Storay v Watkins
[2014] ACTSC 344
•3 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Storay v Watkins |
Citation: | [2014] ACTSC 344 |
Hearing Date: | 3 December 2014 |
DecisionDate: | 3 December 2014 |
Before: | Penfold J |
Decision: | Mr Storay is to sign a new undertaking to comply with the good behaviour order imposed by the Magistrates Court dated 9 May 2014 in the attached form (see [19] below). |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – JURISDICTICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – effect of dismissal of appeal on good behaviour order stayed by appeal – operation of revived good behaviour order – bringing new operation of revived good behaviour order to attention of offender – whether appellants should be required to sign bail undertakings even if not liable to custodial penalty – need to clarify proper way to revive a good behaviour order. |
Legislation Cited: | Bail Act 1992 (ACT), s 5, Dictionary Court Procedures Rules 2006 (ACT), r 5052(1)(e) Magistrates Court Act 1930 (ACT), ss 214, 214 (4), 216 |
Cases Cited: | Storay v Watkins [2014] ACTSC 298 |
Parties: | Justen Storay (Appellant) Nicole Jane Watkins (Respondent) |
Representation: | Counsel Self-represented (Appellant) Ms S Saikal (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 41 of 2014 |
Introduction
On 14 October 2014, I dismissed an appeal instituted on behalf of Justen Storay (Storay v Watkins [2014] ACTSC 298) against an order made in the Magistrates Court that he be of good behaviour for 24 months, with conditions requiring that he accept Corrective Services supervision for 12 months and that during that 12 months he complete 120 hours of community service.
On 3 December 2014, I made an order requiring Mr Storay to sign a new good behaviour undertaking covering the unexpired term of the original good behaviour order and of its conditions. These are my reasons for making that order.
Stay of Magistrates Court orders
Mr Storay’s good behaviour undertaking was signed on 9 May 2014. It would therefore have operated for six days before his appeal was instituted on 15 May 2014. The effect of the institution of the appeal was, under s 216 of the Magistrates Court Act 1930 (ACT), to stay the orders made in the Magistrates Court until the appeal was resolved.
The good behaviour order made by the Magistrate had required Mr Storay to sign an undertaking to be of good behaviour for 24 months from 9 May 2014. The significance of the good behaviour order is, among other things, that if Mr Storay were to breach his good behaviour undertaking during its term, he would be liable to be dealt with under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT), and would be at risk of having the good behaviour order cancelled and being re-sentenced for the original offence.
Operation of stay in relation to good behaviour orders
There is a question whether s 216 operates to stay the good behaviour order made by the Magistrate, or the effect of the good behaviour undertaking signed by Mr Storay. The good behaviour order, if it is seen as simply an order to Mr Storay to sign the undertaking, would appear to have been spent when the undertaking was signed, and it is not clear what it would mean to stay that order. On the other hand, the Crimes (Sentence Administration) Act certainly treats the good behaviour order as having an ongoing operation until the specified period expires (eg Pt 6.5 of that Act makes provisions that operate for “the term of the order”). This suggests that staying the order would be a meaningful concept, as it would if the order is interpreted as an order to Mr Storay to be of good behaviour for the specified period.
Whether or not the good behaviour order has a continuing operation, it seems to me that it would be difficult to justify enforcing a good behaviour undertaking against an appellant in respect of conduct during the period apparently covered by the undertaking but engaged in between the commencement of the appeal and its finalisation, that is, the period during which any associated Magistrates Court orders would clearly have been stayed by s 216.
On the other hand, an unsuccessful appellant should not be able to effectively reduce the good behaviour period by the time taken for an unsuccessful appeal. That is, if the good behaviour order is treated as stayed during the currency of an ultimately unsuccessful appeal, it would seem appropriate for the remaining term of the good behaviour period to be revived and served, in the same way that an unsuccessful appellant against a prison term who has been granted appeal bail is then required to serve the unserved part of the sentence after the appeal is dismissed.
