The Queen v Bennett - [2020] NTSC 49

CITATION:The Queen v Bennett [2020] NTSC 49
PARTIES:THE QUEEN
v

BENNETT, Corey

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21937479
DELIVERED ex tempore:               28 July 2020
HEARING DATE:  1 July 2020
JUDGMENT OF:  Hiley J

CATCHWORDS:
SENTENCING – Home Detention Orders – Power to make a home detention order suspending a sentence after completion of part of an actual sentence of imprisonment
Sentencing Act 1995 (NT) s 5, s 7, s 40, s 43, s 44, s 45, s 48, s 78BA, s 78BB, s 78DG, s 78DH, s 78F
Traffic Act 1987 (NT)
O’Brien v Quin (2003) 13 NTLR 122, Ross v Toohey [2006] NTSC 92, referred to
REPRESENTATION:
Counsel:
Crown:T McNamee
Defendant:M Chalmers
Solicitors:
Crown:Director of Public Prosecutions
Defendant:Ward Keller
Judgment category classification:    B
Judgment ID Number:  Hil2013
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Bennett [2020] NTSC 49

No. 21937479
BETWEEN:

THE QUEEN

AND:

COREY BENNETT

CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered ex tempore 28 July 2020)
Introduction

Ms Chalmers, counsel for the offender, submitted that I should give the offender the benefit of a home detention order, to operate after the offender has served a period of actual imprisonment.
This raises two important issues:
(a)whether the Court has the power to make a home detention order in circumstances where a sentence of imprisonment is not wholly suspended; and if so
(b)whether the court should give the offender the benefit of a home detention order.
Ms McNamee for the Crown submitted that there is no power to make a home detention order in circumstances where the Court must or does impose a term of actual imprisonment. One example of that would be for an offence that attracts a mandatory minimum term of actual imprisonment, even if that was a sentence until the rising of the court.
Section 7(h) of the Sentencing Act 1995 (NT) (the Act) permits this Court to “order that the offender serve a term of imprisonment that is suspended on the offender entering into a home detention order”.
Home detention orders are referred to in Part 3 Division 5 Subdivision to of the Act. Section 44(1) provides that:
A court which sentences an offender to a term of imprisonment may make an order suspending the sentence on the offender entering into a home detention order where it is satisfied that it is desirable to do so in the circumstances.
(underlining added by me)
The court must specify a particular place where the offender is to reside or remain, and a period not exceeding 12 months, for the order to remain in force (s 44(2)). The order may be subject to various conditions (s 44(3)).
A court may only make any detention order if:
(a)it receives a report from the Commissioner under s 45(1)(a); and
(b)the offender consents to the making of the order (s 45(1)(b)).
The Act also contains provisions for the review of a home detention order, and regarding breaches.
There are significant differences between the regime established in relation to home detention orders and that established under Part 3 Division 5 Subdivision 1 of the Act in relation to suspended sentences imposed under s 7(g) of the Act. Examples include:
(a)section 7(g) expressly states that a term of imprisonment may be suspended “wholly or partly” – cf s 7(h);
(b)when ordering a suspended sentence the court must fix an operational period during which the offender is not to commit another offence punishable by imprisonment (s 40(6));
(c)when ordering a suspended sentence the court may impose conditions and order supervision for an extensive period – cf the maximum 12 months for a home detention order (s 44(2));
(d)section 40(1) permits a court to make an order suspending the sentence, whereas s 44(1) only permits the court to make the order on the offender entering into a home detention order; and
(e)the consequences of breaches are different (compare ss 43 and 48).
The main arguments which Ms McNamee advanced in support of the Crown’s submission rely on:
(a)the decision of the Full Court in O’Brien v Quin;[1]
(b)obiter comments by Mildren J in Ross v Toohey;[2] and
(c)the fact that unlike s 7(g), s 7(h) does not expressly refer to the partial suspension of a sentence.
The Full Court’s decision in O’Brien v Quin is not relevant. It was that the court could not suspend a term of imprisonment by combining the two regimes, namely the suspended sentence regime established under s 7(g) and ss 40-43 of the Act as well as the home detention order regime established under s 7(h) and ss 44-48 of the Act. The sentencing court had purported to suspend the offender’s sentence of six months’ imprisonment by suspending it after three weeks and fixing an operational period of three years from the date of his release, presumably under s 40 of the Act, and also ordering a home detention order for a period of six months from the date of his release, presumably under s 44 of the Act.
In Ross v Toohey Mildren J found that the sentencing magistrate had erred in not considering home detention as an option, given that she was dealing with offences under the Traffic Act 1987 (NT). His Honour then made some obiter comments concerning mandatory imprisonment provisions concerning violent offences, presumably in s 78BA of the Sentencing Act (as it then was). Mildren J said, at [19]:
