Robertson v Leferve
[2012] ACTSC 22
•8 February 2012
JODIE ROBERTSON V SHANE ALAIN LEFERVE
[2012] ACTSC 22 (8 February 2012)
CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – breach of good behaviour order made on appeal – which court should deal with breach – Magistrates Court should ordinarily deal with breach – s 218 Magistrates Court Act 1930 (ACT)
Magistrates Court Act 1930 (ACT) ss 216, 218, div 3.10.2
Magistrates Court Act 1991 (SA) s 42(6)
Justices Act 1958 (Vic) s 142(7)
Justices Act 1886 (Qld) s 225
Summary Proceedings Act 1957 (NZ) s 135(3)
Summary Jurisdictions Act 1848 (UK), 11 & 12 Vict, c 43, s 27
Crimes (Sentence Administration) Act 2005 (ACT) ss 107, 108
Crimes Act 1914 (Cth) s 20A
Sentencing Act 1997 (Tas), s 42
Sentencing Act 1995 (WA), s 132
Crimes (Sentencing) Act 2005 (ACT) s 27
Robertson v Leferve
(unreported, Supreme Court of the ACT, Mathews AJ,
2 December 2010
Butler v Vickers [2011] ACTSC 134
Stone v Brien [2009] ACTSC 6
R v Adler [1972] VR 345
Ledson v Taylor (No 2) (2010) 239 FLR 360
Demer v Cook (1903) 88 LT 629
R v Sabine; Ex parte Lenthall [1929] SASR 123
R v Judge Leckie; Ex parte Felman (1977) 18 ALR 93
R v Nicholson [1951] VLR 273
Messel v Davern (1981) 54 FLR 376
Campbell v Fortey (1987) 85 FLR 462
AB v The Queen (1999) 198 CLR 111
Carroll v Price [1960] VR 651
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 21 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 8 February 2012
IN THE SUPREME COURT OF THE )
) No. SCA 21 of 2010
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JODIE ROBERTSON
Appellant
AND:SHANE ALAIN LEFERVE
Defendant
ORDER
Judge: Refshauge J
Date: 8 February 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal against the sentence imposed by the Magistrates Court on 7 April 2010 for an offence of assault on 30 September 2009 be dismissed;
The parties be heard as to consequential orders to be made in consequence of the dismissal of that appeal;
The proceedings in respect of the breach of the good behaviour order made on 2 December 2010, alleged in the information of Sean Ehlers sworn 6 October 2011 be stayed;
Insofar as it is appropriate and desirable, leave be granted to the Respondent to take such proceedings in the Magistrates Court in respect of the breach alleged in the information of Sear Ehlers sworn 6 October 2011 as it may be advised.
On 30 September 2009, the appellant, Jodie Robertson, was involved in a relationship which was clearly volatile. On that day, she drove to her then partner’s residence and invited him to get into her van to attend with her at Centrelink.
She then drove the vehicle in a dangerous manner, while shouting obscenities at her partner. This included veering off the road, mounting the nature strip and colliding with a concrete pole on the nature strip.
Her partner was terrified during this driving and feared for his safety. He managed to get out of the van and asked a nearby resident to call the police.
Police attended and then went to Ms Robertson’s residence where she was arrested for assault. She was subsequently charged with assaulting her partner and driving in a dangerous way. She appeared in court on 2 October 2009. The proceedings were adjourned from time to time.
On 17 February 2010, she pleaded guilty to both charges. On 7 April 2010 she was sentenced. On the charge of driving in a dangerous way, she was sentenced to three months imprisonment to be served by periodic detention and disqualified from holding or obtaining a licence for nine months. On the charge of assault, the court made a good behaviour order for eighteen months with a condition that she be subject on probation to the supervision of the Chief Executive and obey all reasonable directions of the Director of Corrective Services.
On 8 April 2010, she appealed against the sentence.
The appeal was heard on 2 December 2010 by Mathews AJ. Her Honour upheld the appeal: Robertson v Leferve (unreported, Supreme Court of the ACT, Mathews AJ,
2 December 2010). Both counsel for the appellant and for the respondent identified that the then learned sentencing Chief Magistrate had erred when imposing the sentence for the charge of driving in a dangerous way. Her Honour set aside the sentence and re-sentenced the appellant. Her Honour said:
I sentence the appellant to imprisonment for a period of three months, to be suspended immediately upon her entering into a good behaviour order for a period of 12 months. It is a condition of that order, that she accept the supervision of ACT Corrective Services and obey all reasonable directions of the Chief Executive of that service, or his or her delegate, and that she participate in any programs or counselling as directed by the service, with particular reference to separated parents and anger management. I order that the appellant be disqualified from holding or obtaining a licence for a period of six months from today.
