Re LW
[2022] VSC 567
•12 April 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0088
| IN THE MATTER of the Bail Act 1977 (Vic) |
| -and- |
| IN THE MATTER of an Application for Bail by LW |
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| JUDGE: | Fox J |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 April 2022 |
| DATE OF DECISION: | 12 April 2022 |
| DATE OF REASONS: | 21 September 2022 |
| CASE MAY BE CITED AS: | Re LW |
| MEDIUM NEUTRAL CITATION: | [2022] VSC 567 |
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CRIMINAL LAW — Application for bail — Applicable test — Whether applicant prima facie entitled to bail — Whether ‘exceptional circumstances’ test applies — Item 1(d) of Schedule 2 — Meaning of ‘during the period of a community correction order made in respect of the accused for another indictable offence or while otherwise serving a sentence for another indictable offence’ — Meaning of ‘sentence’ and ‘serving a sentence’ — Applicant on Youth Supervision Order at time of alleged further offending — Re KP [2018] VSC 436 — Re Matemberere (2018) 57 VR 647 — Bail Act 1977 (Vic) ss 1A, 1B, 3, 3AAA, 3B, 4, 4AA and sch 2 item 1(d) — Children, Youth and Families Act 2005 (Vic) ss 3, 346(6), 360(1), 361, 362, 387 — Criminal Procedure Act 2009 (Vic) s 3.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D De Witt | Stary Norton Halphen |
| For the Respondent | Mr N Watt, solicitor | Victoria Police |
HER HONOUR:
On 12 April 2022, the applicant was granted bail on charges of robbery, unlawful assault, assault in company, assault by kicking, assault with a weapon and theft.
During the hearing, an issue arose as to the applicable test. The applicant submitted he was prima facie entitled to bail. The respondent submitted the ‘exceptional circumstances’ test applied. My preliminary view was that the respondent was correct. I was satisfied, for a combination of reasons, that exceptional circumstances existed justifying the grant of bail. I was not satisfied the applicant represented an unacceptable risk of committing further offences whilst on bail, or endangering the safety and welfare of any person, if granted bail with conditions. In those circumstances, it was in the interests of justice to conclude the matter on 12 April 2022.
I indicated I would provide reasons at a later date as to the applicable test. I have concluded that the applicant was required to show exceptional circumstances justifying his release on bail. These are my reasons, confined to that question.
The offending
The applicant is an 18-year-old Aboriginal man. There are four separate alleged incidents. It is not necessary for these purposes to set out the detail of the alleged offending.
On 3 January 2022, it is alleged the applicant committed the offences of robbery, unlawful assault, assault by kicking and assault in company.
On 11 March 2022, it is alleged the applicant committed the offence of theft.
On 15 March 2022, it is alleged the applicant committed the offences of robbery and unlawful assault.
On 16 March 2022, it is alleged the applicant committed the offences of robbery, assault in company, unlawful assault and assault with a weapon.
On 29 March 2022, the applicant was arrested and charged with three charges of robbery, four charges of unlawful assault, three charges of assault in company, theft, assault by kicking and assault with a weapon. The only indictable charges are robbery and theft. All other charges are summary offences.
Criminal history
The applicant’s criminal history is limited to two Children’s Court appearances. On 17 January 2019, the applicant was dealt with at the Sunshine Children’s Court for charges of robbery, theft, arson and commit indictable offence whilst on bail. He received a without conviction 12-month adjourned undertaking.
On 10 September 2021, the applicant was dealt with at the Broadmeadows Children’s Court for numerous charges including attempted armed robbery, robbery, assault in company, theft and persistently contravening an interim intervention order. He was placed on a Youth Supervision Order (‘YSO’), without conviction, for a period of ten months. A YSO is a disposition found in the Children, Youth and Families Act 2005 (Vic) (‘CYFA’).[1] It is a form of conditional liberty, which allows the child to remain in the community subject to supervision and conditions. Importantly for present purposes, the applicant was on the YSO when he allegedly committed the offences for which he sought bail. Further, attempted armed robbery and persistently contravening an interim intervention order are both Schedule 2 offences as defined in the Bail Act 1977 (Vic) (‘Bail Act’).[2]
[1]See CFYA s 387.
