SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: / Australian Capital Territory v LewisCitation: / [2016] ACTCA34
Hearing Date: / 10 May 2016
DecisionDate: / 4 August 2016
Before: / Penfold, Burns and Jagot JJ
Decision: / 1.The appeal be dismissed.
2.The first appellant pay the respondent’s costs of the appeal, as agreed or taxed.
Catchwords: / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – appeal from single judge of the Supreme Court – primary judge held that sentence of periodic detention not extended where respondent had not performed periodic detention whilst on bail – whether respondent failed to perform periodic detention for the purposes of s 58(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) – whether grounds for a permanent stay of respondent’s sentence existed – appeal from discretionary order for costs.
Legislation Cited: / Bail Act 1978 (NSW)
Bail Act 1992(ACT), ss5, 6, 6(1)(b), 6(2), 6(2)(a), 6(2)(b), 9E, Dictionarypt 1 (definition of “accused person”)
Crimes (Sentence Administration) Act 2005 (ACT), ss40, 42, 55, 58, 58(1)(a), 58(3)(c), 58(4), 58(4)(b), 59, 66, 901(2)
Crimes (Sentencing) Act 2005 (ACT), s 11(2)
Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT)
Legislation Act 2001 (ACT), s 139
Magistrates Court Act 1930 (ACT), s 216
Periodic Detention of Prisoners Act 1981 (NSW), s 33(2)
Periodic Detention of Prisoners (Amendment) Act 1985 (NSW)
Supreme Court Act 1933 (ACT), ss 20(1)(a), 37Q
Cases Cited: / CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lewis v Australian Capital Territory (No 2) [2015] ACTSC 343
Lewis v Australian Capital Territory [2015] ACTSC 167; (2015) 301 FLR 102
Lewis v Chief Executive Department of Justice and Community Safety and Sentence Administration Board of the Australian Capital Territory [2013] ACTSC 198; (2013) 280 FLR 118
Quzag v R (No 2) [2015] ACTCA 10
R v Carrion [2002] NSWCCA 21; (2002) 128 A Crim R 29
R v Hall [2004] NSWCCA 127
The Queen v Quzag [2015] ACTCA 36
United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Whan v McConaghy [1984] HCA 22; (1984) 153 CLR 631
Parties: / Australian Capital Territory (First Appellant)
Magistrates Court of the Australian Capital Territory (Second Appellant)
Stephen James Lewis (Respondent)
Representation: / Counsel
Mr P Garrisson SC with Ms H Younan (Appellants)
Mr J Purnell SC and Dr J Stellios (Respondent)
Solicitors
ACT Government Solicitor (Appellants)
Ken Cush & Associates (Respondent)
File Number: / ACTCA31 of 2015
Decision under appeal: / Court:ACT Supreme Court
Before:Foster J
Date of Decision:3 July 2015
Case Title:Lewis v Australian Capital Territory
Citation:[2015] ACTSC 167
PENFOLD J:
1.I have had the opportunity to read in draft the judgment of Burns and Jagot JJ. I agree with the orders their Honours propose, although for reasons that are in some respects significantly different.
Appeal grounds 1 and 2
2.As noted by their Honours, the first issue for determination is the operation of s 58 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Administration Act) as in force in 2009. That provision has been repealed but retains a transitional operation. It extended a sentence that includes periodic detention if the offender “fails to report to perform periodic detention” for a detention period.
3.That section was relevantly as follows:
58 Failing to perform periodic detention—extension ofperiodic detention period
(1)This section applies to an offender for a detention period if—
(a)the offender fails to report to perform periodic detention for the detention period and has not been given approval under section 55 not to perform detention for the detention period; or
(b)...
(4)For each detention period of the offender to which this section applies—
(a)the offender is taken not to perform periodic detention; and
(b)the periodic detention period of the offender’s sentence of imprisonment, and the term of the sentence, are automatically extended by 1 week.
