R v XH
[2017] ACTSC 236
•18 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v XH |
Citation: | [2017] ACTSC 236 |
Hearing Date: | 15 August 2017 |
DecisionDate: | 18 August 2017 |
Before: | Penfold J |
Decision: | 1. XH’s intensive correction order is not cancelled. 2. XH’s intensive correction order is amended to add the following conditions: (a) that XH undertake such counselling, courses, programs or treatments as directed by his ICO supervisor in relation to drug use; and (b) that before 4 pm on Monday 21 August 2017, XH attend Corrective Services to re-engage with his ICO supervision. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of intensive correction order by re-offending – application to cancel intensive correction order – offence carries lowest imprisonment penalty available – possibility of intellectual disability – possibility of inadequate understanding of intensive correction order expectations – whether power to cancel intensive correction order allows for re-sentencing – not in the interests of justice to cancel intensive correction order – intensive correction order amended to include conditions relating to drug rehabilitation. INTERPRETATION – General Rules of Construction of Instruments – meaning to be given to “in part” in s 65(2) of the Crime (Sentence Administration) Act 2005 (ACT) – proper approach to statutory interpretation – every word to be given meaning – obligation to interpret provision consistently with purpose of Act and Human Rights Act 2004 (ACT). |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 65, 65(2), 74(1)(a), 110 Crimes (Sentencing) Act 2005 (ACT), ss 64, 65, 68, 68(2), 68(2)(d), 77(2)(a) Road Transport (Alcohol and Drugs) Act 1997 (ACT), s 20(1)(b) |
Cases Cited: | Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 |
Parties: | The Queen (Crown) XH (Offender) |
Representation: | Counsel Mr J Hiscox (Crown) Ms M Voleynik (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) Limited (Offender) | |
File Number: | SCC 175A of 2015 |
Background
In November 2016, I dealt with XH for two offences committed in 1982, being indecent assault of a female under 16 years of age and carnal knowledge of a girl under the age of 10 years. I sentenced him to a total of 3 years and 10 months imprisonment, to be served by an intensive correction order (ICO).
XH has now breached his ICO by committing and being convicted of an offence of, as a repeat offender, having a prescribed drug in his oral fluid, an offence carrying a penalty including 3 months imprisonment. The circumstances of that offence, and the penalty imposed in the Magistrates Court, indicate that it was a relatively less serious example of the offence concerned.
The offence took place in Fyshwick at around 9 am on a Sunday morning. XH was on his way to the markets. Road conditions were good and traffic was light. There is no suggestion in the police statement of facts that police attention was drawn to XH in particular by his driving or by anything else. XH admitted consumption of cannabis within the previous 48 hours (in fact traces of both cannabis and methylamphetamine were detected).
In the Magistrates Court, XH was convicted, fined $600, and given no time to pay. I understand that the effect of that sentence, because XH was already in custody in connection with the ICO breach, was that he would clear off that fine by two of the days that he was already to spend in custody.
Breaches of ICOs
The options
Section 65 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act) deals with breaches of ICOs constituted by being convicted of a new offence:
65Cancellation of intensive correction order on further conviction etc
(1)This section applies if, after an offender was sentenced to serve intensive correction, the offender commits, and is convicted or found guilty of—
(a)an offence against a territory law, or a law of the Commonwealth, a State or another Territory, that is punishable by imprisonment; or
(b)an offence outside Australia that, if it had been committed in Australia, would be punishable by imprisonment.
(2)The sentencing court must, as soon as practicable, cancel the offender’s intensive correction order and order that the remainder of the offender’s sentence be served in full or in part by full-time detention, unless it is not in the interests of justice to do so.
(3)If the court considers that it is not in the interests of justice to make an order under subsection (2), the court must give reasons for its decision not to make the order.
Thus, my options are to cancel the ICO and make an order under s 65(2), or to determine that it is not in the interests of justice to do so and, in the latter case, to give reasons for that decision.
I understand that this is the first case of an offender breaching his ICO conditions by re‑offending, and accordingly the first ICO that has been returned to the court for possible cancellation of that order.
In this case, for reasons I shall set out shortly, I have determined that it is not in the interests of justice to cancel XH’s ICO.
However, in the course of the hearing of this matter, counsel for the Crown identified a difficulty in s 65 that will no doubt need to be addressed in a future hearing of this sort; since the matter was discussed at some length in this hearing, and since both parties made detailed written submissions as well as, in the case of the Crown, oral submissions to some extent resiling from the written submissions, I consider it useful to make some comments about the issue at this stage.
The problem identified by the Crown is, in short, that s 65(2) obliges the court (unless the interests of justice requires the alternative approach) to cancel the offender’s ICO and to “order that the remainder of the offender’s sentence be served in full or in part by full-time detention”. The question is what meaning is to be given to “in part” in that provision.
