Director of Public Prosecutions (NSW) v PD

1. [1]

   WARD P: I agree with the orders proposed by Adamson JA for the reasons her Honour gives. I also agree with the reasons of Mitchelmore JA, which provide an alternative route to that conclusion.

2. [2]

   MITCHELMORE JA: I have had the advantage of reading in draft the reasons of Adamson JA. I agree with the orders Adamson JA proposes and may state my reasons briefly, assuming familiarity with her Honour’s reasons.

3. [3]

   The required approach to construing the provisions at issue in this case turns on their text, read in context and in accordance with their purpose: Valuer-General Victoria v WSTI Properties 490 SKR Pty Ltd [2025] HCA 23; 99 ALJR 955 at [34]. Section 33 of the Children (Criminal Proceedings) Act 1987 (NSW) (CCP Act) is in Div 4 of Part 3 of the Act, which “applies to any offence for which proceedings are being dealt with summarily or in respect of which a person has been remitted to the Children’s Court under section 20”: s 32. Section 33 addresses the penalties that are available to the Children’s Court if it “finds a person guilty of an offence to which this Division applies”. Section 33(1) relevantly provides:

4. [4]

   It is apparent from the text of s 33(1)(g) that an order made thereunder commits a person to the control of one or other Minister for a period, the duration of which is governed by two factors: (i) what the Children’s Court thinks fit; and (ii) a maximum of two years.

5. [5]

   Section 37(1) of the CCP Act provides that an order under s 33(1)(g) takes effect when it is made. However, s 37(2) provides that notwithstanding s 37(1), if the Children’s Court orders that a control order take effect at a specified time then the order takes effect at that time. Relatedly, s 33A of the CCP Act provides:

6. [6]

   As the primary judge observed at [32], “[t]he purpose of s 33A, derived from its language, is to deal with a second or further control order which is to be served cumulatively upon, or partly concurrently with, an existing control order so as to create a continuous period of detention”. Section 33A(4) limits “the overall effect of two (or more) control orders by preventing a new order, when added to existing orders, exceeding the 3-year limit”: at [36].

7. [7]

   Section 33C relevantly provides:

8. [8]

   Absent s 33C, the provisions of Pts 4 and 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) would have no application to the Children’s Court, as the definition of “court” in s 3 of that Act does not include the Children’s Court. Parts 4 and 5 of the Sentencing Procedure Act apply to the Children’s Court “in the same way as they apply to the Local Court”, subject to the CCP Act.

9. [9]

   Each of the above provisions was in force before the aggregate sentencing regime was introduced in 2010 pursuant to the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW) (2010 Amendment Act). Before the introduction of that regime, s 49 of the Sentencing Procedure Act provided that the term of a sentence of imprisonment must not be greater than the maximum term or less than the minimum term applicable to that offence.

10. [10]

    Section 53 of the Sentencing Procedure Act provided:

11. [11]

    The 2010 Amendment Act added s 53A to the Sentencing Procedure Act, which permits the imposition of a single aggregate sentence in respect of multiple offences. By the same amending Act, s 53(1) was amended so as to qualify the requirement in that section to impose a separate sentence for each offence, adding the parenthetical phrase, “(unless imposing an aggregate sentence of imprisonment in accordance with section 53A)”. Section 49 was also amended and now provides:

12. [12]

    In the court below, the defendant, now appellant, submitted that once the power to make an aggregate control order had been picked up by s 33C of the CCP Act, s 33A(4) operated to provide a maximum period for such an order. In so far as the defendant submitted that the 2-year limit provided for by s 33(1)(g) applied to a control order for a single offence, while s 33A(4) applied to multiple orders made for separate offences, his Honour accepted that proposition as correct: at [39]-[40]. The difficulty his Honour had with the defendant’s argument lay in the next step, namely, that it followed that when aggregate sentences became available, they “fell within s 33A(4)”: at [40]. His Honour rejected that proposition on the basis that “the subject-matter of s 33A was and remained ‘control orders’, not offences”: at [40].

13. [13]

    I agree with his Honour’s characterisation of the subject matter of s 33A. However, it does not follow that s 33A(4) should be put to one side.

14. [14]

    One of the provisions to which his Honour’s attention was not drawn, but to which the appellant drew this Court’s attention in oral argument, was s 49(2) of the Sentencing Procedure Act. Section 49(2)(a) provides that the term of an aggregate sentence “must not be more than the sum of the maximum periods of imprisonment that could have been imposed if separate sentences of imprisonment had been imposed in respect of each offence to which the sentence relates” (emphasis added).