4.In the current case, the Sentence Administration Board (the Board) purported to cancel the respondent’s periodic detention in June or July 2008 after earlier failures to attend; he was arrested in January 2009 and detained in full-time custody for nearly three months. After that, in late March 2009, he was granted bail by a judge in the Supreme Court (the bail judge)pending the determination of proceedings he had instituted challenging the lawfulness of that custody, was released from full-time custody, and did not thereafter report to perform periodic detention.
5.In October 2013, the respondent’s challenge to the lawfulness of his custody was determined.The judge found that the Board’s decision to cancel the periodic detention was invalid and should be set aside because the Board failed to give the respondent an opportunity to appear before the Board when it considered his non-attendance for periodic detention on several occasions.
6.In 2015, another judge (the primary judge) determined an application by the respondent for:
(a)a declaration that the original imprisonment order and periodic detention order made against him in January 2008 had both expired; or
(b)alternatively, an order permanently staying that sentence of imprisonment and associated periodic detention order.
7.The primary judge, among other things, found that the sentence of imprisonment had expired and that the periodic detention in respect of that sentence had ended. The orders giving effect to those conclusions are challenged in this appeal.
8.I agree with Burns and Jagot JJ that s 58(1)(a) of the Administration Act applies to a person who does not report to perform periodic detention when there is an extant legal obligation to do so, and I also agree with their Honours that such an interpretation of the provision is available from the provision itself read in context and does not require any extra or qualifying words to be read in.
9.Section 42(1) of the Administration Act specifies that an offender “must serve periodic detention in the offender’s periodic detention period in accordance with this part”. An offender’s periodic detention period is defined by s 40 as the period originally ordered to be served by periodic detention, or that period as extended under Ch 5 of the Administration Act. It is clear, for instance, that if an order to an offender to serve periodic detention had been stayed under s 216 of the Magistrates Court Act 1930(ACT) by the filing of an appeal against that order, s 58(1)(a) would not apply during the term of that stay because the offender would not have a legal obligation to attend. On the other hand, the stay would have ensured that the sentence order did not continue to run such that in due course it might have expired without any further performance of periodic detention or return to custody.
10.However, in the current case I am not persuaded that after the respondent was released by the bail judge, he was no longer required to perform periodic detention and therefore that his subsequent non-attendance did not activate s 58(4).
11.That is because I consider that, consistent with the decision of the Court of Appeal in The Queen v Quzag [2015] ACTCA 36, the grant of bail to the respondent made in March 2009 was probably beyond power and accordingly not effective to override either the respondent’s legal obligation to perform periodic detention or, probably, his obligation to remain in the full-time custody into which he had been taken after the Board had cancelled his periodic detention.
12.Alternatively, it might be argued that the grant of bail could only have applied to the full-time custody, given that it was only the full-time custody, or at least the cancellation of the periodic detention order that resulted in the obligation to serve full-time custody, that was the subject of the respondent’s challenge. On this analysis, there would be nothing particularly absurd about the co-existence of a grant of bail (from full-time custody) and an obligation to perform periodic detention – and since there was at that point, apparently, no challenge to the periodic detention as such, that might in fact have been a sensible state of affairs (subject only to the need for it to be explained to the respondent at the time).
13.On 27 March 2009, when the bail judge purported to grant bail to the respondent, the relevant provisions of the Bail Act 1992 (ACT) were as follows:
5When may bail be granted?
(1)An accused person may be granted bail in relation to any period when the person is not required to attend court in relation to the offence with which the person has been charged.
(2)However, an accused person who is in custody in relation to an offence must not be granted bail in relation to any period when—
(a)the person is in custody for another offence or reason in relation to which the person is not entitled to be granted bail; or
(b)the person is serving a sentence of imprisonment.
9EBail for person sentenced to imprisonment
(1)This section applies if—
(a)a person has been convicted of an offence by a court andsentenced to a period of imprisonment for the offence; and
(b)an appeal is pending in relation to the conviction or sentence.
(2)A court must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.
(3)In this section:
appeal includes an appeal against a decision on appeal.
