Wednesday, 31 August 2011

DPP v Kypri [2011] VSCA 257: charges 'ineffective', but not nullities, for failing to name the sub-section

The decision of DPP v Kypri [2011] VSCA 257 was handed down this morning.

We discussed the case here, here and here. For those unfamiliar with it, the argument (successful at the original hearing, again on appeal to the Supreme Court, but not on this most recent appeal to the Court of Appeal) was that a failure to specify the sub-section of s 55 of the Road Safety Act 1986 is fatal to some types of drink-driving charges and incapable of amendment.

The Court of Appeal did find that a charge failing to name a sub-section is ineffective, as Pagone J had earlier.

Nettle JA [beginning in 16]:

A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context: DPP Reference (No 2 of 2001)(2001) 4 VR 55. If, therefore, the contents of the charge and the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid. Failure to name the sub-section would be a breach of s 27 of the Magistrates’ Court Act 1989: McMahon v DPP (Unreported, Supreme Court of Victoria, Court of Appeal, Brooking, Charles and Callaway JJA, 10 June 1995) 4. But that would be the sort of breach which could be rectified by amendment. It would not affect the essential validity of the charge or, necessarily, the validity of any conviction obtained on it. Where, however, as here, the charge and summons do not allege sufficient facts to enable a reasonable defendant to determine ex facie the sub-section of s 55 under which the requirement is alleged to have been uttered, the charge is defective because it fails to convey the nature of the offence alleged.

But this will offer no comfort to the respondent in this case, or the thousand or so other accused who have been waiting on its outcome, because the court also decided that such defects are capable of amendment, even outside the 12-month limitation that typically prevents the amendment of an invalid summary charge.

Nettle JA [at 37]:

As McMahon shows, if a charge is defective for failing to aver an essential element of the offence alleged, but contains sufficient information to enable a reasonable defendant to determine the true nature of the offence alleged, it may be amended (even after expiration of the limitation period) in order to accord to what was always understood to be the true nature of the offence alleged. Until such a charge is so amended, however, it remains ineffective. Where, therefore, such a charge is not so amended until after expiration of the limitation period, it will not be until after the expiration of the limitation period that there exists an effective charge. So, therefore, where such an amendment is made after expiration of the limitation period it will defeat the limitation period. The point of McMahon is that such an amendment is regarded as acceptable; for the reason that it is not unfair so to defeat the limitation period where the defendant has been made to understand the true nature of the offence alleged before the limitation period expired.

Logically, the same reasoning applies to a charge which is defective in that it fails to aver an essential element of the offence (and does not otherwise disclose ex facie the true nature of the offence) if, before the expiration of the limitation period, the true nature of the offence alleged is otherwise conveyed in writing to the defendant; for example, by particulars, or letter or even provision of the police brief. In terms of what is just, there is no difference. In each case, the defendant is made to understand, before expiration of the limitation period, the true nature of the offence alleged and, in each case, the amendment does no more than make the charge accord to that understanding.

I don't quite grasp the point Nettle JA makes. Maybe it will become clear on re-reading the judgments of Nettle and Tate JJA. It seems to me that some contradictory authorities are trying to be reconciled, but they don't fit neatly together. Tate JA [at 68] states pretty emphatically that in a statutory regime with a power of amendment, a charge which is defective because it fails to refer to the relevant statutory provision alleged to be contravened ought not to be treated as a nullity, whatever its status might be at common law. But if the wording of an information does fail to disclose an essential element of the charge, how it can it be said that the information makes known to the accused the nature of the charge alleged?

Smith v Van Maanen (1991) 14 MVR 365 allows a court to use all of the charge documents read together to give charges the meaning intended by their draughtsman. Typically when assessing whether a charge capable of amendment is before the court the test applied is objective, based upon what the charge documents alone disclose, not on an exploration of what facts were in possession of the accused at the time of receipt of the charges.

In Kypri it's suggested that an assessment of what the accused actually knew prior to the expiration of the limitation period should be undertaken [Nettle JA, at 41]:

At all events, I consider that, if the police brief in this case were provided to the respondent before the expiration of the limitation period, and its contents were such as to enable the respondent to understand that the case alleged against him was one of failing to comply with a requirement to accompany the informant to a place for the purposes of a breath test, which requirement was made because the respondent had undergone a preliminary breath test and in the opinion of the informant it indicated that the respondent’s breath contained alcohol, it would be open (and, other things being equal, it would be appropriate) to amend the charge to make clear that the reference to s 55 is a reference to sub-section (1) of s 55.