The issues may be best explained by an example using the following chronology:
1 February 2014
Offender sentenced to 12-month good behaviour order in Magistrates Court
Offender signs 12-month good behaviour order running from 1 February 2014 until 31 January 2015
1 March 2014
Offender appeals against sentence, thereby staying the sentence
1 July 2014
Appeal dismissed in Supreme Court, Magistrates Court sentence confirmed
In those circumstances, the offender has (probably) only been bound by his or her good behaviour undertaking for one month (1 February until 28 February 2014). It seems unlikely that action could be taken against him or her for breaching the good behaviour undertaking in respect of any conduct engaged in between 1 March and 1 July 2014. If the sentence is revived without any adjustment of the dates specified in the good behaviour undertaking, then the offender would be entitled to assume that the good behaviour undertaking remains binding only until 31 January 2015. If this is correct, the offender has by bringing an unsuccessful appeal reduced the effective penalty by four months. Alternatively, if the dismissal of the appeal has revived the good behaviour order and undertaking to the extent of the period that has not yet been served, then the good behaviour undertaking must in law bind the offender until 31 May 2015. Enforcement of that position may be problematic if the offender cannot be shown to have been aware of the new term of his or her obligations.
Giving effect to revival of Magistrates Court sentence
Unsuccessful appellant present when appeal dismissed
If an appellant attends the hearing of the appeal, there is generally no difficulty in ensuring that he or she does whatever is required by the outcome of the appeal. An offender who has been released from custody on bail pending the finalisation of the appeal may be remanded in custody, an offender whose periodic detention or good behaviour obligations have been revived can be advised of that fact, and where a new order is made the offender can be required to sign the usual papers. I note in this context, however, that an offender who at that point is neither remanded in custody nor on bail could, if he or she chose, presumably leave the court without signing any of those papers, and the process for bringing the offender back before the court is not immediately obvious.
Where no new orders are made but old orders are revived by the ending of the s 216 stay, I suspect that appropriate comments made by the court in the presence of the unsuccessful appellant would generally be adequate, taken together with the operation of s 216 of the Magistrates Court Act, to render the offender liable to action in respect of any subsequent breach of those obligations, although it is easy to imagine difficulties with the processes or the paperwork that could make such enforcement somewhat problematic.
There is a further complication to this matter. Section 105 of the Crimes (Sentencing) Act 2005 (ACT) provides that if a person fails to sign a good behaviour undertaking after being ordered to do so, the court that made the order may re-sentence the person. Having dismissed his appeal, I could have immediately pronounced an order requiring Mr Storay to sign a new undertaking specifying the new period for which it applies. However, any failure to comply with that order, assuming the order was effective at all, would in my view have needed to be dealt with by the court that originally made the good behaviour order and obtained the original good behaviour undertaking, rather than the court which has made an order requiring the dates of that undertaking to be adjusted. Thus, if in this case Mr Storay had failed to sign a new undertaking, the matter would have needed to be remitted to the Magistrates Court for any further action.
Unsuccessful appellant not present when appeal dismissed
The approach of requiring unsuccessful appellants to sign new good behaviour undertakings may in practice resolve most of the difficulties mentioned above. A clear problem arises however if, as is not unknown, an appellant who has begun an appeal ceases to take any active interest in it before it is finally resolved. This is what happened in Mr Storay’s case. As recorded in Storay v Watkins, Mr Storay did not appear when the appeal was listed for hearing and was not present when it was dismissed. After dismissing the appeal, I adjourned the matter to 14 November 2014, and an order was made that Mr Storay be notified of the adjourned listing.
Unfortunately, Mr Storay was notified by being sent a copy of my order adjourning the matter, without any covering letter stating that he was required to attend at that next mention. He did not appear on 14 November 2014, and a letter was accordingly sent to Mr Storay from the court advising him of the need to attend the next mention on 28 November 2014. Again, Mr Storay did not attend.
