R v Grundy
[2021] SASCA 4
•3 March 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v GRUNDY
[2021] SASCA 4
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
3 March 2021
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION
Crown application for permission to appeal against sentence.
The respondent (Mr Grundy) was found guilty of one count of possessing a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA). As the offence involved a category H firearm, it carried a maximum penalty of $35,000 or imprisonment for seven years, and satisfied the definition of a “serious firearm offence”.
The respondent was sentenced to a term of imprisonment of nine months (reduced from 15 months to reflect time spent in custody and on home detention bail). The sentencing Judge found the respondent to be a suitable candidate for a home detention order, and ordered that the respondent serve his period of imprisonment on home detention pursuant to the discretionary power in s 71 of the Sentencing Act.
The issue sought to be raised by the Director in his proposed appeal is the availability of an order under s 71 that a sentence of imprisonment in respect of a serious firearm offence be served on home detention. Section 70(1)(b)(ii)(D) of the Sentencing Act precludes home detention for a defendant who is being sentenced for an offence in respect of which an Act “expressly prohibits the reduction, mitigation and substitute of penalties for that offence”. The Director contends that the provision in s 51(1)(c) to the effect that the general statutory power under s 25 to reduce, mitigate or substitute penalties does not apply when sentencing serious firearm offenders for serious firearm offences, is sufficient to engage s 70(1)(b)(ii)(D) and hence preclude the availability of a home detention order.
Held, per Doyle JA (Kelly P and Bleby JA agreeing), dismissing the application for permission to appeal:
1. The disapplication of s 25 of the Sentencing Act by s 51(1)(c) merely prevents the utilisation of the general power to reduce, mitigate or substitute, and is not an express prohibition against the reduction, mitigation or substitution of penalties or sentences. As such, the disqualification of s 25 by s 51(1)(c) does not trigger the preclusionary effect of s 70(1)(b)(ii)(D), and leaves open and available the court’s discretionary power under s 71 to make a home detention order.
Sentencing Act 2017 (SA) ss 25, 49, 50, 51, 69, 70, 71, 79, 81, 96; Firearms Act 2015 (SA) ss 9(1), 9(4); Criminal Law (Sentencing) Act 1988 (SA) s 18; Criminal Law Consolidation Act 1935 (SA) ss 13, 19A, 19AB, 19AC, 19AD, 29, 86A; Road Traffic Act 1961 (SA) ss 43, 45, 47, 47B, 47BA, 47E, 47EAA, 47I, referred to.
R v Dell (2016) 126 SASR 571; Police v Berzins (2011) 111 SASR 319 ; R v Selleck (2000) 78 SASR 194 ; R v A2; R v Magennis; R v Vaziri (2019) 93 ALJR 1106 , considered.
R v GRUNDY
[2021] SASCA 4
Court of Appeal: Kelly P, Doyle and Bleby JJA
KELLY P: I agree.
DOYLE JA: This is an application by the Director of Public Prosecutions for permission to appeal against the sentence imposed upon the respondent.
The issue raised by the proposed appeal is whether the sentencing Judge erred in ordering that the respondent’s sentence of imprisonment in respect of a serious firearm offence be served on home detention pursuant to s 71 of the Sentencing Act 2017 (SA); and in particular, whether s 70(1)(b)(ii)(D) of that Act precluded the imposition of a home detention order for such an offence.
Background
Following a trial before judge and jury, the respondent was found guilty of one count of possession of a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA). As the offence involved a category H firearm, it carried a maximum penalty of $35,000 or imprisonment for seven years.[1]
[1] Firearms Act 2015 (SA), s 9(4)(b).
The respondent was sentenced to a term of imprisonment of nine months (reduced from 15 months to reflect time spent in custody and on home detention bail). As the period of imprisonment was less than 12 months, the sentencing Judge was precluded from fixing a non-parole period.
The respondent did not ask the sentencing Judge to consider suspending the sentence of imprisonment. Rather, he invited his Honour to exercise the Court’s discretion under s 71 of the Sentencing Act to order that the sentence of imprisonment be served by way of home detention.
The prosecution did not advance a submission that the Court had no power to impose a home detention order when sentencing for a serious firearms offence. Instead, the prosecution submission was that the respondent was not a suitable candidate for home detention.
