R v XH - [2017] ACTSC 236

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) Human Rights Act 2004 (ACT), ss 18, 30 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v XH

Details

AGLC: R v XH [2017] ACTSC 236
Case: [2017] ACTSC 236
Decision Date: 18 August 2017

CaseChat Overview and Summary

The case of R v XH involved an individual who breached the conditions of an intensive correction order (ICO) by committing a new offence. The case was heard in the ACT Magistrates Court, with the central issue being whether the court had the authority to cancel the ICO and, if so, what the appropriate sentence should be in light of the offender's intellectual disability and potential inadequate understanding of the ICO expectations. The case also raised questions about the proper interpretation of the phrase "in part" in s 65(2) of the Crimes (Sentence Administration) Act 2005 (ACT).

The legal issues before the court included whether the power to cancel an ICO under s 65 of the Act allowed for re-sentencing, and if so, how this power should be exercised when it was not in the interests of justice to cancel the ICO. The court also had to consider the implications of the offender's intellectual disability and whether this impacted the court's ability to impose the ICO. Additionally, the court needed to determine the appropriate meaning of "in part" in s 65(2) of the Act, and whether the Crown's submission that the phrase was meaningless could be accepted.

The court determined that it was not in the interests of justice to cancel XH's ICO, despite the breach. The court held that the purpose of the ICO was to provide an alternative to imprisonment, and that cancelling the order would not serve the interests of justice given the offender's intellectual disability and the potential for inadequate understanding of the ICO expectations. The court also found that the phrase "in part" in s 65(2) of the Act should be given meaning, and that it was the court's duty to interpret the provision in a way that was consistent with the purpose of the Act and the Human Rights Act 2004 (ACT). The court found that the legislature intended for the possibility of serving part of a prison sentence in the community, and that this should be preserved.

The court made several orders in relation to XH's ICO, including that it was not cancelled but rather amended to include conditions relating to drug rehabilitation and re-engagement with ICO supervision. The court held that these conditions were necessary to address the offender's drug use and to ensure that the ICO was serving its intended purpose.

Orders

Orders of the court

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.

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

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: 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, 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).