The magistrate in Kypri considered amending the charge and decided not to. The Court of Appeal seems to gloss over the fact that the prosecution didn't make an application to amend the charge, accepting as a matter of fact [at 47] that the prosecutor wasn't given an opportunity to do so.

Nettle JA, at 48:

The magistrate having embarked on a consideration of whether the defect in the charge in this case should have been amended, as he was right to do, I consider that the questions which the magistrate needed to decide were as follows:

a) Whether, before the expiration of the limitation period, the police brief was supplied to the defendant or his representatives and whether it made clear that the case alleged against the defendant was one of failing to comply with a requirement to accompany the informant to a place for the purposes of a breath test, which requirement was made because the respondent had undergone a preliminary breath test and in the opinion of the informant it indicated that the respondent’s breath contained alcohol;

b) If so, whether the defendant was able to point to anything which showed that he could not reasonably have been understood that the case alleged against him was one of failing to comply with a requirement to accompany the informant to a place for the purposes of a breath test, which requirement was made because the respondent had undergone a preliminary breath test and in the opinion of the informant it indicated that the respondent’s breath contained alcohol; and

c) If not, whether there was any reason, in those circumstances, which would render it unjust to allow the charge to be amended so as to make specific reference to s 55(1) (and thereby to make the form of the charge accord to the case which the defendant had always understood was alleged against him)?

The matter was remitted to the Magistrates' Court to allow this process to happen.

It seems that where a brief of evidence was served on the accused within twelve months of the offence the charge will be considered valid (ineffective, but capable of amendment by the prosecutor or the court). In cases where no brief was served, or an infringement notice was issued, the situation is unclear.

The cases of Piscopo and Rukandin were argued at the same time as Kypri, but were not decided today. Anybody have a date when those judgments are to be handed down?

Monday, 22 August 2011

Forgotten, but not gone

In R v Martindale [1986] 84 Cr App R 31 the accused claimed lack of possession due to forgetfulness. He'd been charged with possession of drugs under UK law. He said that he had been given cannabis while in Canada, had put it in his wallet and forgotten it was there before returning to England (where it was found, two years later).

On his presentment the accused was prohibited from raising the defence and he subsequently pled guilty. Famously, their Lordships [Lord Lane CJ at 33] held,

Possession does not depend upon the alleged possessor's powers of memory. Nor does possession come and go as memory revives or fails. If it were to do so, a man with a poor memory would be acquitted, he with a good memory would be convicted.

A contrary case that said that whether forgetfulness rises to the level of a defence should be left to the jury, R v Russell (1984) 81 Cr App R 31, was disapproved of. The Court held that had the court in Russell been aware of R v Buswell [1972] 1 WLR 64 the decision would have been different.

A similar argument was raised on an appeal in R v Tran [2011] SASFC 85 recently. It failed, for similar reasons.

The accused claimed that he had placed the drugs in a cereal packet (where they were later discovered by police during the execution of a search warrant) when severely stoned a month earlier. He gave evidence that he had forgotten where he had put them, and this evidence wasn't challenged by the prosecution.

David J (Nyland and Anderson JJ agreeing, starting at 18):

... [C]ounsel for the appellant on appeal, in argument points out that in order to traffic in a controlled drug as in the present case, one of the basic ingredients is that he must have possession of the drug. He further argues that he must have actual possession at the time alleged by the prosecution. He then points out the well known dicta in He Kaw Teh v R (1985) 157 CLR 523 at 600, where Dawson J approved the definition of possession for the purposes of the criminal law given by Lord Diplock in DPP v Brooks, namely:

In the ordinary use of the word “possession”, one has in one’s possession whatever is, to one’s knowledge, physically in one’s custody or under one’s physical control.

[Counsel] argues that accepting the appellant’s evidence that he had forgotten where exactly he put the heroin he no longer had the heroin in his custody or under his control. He argues that therefore the jury should have been directed that to prove the appellant was in possession of the heroin that the prosecution had to prove beyond reasonable doubt that the appellant had not lost or misplaced the evidence when hiding it in the house as he said in evidence.

I do not accept that argument. The appellant’s evidence was that he had misplaced the heroin somewhere in the house, not at large. He had not forgotten that he had the heroin, he had simply forgotten where he had precisely put it within the house. In my view, he still knowingly had physical custody of it and intention to exercise control over it.