[2]Bail Act sch 2 items 19, 22(a), 31.
Before turning to the parties’ submissions, it is convenient to set out a number of relevant legislative provisions.
The legislation
Bail Act
The Bail Act includes the following relevant sections:
1A Purpose
The purpose of this Act is to provide a legislative framework for the making of decisions as to whether a person accused of an offence should be granted bail, with or without conditions, or remanded in custody.
1B Guiding principles
(1) The Parliament recognises the importance of—
(a) maximising the safety of the community and persons affected by crime to the greatest extent possible; and
(b) taking account of the presumption of innocence and the right to liberty; and
(c) promoting fairness, transparency and consistency in bail decision making; and
(d) promoting public understanding of bail practices and procedures.
(2) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in subsection (1).
…
3 Definitions
…
Schedule 2 offence means an offence specified in Schedule 2 and, if circumstances are specified in Schedule 2 in relation to that offence, means an offence committed in those circumstances;
…
3B Determination in relation to a child
(1) In making a determination under this Act in relation to a child, a bail decision maker must take into account (in addition to any other requirements of this Act)—
(a) the need to consider all other options before remanding the child in custody; and
(b) the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers; and
(c) the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and
(d) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(e) the need to minimise the stigma to the child resulting from being remanded in custody; and
(f) the likely sentence should the child be found guilty of the offence charged; and
(g) the need to ensure that the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.
…
4Entitlement to bail
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
4AA When 2 step tests apply
(1) The step 1—exceptional circumstances test applies to a decision of whether to grant bail to a person accused of a Schedule 1 offence.
(2) The step 1—exceptional circumstances test also applies to a decision of whether to grant bail to a person accused of a Schedule 2 offence if—
…
(c) the offence is alleged to have been committed—
(i)while the accused was on bail for any Schedule 1 offence or Schedule 2 offence; or
(ii)while the accused was subject to a summons to answer to a charge for any Schedule 1 offence or Schedule 2 offence; or
(iii)while the accused was at large awaiting trial for any Schedule 1 offence or Schedule 2 offence; or
(iv)during the period of a community correction order made in respect of the accused for any Schedule 1 offence or Schedule 2 offence; or
(v)while the accused was otherwise serving a sentence for any Schedule 1 offence or Schedule 2 offence; or
(vi)while the accused was released under a parole order made in respect of any Schedule 1 offence or Schedule 2 offence; or
…
Schedule 2 of the Bail Act commences with a note and sets out the Schedule 2 offences. The note and item 1 state:
Note
Section 4AA(2) and (3) set out whether a person who is accused of an offence in this Schedule will be subject to the exceptional circumstances test or the show compelling reason test.
1.An indictable offence that is alleged to have been committed by the accused—
(a) while on bail for another indictable offence; or
(b)while subject to a summons to answer to a charge for another indictable offence; or
(c) while at large awaiting trial for another indictable offence; or
(d)during the period of a community correction order made in respect of the accused for another indictable offence or while otherwise serving a sentence for another indictable offence; or
(e) while released under a parole order.
Item 1 has been referred to as an ‘uplift clause’, as it has the effect of rendering any alleged indictable offence a Schedule 2 offence due to the circumstances in which it was allegedly committed. Items 2–31 of Schedule 2 go on to list a number of Schedule 2 offences, and additional circumstances in which an indictable offence will be a Schedule 2 offence.[3]
[3]I note that items 28 and 29 would also be considered ‘uplift clauses’. Item 28 deals with indictable offences alleged to have been committed while the accused was subject to a supervision order or interim supervision order. Item 29 deals with a situation where the accused, ‘at any time during the proceeding with respect to bail’, is the subject of a supervision order or interim supervision order — in such a situation, an alleged indictable offence is also a Schedule 2 offence, despite the alleged offending occurring while the accused was not subject to a supervision order or interim supervision order.
CYFA
The CYFA establishes the Criminal Division of the Children’s Court. The Criminal Division has jurisdiction to hear and determine summarily all charges against children for indictable offences, other than murder, attempted murder and other forms of homicide.[4]
[4]CYFA s 516(1).