Although the appeal, as in the Notice of Appeal, was made against the sentence on both charges, her Honour, it appears, did not appear to deal with and certainly not uphold the appeal in relation to the charge of assault.
On 6 October 2011, an officer of ACT Corrective Services swore an information in this Court deposing that the appellant had failed to accept supervision. This was the process I described in Butler v Vickers [2011] ACTSC 134 (at [9]) for bringing an allegation of breach of a good behaviour order before the Supreme Court.
The information alleged a failure to accept the supervision of the Chief Executive not ACT Corrective Services. There may be no difference in the end between this and the reference in the sentence itself to supervision by ACT Corrective Services, but for present purposes nothing turns on that.
This allegation, if proved, may have breached both good behaviour orders for, of course, there were two, though that may not be so as I mention below (at [46]). The first in time was that imposed in the Magistrates Court. Although the subject of the appeal, it was apparently not disturbed on appeal. The second in time was that imposed in the Supreme Court when, as a result of the upholding of the appeal, the appellant was re-sentenced. Both had a condition requiring the appellant to accept supervision.
The importance of being clear as to which good behaviour order is the subject of breach action is noted in Stone v Brien [2009] ACTSC 6 (especially at [36]–[46]).
The only order asserted in the information to have been breached, however, is that imposed on the appeal. Whether breach action is to be sought in respect of the other order is not a matter of which I need to concern myself at this stage. See Stone v Brien at [40].
The issue that I have to decide is whether the breach proceedings should be heard in this Court. To answer this issue I have to consider on the interpretation of certain statutory provisions.
Relevant statutory provisions
The Magistrates Court Act 1930 (ACT), provides in Div 3.10.2 for appeals from the Magistrates Court in criminal matters. In particular, s 218 provides for the orders that the Supreme Court may make on an appeal. It is in the following terms:
(1) On an appeal to which this division applies, the Supreme Court may–
(a)confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or
(b)give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or
(c)set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceeding to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate.
(2)A judgment or order of the Supreme Court under subsection (1)(a) or (b) has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.
Sub-section 218(2) does not make a judgment or order of the Supreme Court on appeal a decision of the Magistrates Court. It clearly remains an order of this Court: R v Adler [1972] VR 345 at 347. It gives the order the effect of a decision of the Magistrates Court and then permits, though perhaps does not require, enforcement to be performed by the Magistrates Court. Thus, the judgment or order remains an order of the Supreme Court that has imposed the sentence on re-sentencing.
Of course, where the Supreme Court has not re-sentenced, but has merely made orders to deal with the consequences of the statutory stay under s 216 of the Magistrates Court Act, as in Ledson v Taylor (No 2) (2010) 239 FLR 360, the status of the order and the relationship of the sentence to the Supreme Court in this context may be more problematic.
I do note, however, that the terms of s 218(2) are somewhat stronger than in other similar statutes. For example, s 42(6) of the Magistrates Court Act 1991 (SA) provides that “the Magistrates Court has the same authority to enforce ... [the] judgment or order as if it had not been appealed against or had been made in the first instance.” Prior to the CriminalProcedure Act 2009 (Vic), s 142(7) of the Justices Act 1958 (Vic), provided that “such order shall have the same effect and may be enforced in the same manner as if it had been made by the [Magistrates Court]”. See also s 225(4) of the Justices Act 1886 (Qld) and s 135(3) of the Summary Proceedings Act 1957 (NZ). These provisions have their origin in s 27 of the Summary Jurisdictions Act 1848 (UK), 11 & 12 Vict, c 43.
It is clear from authorities considering those provisions that the grant of authority to the justices did not deprive the appellate court of enforcement power: Demer v Cook (1903) 88 LT 629 at 631; R v Sabine; Ex parte Lenthall [1929] SASR 123 at 127.
Clearly, however, it also granted to the Magistrates Court power to enforce the orders of the Supreme Court on appeal by virtue of the terms of s 218(2) of the Magistrates Court Act: R v Sabine at 127–8.
The second provision to which I turn is s 107 of the Crimes (Sentence Administration) Act 2005 (ACT), which regulates certain breaches of good behaviour orders. It provides:
(1)If the Supreme Court finds an offender guilty of an offence committed during the term of the offender’s good behaviour order, the court may deal with the offender under this part for breach of the offender’s good behaviour obligations.
(2)If the Magistrates Court finds an offender guilty of an offence committed during the term of the offender’s good behaviour order, and the order was made or changed by the Supreme Court, the Magistrates Court must, in addition to dealing with the offender for the offence, commit the offender to the Supreme Court to be dealt with under this part for breach of the offender’s good behaviour obligations.