The factual basis upon which the respondent fell to be sentenced was summarised by the sentencing Judge in the following terms:
On 3 January 2019, police attended at an address at Paralowie. They observed a silver Subaru pull into the driveway and then stop in the driveway. You were the driver and only occupant of that vehicle. The police conducted a search of that vehicle. On that search they located a green and grey style backpack that was on the front passenger seat. In that backpack the imitation self-loading pistol was located. As the driver of the vehicle, you were the person in charge of the vehicle and therefore in possession of the vehicle for the purposes of s 6(2) of the Firearms Act. I accept the submission from your counsel that you did not have any intention to use the imitation gun.
In addition to accepting the submission of the respondent’s counsel to the effect that the respondent did not intend to use the imitation gun, the sentencing Judge also accepted that he was not able to find beyond reasonable doubt that the respondent had knowledge of the presence of the firearm found in the Subaru vehicle that he was driving.
The sentencing Judge found that the respondent’s possession of the firearm satisfied the definition of a “serious firearm offence” for the purposes of s 49 of the Sentencing Act on two bases: first, that the offence involved the carriage of a category H firearm; and secondly, that the commission of the offence occurred whilst the respondent was on bail.
The sentencing Judge summarised the respondent’s personal circumstances. These included that he was a 37 year old man of Aboriginal heritage. He had three children, none of whom were residing with him. He had several antecedents, which included various violence, driving and dishonesty offences. He had also been convicted in February 2017 of the offence of failing to store ammunition separately from a firearm, but was discharged without penalty. He had returned two positive drug tests for methamphetamine whilst on home detention bail.
The sentencing Judge found the respondent to be a suitable candidate to serve his period of imprisonment on home detention, concluding that such an order would not pose any risk to the community given the respondent was not at risk of re-offending whilst on home detention; would not affect the public confidence in the administration of justice; and would give effect to the primary and secondary purposes of sentencing in all the circumstances of the case. Applying the approach in R v Dell,[2] his Honour ordered that the respondent serve his sentence of nine months imprisonment on home detention.
[2] R v Dell (2016) 126 SASR 571 at [45]-[51].
The issue for determination
The only issue sought to be raised by the Director in his proposed appeal is the availability of an order under s 71 of the Sentencing Act that a sentence of imprisonment in respect of a serious firearms offence be served on home detention and, in particular, whether s 70(1)(b)(ii)(D) of that Act precludes the imposition of a home detention order for such an offence. The Director contends that a home detention order was precluded in the present case.
Determination of the issue raised by this application turns upon the construction of ss 25, 51 and 70 of the Sentencing Act. It is thus convenient to commence by setting out the terms of those sections.
The relevant provisions of the Sentencing Act
25—Court may reduce, add or substitute certain penalties
(1) Subject to this Act or any other Act that prohibits the substitution or mitigation of a penalty prescribed under the Act, if, on convicting a defendant or finding a defendant guilty of an offence and after having regard to—
(a)the character, antecedents, age, or physical or mental condition, of the defendant; or
(b) the fact that the offence was trifling; or
(c) any other extenuating circumstances,
the court thinks that good reason exists for reducing the penalty below the minimum, the court may so reduce the penalty.
(2) Subject to this Act or any other Act that prohibits the substitution or mitigation of a penalty prescribed under the Act, if, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided for the offence under the Act, the court may—
(a)impose another type of sentence for the sentence prescribed under the Act for the offence; or
(b)impose more than 1 type of sentence as the court thinks appropriate in the circumstances.
(3) For the purposes of subsection (2)—
(a)if the Act prescribes a sentence of imprisonment only for the offence, the court may instead impose—
(i)a sentence of imprisonment (including a community based custodial sentence or a suspended sentence); or
(ii) a fine; or
(iii) a sentence of community service; or
(iv) both a fine and a sentence of community service; or
(b)if the Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose—
(i)a sentence of imprisonment (including a community based custodial sentence or a suspended sentence) only; or
(ii) a fine only; or
(iii) a sentence of community service; or
(iv) both a fine and a sentence of community service; or
(c)if the Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose—
(i) a sentence of community service; or
(ii) both a fine and a sentence of community service; or
(d)if the Act prescribes a fine only for the offence, the court may instead impose a sentence of community service.
(4) In this section—
Act includes a statutory instrument;
community based custodial sentence means—
(a) a sentence on home detention under a home detention order; or
(b)a sentence to be served in the community while subject to intensive correction under an intensive correction order;
suspended sentence means a sentence of imprisonment that is suspended on condition that the defendant enter into a bond under Part 4 Division 2.