A number of cases were referred to by counsel. In Police v Kennedy (1998) 71 SASR 175 the respondent was charged with possession of child pornography contrary to s 33(3) of the Summary Offences Act 1953 (SA). The judgment dealt with the question of whether the respondent was actually in possession of the material which was alleged to constitute child pornography. The evidence was that he had forgotten of the existence of the material which he had bought in the mid 1970s and it was therefore argued that that did not constitute possession. Bleby J held that even though the respondent may have forgotten that he had the material in his possession, nevertheless possession had been proved. His Honour referred to authority in the United Kingdom that mere forgetfulness of the fact that a defendant has certain material objects in his custody or control will not be sufficient to defeat proof of the relevant state of knowledge that he possessed them.

[Counsel] argues that these cases are distinguishable because they involve a situation where an accused person had forgotten of the existence of the material that was required to be possessed as distinct from having misplaced it as in the present case.

I reject that argument. In fact, I am of the view that his evidence that he misplaced the heroin makes out a stronger case for possession than if he had forgotten about its existence. He brought the heroin into the house, he hid it in a cupboard, and at a later stage he had forgotten where exactly he had hidden it. It was in the house which he and his partner, the co-accused, occupied and it was consequently under his control. No-one other than the appellant and the co-accused, on his evidence, had access to the heroin.

The appeal failed and the appellant remained convicted.

Edit: Thanks to Habeas Corpus for the image recently attached to this post.

Wednesday, 17 August 2011

Your sentence starts...later

A common occurrence in Magistrates' Courts is when a magistrate suspends or cancels the drivers licence of an accused person — frequently because of some mandatory provision such as for speeding or drink-driving — and the accused person or their lawyer then requests the Court order that the suspension not commence till some later time. Sometimes — though not always — the Bench will accede to the request. I've seen suspensions start from midnight following the conviction — and even a few days later, when the weekend rolls round.

Ideally the Bench should be able to impose its sentence to commence then and there, but for various reasons, folks don't always come prepared to start their licence suspension immediately. Sometimes they ignore advice from their lawyers; other times they don't meet their lawyer till the day of the hearing. And in some instances, they have no practical alternative to driving to answer their charges at court, particularly at country venues of the court.

I saw just such a post-dated sentence imposed a few weeks ago, and wondered if there were some basis for it other than convention. It sounds like an appropriate exercise of discretion, and that's often a good hint if something's right or not. But of course, the law requires more than gut instinct...

The Road Safety Act is silent about the commencement of licence suspensions, whether under the general power in s 28 or specific provisions such as s 50.

But Sentencing Act 1991 s 101(2) expressly permits a sentencing court to fix commencement of a sentence by some future time or event.

101. Time and place of sentence

(1) ...

(2) The judge or magistrate presiding at the trial or hearing of an offence or receiving a plea of guilty to an offence or any other judge or magistrate empowered to impose sentence may, when he or she thinks it desirable in the interests of justice so to do and from time to time if necessary—

(a) fix, or indicate by reference to a fact or event, the time; and

(b) fix the place—
at which the sentence is to be imposed.

That seems pretty darn unambiguous. So much so that there seem to be absolutely no cases considering the section. (At any rate, I can't find any.) And if no lawyer has ever found reason to dispute the interpretation or application of a legislative provision, it must be clear indeed!

The only question is if a driver licence suspension is a 'sentence'.

Strangely enough, there's no definition of 'sentence' in the Sentencing Act! But there is in s 3 of the Criminal Procedure Act 2009. Although it doesn't expressly capture licence suspensions, when you consider that definition of sentence, along with the power to suspend licences in s 89 of the Sentencing Act, it seems pretty certain that licence suspension is a sentence within the meaning of Sentencing Act s 101, and so can be imposed to commence at some point in the future.

That's not carte blanche for a court though. If a court were to commence a sentence too far into the future it might amount effectively to a refusal to deal with the matter: Howard v Pacholi [1973] VR 833; Ex parte Mylecharane (1898) 19 LR (NSW) 7; 14 WN (NSW) 125. Alternatively, if the commencement were set so that the sentence effectively circumvented the effect of mandatory provisions — for example, commencing a licence suspension a few months in the future when the accused went on an overseas holiday or sabbatical — that too would be wrong: Aherne v Freeman [1974] VR 121; Johnstone v Matheson (2008) 21 VR 570.