15. [15]

    In my view, this provision serves two purposes. The first is to confirm that an aggregate sentence imposed under s 53A may have a term exceeding the maximum period for any one offence in respect of which it is made. The second is to constrain the term of an aggregate sentence by reference to “the sum of the maximum periods of imprisonment that could have been imposed if separate sentences had been imposed for each offence”. That constraint must apply by reference not only to the maximum penalty applicable to each individual offence, but to the maximum total effective sentence which could be imposed in respect of all the offences if separate sentences were imposed.

16. [16]

    In the Local Court, the imposition of separate sentences of imprisonment is subject to s 58 of the Sentencing Procedure Act. Relevantly for present purposes, s 58(1) provides that the Local Court “may not impose a new sentence of imprisonment to be served consecutively (or partly concurrently and partly consecutively) with an existing sentence of imprisonment if the date on which the new sentence would end is more than 5 years after the date on which the existing sentence … began”. The imposition of the 5-year limit in s 58(1) necessarily affects the maximum term of an aggregate sentence to which s 49(2)(a) refers, as the Local Court “could [not] have” imposed separate sentences that exceeded that limit.

17. [17]

    Section 53B of the Sentencing Procedure Act is consistent with that construction. Titled “Limitation on aggregate sentences imposed by Local Court”, it provides:

18. [18]

    Section 49(2) of the Sentencing Procedure Act is picked up and applies to Children’s Court proceedings by operation of s 33C(1) of the CCP Act, subject to the modification in s 33C(1)(a) that references in s 49(2) to imprisonment are taken to be references to control orders. The making of an aggregate control order is therefore subject to the limitation that the term of such an order must not be more than the sum of the maximum terms of the control orders that could have been imposed had separate control orders been made in respect of each offence for which the aggregate control order is to be made.

19. [19]

    Section 33A(4) of the CCP Act does the same work as s 58(1) of the Sentencing Procedure Act. It applies to the imposition of consecutive sentences in the Children’s Court, as does s 58(1) of the Sentencing Procedure Act in the Local Court, but with a limit of three years rather than five years. For the purposes of determining the maximum term of an aggregate control order under s 49(2)(a) of the Sentencing Procedure Act, the sum of the maximum periods of detention that could be imposed is three years.

20. [20]

    It is the case that no equivalent provision to s 53B was enacted in relation to the Children’s Court. However, in light of s 49(2)(a) read with s 58(1), s 53B was not strictly necessary, and in my view is of declaratory significance only.

21. [21]

    Accordingly, I agree with the orders proposed by Adamson JA.

22. [22]

    ADAMSON JA: The Director of Public Prosecutions (NSW) (the Director) seeks leave to appeal and, if leave is granted, appeals against the control orders made by Basten AJ (the primary judge) in respect of PD, a young person.

23. [23]

    PD (the offender) was charged with 10 offences (offences 1-10) which were to be prosecuted by police prosecutors. He was also charged with 9 offences (offences 11-19), which were prosecuted by the Director in the Children’s Court. At the time of the offending, PD was 17 years old. The matters were resolved by PD’s plea of guilty and listed for sentence before Skinner P, the President of the Children’s Court (the President). Her Honour decided to permit the matters to remain in the Children’s Court, rather than be dealt with “according to law”. Accordingly, the sentence to be imposed was governed by the Children (Criminal Proceedings) Act 1987 (NSW) (the CCPA). Except where otherwise stated, references to provisions in these reasons are references to provisions in the CCPA.

24. [24]

    It is not necessary to detail the conduct to which the offender pleaded guilty and for which he was to be dealt with by the Children’s Court. It is sufficient to note that it was common ground that the threshold in s 33(2) of the CCPA had been crossed: that is, that the Court be satisfied that it would be wholly inappropriate to deal with the offender in any way (by using the mechanisms in s 33(1)(a)-(f1)) other than by a control order under s 33(1)(g) which has the effect of committing the offender to detention in a Juvenile Detention Centre.

25. [25]

    On 18 March 2024, the President made an aggregate control order of 3 years’ duration, commencing on 2 October 2023 and expiring on 1 October 2026, with a non-parole period of 18 months expiring on 1 April 2025.

26. [26]

    On 4 February 2025, the primary judge set aside the President’s order and, in its place, made two separate control orders, the combined effect of which was that the total period of the control order was 3 years and the effective non-parole period was 18 months. For items 1-10 in the Table of Offences, the primary judge imposed a fixed term aggregate control order of 12 months to commence on 7 August 2023 and for items 11-19 in the Table of Offences, the primary judge imposed an aggregate control order of 2 years, commencing on 7 August 2024 and expiring on 6 August 2026, with a non-parole period of 6 months, expiring on 6 February 2025. The effective sentence commenced on 7 August 2023 and expired on 6 August 2026 with an effective non-parole period of 18 months, expiring on 6 February 2025.

