Drug Court of New South Wales CITATION : R v Leman [2001] NSWDRGC 4 Regina PARTIES : -v- LEMAN, Warrick Jason FILE NUMBER(S) : 396 of 2001 CORAM: His Honour Judge Neil Milson CATCHWORDS: :- Revocation of community service orders - Meaning of "revoke" - Expiry of "relevant maximum period" - Effect thereof - Whether an order which no longer remains in force can be revoked Drug Court Act 1998 (NSW) LEGISLATION CITED: Community Service Orders Act 1979 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) CASES CITED: DATES OF HEARING: 28/05/2001 DATE OF JUDGMENT: 28 May 2001 Regina - D. Muddle, Director of Public Prosecutions (NSW) LEGAL REPRESENTATIVES: Offender - S. Healy, Legal Aid Commission (NSW) JUDGMENT: Background 1. The offender is before the Court for sentencing following the termination of his Drug Court program. One of those matters is an offence of supplying prohibited drugs for which he received a community service order of 400 hours in the Local Court on 26 October 1998. 2. On 10 January 2001 at the time of initial sentence in the Drug Court, I purported to revoke the community service order, impose a sentence for the original offence, and suspend that sentence under s7(4) of the Drug Court Act 1998. 3. Whilst not raised at the time, it is now argued that I had no power to revoke the community service order, as it had already expired. The Law 4. The relevant portions of the Crimes (Administration of Sentences) Act 1999 are as follows. 107. Definitions In this Division: "relevant maximum period", in relation to a community service order, means: (a)….., or (b) 18 months, if the required number of hours under the order (disregarding any increase under section 113) is 300 or more, or, if that period is extended under section 114, the period as so extended. 110. Duration of community service order Unless sooner revoked, a community service order remains in force: (a) until the offender has performed community service work in accordance with the offender's obligations under the order for the required number of hours, or (b) until the expiry of the relevant maximum period, … whichever first occurs." 114. Extension of period of community service order (1) An application for an extension of the relevant maximum period for an offender's community service order may be made to a Local Court by the offender, or by the offender's assigned officer, on the grounds that it would (having regard to circumstances that have arisen since the relevant community service order was made) be in the interests of justice to extend that period. (2) Such an application may be made even if the relevant maximum period for the community service order has expired. (3) If satisfied that the applicant has established the grounds on which the application is made, the Local Court: (a) may extend the relevant maximum period for the offender's community service order… 115. Revocation of community service orders (1) An application for the revocation of an offender's community service order may be made to the sentencing court, to a court of like jurisdiction or to a court that is superior to the sentencing court. (2) The application may be made: (a) by the offender's assigned officer, on the grounds that the offender has failed, without reasonable excuse, to comply with the offender's obligations under the order… (2A) The application cannot be made later than one month after the expiry of the relevant maximum period for the order. (3) If satisfied that the applicant has established the grounds on which the application is made, the court may revoke the offender's community service order and (if it considers it appropriate to do so) deal with the offender in any manner in which it could have dealt with the offender had the order not been made. 5. Subsection (2A) was included in the Act after my decision, having taken effect from 16 February 2001. "Revoke" 6. The Shorter Oxford English Dictionary 3rd edition defines "revoke" as follows 1. To recall, bring back to a (right) belief. 2. a. To bring back into or unto life: to restore to consciousness. b. To call back to memory; c. To bring back into use; to revive. 3. To recall; to call or summon back 4. To annul, repeal, rescind, cancel 5. To retract, withdraw, recant 6. To take back to oneself. The Submissions 7. Mr. Healy on behalf of the offender made written submissions. Of those I emphasise the following. Mr Leman's original community service order of 26 October 1998 was made under the Community Service Orders Act 1979 (since repealed), and particularly s4 of the that Act. 8. Section 16 of the Community Service Orders Act 1979 set out the duration of an order. For an order requiring the person to do 400 hours' work, the order was in effect until: "a the person completed the 400 hours work required, b. 18 months elapsed (or such longer period as specified if an application for extension was made and granted), or c. the community service order was revoked, whichever first occurred." 9. Mr Leman did not complete the work, no application for extension was made and no application for revocation was made while the community service orders was in force. Accordingly, under that Act the order would have expired on 26 April 2000. 