The Crown’s initial submission was that the words “or in part” cannot be given any sensible meaning and therefore can, and should, be ignored.
That submission in my view raised significant issues about the proper approach to statutory interpretation in general. The Crown has now withdrawn that submission, but it is nevertheless worthwhile to quote the comments of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71] as follows:
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In the Commonwealth v Baume [43] Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent”.
(citations omitted)
Furthermore, in relation to ICOs, the fundamental issue is the liberty of the individual. The effect of adopting the Crown’s submission would have been to deprive offenders of the scope for serving part of a prison term in the community that, on the face of the legislation, seems to be have been intended by the legislature. In such circumstances, it seemed to me that a court should make a serious effort to avoid the conclusion that the legislature, inadvertently or not, has given the impression that there was scope for a relevant prison sentence to be served partly in the community rather than by full-time custody, but did not really intend this.
That general proposition might even be thought to carry even more weight in the ACT where the human right to liberty and security of the person is explicitly recognised in the Human Rights Act 2004 (ACT) (s 18), and where that Act requires Territory laws to be interpreted, so far as it is possible to do so consistently with the purpose of the law, in a way that is compatible with human rights (s 30).
I mention briefly at this point that the Crown’s initial submissions relied on the concept of a sentencing hierarchy (identifying the severity of various forms of sentences) which, the Crown says, has a sentence of full-time imprisonment at the top, with a sentence to be served by ICO immediately below that, and a suspended sentence further down the hierarchy. This is not an unreasonable analysis, and reflects among other things the Explanatory Statement for the Bill introducing ICOs into the ACT sentencing structure, which referred to the ICO as “a sentence of ‘last resort’ for offenders before full-time imprisonment”.
However, the elegance of the concept of a sentencing hierarchy is undermined by the fact that the ultimate severity or leniency of any particular form of a sentence of imprisonment depends not only on the original sentence but also on the subsequent behaviour of the offender and the attitude to that behaviour taken by the corrections authorities and the courts. The sentencing hierarchy concept need not be ignored, but it does not seem to provide an easy solution to the questions raised by s 65 of the Sentence Administration Act.
Order for sentence to be served in part in full-time custody
Section 65(2) of that Act explicitly provides that a person whose ICO is cancelled may be required to serve the remainder of the original prison sentence in full-time custody, or may be required to serve only part of the remainder of that prison sentence in full‑time custody.
Ordering that a person serve the remainder of the original term in full-time custody does not seem to raise any particular questions. Ordering that a person serve part of that remaining term in full-time custody raises the immediate question of what is to happen about that part of the remainder of the term that is not to be served in full-time custody.
Neither s 65, nor any other provision, explicitly provides for the court that cancels an ICO to engage in a process of re-sentencing. This may be contrasted with s 110 of the Sentence Administration Act, which specifies re-sentencing as one of the options available to a court that cancels a good behaviour order made in conjunction with suspending a sentence of imprisonment.
In a normal sentencing or re-sentencing exercise, providing for an offender to serve only part of a prison sentence in full-time custody would be achieved either by setting a non-parole period or by providing for the sentence to be suspended at a specified point.
However, I understand that the Crown maintains its submission that cancelling an ICO does not empower a court to re-sentence as such. Rather, the Crown says the power to order that the sentence be served, in part, in full‑time custody,
(a)includes a power to make appropriate orders for the relevant part of the sentence to be served in such custody, and for how the remaining part of the un-served sentence is to be dealt with; but
(b)as I understand the Crown’s position, does not include the power to apply any sentencing option other than setting a non-parole period or suspending the sentence after the necessary period of custody.
Defence counsel submitted, in effect, that there was no basis in the words of s 65 or the rest of the legislation for inferring that the power to make an order was limited to setting a non-parole period or suspending the sentence, and that a court that cancelled an ICO had the full range of sentencing options available to it, subject to the requirement that at least part of the remaining term of the sentence was served in full‑time custody.
Because I have already determined that in this case the ICO should not be cancelled, it is unnecessary for me to express a conclusion on the scope of the court’s power to order part of the remaining sentence to be served in custody.
However, I make the following further observations about those issues.
First, it is hard to see a basis on which, a court having made an order for part of the remaining term of a sentence to be served in custody, there would be any legislative authority for confining the offender in custody beyond the expiration of the period specified by the court. If the power to order part of the term to be served in full-time custody is to be given any sensible meaning, that power must, as seems now to be agreed, be read as including a power to make an order about what is to happen in respect of the rest of the outstanding term.
Secondly, it seems unlikely (although not inconceivable) that s 65 was intended to permit a court to cancel an ICO, and order that the prison term would be completed on the expiration of service, in full-time custody, of some of the outstanding prison term.
Setting a non-parole period
However, it does seem that the legislation may provide scope for setting a non-parole period for a sentence in respect of which an ICO has been cancelled.
