Jurisdiction: appeal from court of summary jurisdiction exercising territory jurisdiction



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PARTIES: GREGORY RUSSELL WILLIAMS
v
PETER MARK JOHNS THOMAS
TITLE OF COURT: SUPREME COURT OF THE

NORTHERN TERRITORY


JURISDICTION: APPEAL FROM COURT OF SUMMARY JURISDICTION EXERCISING TERRITORY JURISDICTION
FILE NO: JA 157 of 1997
(9715728)
DELIVERED: 10 June 1998
HEARING DATES: 1 June 1998
JUDGMENT OF: Bailey J

CATCHWORDS:
Appeal –Justices Act – Severity of sentence imposed by Magistrate – Sentencing Act – Operation of punitive work orders – Statutory construction of the Court’s power to order “the offender to participate …for 224 hours” – Whether such number of hours is mandatory or discretionary maximum – Whether the language of the provision is “ambiguous or obscure” – Court’s recourse to the use of extrinsic material in interpreting legislation

Interpretation Act 1994 (NT) ss38C(1), 62B(1), 62B(2)

Justices Act 1995 (NT)

Sentencing Act 1995 (NT) ss 78A, 78B, 78C(2), 78E, 78F, 78G, 119

The Attorney-General’s Second Reading Speech (17 October 1996: Parliamentary Record No. 27 at pp9684–9689)

Second Reading Debate (21 November 1996: Parliamentary Record No. 28 at pp10072, 10111, 10116)

Committee Stage Debate (21 November 1996: Parliamentary Record No. 28 at p10126)


REPRESENTATION:
Counsel:
Appellant: Ms M. Little

Respondent: Mr M Carey


Solicitors:
Appellant: Melanie J Little

Respondent: DPP


Judgment category classification: B

Judgment ID Number: BAI98014

Number of pages: 15


BAI98014
IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN


No. JA 157 of 1997

IN THE MATTER OF the Justices Act

AND IN THE MATTER OF an appeal against the severity of sentence imposed by the Court of Summary Jurisdiction at Darwin
BETWEEN:

GREGORY RUSSELL WILLIAMS

Appellant


AND:
PETER MARK JOHNS THOMAS

Respondent


CORAM: BAILEY J


REASONS FOR JUDGMENT


(Delivered 10 June 1998)

INTRODUCTION

On 18 November 1997 the appellant was convicted upon his own plea at the Court of summary Jurisdiction at Darwin of the following three offences:



(a) aggravated unlawful entry (section 213(1) and (3) of the Criminal Code);



(b) unlawful use of a motor vehicle (section 218(1) of the Criminal Code); and

(c) unlicensed driving (section 32(1)(a)(i) of the Traffic Act).
The appellant was sentenced by the learned magistrate to an aggregate term of imprisonment of five months and to a punitive work order of 224 hours to be performed within six weeks of release from prison.
THE APPEAL

By notice dated 27 November 1997, the appellant sought to appeal against his aggregate sentence on the basis of eight grounds of appeal. At the outset of the appeal hearing on 1 June 1998, Ms Little, who appeared on behalf of the appellant, abandoned all but appeal ground number 6, which is in the following terms:


“That the learned magistrate erred in law in finding that it was not open to him to impose a punitive work (order) under s78B of the Sentencing Act (1996) requiring the person the subject of the order to participate in an approved project for a period other than 224 hours.”
THE LEARNED MAGISTRATE’S REASONS

For present purposes it is unnecessary to detail the facts of the appellant’s offences or his background. It is sufficient to say that the appellant’s offences involved a breach of trust towards his employer and the learned magistrate emphasised the need for both general and personal deterrence as significant factors in sentencing the appellant. The appellant had a substantial history of convictions as a juvenile for unlawful entry, stealing, unlawful possession and unlawful use of a motor vehicle. The final passages of the learned magistrate’s (extempore) reasons for sentence are in the following form:


“The sentence I impose in this matter really has nothing to do with mandatory sentencing considerations, apart from the fact that the sentence cannot be suspended. I’m dealing with a young man who has had warnings before; hasn’t taken the warning; has committed an unlawful entry which involved a breach of trust and richly deserving of a term of imprisonment; a term of imprisonment to get him to start thinking that he’s got to wake up to himself and a term of imprisonment to show other like-minded people in the community that they cannot unlawfully enter and they should not unlawfully enter if they’ve had previous warnings imposed by a court for unlawful entry.

He’s convicted. I impose an aggregate sentence. I pause here. But for the abolition of remissions, I would’ve imposed a sentence of imprisonment of 9 months. With the abolition of remissions, that sentence of imprisonment is reduced to 6 months. Mr Goldflam has asked me to consider a punitive work order, and I feel, in this case, a punitive work order is appropriate.