But a mere few hours seems completely unobjectionable. Indeed, it's probably quite proper to commence the penalty at midnight after the hearing, because some cases hold that the law takes no notice of fractions of the day, meaning that a suspension commencing today would be effective for all of the day, not just from the hour the sentence is imposed: Miller v Teale (1954) 92 CLR 406; Re Flavel [1916] SALR 47. (Mind you, that's not fixed in stone, and that presumption can be rebutted such as in Breare v Ward [1928] SASR 1, where the accused took out a wireless licence after an inspector visited him and was still convicted of not having a licence at the relevant hour of the day. The Supreme Court of Tasmania reached a similar conclusion about a fishing licence in Haslock v Blyth [1968] Tas SR 1.)

Monday, 15 August 2011

Fit to plead — part 2

In February I discussed the case of CL v Lee & Ors [2010] VSC 517, where Lasry J held that the Children's Court doesn't have jurisdiction to hear fitness to plead arguments — for indictable offences at any rate, and perhaps for summary offences.

(That case was a judicial review under O56 of the Supreme Court (Civil Procedure) Rules 2005, rather than an appeal under s 430P of the Children, Youth and Families Act 2005, because appeals are only available from a final order of the Children's Court. A final order is any order that finally determines the rights of the parties. In most criminal proceedings, that will usually be the finding of guilty or not guilty, and any other decision along the way is interlocutory.)

In CL v DPP & ors [20110] VSCA 227, the child CL asked to appeal Lasry J's decision to the Court of Appeal. (That is an appeal, but under O64 of the Supreme Court Rules.)

That requires complying with strict time limits, and also requires leave under s 17A of the Supreme Court Act. The appellant missed a time limit for filing the electronic appeal book, which mean the Court presumed the appeal was abandoned. So, the appellant had to then ask the Court to declare the appeal was not abandoned, and then also for permission to appeal.

Ultimately, the Court of Appeal held it wouldn't hold the time limit against the appellant, but refused leave to appeal because it considered there wasn't any doubt about Lasry J's decision.

I've mentioned previously that the strict precedent value of a refusal of leave to appeal is roughly zip, so this refusal of leave doesn't change the legal position. However, just for good measure, Sifris AJA endorsed Lasry J's recommendations for legislative amendment: touch wood we might see some changes in the near future.

Sunday, 14 August 2011

CNK v The Queen [2011] VSCA 228: General deterrence plays no part in sentencing children

Back in May I blogged about Kaye J's decision in DPP v Hills & Ors (Ruling No 11) [2011] VSC 88. He decided [at 5],

Thus, there is no decision of appellate authority, in Victoria, which supports the proposition now advanced [on behalf of the child]. On the contrary, in my view, there are a number of previous decisions of the Court of Appeal, applying to children, in which the court has clearly considered that considerations such as general deterrence and condemnation are relevant in sentencing offenders, who are children for the purposes of the Act. Furthermore, in my view, it is clear, from the text of the Act itself, that s 362 was not intended to preclude those considerations from being relevant in determining the appropriate sentence to be imposed upon an offender who is a child.

The matter has now been appealed and the Court of Appeal have reversed this finding in CNK v The Queen [2011] VSCA 228. Though the Children, Youth and Families Act does not exclusively cover the field on appropriate matters to be taken into account, general deterrence is not a relevant consideration in the sentence of a child being dealt with under that Act.

The appellant's situation was an unusual one in that he'd been tried in the Supreme Court in its exclusive jurisdiction over attempted murder, but only convicted of lesser offences which could have been dealt with in the Childrens' Court. As such it was accepted that the appellant came to be sentenced in accordance with the principles of the Children, Youth and Families Act 2005, which led to argument about if they were exclusive of, or in addition to, those in the Sentencing Act.

The sentencing judge applied the principles outlined in s 5 Sentencing Act, and determined that general deterrence required a custodial disposition.

I didn't say so in that post (so my comments now do - and should - reek of revisionism) but Kaye J's decision felt out-of-step when it was handed down. Not that there's anything wrong, as a sentencing principle, with general deterrence as a relevant feature of sentencing an offender of any age. West Australian and New South Wales authorities are clear that it is. But it did feel contrary to the run of sentencing decisions out of the Supreme Court in recent times.

Maxwell P, Harper JA and Lasry AJA [at 6],

The relevant provision is s 362(1) of the CYF Act, which provides as follows:

(1) In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to—

(a) the need to strengthen and preserve the relationship between the child and the child's family; and

(b) the desirability of allowing the child to live at home; and

(c) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and

(d) the need to minimise the stigma to the child resulting from a court determination; and

(e) the suitability of the sentence to the child; and

(f) if appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law; and

(g) if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.

In our view, the language of s 362(1), and the nature of the matters to which regard must be had, are such as to preclude any consideration of general deterrence.

While there was some reference to extrinsic materials, the Court unanimously found that the statute expressed a clear legislative intention to exclude general deterrence.

At 12,

General deterrence as a sentencing consideration is entirely foreign to a scheme of this character. For, unlike all other sentencing considerations, general deterrence is unconnected with the particular offender. Rather, the principle of general deterrence treats the offender as a means to an end, as an instrument for effecting a broader community interest. The Court must ask itself what sentence should be imposed on the offender in order to deter other persons who might be minded to engage in similar offending.

It is accepted that, where the principle of general deterrence applies, it may necessitate the imposition of a higher sentence than would be necessary if that principle were not applicable. (As will appear, the sentencing judge in the present case felt constrained by the need for general deterrence to reject a less stringent sentencing option put forward by the defence.[6]) By contrast, the unambiguous command of s 362(1) is that no greater sentence should be imposed on the child than the nature and circumstances of the child’s offending require. It would, in our view, be wholly inconsistent with this intention were the sentencing court to be obliged – where necessary – to impose a heavier sentence, not because of any aspect of the child’s offending or personal circumstances but because of the need to deter others from engaging in similar conduct.

Put another way, if a sentence were increased – for the purpose of general deterrence – beyond what would otherwise have been imposed on the child, the sentencing court would have breached its obligation to secure ‘as far as practicable’ the objectives set out in s 362(1). More particularly, to treat a child as a vehicle for general deterrence would amount to ‘making an example’ of the child, for the purpose of deterring others. This would, in our view, be in direct conflict with the Court’s obligation under s 362(1)(d) to ‘minimise the stigma to the child’ resulting from the Court’s determination.

In resentencing the appellant the Court made reference to New Zealand research that highlights, 'the potential for the immature brain to respond to punitive punishments in such a way as to make recidivism more rather than less likely'.

So, is the Childrens' Court going to become nothing more than a screening and referral service for the Department of Human Services, and Youth Justice Centres emptied of everyone under 18?

The Court [at 8] interpreted the words as far as practicable in s 362 to mean as far as it is possible to go and to the maximum extent possible. But this can't mean to the maximum extent allowed under law. If it did require sentencing discretion to be exercised to the maximum extent possible to recognise the desirability of, for example, the child living at home and going to school, then no judicial discretion would really be exercised at all in giving effect to this invariable policy decision.

The judgment stands for the proposition that the circumstances of the child are the overriding consideration when a child is sentenced, to the exclusion of all others. The benefits of a non-custodial disposition will still be weighed against (1)(e), (f) and (g) of s 362, taking into account the sentencing considerations described in the Sentencing Act.

But general deterrence is not a part of that exercise.

Thursday, 11 August 2011

Applying Verdins

Edit: In Abdifar v The Queen [2012] VSCA 66 the Court of Appeal rejected the notion that Verdins needs to be specifically referred to by the sentencing judge in order to find that the principles had been properly considered.
It is true that his Honour did not explicitly mention the extent to which he thought that general deterrence needed to be moderated, having regard to the appellant’s bipolar condition. But then, his Honour did not mention general deterrence at all in his sentencing remarks. Nor, for that matter, did he mention specific deterrence, denunciation or punishment. The sentencing judge was a very experienced trial judge, and it is inconceivable that he did not have regard to such fundamental sentencing principles, even though he did not make express reference to them. In all the circumstances, I am not persuaded that his Honour failed to appropriately moderate the need for general deterrence.

There have been two cases referring to R v Verdins [2007] VSCA 102 in the last couple of days. Both demonstrate that the principles of that case have often be repeated but remain frequently misunderstood.

Pato v The Queen

In Pato v The Queen [2011] VSCA 223 the Court of Appeal considered the application of Verdins to a case of domestic violence. Counsel for the applicant submitted that insufficient weight had been given by the sentencing judge to the appellant's depression; the prosecutor submitted that Verdins should not have applied at all but had, in fact, been applied by the judge in the appellant's favour.