Section 3 of the CYFA provides an inclusive definition of ‘sentence’ as follows:
sentence includes—
(a) the recording of a conviction; and
(b) an order made under Part 5.3, other than—
(i) an order incidental to or preparatory to the making of the order; or
(ii) an order granting bail made under section 420; or
(c) an order made under section 11 of the Sex Offenders Registration Act 2004; and
(d) an order make under section 84S or 84T of the Road Safety Act 1986;
The reference to ‘an order granting bail made under section 420’ has no relevance for present purposes.[5]
[5]Section 420 deals with a person arrested pursuant to a warrant for an alleged breach of a sentence, and provides that the Bail Act applies, with any necessary modifications.
Part 5.3 of the CYFA is headed ‘Sentences’ and establishes a sentencing regime applicable to children. Section 360(1) sets out a hierarchy of available sentencing options. Section 361 reflects the principle of parsimony. Section 362 lists certain matters to which the court must have regard when sentencing a child.
Section 346(6) of the CYFA states:
The Bail Act 1977 (to the extent that it is not inconsistent with this section) applies to an application for bail by a child.
The note following s 346(6) refers to a number of sections of the Bail Act that are particular to children, including s 3B of the Bail Act.[6]
[6]Other provisions of the Bail Act relevant to children are found at Bail Act ss 5AA(2)–(3), 10(3)–(4), 10A(3)–(4), (6)(b)(ii), 12(5), 12B(1)(a), 13(4)(a), 13A(1), 16B, 24(3A) and 30A(3).
Criminal Procedure Act 2009 (Vic) (‘CPA’)
Section 3 of the CPA also provides an inclusive definition of ‘sentence’, as follows:
(a) the recording of a conviction; and
(b)an order made under Part 3, 3A, 3B, 3BA, 3C, 3D, 4 or 5 of the Sentencing Act 1991, other than an order incidental to or preparatory to the making of the order; and
(c)an order made under section 11 or 11B of the Sex Offenders Registration Act 2004; and
(d)an order made under section 84S or 84T of the Road Safety Act 1986; and
(e)an order made under section 365, 367, 373, 380 or 387 of the Children, Youth and Families Act 2005 made by the Supreme Court in its original jurisdiction or the County Court in its original jurisdiction;
Note
Section 586 of the Children, Youth and Families Act 2005 gives the Supreme Court and the County Court, when sentencing a child for an indictable offence, power to impose any sentence which the Children’s Court may impose.
The applicant’s contentions
The applicant submits he is prima facie entitled to bail. He submits the phrase, ‘or while otherwise serving a sentence for another indictable offence’ in item 1(d) of Schedule 2 excludes a sentence imposed by the Children’s Court. Alternatively, the phrase creates an ambiguity which should be resolved in the applicant’s favour.
The applicant accepts that ‘sentence’ is defined in the CYFA, and that the use of ‘sentence’ in the Bail Act is not necessarily limited to the definition found in the CPA. The applicant points to the wording of item 1(d), which deals with an indictable offence alleged to have been committed ‘during the period of a community correction order made in respect of the accused for another indictable offence or while otherwise serving a sentence for another indictable offence’. By employing this language, the legislature has linked ‘or while otherwise serving a sentence’ to ‘community correction order’. A community correction order is a disposition found only in the Sentencing Act 1991 (Vic) (‘Sentencing Act’). The applicant argues that a child ‘cannot be made subject to a community correction order’. Thus, the express inclusion of a community correction order in item 1(d) — a sentence not capable of being imposed on a child — evinces an intention to limit the application of that paragraph to a person serving a sentence imposed in the adult jurisdiction.
The applicant argues the ‘only reason’ that the drafters of the Bail Act would have included a reference to a CCO in item 1(d) is to make clear that ‘sentence’ in that paragraph means a sentence imposed in the ‘adult jurisdiction’. Were it otherwise, the reference to a CCO would have been included in a separate paragraph of item 1, in the same way it has in s 4AA(2)(c) of the Bail Act.[7]
[7]In s 4AA(2)(c) of the Bail Act, the reference to a community correction order and the reference to ‘otherwise serving a sentence’ are separated into sub-paragraphs (iv) and (v).