14.The Dictionary to the Bail Act defined “accused person” to include:
(a)a person charged with, convicted of, or found guilty of, an offence; and
(b)a person mentioned in section 8 (1) (c), (d) or (e); and
(c)a person whose conviction for an offence is stayed; and
(d)a person subject to an order under the Crimes (Sentencing) Act 2005, section 17 (Non-conviction orders—general); and
(e)a person in relation to whom an appeal relating to an offence is pending; and
(f)a person in relation to whom a new trial has been ordered to be held for an offence.
15.The respondent was an accused person under para (a) of the definition in the Dictionary. However, because he was serving a sentence of imprisonment as mentioned in s5(2)(b), s 5(2) provided that he was not to be granted bail.
16.Section 9E qualified the effect of s 5(2) by permitting a grant of bail to a sentenced prisoner while an appeal was pending in relation to the conviction or sentence. There was no appeal pending in relation to the respondent’s conviction or sentence, although there was the challenge to the lawfulness of the imprisonmentreferred to above.
17.In Whan v McConaghy (1984) 153 CLR 631, bail had been granted to a person who appealed from a sentence of periodic detention imposed on appeal to the NSW District Court; the appeal was later withdrawn as incompetent, and proceedings for declarations and prerogative relief in the nature of certiorari were immediately filed. In considering the effect of the grant of bail on the sentence of periodic detention, the plurality (Mason, Murphy, Wilson and Deane JJ) said at 636:
Section 8 of the Periodic Detention of Prisoners Act expressly provides that the sentence "shall commence" on the date specified in the order imposing the sentence. There is nothing in the Act which qualifies that clear provision. That being so, its effect is that the period or term of imprisonment which the person sentenced is required to serve is the period or term commencing on that designated date.
The fact that the applicant did not actually commence to serve the sentence of imprisonment did not, in itself, prevent the term of the sentence from commencing to run. In that regard, it is to be recalled that not even escape from custody had the effect, at common law, of preventing a term of imprisonment from continuing to run (In re Court (1871) 2 QSCR 171; Wilson v. Attorney-General (1938) NZLR 496). It becomes necessary to determine whether the orders for bail which were purportedly made by the Supreme Court operated to prevent the commencement of the term of imprisonment or to interrupt it after it had commenced. Two subsidiary questions immediately arise: the first is whether there was any power under the Bail Act 1978 (N.S.W.) to make the orders in question; the second is as to the effect of such orders, assuming them to have been validly made.
18.The plurality then examined each grant or extension of bail to determine whether it was within the powers of the Court of Appeal under the Bail Act 1978 (NSW). The validity of the grants of bail being accepted, the plurality found that the several grants of bail made in that case did not stop the sentence running, and that the Court of Appeal which dismissed those later proceedings did not have power to re-set the sentences. Thus the plurality concluded that the sentence had expired.
19.However, that decision depended on the absence of any provision in thePeriodic Detention of Prisoners Act1981 (NSW) qualifying the provision specifying the starting date for a term of periodic detention. The Act was amended in 1985 to provide for a term to be extended where a person had failed to report as required (Periodic Detention of Prisoners (Amendment) Act 1985 (NSW)), but before that, failures to attend had been addressed in the principal Act by provisions for forfeiture of available remissions or prosecution for an offence (as to which an effective grant of bail might have provided a defence – s 33(2)). There was no provision for a sentence to be extended.
20.The decision in Whan v McConaghy does not require a conclusion in this case that a failure to report for periodic detention in reliance on a grant of bail did not extend the term of the periodic detention. What it does require is attention to the effect of an order granting bail in the particular circumstances. If the grant of bail in this case of itself had been effective to remove the respondent’s obligation to perform his sentence, then s 58(4) would not have operated to extend the term of his periodic detention.