27. [27]

    The basis of the primary judge’s decision was his Honour’s view that the applicable legislation did not authorise the sentence imposed by the President since it did not permit an aggregate control order for a period exceeding 2 years (and that therefore the control order for three years imposed by the President was unauthorised). The primary judge held that a court could make an aggregate control order (being one for more than one offence) but that such an order could not exceed 2 years in duration.

28. [28]

    The Director submitted that the applicable legislation, contrary to the primary judge’s construction, authorised the order made by the President since the applicable limit on aggregate control orders was 3 years and not 2 years (the 2-year limit applying to a control order for a single offence).

29. [29]

    Because the difference between the President’s order and the order made by the primary judge is academic as far as PD is concerned (since the non-parole period has expired in either event), a contradictor was appointed to defend the construction favoured by the primary judge. Mr Kaplan, who appeared with Ms Hammond, performed that role.

30. [30]

    The issue for this Court is whether a court is authorised to make an aggregate control order for a period up to 3 years, or whether it is necessary for a court to make separate control orders in circumstances where the total effect of the control orders is to make the period of control longer than 2 years. It was common ground that the total period during which a person could be subject to continuous control was 3 years (see the legislation addressed below).

31. [31]

    The question for this Court is one with respect to statutory construction of important provisions regarding the jurisdiction of the Children’s Court to impose control orders in respect of children. As such, it qualifies as an issue both of principle and public importance (they being two of the three criteria for a grant of leave commonly articulated in this context: PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6]). The result in the present case is the same for PD, irrespective of how the construction question is resolved by this Court. Thus, the third criterion – that there is a reasonably clear injustice beyond the merely arguable – is not made out. Nonetheless, in the present case, where the Director challenges the construction of a common provision which would, but for the intervention of this Court be authoritative, it is desirable that this Court grant leave to appeal in order to resolve the question.

32. [32]

    I note further, with no disrespect to the counsel who appeared in the Court below, that this Court had the benefit of detailed oral and written submissions from the Director, the offender and the contradictor on the crucial question for the appeal, which were much more fully developed than those made to the primary judge (as is evident from the time at which the point, which had not been taken by the parties, was raised by his Honour). It was common ground that the question, being one of statutory construction, did not depend on what was put to the primary judge and that this Court ought engage in the task of statutory construction with the benefit of all the submissions made to it.

The statutory framework and relevant legislative history

1. [33]

   The legislation which is relevant to this question is as follows: the CCPA; the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act); the Criminal Procedure Act 1986 (NSW); and, to a limited extent, the Children (Detention Centres) Act 1987 (NSW) (the Detention Centres Act).

2. [34]

   Section 6 sets out the principles to which a person or body that has functions under the CCPA must have regard. In substance, these principles reinforce the importance of assisting children to remain within the community and not lose their community and familial ties. The principles are to be contrasted with the purposes of sentencing “at law” under the Sentencing Act, which include punishment of the offender, deterrence (specific and general) and denunciation of the crime: see, generally, s 3A of the Sentencing Act.

3. [35]

   The CCPA provides, relevantly, that the Children’s Court has jurisdiction to determine proceedings in respect of any offence where the offence is alleged to have been committed by a person who was a child at the time of the alleged offence: s 28(1).

4. [36]

   Section 31(1) of the CCPA provides that if a person is charged before the Children’s Court with an offence other than a serious children’s indictable offence, the proceedings are to be dealt with summarily.

5. [37]

   However, where a young person is charged with an indictable offence and pleads guilty, and the court is of the opinion that, having regard to all the evidence before it (including any background report of a kind referred to in s 25), it would not be proper for the matter to be dealt with summarily, the proceedings must be dealt with as committal proceedings in accordance with s 31H: s 31(5). In that event, the court must commit the child to the District or Supreme Court for sentence under s 31H(2) to be dealt with “according to law”.

6. [38]

   As referred to above, the President decided not to take this step in respect of the offender under s 31(5). Instead, her Honour allowed the sentencing of the offender to remain in the Children’s Court. Having regard to the seriousness of the offender’s conduct, this was a significant decision since it limited the penalty to be imposed on the offender to his being committed to the control of the Minister for a period not exceeding 3 years.