Hansen JA [at 18, Harper JA agreeing]:

It is convenient to deal first with the question of whether, and if so how, Verdins applied to the present case. In doing so, I bear in mind the statement of Ashley and Weinberg JJA in R v Vuadreu VSCA 262 that:
It must be emphasised that Verdins has no application in respect of a condition postulated to have existed at the time of offending unless the condition relied upon can be seen to have some realistic connection with the offending. The Verdins principles are, and should be regarded, as exceptional.

Further, as Dodds-Streeton JA stated in R v Zander [2009] VSCA 10:
The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she has suffered or is suffering from a mental illness, however severe. Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters.

In this regard it is to be noted that the six factors in Verdins relate to different aspects and objectives of the sentencing exercise, hence it is necessary to assess the relationship between the mental impairment of the particular offender and a particular sentencing factor said to be moderated thereby.

The Court of Appeal found that the grounds of mitigation had not been satisfactorily expressed, but that alone didn't make the sentence of three years imprisonment unfair. The Court dismissed the appeal.

Walker v The Queen

In Walker v The Queen [2011] VSCA 230 the applicant sought to overturn an initial refusal for leave to appeal against her sentence. Hansen and Harper JJA again comprised the Court of Appeal, and upheld Maxwell P's earlier decision to refuse leave. Harper JA [Hansen agreeing, at 7]:
In support of the first ground, the applicant submits that despite extensive evidence that her judgment was impaired by mental health problems, which evidence her Honour accepted, the judge’s conclusions were at odds with those findings. Principal amongst the relevant evidence is the conclusion of Mr Jeffrey Cummins, a consulting, clinical and forensic psychologist, that the applicant's offending behaviour should be viewed as being reflective of her mental health problems. The judge nevertheless could not find a causal connection between those problems and the applicant's offending conduct.

What the applicant must show is that on the balance of probabilities her moral culpability has been reduced by her impaired mental functioning. In deciding whether the burden of proof had been discharged, the judge was entitled to examine the offending conduct and set that against Mr Cummins’ opinion. I have already noted that the applicant was in charge of a sophisticated operation involving negotiations with her Melbourne supplier, the selection and distribution of the drugs, how the money was collected and the nature of the transactions. She also, as I have said, recruited those involved in the Warrnambool operations. The applicant was the bookkeeper for the business, a task which she undertook with apparent skill and dedication. She also evinced a preparedness to take whatever steps she reasonably could to avoid the detection of the trafficking business.

This conduct is very difficult to reconcile with reduced moral culpability. The Crown's position is that the evidence given by Mr Cummins was, ‘vague, tenuous and speculative’. According to the Crown, that evidence did not establish that the applicant's mental condition directly contributed to the offending. Even if such a link were established, the moderation of the moral culpability must, the Crown submitted, be ‘slight at best’.

In my opinion, it was open to her Honour to hold that even if the level of planning and sophistication of the applicant's trafficking could be reconciled with Mr Cummins’ opinion that there was a causal connection between the applicant's mental health and her offending, it was nevertheless open to the judge to conclude that those problems were not such as to affect the applicant's moral culpability. I respectfully agree with the President in concluding that this ground is not reasonably arguable. The sentencing judge's application of the principles set out by this court in R v Verdins was exceptionally thorough and careful. Her Honour's conclusion regarding the nature of the causal link, or lack thereof, between impairment and offending was well open on the medical evidence tendered. As in R v Shafik-Eid and R v Zander her Honour was entitled to conclude that the applicant’s mental impairment did not directly contribute to her offending behaviour.

Verdins isn't an easy test to satisfy and an argument attempting to invoke its principles requires significant preparation. People easily forget that, of the three applications considered together in Verdins, none of them succeeded. In Maxwell P's words [at 13],

Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the enquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances – that is, at the time of the offending or in the lead-up to it – or is likely to affect him/her in the future.

Monday, 8 August 2011


The Court of Appeal has made a concerted effort to streamline appeals in recent times. Even though the Court would prefer to have counsel appear consistently on an appeal, it isn't going to delay proceedings to allow a party to have their advocate of choice.

Mandie and Harper JJA, Robson AJA in Saric v Tehan [2011] VSCA 224:

The question whether to vacate an appeal fixture (or, for that matter, a trial fixture) is pre-eminently a matter for the discretion of the Court in all the circumstances of the particular case. There are no hard and fast rules. The question is to be decided having regard to the interests of justice, not only as between the parties but also having regard to the orderly administration of the Court’s business.

