Brewer & Anor v R [2004] ACTSC 71 (23 August 2004)

Last Updated: 16 September 2004

PATRICIA ANNE BREWER and GLENN DONALD CARLOS v THE QUEEN

[2004] ACTSC 71 (23 August 2004)

CRIMINAL LAW - sentence - home detention order - eligibility for home detention.

Rehabilitation of Offenders (Interim) Act 2001, s 6, s 9(2)

Crimes Act 1914, s 20(1)(b)

Supreme Court Act 1933, s 13

Crimes Act 1914 (Cth), s 20AB

Crimes (Sentencing Procedure) Act 1999 (NSW), s 7(1)

Crimes Regulations 1990, reg 6(h)

Rehabilitation of Offenders (Interim) Bill 2001

R v Jurisic (1998) 45 NSWLR 209

In the matter of an application by Stephen Clifton Whiley [2004] ACTSC 37

No SCC 65 of 2003

No SCC 100 of 2003

Judges: Higgins CJ, Crispin and Connolly JJ

Supreme Court of the ACT

Date: 23 August 2004

IN THE FULL COURT OF THE )

SUPREME COURT OF THE ) Nos SCC 65 & 100 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PATRICIA ANNE BREWER and

GLENN DONALD CARLOS

Applicants

AND: THE QUEEN

Respondent

ORDER

Judges: Higgins CJ, Crispin and Connolly JJ

Date: 23 August 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The question in respect of Ms Brewer should be answered "Yes".

2. The question in respect of Mr Carlos should be answered "No".

IN THE FULL COURT OF THE )

SUPREME COURT OF THE ) Nos SCC 65 & 100 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PATRICIA ANNE BREWER and

GLENN DONALD CARLOS

Applicants

AND: THE QUEEN

Respondent

Judges: Higgins CJ, Crispin and Connolly JJ

Date: 23 August 2004

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. These two applications to the Full Court involve the proper construction of those provisions in the Rehabilitation of Offenders (Interim) Act 2001 (the Rehabilitation of Offenders (Interim) Act) that relate to the eligibility of a person convicted of an offence to serve a sentence, or part of a sentence, by way of home detention. Both Ms Brewer and Mr Carlos were convicted of separate and unrelated offences involving fraud against the Commonwealth, and both have been sentenced in the Supreme Court. Ms Brewer's sentence was that she be sentenced to two years imprisonment, to be suspended after six months upon the prisoner entering into a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914. Mr Carlos was sentenced to four years imprisonment with a non-parole period of 18 months.

2. Both Ms Brewer and Mr Carlos have made application before the primary sentencing judge to have their sentence, or part of their sentence, served by way of home detention. In each case the application has been opposed on the basis that the relevant provisions of the legislation establishing home detention as a sentencing option, being the Rehabilitation of Offenders (Interim) Act, does not permit such an application. Both primary sentencing judges have referred the legal question arising from the application to the Full Court, pursuant to s 13 of the Supreme Court Act 1933. The questions referred to this Court are -

In the matter of Brewer - Whether the provisions relating to Home Detention orders in the Rehabilitation of Offenders (Interim) Act empower the Court to order home detention in circumstances where a head sentence has been imposed which exceeds 18 months, though the non-suspended portion of the sentence is less than 18 months.

In the matter of Carlos - Whether the Rehabilitation of Offenders (Interim) Act empowers the Court to order home detention in circumstances of a head sentence which exceeds 18 months, though the non-parole period does not exceed 18 months.

The Statutory Scheme

3. Home detention is a sentencing option that is available for persons who would otherwise serve a period of full-time imprisonment for certain offences. It is also available for persons who would otherwise be remanded in full-time custody. It involves the application of electronic monitoring devices that are securely attached to the offender by way of wrist or ankle straps, which transmit a signal to a device that can communicate with Corrective Services personnel by way of telephone. The devices can be calibrated to ensure that the alarm is raised if the person moves a certain distance from the device at certain times. This ensures that the movements of the person are accurately monitored and recorded.

4. This is a new form of imprisonment introduced by the Rehabilitation of Offenders (Interim) Act. It is not available if a person has been convicted of any of the range of offences set out in s 9(2) of that Act, being principally offences of violence or sexual offences, domestic violence offences, or significant drug offences. The offences for which Ms Brewer and Mr Carlos were convicted are not offences for which home detention has been excluded as an option.

5. The basis of an order is set out in s 6 of the Act which relevantly provides:

6 Imprisonment by way of home detention

(1) A court that has sentenced a person (the offender) to imprisonment for not longer than 18 months for an offence may make a home detention order directing that the sentence, or part of the sentence, for the offence be served by way of home detention.

(2) A home detention order must not be made in relation to a sentence of imprisonment (a new sentence) to be served concurrently or consecutively (or partly concurrently and partly consecutively) with any existing sentence of imprisonment if the date when the new sentence will end is more than 18 months after the date when the existing sentence was imposed.

