R v Leo

• Jurisdiction: Northern Territory
• Judge: Blokland J
• Judgment Date: 31 October 2013
• Neutral Citation: [2013] NTSC 70
• Docket Number: FILE NO: 21321030
• Court: Supreme Court
• Date: 31 October 2013

[2013] NTSC 70

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Blokland J

FILE NO: 21321030

Between:

The Queen

and

Priscilla Leo

Trenerry v Bradley(1997) 115 NTR 1; Fisher v Hebburn Ltd (1960) 105 CLR 188; Nafi v The Queen (2012) 32 NTLR 124, cited

McMillan v Pryce(1997)(115) NTR 19, applied

Maxwell v Murphy (1957) 96 CLR 261; McMillan v Pryce(1997) (115) NTR 19; Coco v R (1994) 179 CLR 427, referred

Sentencing Act ss 78DA, 78EA.

STATUTORY INTERPRETATION — Sentencing — Effect of amendments to Division 6A of Sentencing Act — First amendment does not clarify position as to previous convictions triggering aggravated minimum sentence — Second amending Act operates to clarify intention of the legislature — previous convictions are to be taken into account whenever committed —

RULING

Introduction

1 On 4 September 2013 Priscilla Leo pleaded guilty to one count of unlawfully cause serious harm. Ms Leo has one previous conviction for aggravated assault recorded on 20 April 2001, (committed on 14 June 1998), and one previous conviction for assault recorded on 16 March 1995. Ms Leo committed the offence of unlawfully cause serious harm on 14 May 2013, that is, after the commencement on 1 May 2013 of theSentencing Amendment (Mandatory Minimum Sentences) Act 2013 (‘the first amending Act’).

2 Pursuant to s 78CA of the first amending Act, the offence of unlawfully cause serious harm is designated a ‘level five offence’. It is common ground that Ms Leo has committed a level five offence for the purposes of Division 6A of the first amending Act. The issue is whether Ms Leo is subject to the three month mandatory minimum period established by s 78D (Level 5-first offence) or the 12 month mandatory minimum term established by s 78DA (Level 5-second or subsequent offence).

The Application of the First Amending Act

3 On Ms Leo's behalf it is argued that at the time of the impugned conduct, s 78EA of Division 6A operated in such a way as to preclude previous convictions from enlivening s 78DA, if those convictions were imposed prior to the commencement of the first amending Act. Section 78DA specifies an aggravated minimum term of 12 months, (compared with the three month minimum term set by s 78D). On this argument, the s 78DA penalty is activated only with respect to specified previous convictions imposed after 1 May 2013, (the date of the commencement of the first amending Act).

4 At the time of the commission of the subject offence, s 78EA provided as follows:

78EA Division does not apply to offence committed before commencement

This Division does not apply in relation to an offence committed before the commencement of section 6 of theSentencing Amendment (Mandatory Minimum Sentences) Act 2013.

5 ‘This Division’ in s 78EA refers to Division 6A, (the first amending Act). The first amending Act introduced new mandatory minimum terms of imprisonment for certain offences, prescribed particular offence classification levels and provided that previous convictions for a ‘violent offence’ would increase the minimum term of imprisonment to be served. The term ‘violent offence’ has a particular meaning in the first amending Act. Relevantly here, if s 78DA applies, the minimum term would be twelve months imprisonment.

6 Counsel for the Crown does not agree with the approach apparently taken by the Court of Summary Jurisdiction,1 nor with the construction urged in this Court on behalf of Ms Leo. As discussed later, although I do not agree with this particular argument advanced on behalf of Ms Leo, I have come to the same conclusion in relation to previous convictions and the first amending Act, albeit through different reasoning.

7 On a plain reading, in the context of Division 6A, ‘an offence’ in s 78EA should be read as being a reference to the subject offence; in Ms Leo's case, the offence of cause serious harm, committed on 14 May 2013. Section 78EA does not refer to a ‘previous conviction’ or a ‘conviction’ for a

‘violent offence’. Even applying the strict rules of construction of statutes of this kind, on a plain reading of Division 6A, the initial interpretation advanced on behalf of Ms Leo in my opinion cannot stand.

8 Clearly the first amending Act increased the minimum penalty for the subject offence. The application of Division 6A was restricted to ‘offences’ committed after 1 May 2013 by virtue of s 78EA; but it would be an impermissible extension of the same argument to include ‘previous violent offence’ within the definition of ‘offence committed’ as it appears in s 78EA. Such a construction is strained when viewed in the context of Division 6A as a whole.

9 Division 6A refers to ‘offence’ repeatedly and consistently throughout the Division in reference to the subject offence as opposed to previous convictions; References to previous violent offences are expressed as such; in particular, the expression used throughout Division 6A: ‘previously been convicted of a violent offence’. To extend a different meaning to the term ‘an offence’ solely for the purpose of including a previous violent offence within the exclusionary terms of s 78EA is not, in my opinion, open.

10 Counsel for Ms Leo pointed out that the term ‘an offence’ in s 78EA uses the indefinite article, rather than the definite article, tending to lend weight to the interpretation advanced in Ms Leo's case. I do not agree. Use of the indefinite article in s 78EA signifies that a range of offences may be the subject of Division 6A. It would be unusual for the definite article to beused in legislation of this type that deals with sentencing over a range of offences.

11 In as much as this submission maintains that the original s 78EA phrase ‘an offence committed’ was capable of being read as including a previous conviction for a violent offence, I am unable to agree. Although I agree with the submission on behalf of the Crown on that particular point, the Crown position does not answer satisfactorily the question of whether the term ‘previously convicted of a violent offence’, (as appears in s 78DA and elsewhere), includes convictions imposed prior to the commencement of the first amending Act.

12 The problem of the potentially retrospective operation of parts of Division 6A bears an uncanny resemblance to the issues identified inMcMillan v Pryce2 which dealt with a previous mandatory sentencing regime, (now repealed) for property offences. Since hearing the original argument on the construction of s 78EA, I requested further submissions from counsel to address the particular issue arising from McMillan v Pryce and I am grateful to both counsel for their efforts to address this point.

13 Employing similar reasoning as that utilized by the majority inMcMillan...