51—Sentence of imprisonment not to be suspended
(1) Subject to subsection (2), but despite any other provision of this Act or any other Act or law, the following provisions apply in relation to the sentencing of a person who is a serious firearm offender for a serious firearm offence (including where the offence is the serious firearm offence that resulted in the person being a serious firearm offender):
(a)if the maximum penalty for the serious firearm offence includes a period of imprisonment—a sentence of imprisonment must be imposed on the person;
(b) the sentence of imprisonment cannot be suspended;
(c) section 25 does not apply in respect of the sentencing of the person.
(2) A court sentencing a person who is a serious firearm offender for a serious firearm offence may declare that subsection (1)(b) does not apply to the person if the person satisfies the court, by evidence given on oath, that—
(a)the person's personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (whether as individuals or in general) and personal and general deterrence; and
(b) it is, in all the circumstances, appropriate to suspend the sentence.
70—Home detention not available for certain offences
(1) The powers vested in a court by this Subdivision—
(a)are exercisable despite the fact that an Act prescribes a minimum penalty; but
(b) are not exercisable in relation to—
(i)a defendant who is serving or is liable to serve a sentence of indeterminate duration and who has not had a non‑parole period fixed; or
(ii) a defendant who is being sentenced for—
(A) an offence of murder; or
(B) treason; or
(C) an offence involving a terrorist act; or
(D)any other offence in respect of which an Act expressly prohibits the reduction, mitigation or substitution of penalties or sentences.
(2) In this section—
Act includes a statutory instrument;
terrorist act has the same meaning as in Part 5.3 of the Criminal Code of the Commonwealth.
(3) For the purposes of this Division, a reference to an offence of murder includes—
(a) an offence of conspiracy to murder; and
(b)an offence of aiding, abetting, counselling or procuring the commission of murder.
I mention also s 71 of the Sentencing Act, being the section which governs the exercise of the court’s discretion to make a home detention order, assuming its exercise has not been precluded by the terms of s 70(1).
The applicant’s contentions as to the unavailability of home detention
The Director summarised his contentions as to the proper construction of these provisions of the Sentencing Act in terms of the following propositions:
1.s 70(1)(b)(ii)(D) precludes home detention for a defendant who is being sentenced for an offence in respect of which an Act “expressly prohibits the reduction, mitigation and substitution of penalties for that offence”;
2.s 25 provides the court with a general statutory power to reduce, mitigate or substitute penalties subject to the operation of any statutory prohibition;
3.s 51(1)(a) mandates imprisonment for a serious firearm offence where the maximum penalty includes a period of imprisonment;
4.s 51(1)(c) states that “section 25 does not apply in respect of the sentencing of the person” in such circumstances;
5.the terms of s 51(1)(c) amount to an express prohibition on the reduction, mitigation and substitution of penalties for a serious firearm offence; and
6.serious firearms offences are accordingly excluded from the application of s 25.
The Director contends that it follows from these propositions that s 70(1)(b)(ii)(D) of the Sentencing Act operates to preclude the court making a home detention order in respect of a serious firearm offence.
I accept, and regard as uncontroversial, propositions 1 to 4 of the Director’s argument. However, for the reasons I shall develop, I do not accept proposition 5. While s 51(1)(c), by its express terms, disapplies the s 25 general statutory power to reduce, add or substitute penalties, I do not accept that this amounts to a provision that “expressly prohibits the reduction, mitigation or substitution of penalties or sentences” (which is the criterion for the preclusion under s 70(1)(b)(ii)(D) of the court’s power to make a home detention order). In my view, the disapplication of s 25 merely prevents the utilisation of that general power to reduce, mitigate or substitute; it is not an express prohibition against the reduction, mitigation or substitution of penalties or sentences. As such, the disapplication of s 25 by s 51(1)(c) does not trigger the preclusionary effect of s 70(1)(b)(ii)(D). It leaves open and available the court’s discretionary power under s 71 to make a home detention order, assuming there is otherwise a proper basis for a favourable exercise of the discretion to make such an order.
Analysis
A convenient place to commence an analysis of the issue of statutory construction presented by the Director’s proposed appeal is with reference to s 25 of the Sentencing Act.
The general power to reduce, add or substitute penalties under s 25
Section 25 of the Sentencing Act is the equivalent of what was s 18 of the Criminal Law (Sentencing) Act 1988 (SA). Section 25, like its predecessor, provides the courts with a general statutory power to reduce a penalty below the minimum prescribed by the offence provision (s 25(1)), or to depart from the penalty provided for in the offence provision by substituting or adding another type of sentence (s 25(2)). The courts’ general statutory power to reduce a penalty under s 25(1) is conditioned upon satisfaction, having regard to the matters set out in subsections (a), (b) or (c), that “good reason” exists for doing so. The court’s general statutory power to substitute or add another type of penalty under s 25(2) is also conditioned upon satisfaction that “good reason” exists for doing so.
The court’s power to reduce, substitute or add penalties under the predecessor to s 25 was described by Gray J (with David and Stanley JJ agreeing) in Police v Berzins[3] as a provision that conferred the court with jurisdiction to utilise various sentencing options, with the intention that the court have a range of sentencing options available to it, and a mechanism to afford leniency in appropriate cases. This view of the section is consistent with the references in the earlier decision of the Court in R v Selleck[4] to the section facilitating the availability of community service as a sentencing option, and empowering the courts to substitute or add penalties in appropriate cases.
[3] Police v Berzins (2011) 111 SASR 319 at [35]-[36].
[4] R v Selleck (2000) 78 SASR 194 at [21], [30] (Olsson J), and [122] (Gray J).
Returning to Police v Berzins, Gray J explained:[5]
The correct interpretation of s 18(a) is one that is consistent with the objects and purposes of the Sentencing Act.[6] The section is intended to be beneficial in its operation. The enactment of s 18(a) provides a court with sentencing options. The purpose of the section is to provide a court with sentencing options that can be imposed to substitute more suitable penalties for those prescribed in a special Act, when the circumstances of the case warrant such substitution.
As a general statement, s 18(a) of the Sentencing Act is available to a sentencing judge to impose an appropriate penalty in a particular case. The sentencing options open to a sentencing judge remain. It is important to the administration of justice that sentencing judges have an appropriate range of sentencing options available so as to impose the most suitable penalty for an offence in its peculiar circumstances. I consider that s 18(a) of the Sentencing Act is available to enable a court to impose a fine in lieu of a sentence of imprisonment for the offence of aggravated driving without due care.
[5] Police v Berzins (2011) 111 SASR 319 at [42]-[43].
[6] Acts Interpretation Act 1915 (SA), s 22(1).
For the purposes of the exercise of the power to substitute or add another type of penalty under s 25(2), s 25(3) circumscribes the types of penalty that may be substituted or added, and the circumstances in which that may be done. By way of example, s 25(3)(a) makes it plain that in the case of an offence where the prescribed penalty is one of “imprisonment only”, the court, may, if satisfied that good reason exists, instead impose a fine (s 25(3)(a)(ii)), or a sentence of community service (s 25(3)(a)(iii)), or indeed both a fine and sentence of community service (s 25(3)(a)(iv)). The extent to which the court might otherwise have had some general common law power to impose a fine in such a situation is not entirely clear,[7] but does not require resolution in the present case.
[7] R v Selleck (2000) 78 SASR 194 at [26], [30] (Olsson J), [60] (Wicks J), [121]-[122] (Gray J).
I note that s 25(3)(a) also provides that where an Act prescribes a sentence of “imprisonment only” for the offence, the penalties that the court may “instead impose” include “a sentence of imprisonment (including a community based custodial sentence or a suspended sentence)” (s 25(3)(a)(i)). On the face of it, this involves some curious drafting insofar as it provides that the court may impose a sentence of imprisonment instead of a sentence of imprisonment. The drafting appears to be explained by a desire to include the clarification within parentheses in s 25(3)(a)(i), namely that the sentence of imprisonment that the court may “instead impose” includes “a community based custodial sentence” (which is defined in s 25(4) to mean a sentence on home detention under a home detention order, or a sentence to be served in the community while subject to intensive correction under an intensive correction order) or a “suspended sentence” (which is defined in s 25(4) to mean a sentence of imprisonment that is suspended on condition that the defendant enter into a bond under Part 4 Division 2). In other words, it would appear that the intention of s 25(3)(a)(i) is to confirm that the sentencing options available to the court, when sentencing a defendant in respect of an offence for which the prescribed penalty is a sentence of imprisonment only, include a home detention order, an intensive correction order, and an order that the sentence of imprisonment be suspended.