7. [39]

   Section 33(1) makes provision for the Children’s Court to do various things if it finds a person guilty of a relevant offence, and relevantly provides:

8. [40]

   Because a control order involves deprivation of liberty, a control order under s 33(1)(g) is the most serious penalty in s 33(1), which also includes a power to dismiss the charge, either unconditionally (s 33(1)(a)(i)) or on condition that the person enters into a good behaviour bond (s 33(1)(a)(ii)), direct the person to enter into a good behaviour bond (s 33(1)(b)); impose a fine (s 31(1)(c)); or require the person to perform community service work (s 33(1)(f)).

9. [41]

   Section 33 further provides:

10. [42]

    Section 33A and 33C were inserted into the CCPA by the Children (Criminal Proceedings) Amendment Act 1989 (NSW). Section 33A relevantly provides:

11. [43]

    In the Second Reading Speech accompanying the bill which became the Children (Criminal Proceedings) Amendment Act 1989, the Attorney-General, the Honourable John Dowd, said of the provision which became s 33A (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 5 April 1989 at p 5904):

12. [44]

    The Explanatory Memorandum to the bill said, of s 33A:

13. [45]

    Section 33C provides:

14. [46]

    The maximum term of imprisonment that the Local Court may impose for an offence is 2 years: ss 267(2) (Table 1 offences) and 268(1A) (Table 2 offences).

15. [47]

    Part 4 of the Sentencing Act deals with sentencing for imprisonment. Division 1 of Part 4 deals with “[s]etting terms of imprisonment”. Section 53, which is in Division 1 of Part 4, relevantly provides:

16. [48]

    Section 53 sets out what was, before 2011, the orthodox means of sentencing, which requires the court to impose a separate sentence for each offence. The High Court confirmed in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (Pearce) at [45]:

17. [49]

    The process of sentencing an offender for more than one offence by imposing separate sentences for each under s 53 is commonly referred to as “cumulative sentencing” and will be referred to in these terms in these reasons.

18. [50]

    Section 53A was inserted into the Sentencing Act by the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), which commenced on 14 March 2011. It provides:

19. [51]

    Section 53A of the Sentencing Act was inserted into that Act to “ameliorate the difficulties of applying [Pearce]”: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39] (R A Hulme J, Hoeben CJ at CL and Adamson J agreeing). Section 53 of the Sentencing Act, as confirmed in Pearce, required sentencing judges to impose separate sentences for each offence. The process of cumulative sentences necessitated the specification of commencement and expiry dates as well as a non-parole period for each sentence. This became complex when sentencing for several offences. By contrast, the imposition of an aggregate sentence requires the specification only of the commencement date, the end date and the expiry of the non-parole period. A judge imposing an aggregate sentence is still required, under s 53A(2) to “indicate” the sentence that would have been imposed for that offence but that requirement is satisfied by the stipulation of the length of the sentence and any non-parole period, without the need to stipulate commencement or expiry dates.

20. [52]

    The authorisation of aggregate sentences was not, however, intended to create a substantive change to sentencing law or to reduce transparency in any significant way, since sentencing judges were still required (by s 53A(2) of the Sentencing Act) to indicate the sentence that would have been imposed for a particular offence, had an aggregate sentence not been imposed: PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 at [90] (Button and N Adams JJ). In Park v The Queen (2021) 273 CLR 303; [2021] HCA 37, the High Court considered the effect of s 53A of the Sentencing Act. It said of present relevance, at [27]:

21. [53]

    The insertion of s 53A in the Sentencing Act did not prompt the legislature to make consequential amendments to the Criminal Procedure Act or to the CCPA to make express provision for aggregate sentences, or aggregate control orders, in the statutory schemes for which those Acts provided.

22. [54]

    The Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), which, by s 53A, authorised the imposition of aggregate sentences also amended s 49 which, in terms restricted the term of a sentence. Before 14 March 2011 (being the date on which the amendment became operative), s 49 restricted the maximum and minimum terms of a sentence of imprisonment by providing in s 49(a) that it must not be more than the maximum term of imprisonment that may be imposed for the offence and must not be less than the shortest term of imprisonment (if any) that must be imposed for the offence. However on and from 14 March 2011, s 49 was amended to include the former provision in s 49(1) and to add s 49(2) to address aggregate sentences, as follows:

23. [55]

    Section 58(1) of the Sentencing Act provides:

24. [56]

    Section 58(1) of the Sentencing Act has been in its current form since 14 February 2004 (well prior to the introduction of aggregate sentences). Its language, like the similarly worded s 33A(4) of the CCPA, reflects and is consistent with cumulative sentencing and does not contemplate (understandably, having regard to the legislative history) the imposition of an aggregate sentence.

25. [57]

    The absence of detailed consequential amendments to the Sentencing Act and the CCPA, following the commencement of s 53A, led to questions arising, such as:

    1. (1)

       whether the jurisdictional limit of the Local Court for cumulative sentences, 5 years, also applied to aggregate sentences; and

    2. (2)

       how aggregate control orders fitted into the provisions of the CCPA, which had not been amended to take account of them, although s 53A of the Sentencing Act was among the provisions “picked up” by s 33C(1) of the CCPA.

26. [58]

    The first question led to the insertion of s 53B into the Sentencing Act (see below). The second question arises for consideration in the present appeal.

27. [59]

    In its 2013 Sentencing Report, the NSW Law Reform Commission said, of the question whether the jurisdictional limit of the Local Court of 5 years for cumulative sentences also applied to aggregate sentences at pp 159-160:

28. [60]

    The Second Reading Speech for the Bill which became the Justice Portfolio Legislation (Miscellaneous Amendments) Act 2016 (NSW) indicates that this recommendation was accepted. In that speech, the Honourable David Clarke said, of present relevance (New South Wales Legislative Council, Parliamentary Debates (Hansard), 18 October 2016):

29. [61]

    In response to this recommendation, s 53B was inserted into the Sentencing Act in 2016 (by item [4] of Sch 1.6). It provides:

30. [62]

    However, no corresponding express amendment was made to the CCPA in respect of aggregate control orders. As referred to above, the question for this Court is whether the effect of the applicable provisions is that the maximum period for which an aggregate control order may be made is 2 years (being the maximum period for a control order for a single offence) or 3 years (being the maximum period for more than one control order made on the basis of cumulative sentencing).

The appeal to the primary judge

1. [63]

   The appeal to the primary judge against the control order imposed by the President was as of right: s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) and s 22A of the Children’s Court Act 1987 (NSW) (which provides that appeals from the President are to be heard by the Supreme Court rather than the District Court). The gist of the offender’s appeal was that his non-parole period ought be shortened because of his good behaviour in detention.

2. [64]

   In so far as can be discerned from the submissions and the transcript in the Court below, the question before this Court (whether the Children’s Court had power to make an aggregate control order for 3 years) was raised by the primary judge, who first raised it with the parties in an email sent by his associate on 3 February 2025, the day before the hearing. The Director responded in written submissions, submitting that the President had power to make the order which she made. The offender’s counsel responded orally to the primary judge at the hearing and submitted that “it was open for [the President], to sentence in that manner given that ambiguity”.

3. [65]

   His Honour heard the matter on 4 February 2025 and made orders (as referred to above) at the conclusion of the hearing, with reasons to be provided subsequently (the reasons (J) were published on 6 February 2025). While the primary judge changed the structure of the sentence and the commencement and expiry dates, his Honour did not otherwise change the effect of the control order made by the President. The effect of the change to the commencement date was that the offender was required to be released two days after the hearing before the primary judge.

4. [66]

   In determining the issue of power, which the primary judge had raised, his Honour considered that s 33A of the CCPA, in terms, applies only to a second, or further, control order which is to be served cumulatively or partly concurrently with an existing control order so as to create a continuous period of detention (J[31]). The primary judge said further:

5. [67]

   His Honour considered it to be significant that s 33A was introduced in 1989, prior to the introduction of aggregate sentences in s 53A of the Sentencing Act and had not been amended since then. His Honour said, at J[42]:

6. [68]

   The primary judge continued:

7. [69]

   His Honour accepted that the Children’s Court could make an aggregate control order but found that the limit for such an order was 2 years, having regard to the wording of s 33(1)(g).

8. [70]

   Thus, the primary judge structured the sentences he imposed by imposing two wholly accumulating aggregate sentences: the first for a fixed term of one year; and the second for 2 years. In this way, his Honour did not exceed the 2-year limit in s 33(1)(g) for any one sentence and kept within the jurisdictional limit in s 33A(4).

The parties’ positions

1. [71]

   The Director, for whom Ms Roberts SC and Ms Nicholson appeared, submitted that, despite textual difficulties, the better view was that an aggregate control order could be made for a maximum of 3 years, which corresponded to the maximum applicable for more than one continuous control orders. Ms Avenell SC, who appeared for the offender, did not disagree with that construction (it being a matter of no particular moment to the offender).

2. [72]

   Mr Kaplan, as contradictor, submitted that the primary judge was correct to find that the effect of the legislation is that the maximum period for which an aggregate control order could be made was 2 years. While he accepted that there was no discernible purpose in differentiating between the maximum period for a period of control arrived at by a process of cumulative sentencing and an aggregate control order, he submitted that there were strong textual and contextual reasons for preferring the primary judge’s construction, as explained in his Honour’s reasons. He submitted that the only power to make a control order was conferred by s 33(1)(g), as was evident from the number of references to s 33(1)(g) in the CCPA when referring to control orders (including ss 33(1B), 33(1C), 33(2), 33A(1), 33AA(1), 34, 35 and 37) and that the limit of 2 years in that section also applied to an aggregate control order.