(3) For this section, if a sentence of imprisonment is completely suspended, the sentence is to be disregarded.

(4) For this section, if a sentence of imprisonment is partly suspended, the period for which it is suspended is to be disregarded.

6. A home detention order is only an option available to a sentencing judge after a decision has been made that a full-time custodial sentence should be imposed. We would endorse the views expressed by Sully J (and adopted by Spigelman CJ and Wood CJ at CL) in R v Jurisic (1998) 45 NSWLR 209 at 215 that -

a primary sentencing judge should ignore absolutely the existence of the Home Detention Act, and should not entertain any application respecting the Act, until after that judge has determined, according to proper principles correctly applied to the given facts of the particular case, what sentence of imprisonment should be imposed upon the particular offender.

If that process yields a term exceeding the statutory maximum prescribed by s 5 of the Home Detention Act, then, and obviously, no further question as to the application of the Home Detention Act will arise.

If, on the other hand, that initial process results in the imposition of a sentence which is within the statutory maximum as thus defined in the Home Detention Act, then the judge must exercise in a properly judicial way, the discretion conferred by s 9(1) of that Act.

7. The question in this case is what is the statutory maximum for the purposes of Territory legislation.

The arguments of counsel

8. Mr Everson, who appeared for Ms Brewer, acknowledged that if s 6(1) stood alone, it would seem to provide that home detention is only available for persons who have been sentenced to a head sentence of no longer than 18 months. His submission is that s 6(1) does not stand alone, and must be read with s 6(4).

9. This provision, he argued, must be given its plain and simple effect, which is to say that, for the purpose of the section which must include s 6(1), if a sentence of imprisonment is partly suspended, the period for which it is suspended is to be disregarded. In Ms Brewer's case, she was sentenced to two years imprisonment to be suspended after six months upon her entering into a recognizance. This means that, of the two years sentence, 18 months have been suspended, and in disregarding this period we are left with a period of imprisonment of six months. This being a period of imprisonment of no longer than 18 months, it follows, says Mr Everson, that home detention is available in the circumstances of Ms Brewer.

10. Mr Whybrow, for Mr Carlos, argued that s 6(1), by referring to a "sentence of imprisonment" rather than a sentence of a "term of imprisonment", should be read to refer to the period of imprisonment that an offender will actually serve or be likely to serve, rather than the full head sentence, which, he says is the "term of imprisonment". He argues that it follows that the eligibility for home detention should be taken from the length of the non-parole period, rather than the full head sentence.

11. Mr White, for the Commonwealth Director of Public Prosecutions, argued, in effect, that s 6(4) did not in any way qualify s 6(1), but only operated as a qualification to subsequent provisions in the Act. The effect of this argument, it seems to us, is to seek to read s 6(4), which provides "For this section, if a sentence of imprisonment is partly suspended, the period for which it was suspended is to be disregarded", as though it read "For the purposes of this Act, but not s 6(1), if a sentence of imprisonment is partly suspended, the period for which it is suspended is to be disregarded". Such an interpretation involves an obvious straining against the plain language of the section which, on its face, requires section 6(1) to be read subject to s 6(4), so that in determining what amounts to "imprisonment for not longer than 18 months", that part of a sentence that has been suspended is to be disregarded.

12. This plain language approach to the section was not opposed by the Director of Public Prosecutions for the Australian Capital Territory in In the matter of an application by Stephen Clifton Whiley [2004] ACTSC 37. In that case the offender had been sentenced in relation to a number of counts of theft to two years imprisonment, to be suspended after eight months upon entering into a recognizance. His custodial sentence commenced in February 2004, and he made application in June to serve the balance of the custodial portion of the sentence by way of home detention. Although the application was opposed on the basis that home detention was inappropriate, the ACT Director of Public Prosecutions did not challenge the common assumption at that hearing that for the purposes of the application, Mr Wiley was a person who had been sentenced to imprisonment for less than 18 months, being the eight months of the two year head sentence that had not been suspended.

13. It seems to us that the questions raised before us can be answered by giving effect to the clear language of the statute. Section 6(1), standing alone would, it seems to us, exclude home detention as a sentencing option if a head sentence of greater than 18 months was imposed. Section 6(4), however, must, on its face, qualify s 6(1) so that in determining what the period of imprisonment is, such period of a head sentence that is ordered to be suspended shall be disregarded.

14. While the statutory qualification leaves open the option of home detention where there is a head sentence of greater than 18 months, but part of the sentence is suspended so that the operative sentence is less than 18 months, there is no statutory modification in the case of a sentence that is subject to a non-parole period.