I read the legislation as saying that only 224 hours can be imposed; 224 hours is 28 days at eight hours per day. Twenty-eight days is roughly one month. What I propose to do is reduce the sentence of 6 months to 5 months and order that, in effect, the last month be replaced by 224 hours of an approved punitive work order.

In other words, the defendant can be out of gaol working hard for what otherwise would’ve been effectively the last month of his sentence. So he’s sentenced to imprisonment for 5 months and he’s ordered to participate in an approved punitive work order project for a period of 224 hours.” (emphasis added)


It is apparent that the learned magistrate was of the view that under the provisions of the Sentencing Act if he decided to impose a punitive work order he had no discretion to order any number of hours other than 224 hours. Ms Little submits that the Sentencing Act provides a discretion for a court to order an offender to participate in an approved project for any number of hours up to a maximum of 224 hours. Ms Little further submits that in the light of the magistrate’s error of law, this Court may consider the matter afresh and, in her submission it would be appropriate to impose a number of hours less than the maximum prescribed by the legislation.
PUNITIVE WORK ORDERS

The provision for punitive work orders as a sentencing option is comparatively recent. Neither Ms Little, for the appellant, nor Mr Carey, for the Crown, was able to identify any authorities which to date have considered the Sentencing Act’s provisions for such orders. My own researches have failed similarly to locate any relevant authorities.


The provisions for punitive work orders (sections 78C to 78G inclusive of the Sentencing Act) were introduced as part of the amending legislation enacting minimum mandatory imprisonment for property offences – see the Sentencing Amendment Act (No.2) 1996 (Act No. 65 of 1996). The provisions have been amended subsequently by the Sentencing Amendment Act 1998 (Act No. 14 of 1998) but not in any material respect for the purposes of the present appeal.
Section 78Cof the Sentencing Act relevantly provides:
“78C(1) The Minister may, in writing, approve work as a project to be participated in under a punitive work order.

(2) A court which finds an offender guilty of an offence may order the offender to participate, within such time as the court may order, in an approved project for 224 hours.”


It is to be noted that a court’s discretion to order an offender’s participation in an approved project (which for present purposes is a punitive work order: see definition of ‘approved project’ and ‘punitive work order’ in section 3(1) of the Act) and the court’s discretion as to the time during which participation is to be completed, are expressed to be “for 224 hours”. The Act does not provide expressly that a court has a discretion to vary this number of hours.
SUBMISSIONS OF COUNSEL

Ms Little submitted that, generally speaking, provisions for criminal penalties are intended to be construed as maximums with sentencing courts having discretion to impose a penalty less than the maximum, appropriate to the particular circumstances of an offence and an offender. Ms Little referred to section 38C(1) of the Interpretation Act, which is in the following terms:


“38C(1) The penalty, pecuniary or otherwise, set out -

(a) at the foot of a section; or


(b) at the foot of a subsection,

of an Act indicates that a contravention of the section or of the subsection respectively, is an offence against the Act punishable on a finding of guilt by a penalty not exceeding the penalty so set out.”


Similarly, section 119 of the Sentencing Act provides:
“119 A penalty set out at the foot of a provision of an Act or an instrument of a legislative or administrative character shall, unless the context otherwise requires, be construed as indicating that a contravention (whether by act or omission) of the provision is an offence against the Act or instrument punishable on a finding of guilt by a penalty not exceeding that set out.”
Ms Little submitted that while the above provisions cannot apply directly to section 78C(2) of the Sentencing Act (since it is not an offence – creating provision of the type referred to in section 38C(1) of the Interpretation Act or section 119 of the Sentencing Act) the grant of a discretionary power to a court to impose a punitive work order upon an offender “for 224 hours” is analogous to provisions of the type referred to in the above two provisions of general application.
Ms Little submitted that a further indication that the provision to impose punitive work orders “for 224 hours” is intended to be the maximum number of hours which may be imposed rather than a mandatory requirement, can be seen in section 78E(1) of the Sentencing Act, which provides:
“78E(1) An offender in respect of whom a punitive work order is in force shall –

(a) participate, for the number of hours specified in the order, in such approved project as a probation officer directs”. (emphasis added)

Ms Little submitted that if the number of hours was intended to be fixed at 224 hours, the legislation would not have referred to “the number of hours specified in the order” but rather made a direct reference to the offender’s participation for 224 hours in an approved project.
For the Crown, Mr Carey submitted that, while the drafting of section 78C(2) is not as clear as it might be, a consideration of sections 78C to 78G as a whole demonstrates that it was not intended by the legislature that a court is to have discretion to order any number of hours other than 224 hours for a punitive work order. In particular, Mr Carey referred to the provisions for review and breach of such orders.
Section 78F(1) provides:
“78F(1) The court that made a punitive work order, on the application of the Director, may –