Whether appellants should routinely be required to sign bail undertakings
Mr Storay was not on bail during the appeal period. Given the nature of the penalty imposed on Mr Storay in the Magistrates Court, there was no obvious reason for anyone to make a bail order as a result of the institution of the appeal, although I note that the Bail Act 1992 (ACT) does seem to give a power to grant bail in those circumstances (see s 5 and the definition of “accused person” in the Dictionary, which includes a person whose conviction is stayed and a person in relation to whom an appeal is pending).
In this particular case, since Mr Storay had not appeared in the Supreme Court at any point during this appeal process (having been legally represented when the appeal was listed by the Deputy Registrar), any bail order, to be effective, would need to have been made when the appeal was first instituted. It may be that the signing of a bail undertaking needs to be incorporated into the process by which an appellant who is not at the time in custody can institute an effective appeal.
The current matter
In summary, although Mr Storay’s appeal had been dismissed, and any stay on the penalty imposed in the Magistrates Court had ended, it was not clear that Mr Storay’s obligations under the revived Magistrates Court sentence had been brought to his attention and it was not clear what period was covered by the revived good behaviour order. Furthermore, there did not appear to be a clear method of bringing those obligations to Mr Storay’s attention so as to close off any scope for argument about the exact period for which he was required to be of good behaviour or about what needed to be done about fulfilling his community service obligations, and whether, and if so when, he could be said to be in breach of either his good behaviour or his community service obligations.
At the 28 November mention, the matter was listed for further mention on 3 December 2014. This time, a letter advising Mr Storay of the listing was delivered to him personally by one of the court’s sheriffs.
On 3 December Mr Storay appeared before me. He was advised that his appeal had been dismissed, and that he would need to sign a new good behaviour undertaking. Accordingly, and in reliance on the power under r 5052(1)(e) of the Court Procedures Rules 2006 (ACT) to make any other order that I consider appropriate for an appeal to the Supreme Court, I made an order that he sign a new good behaviour undertaking which, was relevantly as follows:
I understand that my good behaviour obligations run from 3 December 2014 (when I became aware that my appeal had been dismissed) until 26 November 2016, a period representing that part of the term of the good behaviour order remaining when the good behaviour order was stayed by my appeal.
I understand that the probation condition in the good behaviour order is to operate as if it said:
The offender is subject to a probation condition to be supervised by the Director General and to obey all reasonable directions of the Director General for a period of 11 months and 24 days from 3 December 2014, or such lesser period as deemed appropriate and to report forthwith to the corrections intake officer.
I understand that the community service condition in the good behaviour order is to operate as if it said:
JUSTEN STORAY is to perform community service work for a period of 120 hours, such work to be completed within 11 months and 24 days from 3 December 2014. You must report forthwith to the corrections intake officer.
I understand that, if I do not comply with the conditions of the good behaviour order as varied by this undertaking, I will be in breach of the order and I may be further dealt with according to law.
That is, Mr Storay was required to indicate his understanding that:
(a)his good behaviour obligations and his probation condition would run for a period representing the portions of the original good behaviour term and probation term respectively that had not been served when he lodged his appeal;
(b)the community service condition required him to complete the community service originally ordered within a period representing the unexpired portion of the original community service term; and
(c)if he did not comply with the good behaviour order as varied by the new undertaking, he would be in breach of the order and might be further dealt with according to law.
Mr Storay signed the undertaking, and should therefore find it difficult to argue later (if any breach of his undertaking is alleged) that he was not made aware of the new duration of his obligations under the Magistrates Court sentence.
Conclusions
Assuming that this has been an effective way of reinstating the operation of the original good behaviour order, it has been an extremely inefficient one, involving a significant amount of judicial and other court time and other resources.
The Court may be able to find an administrative way of ensuring that appellants from the Magistrates Court are routinely put on bail at an early stage of the appeal process, but that would only make it easier to bring an unsuccessful appellant before the court. It would not address the question of the proper way to revive a good behaviour order so as to ensure that the operation of that revived order is clear and that any subsequent breach can be the subject of effective breach proceedings should that be necessary.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |