R v Brown [2012] NTSC 31

PARTIES:	THE QUEEN

	v

	BROWN, Vivienne

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:	21034325

DELIVERED:	4 MAY 2012

HEARING DATE:	26, 27 and 30 APRIL 2012

RULING OF:	REEVES J

CATCHWORDS:

STATUTORY INTERPRETATION – Sentencing Act (NT) s 78BA – whether s 78BA(1)(a) Sentencing Act (NT) applied where a person had not previously been found guilty of a violent offence – reference to extrinsic material in the form of explanatory memorandum and second reading speech – consideration of language used in the text of the legislation – consideration of the use of the word “other” in s 78BA(1)(b) – distinguishing factors in paragraphs within a subsection

Criminal Code (NT) ss 181, 186, 188, 189A

Interpretation Act (NT) ss 62B(1)(a), 62B(2)(e), 62B(2)(f)

Sentencing Act (NT) ss 3(1), 78BA, 78BA(1)(a), 78BA(1)(a)(i),
78BA(1)(a)(ii), 78BA(1)(b), 78BA(1A), 78BA(2)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41

REPRESENTATION:

Counsel:
	Plaintiff:	Dr N Rogers
	Defendant:	Mr T Sinoch

Solicitors:
	Plaintiff:	Office of the Director of Public Prosecutions
	Defendant:	Central Australian Aboriginal Legal Aid Services

Judgment category classification:	B
Judgment ID Number:	REE1202
Number of pages:	7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

R v Brown [2012] NTSC 31
No. 21034325

	BETWEEN:

	The Queen
	Plaintiff

	AND:

	Vivienne Brown
	Defendant

CORAM:	REEVES J

REASONS FOR RULING

(Delivered 4 May 2012)

INTRODUCTION
[1]	Ms Vivienne Brown was found guilty by a jury of causing harm to Mr Danny Frank contrary to s 186 of the Criminal Code (NT).  At the same time, Ms Brown was acquitted on two charges of causing serious harm to Mr Frank.
[2]	During the sentencing of Ms Brown for the offence of causing harm to Mr Frank, a question arose as to whether s 78BA of the Sentencing Act (NT) (“the Act”) applied to the offence for which she had been found guilty.  In short, the question was whether s 78BA(1)(a) of the Act applied where a person had not previously been found guilty of a violent offence, as is the requirement under s 78BA(1)(b) of the Act.
[3]	Section 78BA of the Act provides:
(1)	This section applies to:
(a)	any of the following violent offences:
(i)	an offence against section 181 or 186 of the Criminal Code; 
(ii)	an offence against section 188 or 189A of the Criminal Code that results in harm to the victim; and
(b)	any other violent offence committed after the offender has (before or after the commencement of this section) been found guilty of:
(i)	a violent offence; or
(ii)	an offence substantially corresponding to a violent offence committed against a law that was later repealed or the law of some other jurisdiction (including a jurisdiction outside Australia).
(1A)	However, if an offence in subsection (1)(a) relates to causing or resulting in only physical harm to a victim, this section applies only if the harm is a physical injury that interferes with the victim’s health.
(2)	If a court finds an offender guilty of an offence to which this section applies, the court must record a conviction and must order that the offender serve:
(a)	a term of actual imprisonment; or
(b)	a term of imprisonment that is partly, but not wholly, suspended.
(3)	This section does not prevent the sentencing court from exercising powers that may be exercised consistently with this section.
[4]	It was not in dispute that:
(a)	Ms Brown caused physical injury to Mr Frank that interfered with his health within the terms of s 78BA(1A) above; and
(b)	This was the first occasion upon which Ms Brown had been found guilty of an offence against any of the sections of the Criminal Code identified in s 78BA(1)(a), or a violent offence as identified in s 78BA(1)(b) above.
[5]	Section 78BA of the Act was amended to its present form in 2008.  Prior to that amendment, the section only operated where the offender had a previous finding of guilt for a violent offence.  It was in the following form:
(1)	Where a court finds an offender guilty of a violent offence and the offender has one or more times before (whether prior to or after this section commencing) been found guilty of a violent offence, the court must record a conviction and must order that the offender serve –
(a)	a term of actual imprisonment; or
(b)	a term of imprisonment that is suspended by it partly but not wholly.
(2)	Nothing in subsection (1) is to be taken to affect the power of a court to make any other order authorised by or under this or any other Act in addition to an order under subsection (1).
[6]	From this history, it can be seen that the original provisions of s 78BA (requiring a previous finding of guilt) are now essentially contained in s 78BA(1)(b) and a new provision has been inserted by s 78BA(1)(a).
[7]	That was confirmed in the explanatory memorandum for the 2008 amending Act:  Sentencing (Violent Offences) Amendment Bill 2008 Serial No. 7 (“the Bill”) where the following explanation was given for the amendment to s 78BA (in Clause 5):
This clause repeals and substitutes section 78BA. Current section 78BA(1) is now section 78BA(1)(b).  Section 78BA(1)(a) provides for a new sentencing regime for offenders found guilty of an offence against sections 181 and 186 of the Criminal Code (ie causing serious harm or harm) and sections 188 and 189A of the Criminal Code being aggravated assault causing harm and aggravated assault on a police officer causing harm to the victim.  In those circumstances, the court must record a conviction and must order that the offender serve a term of actual imprisonment or a term of imprisonment that is partly, but not wholly, suspended.
The existing sentencing regime is continued for offenders found guilty of other Schedule 2 violent offences, ie where they have previously been found guilty of a Schedule 2 violent offence (or the equivalent), a conviction must be recorded and the offender sentenced to a term of actual imprisonment or a term of imprisonment that is partly, but not wholly, suspended.
(Emphasis added)
[8]	Under subsection 62B(2)(e) and (f) of the Interpretation Act (NT), the explanatory memorandum (above) and second reading speech (below) are specifically identified as materials that, according to subsection 62B(1)(a), may be considered:
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. 
[9]	While the explanatory memorandum confirms the continuation of the old regime under s 78BA, and the introduction of a new one, it does not expressly deal with the question which arose in this case (see [2] above).  To determine that question, it is necessary to consider the text of s 78BA(1)(a) of the Act.  That is so because, as the High Court of Australia has often said, it is language used in the text of legislation that is the surest guide to its meaning:  see, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory).
[10]	There is a number of aspects of the language used in the text of s 78BA(1) of the Act that leads me to the conclusion that s 78BA(1)(a) applies to the first finding of guilt for an offence under s 186 of the Criminal Code.  First, I consider the word “other” in the introductory words to subsection 78BA(1)(b):  “any other violent offence” is intended to distinguish the particular violent offences described in subsection 78BA(1)(a) from the “other” violent offences that fall within subsection 78BA(1)(b).  For the purposes of s 78BA, the expression “violent offence” is defined in s 3(1) of the Act to mean:  “an offence specified in Schedule 2”.  Schedule 2 of the Act is as follows:
(1)	An offence against section 54, 55, 160, 165, 166, 175, 176, 177, 181, 182, 185 or 186 of the Criminal Code.
(2)	An offence against section 188 of the Criminal Code, other than where the circumstance of aggravation specified in section 188(2)(k) exists.
(3)	An offence against section 189A, 190, 191 or 193 of the Criminal Code.
[11]	It can be seen from this definition that, apart from offences under ss 181, 186, 188 and 189A of the Criminal Code (described in s 78BA(1)(a)(i) and (ii)), there is more than a dozen other offences in the Criminal Code that are identified as “other” violent offences.
[12]	Further, the provisions of s 78BA(1A) of the Act contain another distinguishing factor.  That is, that in order to attract the mandatory term of actual imprisonment provided for in s 78BA(2) of the Act, the offences under ss 181, 186, 188 and 189A of the Criminal Code (described in subsection 78BA(1)(a)) must involve harm that amounts to “a physical injury that interferes with the victim’s health”.  Conversely, this requirement does not apply to the “other” violent offences described in subsection 78BA(1)(b).
[13]	Moreover, the introductory words of subsection 78BA(1)(b):  “any other violent offence” are not separated from the remainder of the words of that subsection in a way that indicates a legislative intention that those remaining words are to apply to the whole of subsection 78BA(1).  In other words, there is no indication that the criterion of a previous finding of guilt for a violent offence, set out in the remaining words of s 78BA(1)(b) is intended to apply to all the offences described in s 78BA(1).  If it were the legislative intention that those words were to apply to the whole subsection in this manner, one would expect to see a comma, or some other means of separation, between those words and the introductory words of the subsection.  An example of this separation occurs in s 78BA(2) of the Act.
[14]	Finally, it is appropriate to observe that this meaning, conveyed by the text of s 78BA(1), appears to be confirmed by what Dr Burns (the then Attorney-General and Minister for Justice) said in his Second Reading Speech on the Bill for the 2008 amendment to s 78BA, when he made the following statements:
Community concern lies with the sentencing of serious assaults.  Accordingly, under this bill, the Sentencing Act is to be amended to require that all offenders guilty of prescribed violent offences, being offences which cause serious harm or harm, will have to serve a term of actual imprisonment.  There will be no second chance as applies under the current law.
…  [I]t would be hard to argue that, in circumstances where a victim suffers serious harm, that imprisonment is not appropriate.  Can any offender really complaint about being gaoled if they have assaulted and harmed another person?  The problem is that, under the current law, the option of imprisonment is not always given.  To ensure that such an amendment would not produce serious injustice, it is proposed that its operation be limited to offences causing actual harm.
The bill proposes that the following offences will be prescribed offences attracting mandatory imprisonment:  sections 181 and 186 of the Criminal Code which concern causing serious harm or harm; section 188(2)(a) of the Criminal Code being aggravated assault causing harm; and section 189A(2) of the Criminal Code being aggravated assault on a police officer.
A common feature of all these offences is that either serious harm or harm is caused.  These amendments will not change the sentencing regime for other violent offences, whereby offenders guilty of a second or subsequent offence must serve an actual term of imprisonment.  …
(Emphasis added)
[15]	For these reasons, I consider that an offence under s 186 of the Criminal Code, which involves harm of the kind described in s 78BA(1A) of that Act, attracts a term of actual imprisonment under s 78BA(2) upon the first finding of guilt for such an offence.
[16]	Accordingly, I proceeded to sentence Ms Brown on this basis.