The applicant argues that item 1(d) is at least ambiguous, and that the drafters did not intend for that particular clause to generate ‘unjust situations’, whereby a child on a ‘without conviction’ therapeutic order would find themselves having to establish exceptional circumstances, whereas an adult, sentenced by way of a fine, would not be ‘serving a sentence’ for bail purposes, and would therefore be subject to a lower threshold. The applicant submits the sentencing regime created by the CYFA is designed to promote rehabilitation and divert children away from the criminal justice system, and any ambiguity should be resolved by a construction that promotes the principles found in s 3B of the Bail Act, and the sentencing purposes found in the CYFA. The applicant submits that the case of Re Matemberere,[8] which dealt with a similar submission, may be distinguished as the Court there was not there dealing with a child.
[8](2018) 57 VR 647.
In the course of argument, I observed that together, s 4AA(2)(c)(i) and Schedule 2 item 1(a) of the Bail Act have the consequence that the exceptional circumstances test applies to a child accused of an indictable offence while on bail for a Schedule 1 offence or a Schedule 2 offence. I queried why, in those circumstances, the same test could not apply where a child has been sentenced for an indictable offence. The applicant replied that the context in which the Bail Act was drafted makes clear that it was designed to address individuals who continue to offend while on bail, as opposed to those who continue to offend after they have been sentenced. In support of that proposition, the applicant referred to Re KP[9] (‘Re KP’), which he argues demonstrates an approach to the interpretation of the Bail Act whereby finalised charges and pending charges are treated differently. The applicant also relies on the reasoning in Re KP as demonstrating a hesitancy on the part of the court to construe sections of the Bail Act in a way which would have ‘broad negative consequences’ for an applicant, in the absence of clear language mandating such an outcome.
[9][2018] VSC 436.
The respondent’s contentions
The respondent submits that, at the time of the alleged offending, the applicant was on a YSO for offences including attempted armed robbery and persistently breaching an interim intervention order. Both of those offences are Schedule 2 offences. The applicant was therefore ‘serving a sentence’, being the YSO, for a Schedule 2 offence.
The respondent next submits that robbery and theft are indictable offences, which are alleged to have been committed whilst the applicant was serving a sentence for other indictable offences. The alleged robbery and theft are therefore Schedule 2 offences pursuant to Schedule 2, item 1(d).
Thus, the applicant has been charged with a Schedule 2 offence alleged to have been committed whilst serving a sentence for a Schedule 2 offence. Pursuant to s 4AA(2)(c)(v) of the Bail Act, the applicant must establish exceptional circumstances that justify the grant of bail.
The respondent submits that the definition of ‘sentence’ in the CPA has no bearing on the construction of item 1(d), and that, to the extent it may have some relevance, it is not determinative when considering the meaning of ‘sentence’ as used in the Bail Act.
Legislative history of Schedule 2 item 1(d) of the Bail Act
The Bail Amendment (Stage One) Act 2017 (Vic) (‘Stage One Act’) amended s 4 of the Bail Act and added Schedules 1 and 2. Prior to its commencement, if a person was charged with certain serious offences, the Bail Act required a court to refuse bail unless the applicant satisfied the court that ‘exceptional circumstances exist which justify the grant of bail’.[10] If the applicant was charged with certain other offences, or in certain circumstances, the court was required to refuse bail ‘unless the accused shows cause why his detention in custody is not justified’.[11] These tests were known as the ‘exceptional circumstances test’ and the ‘show cause test’.
[10]Section 4(2) of the Bail Act, as it then was.
[11]Section 4(4) of the Bail Act, as it then was.
The Stage One Act removed the ‘show cause’ test, introduced the ‘show compelling reason’ test and introduced Schedules 1 and 2.[12] The amendments provided for in the Stage One Act, including the introduction of Schedules 1 and 2, came into effect on 21 May 2018. As outlined in the Explanatory Memorandum to the Bail Amendment (Stage One) Bill 2017 (Vic) (‘Stage One Bill’), the purpose of listing the offences in Schedule 2, rather than in s 4(4) as was previously the case, was to set out more clearly and effectively the offences to which the new ‘show compelling reason’ test applied.[13]
[12]Bail Amendment (Stage One) Act 2017 (Vic) ss 5(7)(b), (8), 13.
