Friday, 25 June 2010

Double jeopardy 2

Edit: Another example of how uncertain the operation of double jeopardy can be is found in Pollard v The Queen [2010] VSCA 156. There, sentences were handed down for offences of negligently causing serious injury (s 24 Crimes Act 1958) and failing to render assistance at the scene of an accident s 61(b) of the Road Safety Act 1986. The trial judge commented that leaving the scene was an aggravating feature of the first offence.

The Court of Appeal found otherwise, saying the real test was whether the appellant had been punished for a third time. The Court ruled the two offences were different, both conceptually and legally. The brief treatment of the double jeopardy issue in Pollard [between 17 - 30] seems similar to the test Habeas Corpus posits below.

A couple of weeks ago I posted something on the subject of double jeopardy. It kicked off one of the most lively discussions we've had here in recent times.

I think one of the reasons for this is that there's probably no single 'right' solution to double jeopardy issues. When offences overlap and when they are discrete is probably in the eye of the beholder, and it's impossible to predict with precision which way an appellate court will fall

Site regular Habeas Corpus weighed into the debate but found that his contribution to the discussion was longer than our 'comments' box would allow. Anyone else who has this problem should send us an e-mail.

With permission, I've done a little nip/tuck on what HC sent to me, and here it is:

You said that you doubt that one act can give rise to two separate penalties. The "one act = once crime" rule is not the law in Victoria. I would have to read the High Court’s decision in Pearce again, but I doubt that is a correct statement anywhere in Australia. Even if it is, R v Sessions [1998] 2 VR 304 is the case which interprets where double jeopardy fits in Victorian law.

The facts in Sessions’ case are unpleasant, but it is important to talk about them to understand the decision the court made in that case. During the course of a rape, the insertion of an object caused a rupture inside the victim. Consequently the accused was charged and found guilty of both recklessly causing injury and sexual assault. It is important to recognize that these offences both rose from exactly the same act (the forceful penetration). For the court, this made it different from an incident where, for example, to subdue his victim a rapist punches her in the face. That could be viewed as both an aggravating feature of the rape and an independent offence in its own right. The sentencing court would mitigate punishment to avoid punishing the offender for the same act twice, but both offences could be proven in compliance with s 51 Sentencing Act.

Sessions is not like that example. Sessions is like the hypothetical example of the person who is charged with both aggravated burglary and burglary. There is no single point of difference that distinguished the charges between the court. Justice Hayne said at page 16 of the judgment,

“But where, as here, the act for which the applicant was to be sentenced on count 1 was the same act as he was to be sentenced for on count 2 and there was no fact or matter that should be taken to account in sentencing on one count that would not be taken to account in sentencing on the other count it was, in my view, oppressive and unfair to punish him twice. The conviction on count 2 should be quashed.”

The common law didn’t used to allow an aggravating matter to be taken into account on sentence if it could have been the subject of its own charge. In R v Newman and Turnbull [1997] 1 VR 146 this was accepted as the case, as a matter of fairness, where the offence was discrete. But in Sessions, Justice Hayne found that overlapping offences are not discrete so don’t offend the principle.

The question that should be asked (in my view) is if either offence can be proved without the other offence being proved. If the answer is ‘no’, it would obviously be wrong to punish the offender twice. If both offences can be proved independently of the other – even if they share some common elements – then both charges can attract a penalty.

I don't agree with every single point but I think HC outlines a reasonable and practical test for whether a sentence amounts to double punishment.


Habeas Corpus said...

Also have a look at Jackson v R [2010] VSCA 179.

Habeas Corpus said...

And Justice Mclure's comments in Bransby v R [2010] WASCA 165 are clear:

31 The appellant submitted that his offending constituted a continuing episode of offending against the same victim, using the same modus operandi and that he has been punished twice for essentially the same criminality. The appellant cited many cases in support of his submissions, including Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, Director of Public Prosecutions v Grabovac [1998] 1 VR 664; (1997) 92 A Crim R 258 and Royer v The State of Western Australia [2009] WASCA 139.

32 The appellant submitted that the overall sentence of 4 years 6 months offended the first limb of the totality principle, namely, that the overall sentence does not bear a proper relationship to the level of the criminality involved. He sought to demonstrate this by pointing out that the maximum penalty for any individual offence was 5 years' imprisonment and that the total term of imprisonment he received for all of the offences was 90% of that maximum. The appellant provided the court with a lengthy table entitled 'Case Law Sentencing Matrix' in which the appellant referred to 28 cases involving various offences of dishonesty where the offender received a sentence which represented a lower proportion of the maximum penalty than he received.

33 So far as the one transaction rule is concerned, as has been said more than once in the cases, it is not a rule at all. There is no absolute requirement that a sentencing judge must impose concurrent terms in cases involving multiple offences constituting a continuing episode. In each case, what justice requires is due consideration of whether, and to what extent, the appellant was truly engaged upon one multi-faceted course of criminal conduct, and whether the sentences imposed properly reflected the outcome of that consideration: Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 [5].

34 In the present case, while the offences were committed against the one entity and involved the same modus operandi, the appellant offended repeatedly, using 11 separate entities to submit a total of 63 false BAS at different times over a period of approximately one year. Her Honour's judgment to accumulate just two of the 11 offences does not, in my opinion, offend any of the considerations which base the one transaction rule. In particular, it has not been demonstrated that the appellant has been punished twice for the same offending. The appellant's submissions on this point cannot be sustained.

Habeas Corpus said...

Sorry, that was Justice Mazza.