R v JJ
[2014] ACTSC 311
•31 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v JJ |
Citation: | [2014] ACTSC 311 |
Hearing Date(s): | 31 July 2014 |
DecisionDate: | 31 July 2014 |
Before: | Refshauge J |
Decision: | 1. JJ be sentenced to seventeen years’ imprisonment, to commence on 6 April 2011 and to end on 5 August 2028. 2. The sentence be suspended from 5 February 2022. 3. JJ be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act2005 (ACT) for six years and six months from 6 February 2022 until 5 August 2028, with a probation condition that, for that period, he be on probation subject to the supervision of the Director‑General or her delegate and obey all reasonable directions of the person delegated to supervise him. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Re-sentencing following Court of Appeal decision – Probation condition to a good behaviour order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 133V, 133W, Ch 8, Dictionary Crimes (Sentence Administration) Act2005 (ACT) |
Cases Cited: | Marshall v Smith (1907) 4 CLR 1617 |
Parties: | The Queen (Crown) JJ (Offender) |
Representation: | Counsel Ms S McMurray (Crown) Mr J Maher (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Lawyers (Offender) | |
File Number(s): | SCC 23 of 2012 |
Refshauge J:
On 4 August 2011, JJ and Taylor Schmidt murdered Liang Zhao. They both ultimately pleaded guilty to that offence and were sentenced, but sentenced separately and by me on both occasions.
On 8 October 2013, I sentenced JJ. The course of sentencing was not smooth. It was described by the Court of Appeal, in The Queen v JJ [2014] ACTCA 23 at [2]-[3] as follows:
2.When the respondent came to be sentenced on 8 October 2013, Refshauge J initially sentenced him to 17 years’ imprisonment and purported to set a nonparole period of 10 years and 6 months. When it was pointed out to his Honour that the legislative scheme makes no provision for the setting of a nonparole period for a sentence of imprisonment imposed on a young offender, his Honour amended the sentence to suspend the sentence after 10 years 6 months, upon the respondent entering into a good behaviour order for 6 and a half years, with a probation condition that the respondent obey all reasonable directions of the director-general.
3.On the Court reconvening on 14 October 2013 at the request of the Crown, it was pointed out to his Honour that a supervision condition could not exceed 3 years, and his Honour then re-sentenced the respondent by amending the condition in the good behaviour order. The sentence thus became one of 17 years’ imprisonment, to be released after 10 years 6 months on a good behaviour order of 6 years 6 months with a probation condition that the respondent be subject to the supervision of the Director-General or her delegate for 3 years or such lesser period as considered appropriate.
The Crown appealed against the sentence I had imposed and the Court of Appeal dismissed the appeal, delivering its reasons for decision, The Queen v JJ, from which the extract above is taken.
The Court of Appeal, however, considered that I had now power to amend the original sentence, as the original sentence had not been infected by the error claimed by the Crown. See The Queen v JJ at [33]-[51].
In summary, I made a probation condition to the good behaviour order, but the Crown later submitted that such a condition could only be made for three years. This was based on s 133W of the Crimes (Sentencing) Act 2005 (ACT), which provides that a supervision condition to a good behaviour order can only be made for three years.
A supervision condition is a condition that is available under Ch 8A of the Sentencing Act, the Chapter that regulates sentencing of young offenders. Such a condition is described in s 133V as follows
133V Supervision conditions—when required
(1) A court must include a supervision condition in a good behaviour order for a young offender if the court has made, or proposes to make, a good behaviour order that includes—
(a) a community service condition; or
(b) a rehabilitation program condition; or
(c) an education and training condition.
(2) Subsection (1) does not limit the circumstances in which the court may include a supervision condition in a good behaviour order.
A probation condition is defined in the Dictionary of the Sentencing Act in a similar but different way as follows
probation condition, of a good behaviour order for an offender, means a condition included in the order that, during the period of the order, or for a part of that period stated in the order, the offender is—
(a) to be on probation subject to the supervision of a person appointed under the order; and
(b) to obey all reasonable directions of the appointed person.
There is a strong similarity between them, but they are different. In particular, there is no time limit for the making of a probation condition. This was a significant issue for the Court of Appeal, where it commented (at [78]) that
If that sentence [namely the amended sentence of 15 October 2013] was to stand, then such a significant period without supervision would invite appellate scrutiny.
The Court of Appeal, having set aside my sentence of 15 October 2013, was concerned that this may not revive my sentence of 8 October 2013. That may well be correct, although the common law did provide, in relation to legislation, that the repeal of an Act, which itself repealed an Act or the common law, had the effect of reviving the Act or common law it had repealed: Marshall v Smith (1907) 4 CLR 1617 at 1634-5. A court order seems to me to be different and the same rule may not apply. The setting aside of the sentence which amended the original sentence may have JJ unsentenced.
There is only one question which I raised with counsel. Supervision under a probation condition is for such term as the court considers as a maximum limit necessary for both the relevant degree of control of the offender as well as being the agent for reformative activities to be undertaken by the offender and as a resource for help for and guidance of the offender when, as is almost inevitable, he or she experiences difficulties, suffers relapses or otherwise regresses into behaviour or experiences circumstances that may signal or lead to a return to criminal behaviour.
ACT Corrective Services have requested, and it is now commonly ordered, that the person supervising an offender under a probation order (or, presumably, also a supervision order) may suspend or terminate the supervision when he or she considers it appropriate. Such a provision is, I am informed, being sought to be included in the legislation, but at present relies on an order of the court. I raised with counsel whether such a provision should, in the light of the decision of the Court of Appeal, be included in the order I make now.
The Crown opposed giving the discretion in that way to ACT Corrective Services or the delegate of the Director‑General. Mr Maher, who appeared for JJ, did not oppose the giving of such a discretion, but thought that it would be appropriate.
It appears, however, that Corrective Services nevertheless have the capacity to reduce the frequency of supervision under orders presently made. They also have the capacity, as indeed does JJ, to apply to the Court for the variation of a good behaviour order that will be the vehicle by which the probation condition is given if, in the light of the progress that he makes under the good behaviour order, it is appropriate for supervision to be determined.
Accordingly, I will not give that discretion in the way customarily given at this stage. Accordingly, I will re-sentence JJ.
JJ, please stand:
1. I sentence you to seventeen years’ imprisonment, to commence on 6 April 2011 and to end on 5 August 2028.
2. I suspend that sentence from 5 February 2022.
3. I require you to sign an undertaking to comply with an offenders good behaviour obligations under the Crimes (Sentence Administration) Act2005 (ACT) for six years and six months from 6 February 2022 until 5 August 2028, with a probation condition that for that period you be on probation subject to the supervision of the Director‑General or her delegate and obey all reasonable directions of the person delegated to supervise you.
[His Honour then spoke directly to JJ]
I am sure that has been explained to you, but basically the Court of Appeal said that I should not have limited the supervision. I have reverted back to the original sentence that I made, but you have also heard that, if the supervision goes well, that you can apply for the order to be varied at some stage, and the Court can consider that. I am afraid it will not be me, because I will have retired by that time. But there will be other judges who can deal with it, if they have to.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge. Associate: Date: 27 January 2015 |
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