In this appeal of a County Court sentencing decision a question was raised as to the interpretation of a transitional provision in the Sentencing Act 1991 compatibly with the human right to liberty in the Charter.
The transitional provision concerned the transition between the old sentencing regime which included community based orders to a new scheme of community corrections orders. A literal interpretation of the provision would have meant that – at the time of sentencing – although the option to sentence someone to a community-based order had been repealed, the option to sentence someone to a community corrections order had not yet entered into force. On a literal interpretation, the only sentencing options available would be a fine or imprisonment.
The Commission intervened under the Charter to make submissions on the proper application of the obligation in section 32 to interpret laws compatibly with human rights and the meaning of the right not to be subjected to arbitrary detention in section 21 of the Charter.
The Court of Appeal agreed that a literal interpretation of the provision was unacceptable, however it was unnecessary to rely of the Charter to reach this conclusion, because the same conclusion was reached on ordinary principles of interpretation.