Notwithstanding that there are no hard and fast rules, it is well accepted that the non-availability of particular counsel cannot, of itself and without more, be a ground that would justify an alteration of the appeal date.

In the present matter, the respondent seeks to have the date fixed for the appeal vacated because his senior counsel, who appeared on the application for leave to appeal, and had been briefed to appear on the appeal, has become unavailable. The respondent submits that, as a result, he would be prejudiced if required to contest the appeal on the currently fixed date, having regard to the additional or duplicated costs of preparation involved in obtaining new senior counsel at this stage. It is submitted by the respondent that these additional costs involve an unfair and prejudicial burden particularly where, as in this case, the monetary amount involved is small.

It cannot legitimately be contended that an alternative senior counsel could not be obtained for the appeal or that there is insufficient time for that alternative senior counsel to prepare the case. Nor can it be credibly contended, in our view, that, having regard to the legal issues and the lack of any real complexity involved in the appeal, the appeal could not be competently conducted by appropriate junior counsel. We would add that, in any event, there would be no guarantee that the respondent’s chosen senior counsel would not, in the future, become unavailable for any alternative date that might be fixed.

In those circumstances we do not think that such prejudice as might be suffered by the respondent in relation to costs, which in reality is the only substantial prejudice that the respondent can establish, is sufficient to justify a change to the appeal date. The application will be dismissed with costs.

(I haven't given a pinpoint reference because the extract above is the judgment. All of it.)

In Tehan v Saric [2010] VSC 175 the issue is whether a plaintiff in a $30,000 negligence action is entitled to damages for a loss that has since been remedied by the unintended actions of a third party. I suspect the solution will be found in equity.

I also suspect that the matter has already cost both parties more than either has any possibility of recovering.

Sunday, 7 August 2011

Punishable by imprisonment

A person who commits an offence punishable by imprisonment during the operational period of a suspended sentence is at risk of having that suspended sentence restored: s 31 Sentencing Act 1991.

(I say 'at risk' because the meaning applied to exceptional circumstances that make it unjust to restore a suspended sentence can vary widely: see R v Ioannou [2007] VSCA 277 and contrast with DPP v Marell [2005] VSC 430, for example).

What does punishable by imprisonment mean? The statute is ambiguous. To take a common example, s 49(2A) of the Road Safety Act 1986 provides that an offence under that section is punishable by different sanctions, depending on whether or not the offender has committed the offence before.

49. Offences involving alcohol or other drugs

(1) ...

(2) ...

(2A) A person who is guilty of an offence under paragraph (b), (f) or (g) of subsection (1), other than an accompanying driver offence, is liable-

(a) in the case of a first offence, to a fine of not more than 20 penalty units; and

(b) in the case of a second offence-

(i) to a fine of not more than 60 penalty units or to imprisonment for a term of not more than 6 months if the concentration of alcohol-

(A) ...

(B) ...

Is this offence punishable by imprisonment for the purposes of s 31 of the Sentencing Act 1991?

The answer (reasonably enough) is that the offence is punishable by imprisonment if a term of imprisonment was a sentence available to the Court. In the example above the offender would potentially breach their suspended sentence only if they had a prior offence that made their current offence a second offence.

The authority for this is Coleman v DPP & County Court of Victoria [2002] VSCA 116.

Coleman was given a suspended sentence for fraud and criminal damage. He was brought before the Court again during the operational period of that suspended sentence for possession and use of cannabis. He pleaded guilty. The offence involved the possession and use of a small quantity of cannabis, offences which carry at most a fine. Under the same offence section, possession of a larger quantity, or the same amount with the intention of trafficking it, could result in imprisonment.

Vincent JA [at 20, Batt JA and O'Bryan AJA agreeing]:

Although there is no authority directly in point, the position is, I think, reasonably clear. As can be observed, it is not required in terms that the offender has committed a further offence in respect of which a sentence of imprisonment has been imposed. If that had been the legislative intention, a different form of words would almost certainly have been employed. "Punishable" as a matter of standard English language usage would ordinarily refer to the potential for punishment and not to its actual imposition. It is the commission of a "further offence" which attracts that potential penalty to which attention must be directed. Emphasis has been placed upon the consideration that, having been accorded the opportunity of avoiding incarceration, although the offender's earlier conduct was of such a seriousness that a sentence of imprisonment had to be imposed, there has been further criminal behaviour of a significant kind; the standard being the commission of an offence which carries the possibility of a sentence of imprisonment. Accordingly, as I see it, no question arises as to whether, in the individual case, incarceration would be appropriate in the proper exercise of sentencing discretion.