To the extent it might be suggested that s 25(3)(a)(i) provides the court with the jurisdiction or power to make one of these forms of orders, I do not think that is quite right. Unlike situations where there might otherwise have been no power to impose a particular type of penalty (such as a fine or community service, in a case where the offence provision does not provide for a penalty of this type), there is an independent statutory source of the power to make a home detention, intensive correction or suspended sentence order. Indeed, the power to make each of these types of order exists elsewhere within the Sentencing Act itself: in the case of a home detention order, the court is vested with this power under subdivision 1 of Part 3 Division 7, and in particular s 71; in the case of an intensive correction order, under subdivision 2 of Part 3 Division 7, and in particular s 81; and in the case of an order suspending a sentence of imprisonment upon entry into a bond, under Part 4 Division 2, and in particular s 96.
I do not think that ss 25(2) and (3) were intended to be some separate source of power to make one of these types of orders in circumstances where the Court considered that “good reason” existed for doing so. Rather, it seems to me that the reference to these types of orders in s 25(3)(a)(i) was intended as merely confirmatory of the court’s independent powers under ss 71, 81 and 96 to make such orders (in the circumstances provided for in those sections).
The sentencing task in the present case
Turning to the construction and operation of the provisions to which I have referred in the present case, the starting point for the sentencing Judge was the relevant offence provision. Here, the prescribed maximum penalty for the offence under s 9(1) of the Firearms Act of possessing a firearm without a licence was, in respect of a category H firearm, $35,000 or imprisonment for seven years (s 9(4)(b)).
As this offence was a “serious firearm offence” under s 49 of the Sentencing Act, the respondent was taken to be a “serious firearm offender” under s 50.
By reason of the above, s 51 applied to the sentencing of the respondent. The effect of that section was both to require that a sentence of imprisonment be imposed (s 51(1)(a)); and to prevent his sentence of imprisonment being suspended (s 51(1)(b)), subject only to the Court making a declaration under s 51(2) that s 51(1)(b) does not apply by reason of the Court being satisfied, by evidence given on oath, of the matters set out in ss 51(2)(a) and (b).
In the present case, the respondent did not seek any declaration under s 51(2), and so the sentencing Judge proceeded upon the basis that the sentence was not able to be suspended.
Before leaving s 51, it should also be observed that by reason of s 51(1)(c), s 25 did not apply in respect of the sentencing of the respondent. As such, the sentencing Judge was also precluded from relying upon the Court’s general statutory power under s 25 to reduce, add or substitute penalties in the manner I have earlier described. While the effect of this was to preclude the sentencing Judge from utilising the general powers under s 25 to impose some alternative or lesser form of penalty, I do not think that s 51(1)(c) precluded the operation of other provisions in the Sentencing Act that provided the Court with specific powers in this respect (for example, the powers to make home detention, intensive correction or suspended sentence orders under ss 71, 81 and 96 respectively). Indeed, if the position were otherwise, there would have been no need for the separate preclusion of an order suspending the sentence of imprisonment under s 51(1)(b).
By way of summary, it can thus be seen that the clear intention of Parliament in enacting s 51 of the Sentencing Act was to narrow the range of sentencing options available to a court when sentencing serious firearm offenders for a serious firearm offence, and to do so in the three ways set out in ss 51(1)(a), (b) and (c). The rationale for this narrowing of sentencing options in such cases was evidently to elevate the importance of protecting the community from the risks presented by firearm offending and offenders.
It next became relevant for the sentencing Judge to consider the availability of a home detention order. This required consideration of s 70. Under that section, the power vested in the Court under subdivision 1 of Part 3 Division 7 was not exercisable in relation to various categories of defendants, including a defendant being sentenced for “any other offence in respect of which an Act expressly prohibits the reduction, mitigation or substitution of penalties or sentences” s 70(1)(b)(ii)(D).
At issue therefore was whether the provision in s 51(1)(c) that s 25 “does not apply” in respect of the sentencing of the respondent was a provision that “expressly prohibits the reduction, mitigation or substitution of penalties or sentences” for the purposes of s 70(1)(b)(ii)(D). This is the issue presented by the Director’s proposed appeal.
