R v Labaro [2005] ACTSC 99 (15 September 2005)

Last Updated: 28 October 2005

THE QUEEN v MICHAEL LABARO

[2005] ACTSC 99 (15 September 2005)

Sentencing - breach of recognizance - order of committal from Magistrates Court to Supreme Court - misconception as to nature of breach proceedings - not proceedings for an offence - matter remitted to Magistrates Court - practical considerations - matter to be dealt with in conjunction with sentencing for particular offences

ON APPEAL FROM THE MAGISTRATES COURT

SCC No 160 of 2005

Judge: French J

Supreme Court of the ACT

Date: 15 September 2005

IN THE SUPREME COURT OF THE )

) No SCC 160 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: THE QUEEN

Appellant

AND: MICHAEL LABARO

Respondent

ORDER

Judge: French J

Date: 15 September 2005

Place: Canberra

THE COURT ORDERS THAT:

The accused is remanded in custody to the Magistrates Court in respect of the breach of recognizance admitted by him on 16 August 2005, and in respect of which he was purportedly committed to this Court on 22 August 2005, with a recommendation that he be dealt with for that breach at the same time as reconsideration by the Magistrates Court of the periodic detention orders made on 1 September 2005.

1. On 8 April 2003, Michael Labaro was charged that he, in the Australian Capital Territory, between 25 March 2003 and 8 April 2003, did participate in the sale of a prohibited substance, to wit, heroin, to another person, contrary to s 164(3)(b) of the Drugs of Dependence Act 1989 (ACT). He was also charged with possession of money, some $1,280, being suspected of being the proceeds of crime, contrary to s 75 of the Proceeds of Crime Act 1991 (ACT). He appeared in the Magistrates Court of the Australian Capital Territory late in 2003. He was committed by a magistrate for sentence to the Supreme Court.

2. On 5 April 2004, an indictment was presented before Gyles J. The accused was arraigned and pleaded guilty. Gyles J, however, was not satisfied that the Magistrates Court had properly considered its discretion in committing him to the Supreme Court, as distinct from dealing with the matter summarily.

3. On 7 April 2004, Gyles J quashed the indictment and directed that the matter be continued in the Magistrates Court on 3 May 2004. On 17 May 2004, Mr Labaro, having pleaded guilty to the two offences charged, her Honour Magistrate Fryar sentenced him to 18 months imprisonment on the first offence with a non-parole period of six months. The non-parole period was to start on 17 May 2004 and end on 10 November 2004. On the other charge, under the Proceeds of Crime Act, he was sentenced to 4 months imprisonment concurrent with the term on the first charge.

4. On 12 August 2004, Crispin J allowed an appeal against the sentence on the first charge relating to participation in the sale of heroin to another. He ordered in lieu of that sentence that Mr Labaro be sentenced to a term of 18 months imprisonment, to be immediately suspended upon him entering into a recognizance, a copy of which was attached to his order, in lieu of the non-parole period of six months imposed by the Magistrates Court. The four month sentence was confirmed, however both sentences were backdated to 29 February 2004 to take account of 78 days in custody prior to sentencing.

5. The terms of the recognizance required Mr Labaro to be of good behaviour for a period of two years from 12 August 2004. It also required him to accept the supervision of the Director of ACT Corrective Services and his/her nominee and to obey all reasonable directions of that Director or nominee, including directions relating to the participation and rehabilitation programs, whether involving fulltime residence or not, programs of mentorship or counselling within the community, including drug and alcohol counselling, and programs relating to vocational or occupational development including programs involving Year 10 studies, if so advised. The period of the recognizance, therefore, was until and including 11 August 2006.

6. On 3 August 2005, an information was sworn for breach of the recognizance on 19 January 2005, alleging inter alia, that Mr Labaro, having duly entered into the recognizance, failed to comply with the condition that he accept supervision. He was said to be thereby in breach of the recognizance.

7. He admitted the breach on 16 August 2004. According to a Bench sheet from the Magistrates Court on 22 August, and according to a document in the Magistrates Court entitled `Committal for sentence on a plea of guilty', he had come before the Court on 19 August charged with failing to comply with the condition of the recognizance and -

Having pleaded guilty to the said charge, the court committed the accused to the Supreme Court of the Australian Capital Territory to be dealt with as provided by section 90A of the Magistrates Court Act 1930 as amended.

8. This order and the plea of guilty seem to have been based on a misconception that the breach of the recognizance was an offence cognisable under s 90A of the Magistrates Court Act 1930 (ACT).

9. Today, when Mr Labaro appeared before me represented by Mr Doig, counsel for the prosecution pointed out that under s 23B of the Magistrates Court Act an order made in substitution for a Magistrates Court sentence on appeal can be enforced in the Magistrates Court. So it is open to the Magistrates Court to enforce the breach of recognizance.

10. I was also informed from the bar table this morning, that on 1 September 2005 Mr Labaro was dealt with on a number of other offences in the Magistrates Court by way of the imposition of terms of periodic detention. There were some three convictions. In respect of two convictions, eight periods of periodic detention were imposed, and in respect of the third, four periods of periodic detention was imposed.

11. I was informed, and accept, that under the Periodic Detention Act 1995 (ACT) the minimum number of periods of periodic detention that can be imposed is twelve periods. This means the disposition in respect of those offences will have to be reconsidered by the sentencing magistrate under the relevant provisions of the Magistrates Court Act which allows for correction of a penalty which is not authorised by law.

12. Prior to being aware of that fact, and having regard to the history of this matter and the pre-sentence reports that had earlier been obtained, and in particular those relied upon by Crispin J, including the psychological reports from Mr Nomchong, I was disposed to consider dealing with this matter by way of a periodic detention order in lieu of the recognizance which has been breached. Under the Periodic Detention Act, however, it would have been necessary first to obtain a pre-sentence report. On that basis, it would not have been possible to deal with the matter today if that was the disposition which, after hearing submissions, I thought to be appropriate.

13. In the circumstances, and it seems that counsel have no objection to and indeed support this course, the most convenient course is to remit the matter to the Magistrates Court with a recommendation that it be brought on for decision at the same time as the reconsideration of the periodic detention orders which were imposed on 1 September 2005.

14. The formal order I will make, and if counsel need make a submission for any other ancillary orders I will hear them, is -

The accused is remanded in custody to the Magistrates Court in respect of the breach of recognizance admitted by him on 16 August 2005, and in respect of which he was purportedly committed to this Court on 22 August 2005, with a recommendation that he be dealt with for that breach at the same time as reconsideration by the Magistrates Court of the periodic detention orders made on 1 September 2005.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice French.

Associate:

Date: October 2005

Counsel for the Appellant: Mr Lawton

Solicitor for the Appellant: Director of Public Prosecutions

Counsel for the Respondent: Mr Doig

Solicitor for the Respondent: Darryl Perkins Solicitors

Date of hearing: 15 September 2005

Date of judgment: 15 September 2005