State of Tasmania v Thorpe

[2011] TASSC 18

[2011] TASSC 18

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 State of Tasmania v Thorpe [2011] TASSC 18

PARTIES:  STATE OF TASMANIA
  v
  THORPE, Stephen Leslie

FILE NO/S:  9/2009
DELIVERED ON:  18 April 2011
DELIVERED AT:  Burnie
HEARING DATE:  14 April 2011
JUDGMENT OF:  Evans J

CATCHWORDS:

Statutes – Acts of parliament – Operation and effect of Acts – Retrospective operation – In respect of procedure – When not retrospective.

Sentencing Act 1997 (Tas), s27.

Rodway v R (1990) 169 CLR 515, followed.
R v Haas [1997] TASSC 6; Attorney-General's Reference No 1 of 2004 (2005) 13 Tas R 395, referred to.
Aust Dig Statutes [1149]

REPRESENTATION:

Counsel:
             Appellant:  A Shand
             Respondent:  G A Richardson
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  G A Richardson

Judgment Number:  [2011] TASSC 18
Number of paragraphs:  13

Serial No 18/2011
File No 9/2009

STATE OF TASMANIA v STEPHEN LESLIE THORPE

REASONS FOR JUDGMENT  EVANS J

18 April 2011

1. When it appears that a condition of a suspended sentence of imprisonment has been breached, the Sentencing Act 1997, s27(1), authorises the Director of Public Prosecutions and other specified persons to apply to the court that imposed the sentence, to make consequential orders under that section. By amendments to that section which came into force on 1 January 2011, if the court is satisfied of the breach, and if the conduct which constitutes the breach is itself an offence punishable by imprisonment, the court "must activate" the suspended sentence unless of the opinion that to do so "would be unjust". Prior to 1 January 2011, the court's discretion when dealing with a breach of a condition of a suspended sentence was not so fettered. The issue for my determination is whether these amendments apply to an application to a court under s27, subsequent to 1 January 2011, in respect of a suspended sentence of imprisonment imposed prior to that date, and an asserted breach committed prior to that date. As explained in authorities to which I will refer, the issue is not whether these provisions are of retrospective effect. If the amendments are procedural they apply prospectively to prescribe the manner in which the proceeding is conducted, even if the proceeding relates to past events.

1. The issue is raised by the Director of Public Prosecutions' application to activate a sentence of imprisonment imposed on the respondent on 23 February 2009, the whole of which sentence was suspended on condition that he be of good behaviour for a period of two years. The Director of Public Prosecutions contends that the respondent breached this condition by committing the crime of assault upon a pregnant woman on 6 June 2010. The respondent was convicted of that crime on 14 April 2011. He does not dispute that he has breached the condition. He contends however that he should not be dealt with for the breach pursuant to s27 as amended, but as it was before 1 January 2011.

1. Prior to 1 January 2011, the Sentencing Act, s27(4), was:

"(4)   If, on the hearing of the application, the court is satisfied by evidence on oath or by affidavit or by the admission of the offender that the offender has, during the relevant period, breached the condition of the suspended sentence without reasonable excuse or committed the new offence, the court may –

(a) order that sentence to take effect; or

(b) order that a sentence (in this section called the 'substituted sentence' take effect in place of the suspended sentence; or

(c) by order, vary the conditions on which the execution of the sentence was suspended."

1. Since 1 January 2011, the Sentencing Act, s27(4) - (4C), have been:

"(4)   If a court finds an offender guilty of an offence punishable by imprisonment committed during the period an order suspending a sentence of imprisonment is in force in respect of the offender (in this section called the 'new offence'), an authorised person –

(a)  may make an oral application to the court, while the offender is before the court in relation to the new offence, for an order under this section; and

(b)  is to provide the offender in writing with the grounds for the oral application, if directed to do so by the court.

(4A)    ….

(4B)  If, on the hearing of an application under this section, the court is satisfied that the offender has been found guilty of a new offence, the court must activate the sentence of imprisonment that is held in suspense and order the offender to serve it.

(4C)  If the court is of the opinion that an order under subsection (4B) would be unjust, the court may instead –

(a)  activate part of the sentence that is held in suspense and order the offender to serve it; or

(b)  order that a sentence (in this section called the 'substituted sentence') take effect in place of the suspended sentence; or

(c)  by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or

(d)  make no order in respect of the suspended sentence."

1. The amendments in question were made by the Justice and Related Legislation (Further Miscellaneous Amendments) Act 2009, Pt 10. That Act contains no savings or transitional provisions. Pursuant to s2(2) of that Act, Pt 10 commences on a day to be proclaimed. It was proclaimed to commence on 1 January 2011.

1. The applicant contends that the amendments in question govern the hearing of the application, as they are procedural in nature.  The respondent contends that the amendments are not procedural in nature and that they affect a right accrued to him, that is, a right to have the application dealt with by a court which has an unfettered discretion.  In the course of his submissions, counsel for the respondent emphasised the magnitude of the changes brought about by the amendments.  Save for the effect of the changes on the impact of the issue of the justice of activating a suspended sentence, I do not consider them to be of great magnitude.  It has long been recognised that the impetus for reform which is intended to flow from the suspension of a sentence of imprisonment is lost if the usual consequence of a breach of a condition of the suspension is not the activation of the sentence.  Of course, this recognition did not mean that prior to the amendments in question a suspended sentence was invariably activated when a condition was breached.  It is axiomatic that a sentence would only have been activated if it was considered to be just to do so.  Against this background the amendments do little more than give statutory force to that which was already so, save for how they impact on the effect of the issue of the justice of activating a sentence.   Previously, a sentence would only be activated if it was established that it was just to do so.  Now, if a condition of the suspension of a sentence is breached by conduct that amounts to an offence punishable by imprisonment, the sentence must be activated unless it is established that it would be unjust to do so. 

