the period detention, but at the same time to take into account that the period of detention may come to an end prior to the limiting term. Hence his Honour’s specific order that the sentence commence at the expiration of the limiting period or on earlier release on licence.
His Honour’s approach was endorsed by counsel for the Crown, who submitted –
What your Honour contemplates would not act as an absolute impediment to this man applying for release on licence as a result of Judge David’s orders. Indeed, it would be obvious to any court considering release on licence that your Honour contemplated the possible release at the end of that detention or any release on licence, whichever is earlier, so no subsequent court would see your Honour suggesting there is an absolute impediment to him being released on licence in the future.
Therefore, not only the Judge but also both counsel were operating on the understanding that the form of the sentence imposed would not operate so as to prevent the appellant applying for a variation or revocation of the supervisory order if it was no longer appropriate
In my view, there is no impediment under s 269P CLCA, or by reason of any other section in Part 8A, to prevent such an application. The application would need to be appropriately assessed having regard to the matters in s 269T CLCA. A court would then assess whether the detention order should be revoked having regard to the principle relating to freedom and personal autonomy, and to release on licence with restrictions being kept to a minimum consistent with the safety to the community. The fact that a term of imprisonment would immediately be triggered by a release from detention, would not of itself prevent an applicant being able to apply for and obtain a revocation of an order for detention under Part 8.
In this case there is nothing wrong either in principle or in practice, with a revocation of the order for detention and release of the appellant on licence to enable him to commence his period of imprisonment. His rights in this respect should be no lesser than other member of the community. I also consider that the principle would still apply if Perry J had ordered the sentence of imprisonment to commence on 5 September 2006, being the date his Honour imposed the sentence.
In my respectful opinion, the interpretation of Debelle J appears to suggest that a sentence of imprisonment of itself would inhibit an applicant from applying for and obtaining a variation or revocation of a supervision order or for release from detention on licence on such terms as may be ordered by a court. Such an interpretation would have prevented the appellant in this case from applying for an order for release if Perry J had not expressly allowed for an earlier release on licence. Further, such reasoning would mean that an applicant would be obliged to remain the subject of a detention order, even though revocation or variation of the order and release on licence was otherwise appropriate under Part 8A.
Such an interpretation would not only inhibit the liberties of an applicant but it would not be in the best interests of the community to have a person continue to be the subject of a detention order or detained in a centre with the associated costs, when it is no longer warranted or appropriate. I do not consider that the provisions of s 269P CLCA should be interpreted in such a limited way.
My second difference with the reasoning of Debelle J, relates to his Honour’s conclusions that an order pursuant to s 269O CLCA committing a defendant to detention under Part 8A for the period of a limiting term, should be regarded as a “term of imprisonment” for the purposes of s 30(3)(b). The reasoning of his Honour is that s 269O simply provides for an alternative form of custodial order.
His Honour also notes that both s 30 of the Sentencing Act and s 269O CLCA have a common feature of deprivation of liberty in an institution, and that both “detention” and “imprisonment” denote keeping a person confined in custody. Clearly this is true, however it is the principle underlying the two systems of confinement in custody which concerns me. They are different in their purpose, conditions, and the circumstances leading to release.
Section 30 of the Sentencing Act, including sub-section (3), is concerned with the commencement of sentences and non-parole periods. Section 30(3) is primarily concerned with what I would characterise as a “default position”, which is largely for the protection of the absent defendant. In the absence of the defendant, the court is required as a minimum, to commence the sentence from the day on which the defendant was taken into custody, or if the defendant was already the subject of some other sentence of imprisonment, to a date no later than the completion of that sentence of imprisonment. The section has nothing to say about the operation of detention under Part 8A of the CLCA. I do not consider that the ordinary meaning of the words should be strained to include matters not relevant to imprisonment which are the subject of a different regime and approach.
This brings me to a third matter, namely whether the learned sentencing Judge has ordered “the date” on which the sentence is to commence, or whether it is to be taken as having commenced as required by s 30(1) of the Sentencing Act. This section provides:
Where a court imposes a sentence of imprisonment and does not suspend the sentence, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced. (emphasis added)
Further, s 30(6 )(c) of the Sentencing Act provides:
If, on imposing a sentence of imprisonment, the court fails to specify the date on which or the time at which the sentence is to commence or is to be taken to have commenced, the sentence—
…
(c) will, in the case of a defendant in custody for some other offence, commence on the day on which the sentence is imposed, unless the sentence is to be served cumulatively pursuant to this Act or any other Act.
In this case, his Honour expressed alternative dates for commencement of the sentence, and the applicable one was to be whichever date was the earlier. In my view, s 30(1) enables only one date to be set, otherwise it would bring about uncertainty
In considering whether the form of the order as expressed by Perry J complied with s 30(1), I note that the requirement to specify “the date” does not require a calendar date to be set. This is demonstrated by s 30(6) which provides examples of a date such as “the day on which the defendant is subsequently taken into custody” (s 30(6)(a)) or “the day on which the sentence is imposed” (s 30(6)(c)). Although the order made by Perry J appears to be expressed in the alternative, the event which his Honour considered to be the appropriate date for the commencement of the sentence, was the date on which the appellant was released from detention. The release from detention could either be at the end of the limiting period or on any earlier release on licence. Therefore although the form of the sentence on its face suggests more than one commencement date, in practical effect there was only one date, namely the day on which the appellant is released from detention.
I therefore do not consider that the sentence of imprisonment failed to comply with s 30(1).
I do not consider that the sentence of imprisonment as ordered by Perry J is manifestly excessive and I agree with the underlying reasoning of Debelle J on that point.
For these reasons I would dismiss the appeal.
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