(a) revoke the punitive work order and order the offender to serve a term of imprisonment of 28 days; or



(b) vary the time within which the offender is to complete his or her participation in the approved project or otherwise vary the terms of the order, but shall not reduce the number of hours the offender is required to participate in an approved project under the order.”
Section 78G(1) specifies the circumstances in which an offender is in breach of a punitive work order and section 78G(2) and (3) provides for the issue of a summons or warrant to compel an offender’s attendance at court to be dealt with for breach of such an order. Section 78G(4) provides:
“(4) Where the court that made a punitive work order is satisfied that the offender is in breach of the order, the court shall, whether or not the order is in force at the time the offender appears before the court, and whether or not the offender has participated in a project under the order for some of the time he or she was required to participate in the project, order that the offender be imprisoned for 28 days."
In Mr Carey’s submission, the provision for mandatory imprisonment for a period of 28 days in the case of a review of a punitive work order (section 78F(1)(a)) or in the case of breach of such an order (section 78G(4)) is consistent with the legislature’s intention that all punitive work orders should be for a period of 224 hours. Mr Carey noted that the figure of 224 hours is equivalent to 28 eight-hour working days (the maximum allowable participation per day in the absence of the offender’s consent: see section 78E(2)). In Mr Carey’s submission, the intention of the legislature was that a court should have power to order an offender to participate in an approved project for the equivalent of 28 days (at eight hours per day) and the sanction for failure to do so (whether because of a successful application for review by the Director of Correctional Services or the offender’s own breach) is to be 28 days imprisonment. Mr Carey submitted that a further indication that it was not the legislature’s intention that the number of hours should be discretionary can be seen in the express absence of any power in a court to reduce the number of hours an offender is required to participate in an approved project under a punitive work order: see section 78F(1)(b).
THE LEGISLATURE’S INTENT
The question posed by the only ground of appeal pursued by the appellant is, of course, one of statutory construction. Was it the intent of the legislature that in all cases where a court decides to impose a punitive work order that the relevant offender should participate in an approved project for 224 hours, or is that figure the maximum number of hours which an offender can be required to participate in an approved project? The natural and ordinary meaning of the Court’s discretion under section 78C(2) to order “the offender to participate…for 224 hours” favours the former interpretation, while the legislature’s generally adopted approach to granting discretion to a sentencing court to impose appropriate sentences tailored to individual circumstances favours the latter interpretation. In the latter regard, the legislature’s approach in granting sentencing discretion to criminal courts is not, of course, invariable. The provisions for punitive work orders were enacted as part of the amending Act which imposed minimum mandatory custodial sentences for property offences: section 78A of the Sentencing Act. Punitive work orders were initially limited to offenders guilty of property offences (and were so limited at the time when the present appellant was sentenced) – although have now been extended as a sentencing option for all offences: see the Sentencing Amendment Act 1998.
I am not persuaded that either section 38C(1) of the Interpretation Act or section 119 of the Sentencing Act provides any assistance in resolving the proper construction of section 78C(2). Both these sections are concerned with offence – creating provisions which include a penalty set out at the foot of such a provision (section or sub-section). Section 78C(2) meets neither of these criteria. Ms Little sought to overcome such difficulties by characterising the drafting of section 78C(2) as analogous to provisions which would be subject to either section 38C(1) of the Interpretation Act or section 119 of the Sentencing Act or both. Argument by analogy can be, at times, a useful aid to statutory construction but is of little or no assistance unless the language of a statute is ambiguous or doubtful.
The language of section 78C(2) is unambiguous. The provision provides a court with both a discretion as to whether to impose a punitive work order and as to the time within which an offender is to complete his participation in an approved project. There is no discretion to depart from the number of hours of participation required under such an order. The legislation provides that the order is to be “for 224 hours”.
Reference to sections 78F(1) and 78G(4) supports the unambiguous requirement that a punitive work order be for 224 hours and not some lesser figure at the discretion of the sentencing court. The number of hours work required under an order is the equivalent of 28 days at eight hours work per day. The sanction for breach of a punitive work order and the consequences of revocation of such an order is mandatory imprisonment for a term of 28 days. Ms Little accepts that there is no discretion to reduce this term. It could scarcely have been the legislature’s intention that a court should have discretion to impose a punitive work order for any number of hours up to a maximum of 224 hours and yet provide the same consequences for revocation or breach, namely, mandatory imprisonment for 28 days regardless of the number of hours ordered to be worked by the court. Similarly, the absence of any power granted to a court to reduce the number of hours the offender is required to work (section 78F(2)) under a punitive work order supports the irreducible nature of the requirement that an order be for 224 hours and not some lesser figure. The structure of the provisions for punitive work orders suggests that the legislature’s intent was to provide for a sentencing option under which if an offender failed to complete the equivalent of 28 full days of mandatory work, the sanction which would follow automatically would be 28 days of imprisonment.
In the course of hearing submissions in the present appeal, I indicated to counsel that if I were to conclude that the provision in question was ambiguous or obscure, recourse might be had to the Parliamentary Record of the debates which preceded the enactment of sections 78C – 78G of the Sentencing Act. The Interpretation Act has been amended recently (Interpretation Amendment Act 1998: Act No. 27 of 1998) to allow for the use of extrinsic material in interpreting legislation.
Section 62B(1) of the Interpretation Act provides:
“62B(1) In interpreting a provision of an Act, if material not forming part of the Act is capable of assisting in ascertaining the meaning of the provision, the material may be considered –