3. [73]

   Further, Mr Kaplan submitted that the present was not a situation such as arose in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304; [1981] HCA 26 (Cooper Brookes), where two constructions were reasonably open on the text, in which case the Court ought prefer the one which advanced the purpose of the Act over one which either does not or which produces anomalous results. He argued that once one accepts that the source of power to make a control order derives from s 33(1)(g) of the CCPA, it follows that the jurisdictional limit of 2 years in that sub-section applies not only to a control order made in respect of a single offence, but also an aggregate control order, which, by definition, is made in respect of more than one offence. He otherwise relied on the primary judge’s reasons.

The relevant principles

1. [74]

   Where more than one statute shares a field of operation with another or others, each should be construed in a way which best achieves a harmonious result: Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 (Eaton). The Court in Eaton, at [79], also cautioned against speculation about why the legislature took a particular course rather than another available one.

2. [75]

   Three provisions of the Interpretation Act 1987 (NSW), which apply subject to contrary intention (s 5(2)), are of particular relevance: s 8(b) (the singular includes the plural); s 33 (a construction that would promote the purpose or object of the Act is to be preferred over one that would not); and s 68 (a reference in an Act to another Act extends to the other Act, as in force for the time being, whether or not the first Act refers to subsequent amendments to the other Act).

3. [76]

   The applicable principles, where two constructions are open, were addressed in Cooper Brookes at 304-305 as follows:

4. [77]

   This principle was recently summarised by the High Court (Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ) in Miller v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 278 CLR 628; [2024] HCA 13 at [37]:

Consideration

1. [78]

   In the present case, Parliament chose to employ an omnibus approach, whereby one statute (the CCPA) is expressed to pick up parts of another (the Sentencing Act). This mechanism has the advantage that an express amendment to the CCPA is not required every time an amendment is made to Parts 3 or 4 of the Sentencing Act. Disadvantages may include that, because of the differences between the statutory regimes in the CCPA and the Sentencing Act, it may not be immediately clear how the provisions of the CCPA are to be read so as to accommodate an amendment in the Sentencing Act.

2. [79]

   As the High Court warned in Eaton at [79], it is unhelpful to speculate as to why Parliament did, or did not, take a particular course which was open to it and which would have avoided the particular conundrum with which the Court is confronted when construing legislation. Thus, there is nothing to be gained by asking why Parliament made the legislative choice, in s 33C(1), to pick up the provisions of Parts 3 and 4 of the Sentencing Act and apply them to a control order made by the Children’s Court under the CCPA “as if a reference in those provisions to the sentencing of an offender to imprisonment were a reference to the making of a control order”, when it inserted s 53A into the Sentencing Act, did not make corresponding amendments to the CCPA or insert s 53B to make the position clearer with respect to the Local Court.

3. [80]

   Nor is there any utility in asking why, when Parliament inserted s 53B into the Sentencing Act, it did not insert a corresponding provision into the CCPA to make clear that the jurisdictional limit of 3 years under s 33A(4) applies to aggregate sentences, rather than the limit of 2 years under s 33(1)(g). While the answers to those questions may be that the legislature chose to rely on s 68(1) of the Interpretation Act, which has the effect of importing amendments to the Sentencing Act, in to the CCPA, by reason of s 33C(1), the question for this Court is the effect of, not the reason for, that choice.

4. [81]

   Contrary to Mr Kaplan’s submission, I consider there to be two reasonably available constructions of the legislation: the one which the primary judge favoured and the one for which the Director contended. As the Director accepted, each suffers from textual difficulties. Neither is so clear as to make the other unavailable.

5. [82]

   The construction for which the Director contended has the distinct advantage of being coherent (it makes the jurisdictional limit for an aggregate control order the same as for continuous control orders). The sentencing judge’s choice whether to engage in a cumulative sentencing process (by imposing separate control orders) or impose an aggregate control order (by imposing one control order in respect of more than one offence) does not result in a different jurisdictional limit. Further, it does not require a judge who has decided to impose an aggregate control order for some offences to engage in a further process of cumulative sentencing by either imposing a further aggregate control order (as in the present case) or a further control order for a single offence, in order to “use up” the available jurisdiction to recognise the seriousness of the offending conduct and tending to promote a purpose of the CCPA (that a young offender can more readily understand the penalty imposed).