(3)For subsection (2), a magistrate may remand the offender in custody until the offender can be brought before the Supreme Court.
It is not directly relevant here, for there is no allegation of Ms Robertson having committed a further offence whilst subject to the good behaviour order. The relevance is that under s 107(1), where the Supreme Court has found an offender guilty, it can deal with a breach of a good behaviour order constituted by that finding, whether the order was made by the Magistrates Court or the Supreme Court. Under s 107(2), however, the Magistrates Court in the same situation can only deal with a breach of a good behaviour order if the order has not been “made or changed” by the Supreme Court, that is, it must have been made in the Magistrates Court and not “changed”. The reference to “changed” must include or mean changed on appeal; that would be the normal way in which an order of the Magistrates Court would be changed. I note that it could also be “changed” were the Supreme Court to exercise the power under s 107(1), resulting in the changing a good behaviour order made by the Magistrates Court following the Supreme Court’s finding of guilt of the offender.
The significance of this section is the legislative intent that could possibly be divined that where the Supreme Court is seized of a matter then it should deal with it and that a breach constituted by the commission of an offence must, where the Supreme Court has disturbed (that is “changed”) a sentence by making or varying a good behaviour order, be dealt with by the Supreme Court.
The third provision is the general power to deal with breaches of good behaviour obligations, such as s 108, which relevantly provides:
(1)This section applies if –
(a)a court is satisfied an offender has breached any of the offender’s good behaviour obligations; and
(b)section 110 (Cancellation of good behaviour order with suspended sentence order) does not apply to the offender’s good behaviour order.
(2)The court may do 1 or more of the following:
(a)take no further action;
(b)give the offender a warning about the need to comply with the offender’s good behaviour obligations;
(c)give the chief executive directions about the offender’s supervision;
(d)amend the good behaviour order;
(e) if the offender has given security under the order –
(i)order payment of the security to be enforced; and
(ii)order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended);
(f) cancel the order.
Examples for par (d)
impose or amend an additional condition of the order, or amend the term of the order
This provision is a quite general power for a court to take specified action in relation to a good behaviour order. In particular, there is no reference to any limitation on the court which may act in these circumstances, to be contrasted, for example, with s 20A of the Crimes Act 1914 (Cth), regulating the court response to a failure to comply with a conditional release order (a similar order to the ACT good behaviour order), which specifically refers to the issue of a summons requiring the person to appear “before the court by which the order was made”.
This legislation, then, gives a mixed and unhelpful picture.
Other considerations
The question of which judicial officer should deal with a breach of an order for conditional release has not always been answered in the same way.
Other jurisdictions have different approaches to such matters. For example, in Tasmania, until 2009, a breach of a probation order, whichever court made it, was dealt with as an offence prosecuted by complaint under s 42 of the Sentencing Act 1997 (Tas). Under that legislation, the Tasmanian court of petty sessions was, if satisfied that a breach had been committed, empowered to fine the person or impose a term of up to three months' imprisonment in replacement of or addition to the fine. The court could, if it considered the breach a serious one, commit the offender to the Supreme Court which could take various actions, including varying the order or cancelling it and making any other order. To similar effect is s 132 of the Sentencing Act 1995 (WA).
The High Court has given some brief consideration to the issue of which judicial officer should deal with a breach of a recognizance. In R v Judge Leckie; Ex parte Felman (1977) 18 ALR 93, Gibbs J (as his Honour then was), with whom Stephen and Aickin JJ agreed said (at 99), that “[i]t is logical and seems convenient that a judge who grants a recognizance should be the person who imposes sentence if a condition is broken.”
Indeed, his Honour accepted what the Full Court of the Supreme Court of Victoria had said in R v Nicholson [1951] VLR 273 at 274, that, where a court defers passing sentence and the offender is called upon to come up for sentence, what has occurred is merely the postponement of the completion of the trial. This, of course, is not the situation here. However, it would, arguably, apply in the case of a deferred sentence order under s 27 of the Crimes (Sentencing) Act 2005 (ACT).
Consideration
In the absence of binding authority or clear statements of principle as to how to approach this matter, I shall have to consider the matter from first principles.
I do accept, however, that what Gibbs J said in R v Judge Leckie is very relevant and that when a good behaviour order is breached, the judicial officer who imposed it should, in the usual circumstances, deal with it. That, however, cannot be an immutable principle. For example, another judicial officer has the statutory power to deal with it: that is clear in the legislative freedom I have discerned. The exercise of this statutory power would be appropriate where, for instance, the relevant judicial officer had died, retired, been appointed to another court or would be unable through illness or extended leave to deal with the matter.