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b) to determine the meaning of the provision when –

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable."

Subsection (2) of section 62B of the Interpretation Act provides a non-exclusive list of material which may be referred to in interpreting an Act. Section 62B(2)(f) expressly permits reference to the Second Reading speech of a Minister introducing a Bill containing the provision in question.


In the present case, I do not consider that section 78C(2 ) of the Sentencing Act is either ambiguous or obscure; nor does its ordinary meaning lead to a result that is manifestly absurd or unreasonable. I have, however, examined the Parliamentary Record with a view to confirming that the meaning of section 78C(2) is “the ordinary meaning conveyed by the text of the provision…” within the terms of section 62B(1)(a) of the Interpretation Act.
There is nothing in the Attorney-General’s Second Reading speech (17 October 1996: Parliamentary Record No. 27 at p9684–89) in introducing the relevant Bill which assists in relation to the issue raised by the present appeal.
I have also examined the Second Reading and Committee Stage debates relevant to the Sentencing Amendment Bill (Serial 186 of 1996). While not expressly referred to by section 62B(2) of the Interpretation Act as a source of guidance in interpreting a provision of an Act, the non-exclusive nature of the material specified in that subsection does not, in my view, preclude consideration of Second Reading and Committee Stage debates.
The material examined does not lend a great deal of assistance in interpreting section 78C(2) of the Sentencing Act. Both during the Second Reading debate (21 November 1996: Parliamentary Record No. 28 at p10111) and Committee Stage debate (supra at p10126) the (then) Attorney-General, Mr Burke, indicated that the sanction for breach of a punitive work order was intended to be mandatory imprisonment for a fixed period of 28 days. The debates are less clear in relation to whether the figure of 224 hours is intended to be a fixed period for all punitive work orders or a discretionary maximum. The (then) shadow Attorney-General, Mr Bell, raised the issue (21 November 1996, supra at p10072) with the observation that: “Prison (sic) punitive work orders must be for 224 hours”. This did not elicit a response from the Attorney-General in the course of the Second Reading debate. However, Mr Bell returned to the topic during the Committee Stage consideration of the Bill (21 November 1996, supra at 10116) with the following questions:
“In proposed new section 78C a fixed term of 224 hours for the punitive work orders appears. Why? Why have CSOs that leave the discretion with the court to fix a time between 0 and 480 hours, and say in the punitive work order that it has to be a fixed 224 hours? Do you feel like commenting?”
The Attorney-General’s response to Mr Bell was:
“It is 28 days at 8 hours a day”.
The Parliamentary Record of the relevant debates provides scant assistance in confirming that “the meaning of the provision is the ordinary meaning conveyed by the text of the provision …” (section 62B(1)(a) of the Interpretation Act. At best, the most that can be said is that Mr Bell twice put to the Attorney-General that the provision which is now section 78C(2) of the Sentencing Act provided for a punitive work order of 224 hours with no discretion in a court to reduce that figure and the Attorney-General did not dissent from that interpretation.
In the circumstances, I have not been assisted in interpreting section 78C(2) of the Sentencing Act by reference to the Parliamentary Record, except to the extent that the Record provides nothing to indicate that anything other than the natural and ordinary meaning of the words used in the provision was intended to be given to the text of the provision.
For the foregoing reasons, I am satisfied that there is no discretion pursuant to section 78C(2) of the Sentencing Act to order that a punitive work order be for a time other than 224 hours. Ms Little has not sought to submit that the learned magistrate’s decision to impose a punitive work order in addition to imprisonment for five months was wrong in principle or manifestly excessive. Her submissions were directed only at whether the learned magistrate erred in his interpretation that he had no discretion to order anything other than an order for 224 hours. Accordingly, it follows that the learned magistrate did not err and the present appeal must be dismissed.

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