6. [83]

   This construction also tends to promote an evident purpose of the CCPA: that undue technicality be avoided with the consequence that a young offender can more readily understand the penalty imposed and therefore the connection between the offending conduct and the penalty.

7. [84]

   Accordingly, the construction set out below (for which the Director contended) is, in my view, to be preferred. My reasons substantially accord with the Director’s submissions, which, as a consequence, need not be set out separately.

8. [85]

   Section 33(1)(g) of the CCPA confers power on the Children’s Court to make a single control order in respect of a single offence. So much is clear from the prefatory words of s 33(1): cf. J[41] (see further below). However, it also provides for, and describes, what a control order actually is: namely, an order committing a person to the control of the Minister administering the Children (Detention Centres) Act for a period which, in the case of a control order for a single offence, is not greater than 2 years. It does not follow from the circumstance that the CCPA, in other sections of the Act, defines and refers to a “control order” by reference to s 33(1)(g) that s 33(1)(g) is the only power to make such an order or that the power does not have to be modified by reference to other sections in the CCPA and the Sentencing Act to produce a harmonious construction between the two Acts in accordance with the principles in Eaton.

9. [86]

   Section 33A deals with control orders imposed as a result of the cumulative sentencing process: that is, when more than one control order has been made, each of which in respect of a single offence. The reservation expressed by the primary judge that to apply s 33A to aggregate control orders would give it a “changed operation once the power to make such an order was introduced” is not an impediment to the conclusion that that is the effect of the applicable provisions. This consequence may result from the operation of s 68(1) of the Interpretation Act (which has the effect that s 33C(1) picks up the Sentencing Act as amended from time to time). Thus, an amendment to one Act may well have the effect of amending another.

10. [87]

    The effect of s 33C of the CCPA is to confer power, subject to the CCPA, on the Children’s Court to make a control order as if it were a sentence of imprisonment under the Sentencing Act to which Parts 3 and 4 of the Sentencing Act apply.

11. [88]

    Section 53A is contained in Part 4 of the Sentencing Act. Unless there is a provision to the contrary in the CCPA, the Children’s Court is, by the operation of s 33C of the CCPA, authorised to make an aggregate control order rather than specifying individual control orders for individual offences (which would require the court to specify commencement and expiry dates for each control order).

12. [89]

    Thus, the Children’s Court’s power to make an aggregate control order does not derive directly from s 33(1)(g), but rather from s 53A of the Sentencing Act, which, with qualifications, applies to the Children’s Court, by the operation of s 33C. The question arises whether the limitation on the power in s 33(1)(g) to make a control order for a single offence – that it be for no longer than 2 years – also applies to the power to make an aggregate control order for more than one offence (as the primary judge found), or whether the jurisdictional limit of 3 years in s 33A(4) applies, notwithstanding that the language in s 33A is apt to apply to cumulative sentencing rather than aggregate sentences.

13. [90]

    There are textual issues with s 33(1)(g): if it is read as conferring power to make a control order for a single offence, it cannot, without straining the statutory language, also apply to an aggregate control order (which, by definition, is imposed for more than one offence). The further question arises whether, in s 33A(1) which defines “control order” as meaning “an order referred to in s 33(1)(g)”, picks up the words of limitation in s 33(1)(g), that the control order not exceed 2 years, or whether the definition is merely intended to pick up the nature and effect of the order, being an order committing a person to the control of the relevant Minister for a specified period.

14. [91]

    It is also important to consider the significance of s 53B of the Sentencing Act, which is included in Part 4 of the Sentencing Act and therefore is also picked up by s 33C(1). Section 53B, in terms, applies to the Local Court and imposes an outer limit of 5 years on aggregate sentences imposed in the Local Court. The evident purpose of s 33C(1) is to apply the provisions of Parts 3 and 4 of the Sentencing Act to the Children’s Court “in the same way as they apply to the Local Court”. The Local Court and the Children’s Court are the two courts which deal with offences summarily (rather than on indictment). It is therefore understandable that the provisions from the Sentencing Act which are picked up are, subject to express or necessarily implicit exceptions, the same in the Children’s Court and the Local Court.

15. [92]

    In my view, the effect of s 33C(1) is to pick up all of the provisions of Part 4 which apply in the Local Court, including s 49(2) (which imposes a limit on an aggregate sentence by reference to the maximum periods of imprisonment that could have been imposed if separate sentences had been imposed) and s 53B (which applies in terms to the Local Court) and apply them to the Children’s Court unless there is a provision to the contrary in the CCPA.

16. [93]

    The effect of s 53B of the Sentencing Act is to provide that the jurisdictional limit of 5 years, which, by reason of the wording of s 58, applied only to cumulative sentences, also applies to aggregate sentences. Because s 53B applies to the Local Court, it also, by the operation of s 33C(1) of the CCPA, applies to the Children’s Court subject to any inconsistency with the CCPA.

