R v Lee

Case [2016] ACTCA 69


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

R v Lee

Citation:

[2016] ACTCA 69

Hearing Date:

31 October 2016

DecisionDate:

15 December 2016

ReasonsDate:

15 December 2016

Before:

Murrell CJ, Refshauge and Rangiah JJ

Decision:

Appeal dismissed.

Catchwords:

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentence – whether good behaviour order can commence before associated sentence of imprisonment –interpretation of “any longer period” – Crimes (Sentencing) Act 2005 (ACT) s 12 – appeal dismissed

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT) 40, 42, 86, 110

Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) s 2
Crimes (Sentencing) Act 2005 (ACT) 11, 12, 13
Criminal Code 2002 (ACT) s 603
Legislation Act 2001 (ACT) 138, 139, 140, 141

Supreme Court Act 1933 (ACT) ss 37E, 37O

Cases Cited:

Everett v The Queen [1994] HCA 49; 181 CLR 295

Green v The Queen [2011] HCA 49; 244 CLR 462
Griffiths v The Queen [1977] HCA 44; 137 CLR 293
House v The King (1936) 55 CLR 499
Miller v Commissioner of Police [2004] NSWCA 356
Parkinson v Alexander [2016] 11 ACTLR 190
Project Blue Sky Inc v ABA [1998] HCA 28; 194 CLR 355
R v Duffy [2014] ACTCA 53
R v Harrington [2016] ACTCA 10; 11 ACTLR 215
R v Lee [2015] ACTSC 415
R v Pumpa [2015] ACTSC 177

Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355

Texts Cited:

Explanatory Statement, Crimes (Sentencing) Bill 2005 (ACT) cl 12

Parties:

The Queen (Appellant)

Huy Huu Lee (Respondent)

Representation:

Counsel

Mr J White SC (Appellant)

Mr M Kukulies-Smith (Respondent)

Solicitors

ACT Director of Public Prosecutions (Appellant)

Kamy Saeedi Law (Respondent)

File Number:

ACTCA 3 of 2016

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Burns J

Date of Decision:         15 December 2015

Case Title:  R v Lee

Citation: [2015] ACTSC 415

THE COURT:

  1. The appellant appealed against a sentence imposed on the respondent by Burns J (the sentencing judge) on 15 December 2015 for the offence of trafficking in a trafficable quantity of cannabis contrary to s 603(5) of the Criminal Code 2002 (ACT) (Criminal Code): R v Lee [2015] ACTSC 415.

  1. The respondent was sentenced to 13 months’ imprisonment to commence on 15 December 2015 and end on 14 January 2017.  The period 15 December 2015 to 14 June 2016 was be served by way of periodic detention.  The balance of the sentence was suspended.  The sentencing judge made a good behaviour order with conditions for a period of 20 months commencing on 15 December 2015, the day upon which the sentence was imposed.

  1. The appellant appealed on the ground that a good behaviour order under s 12(3) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) cannot commence before the date from which the associated sentence of imprisonment is suspended.

  1. When the sentencing judge handed down the sentence, the prosecutor suggested that commencement…

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R v Lee [2016] ACTCA 69
Case
[2016] ACTCA 69
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by the applicant, Mr Lee, before the Court of Appeal of the Supreme Court of the Australian Capital Territory. The dispute centred on the interpretation of a provision within the *Crimes (Sentencing) Act 2005* (ACT) concerning the commencement of a good behaviour order in relation to an associated sentence of imprisonment.

The primary legal issue before the Court was whether a good behaviour order, pursuant to section 12 of the *Crimes (Sentencing) Act 2005* (ACT), could commence prior to the expiry of an associated sentence of imprisonment. This required the Court to interpret the phrase "any longer period" as used in subsection 12(2) of the Act, which dictates the commencement of such orders.

The Court of Appeal considered the plain meaning of section 12(2) and concluded that the phrase "any longer period" referred to the period of imprisonment itself. Therefore, a good behaviour order could not commence before the completion of the associated sentence of imprisonment. The Court reasoned that to permit the good behaviour order to commence earlier would undermine the purpose of the sentencing legislation, which intended for the good behaviour bond to operate after the punitive element of the imprisonment had been served. The appeal was accordingly dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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