[13]Explanatory Memorandum, Bail Amendment (Stage One) Bill (Vic) 5.
The second reading speech of the Stage One Bill states the intention of the legislature was to ensure ‘that people who commit serious indictable offences while on bail, summons, parole, under sentence or at large, will not be granted bail again unless they can prove there are exceptional circumstances or compelling reason, depending on the severity of their further offending’.[14] It was acknowledged that Schedules 1 and 2 would ‘make it harder for people alleged to have committed violent and other serious offences to receive bail’.[15]
[14]Victoria, Parliamentary Debates, Legislative Assembly, 25 May 2017, 1493 (Martin Pakula).
[15]Victoria, Parliamentary Debates, Legislative Assembly, 25 May 2017, 1493 (Martin Pakula).
In the Statement of Compatibility to the Stage One Bill, specific reference was made to the rights of children in the criminal process, wherein it was stated, inter alia:[16]
The amendments in this bill are proportionate to the level of alleged offending and the risk of harm that an accused child poses to the safety and security of Victorians. Existing safeguards for children are retained and clarified in this bill.
…
This bill will not result in a child being unnecessarily remanded and will not have a disproportionate effect on children who have been detained. In my opinion the rights of children in the criminal process are preserved.
[16]Victoria, Parliamentary Debates, Legislative Assembly, 25 May 2017, 1491 (Martin Pakula).
The Justice Legislation Amendment (Terrorism) Act 2018 (Vic) (‘JLAA’) made further amendments to the Bail Act. The JLAA inserted s 4AA, which sets out when the 2 step bail tests apply. The JLAA also inserted a note after the heading to Schedule 2, but prior to the list of offences, directing attention to ss 4AA(2) and (3), which govern whether a person accused of an offence in that Schedule will be subject to the exceptional circumstances test or the compelling reason test.[17]
[17]JLAA ss 84 and 98(2).
Analysis
When interpreting an Act, it is necessary to construe the statute as a whole.[18] Section 35(a) of the Interpretation of Legislation Act 1984 (Vic) states that, in the interpretation of a provision of an Act or subordinate instrument, a construction which would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object.[19]
[18]See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ) (‘Project Blue Sky’).
[19]Additionally, s 35(b) sets out the types of extrinsic materials which may be considered when interpreting legislation. Section 36(1)(b) states that schedules to an Act form part of the Act.
Re KP
Given the reliance placed by the applicant on Re KP, it is necessary to deal with that decision in some detail.
The applicant in Re KP was charged with Schedule 2 offences, including armed robbery. At the time of the alleged offending, the applicant was on a CCO for two robberies. At the time the applicant was charged with the two robberies, he was at large awaiting trial on three counts of shop theft. The respondent in that case submitted, therefore, that the applicant had been charged with a Schedule 2 offence while serving a sentence for a Schedule 2 offence, placing him in the ‘exceptional circumstances’ category for the purposes of bail. The applicant submitted that robbery was not a Schedule 2 offence and that, accordingly, he was not on a CCO for a Schedule 2 offence. Whilst robbery may have been a Schedule 2 offence for bail purposes at the time it was committed, an offence which had been proven and dealt with by a court could not be raised to a ‘higher order of offence’ for the purposes of classifying the offence or offences in respect of which bail was sought.
Emerton JA, as her Honour then was, expressed a ‘preliminary view’ that the applicant was correct. It her view, item 1 of Schedule 2 is intended to apply to the unproven offences for which bail is sought:[20]
[30] Schedules 1 and 2 generally list offences by name or by reference to the relevant statutory provision creating the offence. The ‘uplift clauses’ in question — cl 3 of Schedule 1 and cl 1 of Schedule 2 — do not name specific offences, but refer to a class of offences that are to be included as Schedule 1 or 2 offences by reason of the circumstances in which they are ‘alleged to have been committed’. In the absence of clear indication to the contrary, this choice of words must be taken to involve a deliberate decision on the part of the legislature to limit the offences captured by the uplift clauses to offences that remain to be proven.