17. [94]

    Because a reference to a sentence in Part 4 of the Sentencing Act is taken to be a reference to a control order under the CCPA (s 33C(1)(a)), s 53B, which is expressed to apply to aggregate sentences in the Local Court, is taken, subject to any express provision in the CCPA to the contrary, to apply to an aggregate control orders in the Children’s Court.

18. [95]

    The only express provision to the contrary in the CCPA is s 33A(4), which imposes a jurisdictional limit of 3 years for cumulative control orders is 3 years. Thus, while the outer limit of 5 years applies in the Local Court (under ss 53B and 58 of the Sentencing Act), the effect of s 33A(4) of the CCPA is that the outer limit for an aggregate control order (or any combination of continuous non-aggregate control order or a combination of aggregate and non-aggregate control orders) is 3 years. This also applies to reduce the maximum which would otherwise apply by reason of the operation of s 49(2) of the Sentencing Act.

19. [96]

    The next question is whether there is anything else in the CCPA which cuts across the effect of s 53A of the Sentencing Act. The primary judge found that s 33 applied not merely to individual control orders (that is, a control order in respect of a single offence) but also to aggregate control orders (that is a control order in respect of more than one offence, in accordance with s 53A of the Sentencing Act). On the basis of this reasoning, and having regard to the express terms of s 33(1)(g) of the CCPA, the primary judge found that the applicable limit for an aggregate control order was 2 years

20. [97]

    I do not accept this construction. Although the singular may include the plural (s 8(b) of the Interpretation Act), the Interpretation Act only applies “except in so far as the contrary intention appears in [the Interpretation Act] or in the Act … concerned.”

21. [98]

    Nor do I accept the primary judge’s observation at [41] (extracted above) that s 33(1)(g) says nothing about the number of offences that may be covered by a control order. I consider that the language of s 33(1)(g) indicates that it was intended to apply the limit of 2 years to a control order which was made in relation to a single offence. Had the legislative intention been to impose a limit of 2 years on an aggregate control order (being one by definition which related to more than one offence), then different prefatory words than “[i]f the Children’s Court finds a person guilty of an offence to which this Division applies …” (emphasis added), would have been used to indicate that a control order for more than one offence (being an aggregate control order) was also covered by the 2-year limit. This context is, in my view, sufficient to evince a contrary intention.

22. [99]

    It is also significant that, if the primary judge’s construction is accepted, the limit on the duration of an aggregate control order is the same as the limit on the duration of a control order for a single offence. This is the very issue that is said to have given rise to doubt as to the Local Court’s jurisdiction and which became the subject of the Law Reform Commission’s proposal for an amendment, ultimately enacted as s 53B of the Sentencing Act. The effect of s 53B was either to provide or to confirm that the Local Court’s jurisdictional limit of 5 years’ imprisonment applied to both aggregate sentences and accumulating sentences (s 58 of the Sentencing Act) and that this did not enlarge the jurisdictional limit of the Local Court, 2 years’ imprisonment, with respect to sentences for single offences: ss 267(2) and 268(1A) of the Criminal Procedure Act. This is consistent with the effect of s 49 of the Sentencing Act.

23. [100]

    Further, it is difficult to discern any statutory purpose in having the same jurisdictional limit for a control order for a single offence as for an aggregate control order (which is, by definition, for more than one offence). However, there is a clear statutory purpose in making the limit for accumulating control orders and aggregate control orders the same. It is a matter for a sentencing judge whether individual sentences (or, in the Children’s Court, control orders) be imposed for individual offences (as was required by Pearce, before the commencement of s 53A of the Sentencing Act) or whether an aggregate sentence (or, in the Children’s Court, aggregate control order) be imposed. Although the same result could be achieved by either method – making cumulative control orders or making an aggregate control order – the making of an aggregate control order is a simpler process and is therefore less susceptible to error. Importantly, it is also likely to be more comprehensible to the person in respect of whom it is made. To make the jurisdictional limit dependent on which sentencing method was chosen would be arbitrary and would not advance the purpose of coherence or an object of the CCPA.

24. [101]

    For these reasons, the construction for which the Director contended ought be preferred and is, accordingly in my view, the correct one.

25. [102]

    For these reasons, I propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Allow the appeal.

    3. (3)

       Set aside the orders made by Basten AJ on 4 February 2025 and, in lieu thereof confirm the orders made by President Skinner on 18 March 2024, except that the aggregate term is to commence on 7 August 2023 and expire on 6 August 2026.