Section 64 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) excludes sentences of imprisonment to be served by intensive correction from the class of sentences of imprisonment for which non-parole periods may or must be set.
However, once an ICO is cancelled, it would seem that the underlying sentence of imprisonment is no longer an “excluded sentence of imprisonment”, because it is no longer a sentence of imprisonment to be served by intensive correction.
Section 65 may not require (or permit) the setting of a non-parole period, if the Crown is right that the court that cancels the ICO is not in fact sentencing or re-sentencing the offender at that point.
Section 68, however, applies where a court “fails to set, or fails to set properly”, a non‑parole period for a sentence of imprisonment.
I can see no useful argument that a court that cancels an ICO has failed to set “properly” a non-parole period.
However, the position may be different once the court, having cancelled the ICO, makes a further order that the remaining term of imprisonment (which, as already noted, is no longer an excluded sentence) is to be served in full-time custody.
In those circumstances it would not be incorrect to say that the court has failed to set a non-parole period for that term of imprisonment. Section 68(2) permits, among other people, the offender to apply to the court for the setting of a non-parole period (s 68(2)(d)).
Thus, it seems to me that meaning could be given to the reference to a person being required after the cancellation of an ICO to serve the remaining prison term “in full or in part” by treating the remaining prison term as:
(a)a sentence of imprisonment that has been imposed on an offender (when the sentence was originally handed down); and
(b)a sentence that is no longer an excluded sentence of imprisonment under s 64, but is a sentence for which no non-parole period has been set, as mentioned in s 68;
so as to permit the offender (or indeed the Attorney-General, the Director of Public Prosecutions or the Secretary of the Sentence Administration Board) to apply for the setting of a non-parole period.
The use of these provisions would provide an express rather than implied mechanism for setting a non-parole period for an offender whose ICO is cancelled. It would also ensure the applicability of other provisions relating to non-parole periods. On the other hand, it seems unlikely that the legislature was relying on such an interpretation of the legislation to give meaning to the power to order the remaining term to be served “in part” in full-time custody.
Suspending the remainder of the sentence
I have not been able to identify any equivalent basis for suspending the remainder of a prison term originally ordered to be served by ICO. Unlike the provisions dealing with non-parole periods, there is nothing in the legislation that seems to enable a term of imprisonment to be suspended by order made after it has begun to be served in some other way, except in the course of a re-sentencing. If the Crown is correct that s 65 of the Sentence Administration Act does not provide for a re-sentencing, then the only source of a power to suspend the sentence from a future date must be the s 65(2) power from the Sentence Administration Act to order that the sentence be served “in part” in full-time custody. This is a relatively unsatisfactory basis from which to infer also the applicability of all the other provisions relating to the operation of suspended sentences.
Need for legislative clarification
For the reasons outlined above, it would in my view be desirable for the legislature to clarify its intentions in relation to the powers of a court that cancels an ICO, and ideally to do it before the matter needs to be argued on too many more occasions.
Whether cancellation of ICO not in interests of justice
As already mentioned, I have not had to reach a conclusion about these matters because I am satisfied that it is in the interests of justice not to cancel XH’s ICO. My reasons for that view reflect both the matters I took into account when sentencing XH last year and developments since that sentence.
Relevant matters generally
The relevant matters identified last year are:
(a)that the offences were committed nearly 35 years ago, and at a time when XH might have been a juvenile and was at most 18 years old;
(b)that XH has a variety of health issues, including diabetes and high blood pressure and a history of heart attack, that would presumably be treated adequately if he were in custody but might make incarceration more burdensome for him;
(c)that XH, while continuing to deny the offences, had indicated a willingness to take part in a sex offenders program; and
(d)that XH’s education, which was completed at the Woden School, suggested to the ICO assessor that not long before the time of the offences he may have been identified as a person with a mild to moderate intellectual disability.
As to matters arising since the 2016 sentencing, I note the following.
First, that XH was remanded in custody on 31 July when he appeared in the Magistrates Court in relation to the breaching offence, and has therefore spent nearly three weeks in custody in connection with that breach.
Next, the offence committed by XH in breach of his ICO carried a maximum penalty of imprisonment for three months. The prosecutor was not able to identify an ACT offence carrying an imprisonment penalty of less than three months. That is, this offence is right at the bottom of the range of offences commission of which renders the offender liable to the judicial cancellation of the ICO.
XH’s new offence carries an imprisonment penalty only because he was a repeat offender (s 20(1)(b) of the Road Transport (Alcohol and Drugs) Act 1997 (ACT)), and he was a repeat offender because of a drink-driving offence committed in December 2012, which involved a level 2 blood alcohol reading. For that earlier offence, XH was disqualified from driving for three months and ordered to sign a 12-month good behaviour undertaking. There had been no offending between December 2012 and April this year.
