R v Griggs

[2006] ACTCA 3

THE QUEEN v JAMIE GRIGGS [2006]
ACTCA 3 (14 February 2006)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 33- 2005
No. SCC 155 of 2004
Judges:        Crispin P, Gray and Lander JJ  
Court of Appeal of the Australian Capital Territory
Date:           14 February 2006

IN THE SUPREME COURT OF THE     )          No. ACTCA 33 - 2005
  )          No. SCC 155 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:JAMIE GRIGGS     

Respondent

ORDER

Judges:  Crispin P, Gray and Lander JJ
Date:  14 February 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal against Higgins CJ’s decision rejecting the plea of guilty to an offence of breaching a protection order contrary to section 34 of the Protection Orders Act 2001 (ACT) be upheld;

2. by consent, the charge be amended by deleting the words, “who had been personally served with a copy of the protection order”;

3. the respondent be convicted of the offence of breaching the protection order;

4. the respondent be sentenced to the rising of the Court.

IN THE SUPREME COURT OF THE     )          No. ACTCA 33- 2005
  )          No. SCC 155 of 2004 
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:JAMIE GRIGGS

Respondent

Judges:  Crispin P, Gray and Lander JJ
Date:  14 February 2006
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. This is a Crown appeal against orders made by the Chief Justice on 29 June 2005. His Honour, in effect, made three orders.

1. First, his Honour rejected a plea of guilty entered by the respondent to a charge of contravening a protection order contrary to section 34 of the Protection Orders Act 2001 (ACT). 

1. Second, his Honour ordered that that charge be dismissed. 

1. Third, his Honour ordered that a charge of breaching an earlier recognizance also be dismissed. 

1. During the course of the proceedings, Mr Refshauge SC, the Director of Public Prosecutions, indicated that he wished to withdraw the appeal against the third of these orders, so I will say nothing more about it. 

1. So far as the appeal against the first order is concerned, it seems clear that there was some confusion on the part of counsel, the nature of which need not be presently described, and that as a consequence his Honour was misled.  The appeal against that order has now been conceded by Mr Doig, who appears of behalf of the appellant.

1. The appeal on that point having been conceded, it seems to be inevitable that the order dismissing the charge must also be upheld.

1. Mr Doig has indicated that the respondent adheres to his earlier plea of guilty to that charge and it is now appropriate for the respondent to be sentenced in relation to it. 

1. The approach that should now be taken in sentencing the respondent is complicated by the manner in which the proceedings before his Honour were conducted, and there has been some debate between counsel concerning this issue.

1. At the time the matter came before the Chief Justice, the appellant was also charged with an offence of assault. Mr Doig, who then, as now, appeared for the respondent, submitted that irrespective of any finding in respect of the charge of breach of the protection order, the penalty imposed upon the respondent should be one that permitted him to continue with the process of rehabilitation upon which he had apparently embarked.  Mr Doig adopted a suggestion that his Honour had made in the course of argument to the effect that it may be appropriate to impose a sentence of 3 months’ imprisonment but to order that it be wholly suspended.  His Honour confirmed that he had a tentative view that this course would be appropriate but, quite properly, indicated that he needed to hear from the learned Crown prosecutor in relation to that proposition.

1. The learned Crown prosecutor then said, and I quote; “Your Honour, I have no submission, nor any difficulty with what’s been put by Mr Doig in relation to Mr Griggs, that is that if your Honour is of a mind to complete the matter today then, even with the breach of the domestic violence order, if we could ultimately find the affidavit of service my submissions wouldn’t be any different”.

1. These comments were made in the context of a query from his Honour as to whether the protection order had ever been properly served upon the respondent, and an indication from the Crown that no evidence to that effect was on the file.  It subsequently transpired that an affidavit of service was in the possession of the Crown, and the affidavit was mentioned in subsequent proceedings before his Honour on 28 April 2005.  However, the matter was adjourned from that date until 29 June 2005 and, when his Honour again raised the question of whether the order had been properly served, the Crown prosecutor who appeared on that occasion indicated that it did not appear from the file that there was any valid affidavit of service.  His Honour then proceeded to reject the plea.

1. We are now required to sentence the respondent some 16 months after the proceedings involving the assault charge were finalised.  It is, I think, clear from the remarks made by his Honour at the time, and indeed from the submissions of counsel for both parties, that had his Honour proceeded to sentence the respondent for both offences at that time, his Honour would have entered a conviction in respect of the offence of contravention of a protection order, but released the respondent upon him entering into a recognisance to run contemporaneously with the recognisance relating to the offence of assault.

1. The only question is whether a different course should now be taken having regard to subsequent events. 

1. I note from the respondent’s chronology that the he failed to appear before the Court as required on 20 May 2005, and that a Bench warrant was issued for his arrest. Further proceedings were also instituted against him subsequently in relation to some other offences involving assault and damage to property.   Mr Refshauge does not contend that a custodial sentence should now be imposed in respect of the offence of breaching the protection order, but submits that the respondent should be required to enter into a further recognisance now for some substantial period. 