The issue presented by the Director’s proposed appeal
In addressing this issue, I accept that s 25 is a provision that may accurately be described as one that empowers the reduction, mitigation or substitution of penalties or sentences. This not only reflects the substance of the operative effect of s 25, but also (partially) reflects the heading of that section.[8] The only matter of contention is whether by rendering inapplicable, or disapplying, s 25, it can be said that s 51(1)(c) “expressly prohibits” the reduction, mitigation or substitution of penalties or sentences.
[8] Noting that the modern approach to statutory construction permits the courts to take account of headings: R v A2; R v Magennis; R v Vaziri (2019) 93 ALJR 1106 at [40] (Kiefel CJ and Keane J).
In my view, a distinction can, and should, be drawn between a provision that “expressly prohibits” the reduction, mitigation or substitution of penalties or sentences, and a provision that merely disapplies the general statutory power to reduce, mitigate or substitute penalties or sentences. In reaching this conclusion, I have had regard to the following considerations.
First, I regard it as a relevant consideration that there do exist other offence provisions which utilise language more apt to be described as expressly prohibiting the reduction, mitigation or substitution of penalties or sentences. I refer in this regard to various sections within the Criminal Law Consolidation Act 1935 (SA)[9] and the Road Traffic Act 1961 (SA)[10] which provide that a penalty of licence disqualification “may not be reduced or mitigated in any way or be substituted by any other penalty or sentence”, or some close variant of those words. The use of language in those provisions which explicitly adopts the terminology of prohibiting any form of reduction, mitigation or substitution may be contrasted with the language used in s 51(1)(c).
[9] Sections 13(3)(b) (manslaughter caused by the use of a motor vehicle or vessel), 19A(6)(b) (cause death by vehicle), 19AB(5)(b) (leave scene), 19AC(2)(b) (dangerous driving to escape police pursuit), 19AD(4)(b) (street racing), 29(5)(b) (acts endangering life) and 86A(4) (use motor vehicle without consent).
[10] Sections 43(2)(a) (duty to stop), 45(2)(c) (careless driving), 47(3)(b) (driving under the influence), 47B(3)(b) (driving with prescribed concentration of alcohol in blood), 47BA(4)(b) (driving with prescribed drug in oral fluid or blood), 47E(6)(b) (police may request alcotest), 47EAA(16)(b) (police screening test) and 47I(14a)(b) (compulsory blood tests).
The next consideration to which I have had regard is that while it may be accepted that s 25 is the only source of a general power on the part of a court to reduce, mitigate or substitute penalties, there are other provisions within the Sentencing Act which in my view may aptly be described as provisions that provide a court with power to reduce, mitigate or substitute penalties in particular ways and circumstances. I refer in this regard to the provisions providing the courts with the power to make home detention orders (s 71), to make intensive correction orders (s 81) and to suspend sentences of imprisonment (s 96).
As a matter of substance, the making of one of these orders produces an outcome that differs from a sentence of imprisonment that is required to be served immediately and in a correctional institution. As a matter of common sense it involves a reduction, mitigation or substitution of the penalty that would otherwise have been applicable.
Further, it seems to me to be implicit in the adoption of a mechanism in s 70(1)(b)(ii)(D) for the preclusion of home detention orders that turns upon the existence of a provision that expressly prohibits the reduction, mitigation or substitution of penalties or sentences, that Parliament regarded a home detention order as involving the reduction, mitigation or substitution of the penalty of imprisonment that would otherwise be imposed. The same is true of the equivalent mechanism for the preclusion of intensive correction orders under s 80(1)(b). This accords with the common sense view to which I have just referred; namely, that while the Sentencing Act treats both home detention orders and intensive correction orders as sentences of imprisonment (albeit to be served in the community),[11] the practical reality is that these are lesser or more lenient forms of sentence than one which requires the sentence of imprisonment to be served in a prison.
[11] See s 71(1) in respect of home detention orders, and s 81(1) in respect of intensive correction orders, both of which are expressed in these terms. Indeed, both also appear with Part 3 of the Sentencing Act, which is concerned with ‘Custodial Sentences’, and in particular Division 7 (which is headed ‘Community based custodial sentences’). While s 69 expressly refers to a home detention order as a “custodial sentence”, this label is not used in the s 79 equivalent in respect of intensive correction orders.