15. Although Mr Whybrow sought to draw a distinction between the language of the statute, which refers to "imprisonment" rather than a "term of imprisonment", it seems to us that nothing turns on this textual difference, and later s 6(1) must be read alone and must refer only to the head sentence imposed by the sentencing judge. It is noteworthy that, in the explanatory memorandum circulated with the Rehabilitation of Offenders (Interim) Bill 2001, s 6 is explained as follows -

This clause provides that sentenced offenders subject to a term of imprisonment of 18 months or less, or in the case of young people committed to an institution for a period of 18 months or less, may serve their custodial sentence by way of a home detention order.

In the case of a partially or completely suspended sentence, the period of the suspended sentence is to be disregarded when applied to a home detention order.

16. That the explanatory memorandum uses the phrase "term of imprisonment" reinforces the view that we have expressed that little turns on any supposed difference between the phrase "imprisonment for not longer than 18 months" and "term of imprisonment for not longer than 18 months". Section 6(1), in our view, refers to the period of the head sentence, unless, by operation of s 6(4), that period is reduced by disregarding any portion of the head sentence that has been suspended. There being no statutory provision relating to the way a non-parole period is to be treated, we are of the view that, regardless of any non-parole period, home detention is not available if the period of any non-suspended sentence exceeds 18 months.

Does this regime apply to persons convicted of a Commonwealth Offence?

17. Both Ms Brewer and Mr Carlos were convicted and sentenced in respect of Commonwealth offences. It is common ground that home detention is available to federal offenders in the Australian Capital Territory pursuant to s 20AB of the Crimes Act 1914 (Cth). This section provides that certain sentencing alternatives may be available under laws of a "participating state" and may apply to a person convicted of a federal offence. The Australian Capital Territory is a "participating state" for the purposes of that section. By virtue of reg 6(h) of the Crimes Regulations 1990 a home detention order under the Rehabilitation of Offenders (Interim) Act is a state law prescribed for the purposes of s 20AB, and so available for a federal offender.

18. Sentencing alternatives available to federal offenders pursuant to s 20AB apply -

so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth.

19. We are unable to see anything in the Commonwealth Crimes Act that would indicate that it is inconsistent with the ACT home detention regime. There are inevitable variations in the way in which federal offenders in different parts of Australia may be able to take advantage of differing state and territory sentencing alternatives. The New South Wales Crimes (Sentencing Procedure) Act 1999 sets out when a home detention order may be made in that State. Section 7(1) provides that -

A court that has sentenced an offender to imprisonment for not more than 18 months may make a home detention order directing that the sentence be served by way of home detention.

There is no statutory provision referring to the manner in which a sentence that is partly suspended should be dealt with and, accordingly, s 7 would be taken to refer to the head sentence.

20. The circumstances in which a suspended sentence may be imposed in New South Wales differ significantly from the regime in the Australian Capital Territory, being clearly prescribed by s 12 of that Act. It is a sentencing option that is far less flexible than in the Australian Capital Territory. Home detention itself is also a sentencing option that is not available in all parts of Australia. That is the nature of our federal system, and does not, it seems to us, mean that, absent any clear provision in the Commonwealth Act, federal offenders should not be taken to be subject to the ACT law in its terms in the same way as offenders against ACT law. The ACT Legislative Assembly, unlike the New South Wales Parliament, has chosen to state that the suspended portion of a sentence does not apply in calculating a person's eligibility for a home detention order, and we see no reason why that provision is inconsistent with Commonwealth law.

The questions answered

21. Ms Brewer has been sentenced to two years imprisonment, but that sentence is to be suspended after six months. This has the effect that, although the head sentence is two years, for the purpose of determining the period referred to in s 6(1), the suspended period of her sentence is to be disregarded, which has the result that, for the purpose of determining her eligibility for a home detention order, she has been sentenced to imprisonment for six months only, and so is eligible for such an order.

22. Mr Carlos has been sentenced to four years imprisonment with a non-parole period of 18 months. In the Australian Capital Territory a non-parole period must be set if a court sentences a person to a term of imprisonment of one year or longer (s 31 of the Rehabilitation of Offenders (Interim) Act). The effect of a non-parole period is that this is the earliest date upon which a person would ordinarily be considered for parole, but it by no means follows that a person will be released from prison upon the expiry of their non-parole period. There is no statutory modification of the head sentence for the purposes of the home detention provisions and so, on its face, s 6(1) has the effect that Mr Carlos is not eligible for home detention because he has been sentenced to imprisonment for a period longer than 18 months, being, in his case, the four years of his head sentence.

23. The effect of these reasons is that the question in respect of Ms Brewer should be answered "Yes", but the question in respect of Mr Carlos should be answered "No".

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 23 August 2004

Counsel for Ms Brewer: Mr C Everson

Solicitor for Ms Brewer: Vandenberg Reid

Counsel for Mr Carlos: Mr S Whybrow

Solicitor for Mr Carlos: ACT Legal Aid Office

Counsel for the respondent: Mr J White

Solicitor for the respondent: Commonwealth Director of Public Prosecutions

Date of hearing: 3 August 2004

Date of judgment: 23 August 2004