R v UD (No 3)
[2021] ACTSC 8
•3 February 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v UD (No 3) |
Citation: | [2021] ACTSC 8 |
Hearing Date: | 3 February 2021 |
DecisionDate: | 3 February 2021 |
Before: | Elkaim J |
Decision: | See [24] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Reopening proceedings – nonparole period for young persons – young person and adult offences – whether sentence contrary to law |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 61, 64(2), 133B, 133G, Pt 5.2 |
Cases Cited: | R v JJ (unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 8 October 2013) |
Parties: | The Queen (Crown) UD (Offender) |
Representation: | Counsel R Christensen (Crown) B Morrisroe (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 280 of 2019 |
ELKAIM J:
On 3 December 2020 I sentenced UD for a number of offences. The result was a term of imprisonment of 10 years commencing on 15 February 2018 and ending on 14 February 2028. I set a nonparole period of five years and six months which will end on 14 August 2023.
The offences for which UD was sentenced were spread over a long period of time commencing on 1 November 2009 and ending on 24 December 2017. There were six indictable offences and two offences of common assault that had been transferred from the Magistrates Court. The latter two offences were dealt with by me on a concurrent basis and did not affect the overall term of imprisonment.
The nonparole period generated an application by UD for his sentence to be changed through the reopening process permitted by s 61 of the Crimes (Sentencing) Act 2005 (ACT). All references to an Act in these reasons refers to this legislation.
Under s 61 sentencing proceedings may be reopened if the sentences imposed were “contrary to law”.
UD said that the nonparole period I imposed was contrary to law. He said this because a number of the offences for which he was imprisoned were committed when he was a young person, as defined by s 133B of the Act.
Four of the offences were committed by UD as a young person. The sentences for these offences extended from 15 February 2018 to 13 May 2025.
Nonparole periods are governed by Part 5.2 of the Act. In substance this Part says a nonparole period must be set for any term of imprisonment of 12 months or longer unless the term of imprisonment is an “excluded sentence of imprisonment”. Pursuant to s 64(2)(g) “a sentence of imprisonment imposed on a young offender” is an excluded sentence.
Lest there be any doubt about the effect of s 64(2), the note to s 133G states:
There is no provision for the setting of a nonparole period for a sentence of imprisonment imposed on a young offender …
As seen above the sentences imposed for the offences committed by UD as a young offender are still being served and will continue to be so until 13 May 2025. The first ‘adult’ sentence commences on 15 February 2024. The nonparole period, which expires on 15 August 2023, must therefore be seen as applicable to those sentences which were committed when UD was a young person.
The Crown took a different view to UD and in written submissions dated 2 February 2021, submitted that it was open to me to have proceeded in the manner that I did. To this effect the Crown relied on two authorities to suggest that no error had occurred. The first is R v Tully(No 3) [2014] ACTSC 275 and the second is the result of the appeal in the same matter, Tully v R [2016] ACTCA 11.
In Tully the offender had committed offences both as a young person and an adult. Both Burns J, at first instance, and the Court of Appeal in re-sentencing Mr Tully, imposed sentences which included a nonparole period.
The Crown submitted that the two Tully cases were examples of a nonparole period being applied to an offender who had committed offences both as a young person and an adult. The difficulty is that, as occurred before me, the provisions of s 64(2) were not brought to the attention of the sentencing judge or the Court of Appeal.
I have not been directed to any case in which the issue was considered and a nonparole period imposed on a like offender. There are cases where a nonparole period has deliberately not been imposed because the offender was a young person. An example is my decision in R v MT [2020] ACTSC 339 which in turn refers to the decision of Refshauge J in R v JJ (unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 8 October 2013). While these cases concerned offences committed by offenders only as a young person, they nevertheless emphasise the law that a nonparole period may not be imposed on a young person.
When the matter commenced before me today Ms Morrisroe, who appears for UD, said she had come to the conclusion that the Crown was correct and that therefore the sentencing structure that I had imposed was not contrary to law. Accordingly she wished to withdraw her application.
I was a little surprised by this development and pointed out that an examination of the sentences imposed reveals that the nonparole period will end at a time when UD is still in prison as a result of offences committed as a young person.
Armed with this information Ms Morrisroe reconsidered her position, and no doubt took instructions, and then said that she had come to the view that the sentences as presently structured were contrary to the law and she suggested some changes to defeat the problem.
The effect of the suggested changes would be to have some of the sentences for offences committed as an adult backdated to a period before the end of the nonparole period. If I did this however the end of the nonparole period would still be within the periods for which UD was in custody for offences committed as a young person.
The Crown, in answer to my further enquiry and following the change in Ms Morrisroe’s position, said that the legitimacy of the approach I had taken was maintained. Ms Morrisroe also said that she remained of the view that it was possible for there to be a nonparole period imposed where the sentences were in respect of offences committed as both a young person and an adult. This I think is the real issue that should be before the Court.
I am of the preliminary view that the sentences imposed were contrary to law and that it is not possible to sentence an offender in the manner that I did, nor in the manner that would arise were I to accept Ms Morrisroe’s suggestions of amendment.
I pointed out that a reopening of the sentencing process under s 61 could be undertaken on my own initiative, notwithstanding that the parties disagreed with me.
I do however recognise there are arguments to the contrary. I also note that any reopening of the sentence procedure is discretionary. This follows from the wording of s 61(3) which says that the proceedings “may” be reopened.
Taking a step against the wishes of all parties to a proceeding, especially where I have no doubt that Ms Morrisroe is concerned to be acting in the best interests of her client, and the Crown is intent on upholding a proper interpretation of the law, would be a step that I would not take in the absence of exceptional circumstances.
I have therefore decided that I should not reopen the sentencing process, but emphasise that in taking this course I am not suggesting that the Crown is necessarily correct in its interpretation of the relevant provisions of the Act. However when neither party wishes to pursue a contrary argument I do not think it appropriate to proceed. Clearly this issue, namely the capacity of a court to sentence an offender who committed offences as both a young person and an adult to a sentence which included a nonparole period, which I think is important, would benefit from full argument in which contrary propositions are pursued.
Accordingly, I will treat the application made by UD as having been withdrawn and will take no further action.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 3 February 2021 |
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