[31] The construction advanced by the prosecution has the effect of uplifting offences that were not treated or regarded as Schedule 2 offences at the time the actions or decisions referred to in paragraphs (a) to (e) of cl 3 of Schedule 1 were taken, that is, at the time of granting bail, issuing a summons, or making a community correction order or the parole order (as the case may be). In my view, the language of the statute would have to be very clear to produce such an outcome, and it is not.
For example, robbery may be a Schedule 2 offence if it remains to be proven and is alleged to have been committed in one or more of the circumstances set out in item 1. However in such a case, once the robbery is proven, it is no longer a Schedule 2 offence as robbery itself is not a Schedule 2 offence. It only achieves that status via the uplift clauses, which only apply to unproven offences.
[20]Re KP (n 9) [30]–[31]. I note that, since this decision, item 3 of Schedule 1 has been repealed by the JLAA and moved, effectively, to s 4AA(2)(c) of the Bail Act.
As the applicant recognises, the factual situation is different in this case. Here, the applicant was on a YSO for two Schedule 2 offences, namely attempted armed robbery and persistent breach of an interim intervention order. These offences are not Schedule 2 offences because of the ‘uplift’ provisions. They are both per se Schedule 2 offences, placed there, it may be assumed, because the legislature considered them sufficiently serious to be included in Schedule 2, but not so serious that they belong in Schedule 1.
In my view, the Court in Re KP was dealing with a different question. Item 1 of Schedule 2 creates five circumstances where an alleged indictable offence will be a Schedule 2 offence for bail purposes. The first three paragraphs deal with circumstances where there are unproven charges pending — that is, the person is on bail, charged on summons or awaiting trial on another indictable offence.[21] The last two paragraphs deal with circumstances where there are proven charges that have been dealt with; namely, where the person is on a community correction order or otherwise serving a sentence for an indictable offence, or is on parole.[22] The clear and intended effect of item 1 is that a person who allegedly commits an indictable offence in any of the listed circumstances will face a higher hurdle when seeking bail.
[21]Bail Act, Schedule 2, Item 1(a)-(c).
[22]Bail Act, Schedule 2, Item 1(d)-(e).
‘Sentence’ and ‘serving a sentence’
The Bail Act does not include a definition of ‘sentence’.
The Sentencing Act does not include a definition of ‘sentence’, but any sentence imposed under the Sentencing Act would be considered a sentence for the purposes of the Bail Act.
As set out above, both the CYFA and the CPA contain inclusive definitions of ‘sentence’. Other legislation deals with the sentencing of offenders in Victoria, or otherwise defines ‘sentence’. For example, Victorian courts, when sentencing persons for federal crimes, have available the sentencing options found in the Crimes Act 1914 (Cth), which also picks up certain State sentencing orders.[23] The Commonwealth Crimes Act provides for the sentencing of federal offenders, but does not define ‘sentence’.[24] The Sex Offenders Registration Act 2004 (Vic) contains its own definition of ‘sentence’.[25]
[23]See Crimes Act 1914 (Cth) s 20AB, which allows for additional sentencing alternatives found in State legislation. Section 20AB(1AA)(iii) picks up community correction orders.
[24]See Crimes Act 1914 (Cth) pt 1B.
[25]See Sex Offenders Registration Act 2004 (Vic) s 3.
The meaning of ‘serving a sentence’ has been considered in previous Supreme Court decisions. In Re Matemberere,[26] Weinberg JA held that a person subject to an adjourned undertaking under s 75 of the Sentencing Act is relevantly ‘serving a sentence’. His Honour stated:[27]
[29] There is no question but that an order under s 75 is relevantly a ‘sentence’ for the purposes of the Criminal Procedure Act 2009 (Vic). Section 3 of that Act defines ‘sentence’ to include an order made under pt 3BA of the Sentencing Act1991, and an adjourned bond falls within that part of that Act. Accordingly, there can be an appeal against sentence in relation to such an order. Nonetheless, counsel for the applicant submitted that a different, and narrower, view should be taken when it came to construing the relevant ‘trigger’ provision of the Bail Act 1977.