In my view, the existence of these separate sources of power on the part of a court to reduce, mitigate or substitute penalties supports the existence of the distinction that I have suggested can and should be drawn between a provision which expressly prohibits the reduction, mitigation or substitution of penalties and a provision which merely disapplies the general power in respect of those matters that exists in s 25 (but which otherwise leaves open and available other mechanisms for the reduction, mitigation or substitution of penalties).
To the extent that there remains some ambiguity in the construction of, and interaction between, ss 70(1)(b)(ii)(D) and 51(1)(c) of the Sentencing Act, authority supports its resolution in favour of the respondent. As Kiefel CJ and Keane J recently observed in the analogous context of construing offence provisions in R v A2; R v Magennis; R v Vaziri:[12]
A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any “loose” construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.
The operation of the s 51 scheme for the narrowing of sentencing options for serious firearm offending
[12] R v A2; R v Magennis; R v Vaziri (2019) 93 ALJR 1106 at [52] (omitting footnotes).
I have earlier made some observations in relation to the s 51 scheme for the narrowing of sentencing options in respect of any sentence to be imposed upon a serious firearm offender for a serious firearm offence. I do not consider that the approach I have taken to the issue of statutory construction posed by the Director’s proposed appeal gives rise to any incongruity in the operation of s 51. To the contrary, I consider that it gives effect, in a coherent and practical manner, to Parliament’s obvious intention to narrow the sentencing options available to a court when sentencing a serious firearm offender for a serious firearm offence.
By way of overview, s 51(1)(a) requires the imposition of a sentence of imprisonment when that is one of the available sentencing options in the relevant offence provision. It thus precludes the imposition of a fine, even if the offence provision would otherwise have permitted it. By reason of s 51(1)(b), the court is precluded from ordering the suspension of the sentence of imprisonment unless it is appropriate to make a declaration of the type contemplated by s 51(2). In this way, the threshold or test for the suspension of the sentence of imprisonment is higher than would otherwise have been applicable under s 96 (which requires merely the existence of “good reason” to suspend). And by reason of s 51(1)(c), the court is precluded from applying s 25 so as to reduce or substitute the applicable sentence by, for example, imposing a fine or community service order.
If the court does not suspend the sentence of imprisonment, then in my view that leaves open the possibility of a home detention order or intensive correction order. In making any such order, the court would be making an order under its specific powers in that respect under ss 71 or 81, rather than the (precluded) general power to reduce, add or substitute under s 25. Further, given that the Sentencing Act treats home detention orders and intensive correction orders as sentences of imprisonment, albeit to be served in the community, the making of a home detention or intensive correction order would not offend the s 51(1)(a) prescription that the court impose a sentence of imprisonment.
In short, s 51 operates to preclude the court imposing any fine or community service order. It raises the threshold for the next most lenient form of a sentence of imprisonment, namely a suspended sentence. However, it leaves open the possibility of a home detention order or intensive correction order, both of which are properly to be regarded as more serious or onerous forms of punishment than a suspended sentence.
Contrary to the submissions of the Director, I see nothing incongruous about s 51 raising the threshold for a suspended sentence, while at the same time being silent as to the thresholds applicable to a home detention order and intensive correction order. While Parliament could have raised the thresholds applicable to those forms of order, once is it is appreciated that they are more onerous or serious forms of punishment than a suspended sentence, there is nothing incongruous about it not doing so, and hence implicitly leaving their availability to be determined by reference to their ordinary thresholds set out in ss 71 and 81 respectively.
I conclude by observing that the conclusion I have reached in relation to home detention orders (namely, that s 70(1)(b)(ii)(D) does not preclude their availability when sentencing a serious firearm offender for a serious firearm offence) would seem to apply equally to intensive correction orders, given the equivalence in wording between s 70(1)(b)(ii)(D) and s 80(1)(b).
Conclusion and order
For the reasons given, I do not accept the Director’s contention that, when sentencing the respondent as a serious firearm offender for a serious firearm offence, the sentencing Judge was precluded by s 70(1)(b)(ii)(D) from making a home detention order.
While the statutory construction task underpinning this conclusion was not straightforward, the ultimate failure of the Director’s contention makes it appropriate to dismiss his application for permission to appeal. I do not consider it appropriate to grant permission in respect of a Crown appeal in circumstances where that appeal will ultimately fail on the merits.
I would therefore order that the Director’s application for permission to appeal be dismissed.
BLEBY JA: I agree, for the reasons given by Doyle JA, that the application for permission to appeal should be dismissed.
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