It also seems to me that where an appeal from the Magistrates Court has been heard by the Supreme Court, it is really an appeal whereby any error in the Magistrates Court decision is corrected and the decision that should have been made is substituted: Messel v Davern (1981) 54 FLR 376 at 383; Campbell v Fortey
(1987) 85 FLR 462 at 464. In this sense, the decision is, to use the terms of those decisions, the one that the Magistrates Court should have made.
It is not surprising then, that it should be regarded as having that effect and enforcement should be provided for in that way. That is to say, s 218(2) of the Magistrates Court Act gives consistent force to the nature and intendment of the outcome of the appeal.
Nevertheless, when an error has been identified or manifest excess identified on appeal, then, as Hayne J said in AB v The Queen (1999) 198 CLR 111 at 160, the appellate court exercises the sentencing discretion afresh. In that real sense, it is a sentence of the appellate court.
It is clear from the authorities and from the terms of s 218(2), that any commitment warrant for enforcement of a sentence of imprisonment imposed on appeal can be made, and perhaps should be made, in the Magistrates Court: Carroll v Price
[1960] VR 651 at 661.
The question then is how should breaches of good behaviour orders made or changed on appeal (other than those constituted by the commission of further offences) be dealt with in the courts? Should they be dealt with by the Supreme Court or referred to the Magistrates Court?
Giving all due respect to the views of Gibbs J in R v Judge Leckie, which views should certainly apply within each court where practicable, it does seem to me that s 218(2) of the Magistrates Court Act is the expression of a legislative policy that orders by the Supreme Court on appeal from the Magistrates Court should be treated as orders of the Magistrates Court and dealt with accordingly. That is subject to the express, specific provision of s 107(2) of the Crimes (Sentence Administration) Act.
That there are different answers provided by s 218(2) and s 107(2) may not be as troubling as they might otherwise appear. Breaches constituted by failures to comply with supervision or ancillary obligations, such as a failure to abstain from use of drugs proved by a positive result on urinalysis, are generally prosecuted by information laid by an officer of ACT Corrective Services, whereas breaches constituted by the commission of further offences are generally prosecuted by the Director of Public Prosecutions or on information laid by the Australian Federal Police.
Whilst s 218(2) is an expression of legislative policy, it is not an immutable direction. Thus, where a good behaviour order made on appeal from the Magistrates Court is subsequently breached other than by commission of a further offence, the breach should ordinarily be dealt with in the Magistrates Court. But if, for example, there were also a Supreme Court good behaviour order (not made on appeal) that was breached, it would be sensible and convenient for the breach of both orders to be heard and determined in the Supreme Court.
In this case, that may be another reason for considering that the breach should be dealt with in the Magistrates Court. Here, there is a good behaviour order that had not been disturbed on appeal, or even, in terms, confirmed, and which remains in the Magistrates Court. That would suggest it is convenient and sensible for both matters to be dealt with in the Magistrates Court.
I say “may be” for it is probably unlikely that this is the actual position here. The Notice of Appeal expressly, and in terms, commenced an appeal against both sentences, namely, that for the driving in a dangerous way and that for the assault. The filing of the Notice of Appeal stayed the enforcement of the order: s 216(1) of the Magistrates Court Act.
In her Honour’s reasons for decision, Matthews AJ clearly only dealt with the challenge to the driving offence. Her Honour’s opening words were: “This is an appeal against a sentence imposed by the magistrate in relation to a charge of driving in a way dangerous.”
It may be that there was an intimation or a wish that the appeal against the sentence in relation to the assault charge was abandoned. If such an intimation or wish was expressed, the court’s records do not indicate that any order was made in respect of that.
It seems to me that I should take the opportunity to rectify this omission and dismiss the appeal so far as it relates to the sentence for the assault charge. I should also make a consequential order about the lifting of the stay by the dismissal of the appeal.
The other consequence of this, of course, is that until the appeal is dismissed, the good behaviour order made in respect of that charge was stayed. As such, it was not operative during the period that it is alleged Ms Robertson failed to comply with supervision. If so, it seems that, in actuality, Ms Robertson cannot be the subject of breach action in respect of that order.
The remaining question is a procedural question as to what to do in respect of the information laid in this Court with reference to the alleged breaches of the good behaviour order. In my view proceedings on that information should be stayed and, insofar as it can be done, the respondent be given leave to take breach proceedings in the Magistrates Court.
I will so order.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 8 February 2012
Solicitor for the appellant: No appearance
Counsel for the respondent: Ms A Jubb
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 30 November 2011
Date of judgment: 8 February 2012
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