[30] In my opinion, the entire tenor of the Bail Act, in its present form, manifests a legislative intention to make it significantly more difficult for individuals who allegedly offend again, having previously been dealt with for other offences, to be granted bail. The extrinsic material, to which I was referred, uses the term ‘undergo’ as synonymous with ‘serve’, and it is in that sense that I think s 4AA(2)(c)(v) should be construed.
[31] I accept that this interpretation can give rise to seemingly odd consequences. For example, an offender who is fined is plainly not serving a sentence. That is true, even if he or she is given time to pay, or can pay, by instalments. Yet, an adjourned bond under s 75, which theoretically is more lenient than a fine, produces the paradoxical result that a further offence during the period of that bond triggers the exceptional circumstances requirement for bail, whereas the fine does not. That seems to me to be an inexorable result of the language the legislature has chosen to use.
[26] (2018) 57 VR 647.
[27]Ibid 650–1 [29]–[30]. See also WBM v Chief commissioner of Police (2010) 27 VR 469, where Kaye J analysed the meaning of the word ‘serving’. At 475 [22], his Honour stated, ‘it is clear that the word “serving” is intended to bear the meanings referred to in both the Oxford English Dictionary and the Macquarie Dictionary, namely, as a participle of the verb “to serve” in the sense of “to go through” (a term of service, imprisonment etc) or to “undergo” such a term’.
The imposition of a sentence follows a conviction or finding of guilt. The ordinary, plain meaning of ‘sentence’, in a criminal case, is the judgment of a court setting out the punishment for a crime.[28] In my view, there is no reason to treat the meaning of ‘sentence’ in the Bail Act as fixed to any definition of ‘sentence’ found in other legislation.[29] Whilst those inclusive definitions provide guidance and assistance as to what is meant by ‘sentence’, the definition of ‘sentence’ in another Act cannot provide a complete or exhaustive answer as to what is meant by ‘sentence’ in the Bail Act. In my view, the word ‘sentence’ as used in the Bail Act derives its meaning from the ordinary meaning of ‘sentence’ in criminal law, informed by the definitions and sentence types found in other legislation dealing with criminal punishment.
[28]See Atanckovic v The Queen (2015) 45 VR 179, 206–7 [89]–[92] and the cases referred to therein.
[29]See, for example, R v Scott (1990) 20 NSWLR 72, where the meaning of ‘Officer of a public company’ as used in the Crimes Act 1900 (NSW) was considered, including the question of whether the definition found in the Companies (New South Wales) Code 1981 had any relevance.
Was the applicant ‘serving a sentence’ within the meaning of Schedule 2, item 1(d)?
The short answer is, ‘Yes’.
A YSO is imposed on an offender by a court as punishment for a crime or crimes. It is a sentence under the CYFA that may be imposed by the Children’s Court, or the County or Supreme Courts. If imposed by the higher courts, it is a sentence as defined in the CPA. It is undoubtedly a ‘sentence’ within the meaning of the Bail Act.
A person is ‘serving a sentence’ if they are undergoing the punishment imposed. The applicant was serving his sentence, being his YSO, at the time of the alleged offending in respect of which he sought bail. Further, he was ‘serving a sentence’ for two Schedule 2 offences, namely attempted armed robbery and persistent breach of an interim intervention order.
A CCO is a type of sentence that can be imposed on a child. Whilst it is rare for a child to object to a summary hearing, they may do so. If that occurs, the child must be tried in the County or Supreme Court (depending on the charge). If convicted, the County or Supreme Court may use either the Sentencing Act or the CYFA when imposing sentence. It is true that a CCO cannot be imposed in the Children’s Court. However, a CCO is not a sentence that can only be imposed on an adult offender. To the extent the applicant’s argument relied on the contrary proposition, it cannot be accepted.
When considering item 1(d), the use of the phrase ‘during the period of a community correction order for an indictable offence’ immediately prior to ‘or while otherwise serving a sentence’ does invite a question as to why a CCO, which is a type of sentence under the Sentencing Act and included in the CPA definition of ‘sentence’, is singled out. No other type of non-custodial sentence, such as a YSO, is named.