Of course there are many situations where home detention will not be available. The Legislature has seen fit to provide that in the case of violent offences there must be a period of actual imprisonment, which has the effect that a home detention order is not an option. Given that many so-called violent offences are likely to result in a sentence of less than 12 months and many result in a very short sentence, the effectiveness of home detention as a sentencing option to deal with minor offending to that extent has been significantly curtailed.
(underlining added by me)
In 2013 the mandatory imprisonment provisions regarding violent offences were significantly amended. Sections 78DG(c) and 78DH now contain provisions expressly permitting a court to make an order under s 40 or s 44 in relation to part of a term of imprisonment, the only limitation being that the order not include a period of actual imprisonment mandated for that particular violent offence. These provisions replaced s 78BA and would appear to have dealt with the concerns expressed by Mildren J in Ross v Toohey.
Unfortunately it seems that the Legislature may have overlooked s 78BB, which was identical to s 78BA but related to sexual offences. Section 78BB was replaced by, and was in exactly the same terms as, s 78F of the Sentencing Act.
With respect, I disagree with the opinion expressed by Mildren J in those obiter comments in Ross v Toohey, and with the other contentions advanced by the Crown.
In my opinion there is nothing in the language used by Parliament in relation to home detention orders that justifies a reading down of the power to make such an order by confining it to circumstances where the offender has not already served[3], or will not be required to serve, some form of actual imprisonment. I say this for a number of reasons:
(a)Such a reading down would significantly restrict the ability of a court to impose a home detention order in circumstances where such a disposition is clearly more appropriate, unless the offending was a violent offence to which s 78DG(c) could apply. Unless the offending was a violent offence to which s 78DG(c) could apply, a court could not order a home detention order where it backdates a sentence to reflect time already spent in custody, or order a home detention order to operate after the offender has served a further term of actual imprisonment.
(b)I would expect clear language to be used before limiting the apparent scope of sentencing provisions such as those contained in Part 3 Division 5 of the Act adversely to the interests of the offender. This is particularly so in relation to suspended sentences and home detention orders, they being orders that serve the important purpose expressed in s 5(1)(b) of the Sentencing Act of promoting the rehabilitation of the offender, particularly where there is no or little risk of re-offending.
(c)Unlike the express provisions regarding the partial suspension of sentences under s 7(g) and Part 3 Division 5 Subdivision 1 of the Act and the express references to partial suspension in s 78DG(c) regarding violent offences, there is nothing in the provisions that relate to home detention orders that requires the words “an order suspending the sentence” in s 44(1) to be read down and confined to “an order wholly suspending the sentence”.
(d)Indeed, those words “an order suspending the sentence” are identical to those used in s 40(1), which clearly are not limited to orders wholly suspending a sentence.
(e)Further, the language used in s 48(6)(b) of the Act, which relates to breaches of a home detention order, seems to assume that an offender’s imprisonment could be suspended after he or she has already served part of the sentence in prison. Section 48(6)(b) provides:
whether the order is revoked under paragraph (a) or is otherwise no longer in force, the offender must be imprisoned for the term suspended by the court on the making of the order as if the order had never been made and despite any period that the offender may have served under the order.
Had Parliament intended that a home detention order could not be imposed after the offender’s service of part of his or her sentence of imprisonment, Parliament would have used words like “for the term of the sentence of imprisonment” rather than the words underlined above.
(f)Finally, if the legislature intended that a home detention order was not available for an offender found guilty of a sexual offence, it could and would have expressly so provided.
In my opinion, a court does have the power to impose a home detention order suspending a sentence which has already been, or is to be, partly served by actual imprisonment.
The question remaining is whether and how that power should be exercised in a particular case.

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[1] [2003] NTSC 99; 13 NTLR 122.

[2] [2006] NTSC 92.

[3] Of course a court could attempt to avoid this result by taking the unusual step of reducing the head sentence to reflect time already spent in custody and then ordering a home detention order effective immediately. But even that would not assist in a case where mandatory sentencing provisions require some actual imprisonment.