1. On the other hand, Mr Doig argues that we should adopt a course that, in effect, reinstates the position that would have occurred had the respondent been dealt with by the Chief Justice in October 2004, and points out that, in that event, any recognisance relating to this offence would already have expired. 

1. Whilst I have carefully considered the submissions of the Director in relation to this matter, it seems to me that, having regard to principles of “double jeopardy”, the Court should not impose a sentence effectively more severe than that which the Crown accepted would have been appropriate had he been sentenced on the earlier occasion. 

1. For this reason I would uphold the appeal against the decisions rejecting the plea and dismissing the charge, proceed to sentence the prisoner, but order that he be sentenced to the rising of the court.

1. I should note that this opinion should not be taken to reflect any view that an offence of this nature is by any means trivial or that, but for the quite extraordinary circumstances of this case, such a penalty would have been accepted as appropriate.  The approach I have taken reflects only my view that it is necessary to reinstate the position that would have occurred had his Honour not been misled and proceeded to sentence the respondent in the manner that both parties then accepted would have been appropriate. 

1. The Respondent will, of course, be convicted of the offence.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

Associate:

Date:     3 March 2006

IN THE SUPREME COURT OF THE     )          No. ACTCA 33- 2005
  )          No. SCC 155 of 2004
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:JAMIE GRIGGS

Respondent

Judges:  Crispin P, Gray and Lander JJ
Date:  14 February 2006
Place:  Canberra

REASONS FOR JUDGMENT

GRAY J:

1. I accept that in the circumstance outlined by the President that a conviction for a breach of the protection order is the appropriate result. 

1. To sentence Mr Griggs to the rising of the court is not a sentence that should be regarded as anything other than a response to the extraordinary circumstances that surround the proceedings in relation to this offence.  And I would wish it to be clearly understood that the sentence is based on the circumstances which are special to this particular matter.  I concur in the order proposed by the President. 

I certify that the preceding paragraphs numbered twenty-one (21) and twenty-two (22) are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date:    3 March 2006

IN THE SUPREME COURT OF THE     )          No. ACTCA 33- 2005
  )          No. SCC 155 of 2004 
AUSTRALIAN CAPITAL TERRITORY )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:JAMIE GRIGGS

Respondent

Judges:  Crispin P, Gray and Lander JJ
Date:  14 February 2006
Place:  Canberra

REASONS FOR JUDGMENT

LANDER J:

1. The respondent pleaded guilty to contravening a protection order and was committed to the Supreme Court of the Australian Capital Territory for sentence under s 90A of the Magistrate’s Court Act 1930 (ACT).   As the President has described during the course of sentencing submissions to the sentencing judge, a confusion arose as to whether or not s 34 of the Protection Orders Act 2001 (ACT) applied to the respondent.  Section 34 only applies in the circumstances mentioned in s 34(1) of the Protection Orders Act.  Therefore, it would only have applied to the respondent if he were present when the protection order was made or had been personally served with a copy of the protection order.  As it happens, the respondent was personally present when an amended protection order was made, which was the protection order relied upon by the prosecution for the charge which was brought against the respondent and to which the respondent pleaded guilty.  There was no dispute that the respondent had contravened the protection order but, because of a confusion at the Bar table, the sentencing judge was led into error and as a result, rejected the respondent’s plea of guilty and dismissed the charge. 

1. In fact the respondent’s plea of guilty should not have been rejected and should have been allowed to stand.  If it had been allowed to stand, the respondent would have been dealt with at a far earlier stage than now. 

1. As the President has pointed out, the appellant’s claim that the order of the sentencing judge rejecting the plea of guilty of the contravention of the protection order and dismissing the charge has to be allowed.  As a result of allowing the appeal on that ground it is necessary that the respondent be sentenced in relation to his admitted contravention of the protection order.  Ordinarily that would give rise to the imposition of a conviction and a penalty which reflects the seriousness of the offence.

1. There can be no doubt that this court should impose a conviction for the reasons given by the President and Gray J.  The question is how to deal with the sentence which is appropriately fair to a respondent who is now faced with a sentence significantly after the event. 

1. In the end result I am persuaded by the President that the sentence should be as he has suggested.  Ordinarily I think a sentence of imprisonment might not be appropriate in the circumstances of a case such as this.  However, this is a special case and should not be relied upon by anyone as any sort of precedent for future cases for contraventions of the Protection Orders Act.  For those reasons, I join in on the suggested penalty.

   I certify that the preceding paragraphs numbered twenty-three (23) to twenty-seven (27) are a true copy of the Reasons for Judgment herein of his Honour, Justice Lander.

   Associate:

   Date:    3 March 2006

Counsel for the Appellant:  Mr R Refshauge SC

Solicitor for the Appellant:  ACT Director of Public Prosecutions

Counsel for the Respondent:  Mr A Doig

Solicitor for the Respondent:  Mr D Perkins

Date of hearing:  14 February 2006

Date of judgment:  14 February 2006