The phrase ‘or otherwise’ is generally employed to refer to something different to the thing just mentioned. In Crowe v Graham,[30] the High Court considered the phrase ‘or otherwise publishes’ as used in s 16(d) of the Obscene and Indecent Publications Act 1901–1995 (NSW). Windeyer J stated:[31]
The words “or otherwise publishes” in s 16(d) mean “or in other wise publishes” that is to say “in some other manner or way publishes”. To read “or otherwise” as meaning “likewise”, “in some like manner or way”, seems to me a departure from the ordinary meaning or phrase. I do not think that the meaning and operation of s 16(d) are to be ascertained by asking what it would mean if the words “or otherwise publishes” were not there, and then treating them as something added … Those who like Latin tags as rules of construction should remember that the ejusdem generis doctrine should be understood with, and in a sense as an exception to, the rule generalia verba sunt generalis intelligenda.
[30](1968) 121 CLR 375.
[31]Ibid 388.
That is, general words should be understood in a general sense. Here, when read in context and given its plain meaning, item 1(d) covers the circumstance where a person is alleged to have committed an indictable offence while serving a sentence for an indictable offence, whatever that sentence may be. The person may be serving a CCO, or serving some other, different type of sentence.
I note that an approximation of the phrase in item 1(d) of Schedule 2 first appears in s 3AAA of the Bail Act. Section 3AAA(1) sets out matters which the bail decision maker must take into account, including—
(e) whether, at the time of the alleged offending, the accused—
…
(v) was subject to a community correction order made in respect of, or was otherwise serving a sentence for, another offence;
…
As noted above, in s 4AA(2)(c), the circumstance of ‘during the period of a community correction order’ is found in a separate sub-paragraph to ‘while the accused was otherwise serving a sentence’. However, both circumstances remain linked by the words, ‘or … otherwise’. In my view, nothing turns on whether the circumstances appear together in one paragraph, as in item 1(d), or separated into sub-paragraphs, as in s 4AA(2)(c). The meaning of the expression ‘or otherwise serving a sentence’ remains the same. The bail decision-maker must consider whether the person committed the alleged offence in respect of which he or she seeks bail while on a CCO or otherwise serving a sentence.
I do not think the reference to a single type of sentence, namely a CCO, limits the phrase ‘or otherwise serving a sentence’ in the way contended for by the applicant. The single example, followed by the words ‘or otherwise’, does not limit the general expression which follows to particular kinds of sentences. To read the latter part of the phrase, ‘or while otherwise serving a sentence’, as having the effect of excluding sentences imposed by the Children’s Court would be to read in words that do not appear. Unless there is a clear necessity to do so, and such a clear necessity is absent here, that should not be done.[32]
[32]See Western Australia v Commonwealth (1975) 134 CLR 201, 251 (Stephen J).
In my view, item 1(d) is not ambiguous or unclear. Arguably, there is no reason to include the words ‘during a period of a community correction order’ in item 1(d), as a CCO is a sentence, both under the Sentencing Act and as defined in the CPA. However, a construction that gives meaning and effect to all words is to be preferred.[33] A clear, available and logical interpretation is that ‘during the period of a community correction order’ was included to make clear that a person could be serving a sentence even if the sentence did not involve actual custody, remembering that ‘sentence’ is undefined in the Bail Act. Further, by virtue of s 44 of the Sentencing Act, a CCO is able to be combined with a term of imprisonment. By including ‘during the period of a community correction order’, the legislature has made clear that a person who receives a combination sentence is still serving that sentence, being the CCO, after his or her release from custody.
[33]See Project Blue Sky (n 18), 382 [71] (McHugh, Gummow, Kirby and Hayne JJ).
The applicant’s submission must fail. The applicant was ‘serving a sentence’ at the time of the alleged offending. Accordingly, the alleged indictable offences for which he sought bail were Schedule 2 offences. The applicant was serving that sentence for two Schedule 2 offences. The applicant was therefore alleged to have committed a Schedule 2 offence whilst serving a sentence for a Schedule 2 offence. Pursuant to s 4AA(2)(c)(v), the exceptional circumstances test applies in determining whether to grant bail to the applicant.
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