XH’s drug use
The ICO progress report provided in relation to this breach indicated that there was no drug testing of XH until the new offence was detected on 16 April this year. After that, an information was sworn on 31 May this year and XH was required to appear in the Magistrates Court on 10 July 2017. After the new offence was detected, but before he had even been summoned to appear in court, XH was subjected to urinalysis under the ICO on 18 May 2017, tested positive for methylamphetamine, and was warned by the Sentence Administration Board. Since then he has been re-tested (although it is not clear how often) and has produced negative results for illicit substances.
Given that XH appears to have abstained from illicit substances since he was warned by the Sentence Administration Board, it may be that his apparent continued use of methylamphetamine in May suggests an initial lack of understanding of the significance of his drug use to his prospects of completing his sentence under the ICO. His abstinence after being made aware of that significance suggests that he is capable of continuing abstinence.
I note also that the ICO assessment provided in 2016, before XH was sentenced for the two sexual offences, recorded XH’s advice that he had a history of drug and alcohol abuse, but had not used illicit substances for years and by 2016 drank alcohol only in moderation. Reasonably enough, the author of the ICO assessment did not see drug use as a concern, and it was not identified as a factor that would be targeted under an ICO. For the same reasons, drug abuse was not mentioned specifically to XH by me when I made the ICO. It may even be that it was not mentioned specifically to XH when he was given the explanation of the ICO arrangements that is required by s 77(2)(a) of the Sentencing Act to be given to an offender before he can give an informed consent to the order.
It seems most likely that it was XH’s claim to have abandoned drug use years ago that led the ICO assessor, and subsequently the ICO supervisor and the Court, not to place any emphasis on the need for XH to abstain from using illicit drugs. One could argue that it was entirely XH’s own fault that his illicit drug use was not recognised in the original sentencing exercise, and accordingly that it would be entirely his own fault if he were now required to serve another three years in full-time custody as a result of his re‑offending. However, counsel for XH, and I include in that both Mr Stewart and Ms Voleynik, have put to me that, although XH had been a heavy drug user at times in the past, by late last year his use had reduced to a level which XH did not recognise as problematic, and he had not appreciated how difficult it would be to abstain completely. Counsel said, however, that XH was now under no illusions about the need to deal with his drug abuse, and realised that this was his last chance to serve his sentence through an ICO.
Adult Sex Offenders Program
The ICO progress report notes that XH has been generally compliant with his supervision requirements, and that the only other issues that have arisen relate to his continued denial of the sexual offending. XH has been attending sessions with a Corrective Services psychologist, and is assessed as requiring more one-to-one sessions with the psychologist before he is ready to re-enter the “deniers” group of the Adult Sex Offenders Program.
Conclusions
These several circumstances, against the background of the possibility already mentioned (and identified by the ICO assessor rather than claimed by XH) that XH suffers from a mild intellectual disability, mean that I am not satisfied that XH’s conduct reflects a deliberate flouting of the requirements of the ICO rather than an inadequate understanding of exactly what was expected of him.
Finally, I note that XH’s general response to intensive supervision seems to have been satisfactory, that there is reason to believe that continued supervision will promote his rehabilitation, and that there is no reason to believe that the resources devoted to supervising him under an ICO would be wasted.
I consider that it would be a disproportionate response to XH’s new offending to cancel the ICO and require him to serve the remainder of the sentence in full-time custody. Requiring him to serve part of the sentence in full-time custody, followed by a period on parole or under a suspended sentence, might not be so disproportionate, but it would reduce both the support provided to XH, and the burden imposed on him, by ICO supervision. It is hard to see the virtue of such an approach in this case.
I am accordingly satisfied that it would be in the interests of justice not to cancel XH’s ICO at this stage.
Amendment of ICO
XH has now applied for an amendment to his ICO, under s 74(1)(a) of the Sentence Administration Act, to add a condition aimed at addressing his use of illicit drugs. The Crown did not oppose the making of such an amendment in the event that I decided not to cancel the ICO.
Noting my earlier remarks about the (entirely explicable) lack of initial supervision related to drug abuse, I consider that adding such a condition to the ICO, so that XH’s drug abuse is explicitly recognised as a compliance and rehabilitation risk, would be appropriate.
Conclusions
For the reasons set out above, I conclude for the purposes of 65 of the Sentence Administration Act, that it is not in the interests of justice to make an order under s 65(2) and accordingly I decline to make such an order.
However, noting that the ICO will accordingly run until 13 September 2020 (which was the original end date), I amend the order to add two new conditions, being:
(a)that XH undertake such counselling, courses, programs or treatments as directed by his ICO supervisor in relation to drug use; and
(b)that before 4 pm on Monday 21 August 2017, XH attend Corrective Services to re-engage with his ICO supervision.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: 11 October 2017 |
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