10. On 3 April 2000, the Community Service Orders Act was repealed and the Crimes (Administration of Sentences) Act 1999 came into effect. Clause 38 of Schedule 5 to the new Act provides that any order that, immediately before 3 April 2000, was in force under the 1979 Act: "a is taken to be a community service order within the meaning of this Act, b is taken to be subject to the same conditions as those to which it was subject before that day." Clause 14 of Schedule 2 to the Crimes (Sentencing Procedure) Act 1999 contains substantially identical provisions. 11. I was referred to the matter of Roger Leite aka Antonio Gameiro, (unreported, District Court of NSW, 6 March 2001) before The Honourable Chief Judge Blanch in which the same point that I am being asked to consider was argued. No transcript is available, but a report through a solicitor who appeared is available suggesting that his Honour accepted the argument that the defence raise. That is he accepted that general principles and construction of the Crimes (Administration of Sentences) Act 1999 would tend to indicate that the word "revoke" implies the existence of something immediately prior to its revocation. Thus, having expired the order can no longer be revoked. 12. In response Mr. Muddle for the Crown has contended that the effect of the transitional provisions in cl 38(b) of Schedule 5 that the order is "is taken to be subject to the same conditions as those to which it was subject before that day" mean that the enforcement action must be taken under the repealed Act. 13. I take the transitional provisions to mean that whilst the conditions of the order remain those under the repealed Act, the order is taken to be one under the new Act and that the machinery provisions of the new Act which relate to enforcement, revocation or extension should be applied. 14. Mr. Muddle further argued that the Act can not in logic be read in the way suggested by the defence. Sections 107 and 110 provide that the order expires at the end of the "relevant maximum period". However s110 implies that the offender has until the expiration of that period to complete the work. It is not until the period has expired that it can be said that the offender has failed to comply with his or her obligations under the Act. It cannot be intended that there is no power to enforce an order in the event of a breach of this nature. 15. He further argued that the fact the community service order no longer remains in force is not a barrier to further proceedings in respect of the order. That the Court can extend an order although it has expired as provided for in s 114(2) indicates that expiration of an order is not a bar to further proceedings in respect of the order. Legislative Amendments 16. The Crimes (Administration of Sentences) Act 1999 was amended by the Crimes (Administration of Sentences) Amendment Act 2000 to insert subsection 2A in s115. The amendment took effect from 16 February 2001, and therefore was not in effect at the time of the order of 10 January 2001. 17. However, given that the enforcement and machinery provisions of the new Act apply, the 18 month "relevant maximum period" expired on 26 April 2000. Had s115(2A) been in force it would appear that the application to revoke the order would be valid under the new legislation, having been made on the last day (Interpretation Act 1898 s 36). 18. The potential purposes of the amendment to s. 115 are at least threefold: 1. To overcome the defect in the legislation suggested in Mr Healy's argument; or 2. To remove any doubt about ambiguity within the legislation; and/or 3. To impose a limitation on the time within which an application for revocation can be made. 19. The second reading speech made on behalf of the Attorney-General on 14 November 2000 when the Bill that included this amendment to s 115 was being introduced, explained the purpose: "The bill amends section 115 to state that an application for revocation of a community service order cannot be made later than one month after the expiry of the time in which the order is to be served. This amendment reinstates a long-existing rule relating to community service orders. The rule had been deleted by the new Act on the basis that it would give the Probation and Parole Service greater flexibility in dealing with breaches of community service orders. Deletion of the rule has, however, caused some confusion." Reasons and Decision 20. Prior to the introduction of the new legislation the Community Service Orders Act 1979 allowed an application to revoke an order to made up to one month after the order had expired. The new legislation now makes the same provisions. Those factors and the provisions of ss114(1) and 114(2) of the current legislation are indications that the fact an order does not remain in force is not an impediment to further action being taken in respect of the order, rather it is intended that enforcement action be taken after the period has expired. It would be illogical to permit an application to be made to the Court to revoke an order but to deny the Court the power to grant the application sought. An interpretation which would facilitate the administration of the sentence and its enforcement is to be preferred (Interpretation Act, 1898 s33). 21. Whilst the "relevant maximum period" may have expired, with the result that the order is no longer in force, it remains an "order" that was made by a Court. I do not accept that one cannot revoke an order, even though the term has expired. 22. The application to annul the orders of 10 January 2001 which revoked the community service order and imposed a replacement penalty is refused. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.