1. The respondent relies on the Acts Interpretation Act 1931, s16(1), which relevantly provides:

"16. Effect of repeal, expiry, &c.

(1)            Where an Act repeals any other enactment then, unless the contrary is expressly provided, such repeal shall not –

(a)      …;

(b)      …;

(c)      affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed;

(d)      …; or

(e)      affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid –

and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed as if the repealing Act had not been passed."

1. Consistent with s16(1) and the common law, a statute is not given retrospective operation so as to affect existing rights or obligations. However, as explained in the joint judgment of the High Court in Rodway v R (1990) 169 CLR 515 at 518:

"The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance."

And, at 521:

"But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial. The principle is sometimes succinctly, if somewhat sweepingly, expressed by saying, as did Mellish LJ in the passage cited by Dixon CJ in Maxwell v Murphy, that no one has a vested right in any form of procedure. It is a principle which has been well established for many years: see also Wright v Hale, per Wilde B; Attorney-General v Sillem, per Lord Wensleydale; Warner v Murdoch, per James LJ."

1. Rodway dealt with the repeal and replacement of the Criminal Code Act 1924 (Tas), s136. Before the repeal, that section provided that an accused could not be convicted of any of the crimes contained in the part of the Code headed "Crimes Against Morality", upon the uncorroborated evidence of a complainant. The replacement section abolished a requirement that a judge warn a jury against convicting upon the uncorroborated evidence of a complainant in such cases. These amendments came into operation between the date of Rodway's alleged commission of the crimes in issue and his trial for those crimes. In holding that the provision as amended applied to Rodway's trial, the court held that the Acts Interpretation Act 1931 (Tas), s16(1)(c), applied only to preserve acquired or accrued rights, and he had acquired no right to a particular mode of procedure at his trial, that right only being acquired on the commencement of his trial when the occasion for the application of that procedure arose. The court also held that s16(1)(e) did not apply, as its application was confined to the preservation of the existence of the legal proceeding or remedy of which it speaks, and it does not preserve the procedure to be observed in the proceeding.

1. The law as explained in Rodway was applied in R v Haas [1997] TASSC 6, where Zeeman J dealt with the effect of the Criminal Law (Detention and Interrogation) Act 1995, s8, which, in brief summary, rendered confessional evidence inadmissible unless it was video taped. The trial in Haas related to events that had occurred prior to the enactment of s8. In the course of the trial the State sought to rely on confessional evidence obtained prior to the enactment of s8, which did not satisfy its requirements as it had not been video taped. Consistent with Rodway, Zeeman J held that s8 applied to exclude the admission of the confessional evidence. His Honour held that the State had no vested right to have an indictment tried in any particular way. Its right was to have it tried in accordance with the practice and procedure of the court and the rules as to the admissibility of evidence which prevailed at the time of the trial. Haas was followed in R v Georgiardis (No 3) [2001] TASSC 49.

1. A further example of the application of the law as enunciated in Rodway is Attorney-General's Reference No 1 of 2004 (2005) 13 Tas R 395. This decision dealt with an amendment to the Misuse of Drugs Act 2001, s7(2), which came into force subsequent to the conduct of the accused, Mr Crane, but prior to his trial. As amended, s7(2) provided that when it was proved that an accused had cultivated a trafficable quantity of a controlled plant, "it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief … required to constitute the offence". Under the repealed provision this presumption only applied "in the absence of evidence to the contrary". Underwood CJ, agreed with by Crawford J, as he then was, and myself said:

"16      Of particular relevance … are the following two propositions:

·     firstly, that there is no right to be tried in a particular way (at least not before the trial begins); and;

·     secondly, that the determinative factor is whether the amendment affects only the manner in which existing rights and obligations are to be determined.  If it does no more than affect the way existing rights and obligations are to be tried, there is no presumption against retrospectivity. 

17        These propositions are valid even if the amendment affects what might be generally regarded as a fundamental protection against wrongful conviction. … 

18        At the time of the alleged commission of the offence, Mr Crane 'had acquired no right to a particular mode of procedure at his trial', per Rodway at 523. The Act, s7(2), before and after amendment, concerned only the nature and extent of the evidence required to establish the offence charged. The amendment did no more than change the manner in which the statutory factual presumption could be displaced. It did not touch Mr Crane's rights, obligations or liabilities that he had acquired, or was subject to, at the date the State alleged he committed the offence charged. Although it might be said that the amendment touched an important protection, or made a fundamental change, it clearly did no more than affect the way the accused's rights and obligations were to be contested in court, and therefore did not fall within the presumption against retrospectivity."

1. In this case, consistent with Rodway, I conclude that the respondent does not have a right to the proceedings brought against him for breaching the condition of his suspended sentence being conducted in any particular way.  His right is for these proceedings to be conducted in accordance with the practice and procedure prevailing at the time of the hearing.  Had the legislature intended otherwise when it amended the Sentencing Act, s27, it could have so provided. See for example the Evidence Amendment Act 2010, Sch2, s3, which provides that the amendment made by that Act to the Evidence Act, s85, did not apply in relation to admissions made before the commencement of the amendment and that s85, as in force immediately before the commencement of the amendment, continued to apply in relation to admissions made before the commencement.

1. For these reasons I conclude that the Director of Public Prosecutions' application to activate the suspended sentence of imprisonment imposed upon the respondent is to be dealt with in accordance with the provisions of the Sentencing Act, s27, as currently in force.