21.However, the effect of The Queen v Quzag [2015] ACTCA 36 is that the power to grant bail to the respondent in the circumstances obtaining in 2009 would only have arisen if the respondent’s sentence was stayed (an order that might well have been appropriate in the circumstances). In that case – that is, once the sentence had been stayed – neither s 58(4) of the Administration Act, nor the sentence itself, would have operated while the stay continued. Without a stay, however, no basis for the 2009 grant of bail seems to be identifiable.
22.In the absence of an argument that the grant of bail should be interpreted as evidencing an unarticulated but nevertheless effective stay order, I cannot see that there is any basis to treat an order granting bail that was itself probably beyond power as having, in effect, also stayed the order that otherwise prevented the granting of bail.
23.I note also that a grant of bail, even if validly made, may not entitle a person to immediate liberty if the person has been remanded in custody on another charge.
24.It is not uncommon, at least in this jurisdiction, for an accused person who has been granted bail on a particular charge to be remanded in custody in respect of a new (and often more serious) charge without any formal revocation of the original grant of bail (sometimes this may be because neither the judicial officer who remands the person in custody nor the prosecutor is at the time aware that the person has previously been granted bail in respect of quite separate offences). Nor did the Bail Act at the relevant time provide for any automatic revocation of an existing grant of bail if an accused person was remanded in custody (or even sentenced) for an offence unrelated to the existing grant of bail. If the charges that led to the remand in custody are dropped (or the sentence is completed), the person may then be entitled, without any further grant of bail in respect of the separate offences, to be released under the original bail order.That is not the case here – clearly, the bail order was made in connection with the sentence that was to be served by periodic detention – but it does indicate that there is nothing inherently impossible about the co-existence of a grant of bail and a separate obligation to submit to a form of custody.
25.Thus, I do not agree that the issue is whether an offender can “fail to report to perform periodic detention” while also the beneficiary of a grant of bail.
26.First, as already noted, there is the possibility of a bail order co-existing with an unrelated obligation to perform periodic detention (for instance, bail granted to a person arrested for a minor offence committed during the term of a periodic detention sentence but not while the person is actually performing periodic detention). However, the issue whether an offender can “fail to report to perform periodic detention” under a sentence for an offence while on bail granted in respect of the same offence does not seem to arise if it is accepted that a person can only “fail” to report if they have an obligation to report. If there is no scope for an offender to be on bail in respect of a sentence of periodic detention while that sentence is running, then there is no issue about the relationship between an extant obligation to perform periodic detention and an effective entitlement to be at liberty under a grant of bail in respect of that same sentence. If a valid grant of bail in respect of the sentence depends on the staying of the sentence (as it appears to do under the Bail Act)whether expressly or implicitly (which, under The Queen v Quzag does not appear to result from a grant of bail as such), then there will be no extant obligation to perform the sentence, and no absurdity in the operation of s58.
27.As noted, I do not disagree with Burns and Jagot JJ in their interpretation of s 58 as not applying to a non-attendance at periodic detention by a person who is not obliged to attend. I do, however, disagree with the proposition that this interpretation emerges from what would otherwise be an absurd operation for s 58. The absurdity is found in the purported grant of bail in respect of a custodial sentence (despite the provisions of the Bail Act) while the person is serving the custodial sentence and while that sentence has not been stayed. That is what creates a conflict between a person’s obligation to serve any form of custodial sentence and his or her entitlement to liberty under a grant of bail in respect of that sentence.
28.Statutory interpretation is difficult enough at the best of times. It is inevitably further complicated if legislative provisions are required to be read so as to accommodate idiosyncratic attempts to exercise non-existent powers or failures to comply with other applicable legal requirements.
29.The validity of the bail judge’s bail order was not argued on this appeal. If it had been, the challenge to the respondent’s imprisonment might, by means of arguments similar to those canvassed by the plurality in Whan v McConaghy, have been treated as an appeal for the purposes of s216 of the Magistrates Court Act (and therefore staying the sentence)and s 9E(1) of the Bail Act,thereby permitting a grant of bail subject to special or exceptional circumstances being shown. However, there is no suggestion that such an approach was taken on the bail application.