As earlier stated, the offence created by s.73 is punishable by imprisonment in circumstances where the offender fails to establish on the balance of probabilities that the mitigatory factors of a small quantity and possession for a purpose unconnected with trafficking are present. Their presence was not the subject of any dispute or serious doubt in the present matter. Could the appellant then be properly described as having committed "another offence punishable by imprisonment" within the meaning to be attributed to that expression in Section 31 of the Sentencing Act? In my view, the answer to the question must be - No. As a matter of basic common sense and fairness, to reach the conclusion that an individual had committed such an offence when there was not even a theoretical possibility that imprisonment could have been lawfully imposed appears to me to be absurd. The legislature is not to be taken to have intended to achieve such a result in the absence of a clear expression to this effect. The expression must, I consider, be read as a whole and be taken to incorporate any aggravating or mitigatory factors contained in the statute creating the offence upon which the possibility of a sentence of incarceration can depend.

In that case it was uncontentious that the drugs were for personal use. In cases involving cannabis where it is not so clear-cut, it may well be important for an accused to meet their onus under s 73(1) to avoid the restoration of a suspended sentence.

Wednesday, 3 August 2011

DPP v Meade [2011] VSC 358: Why? Because he says so

It's now common for magistrates in traffic light and speeding cases to receive the whole of the prosecution's case in the form of documents authorised by statute.

These 'certificates' may have a photograph in them but their real evidentiary value is contained at s 83A of the Road Safety Act 1986 which reads,

83A. Evidence relating to prescribed road safety cameras

(1) A certificate containing the prescribed information purporting to be
issued by an authorised person certifying-

(a) that a prescribed road safety camera was tested, sealed or used in the prescribed manner; or

(b) that an image or message described in the certificate was produced by a prescribed road safety camera or by a prescribed process; or

(c) as to any other matter that appears in, or that can be determined from, the records kept in relation to the prescribed road safety camera or the prescribed process by the police force of Victoria-

is admissible in evidence in any proceedings and, in the absence of evidence
to the contrary, is proof of the matters stated in the certificate.

(2) In this section authorised person means a person authorised for the
purposes of this section by the Chief Commissioner of Police.

In DPP v Meade & Anor [2011] VSC 358 a magistrate dismissed speeding charges in two cases, ruling after submissions that the prosecution had to prove the person who signed their certificates was an authorised person.

The DPP appealed and Curtain J found that the magistrate got it wrong [starting at 3, then at 8 and 9]:

The question of law to be answered in each appeal is posed as follows:

Is the prosecution required to prove that a person is authorised by the Chief Commissioner of Police to issue a certificate under s 83A of the Road Safety Act 1986 before the certificate can be relied upon in proceedings in proof of a charge under Road Rule 20 of the Road Rules – Victoria?


Section 83A(1) speaks in clear and unambiguous terms of a certificate in the prescribed form purporting to be issued by an authorised person, and s 83A(2) clearly defines an authorised person for the purposes of this section as a person authorised by the Chief Commissioner of Police. The word purport is defined in the Macquarie Dictionary, 5th Edition, as “to profess or claim”, and in the Shorter Oxford English Dictionary, 3rd Edition, as “to mean, imply or to profess or claim by its tenor”. Thus, given the plain meaning of the word purporting, when read in combination with s 83A(2), it is clear that the section does not contemplate actual proof of authorisation before the certificate is admissible as proof of the matters contained therein.

Section 83A of the Road Safety Act 1986 forms part of the owner onus provisions of the Act and, as such, one of the purposes of the section is to streamline the prosecution of speeding offences; reliance upon the certificate obviating the need to call witnesses in every case. To adopt the learned Magistrate’s approach would clearly frustrate and contradict the legislative purpose. The section does not require the authorisation of the person issuing the certificate to be established independently, that is, as a pre-condition to the admissibility of the certificate. To do so would be to deny the meaning of the word purporting. The section does not require the person to be actually authorised, only purporting to be so, but read in conjunction with s 83A(2) effects no injustice. The section provides that in the absence of evidence to the contrary, the certificate is evidence of the matters contained therein. It would still be possible to call evidence challenging matters in the certificate and the authorisation of the person certifying, but that is quite distinct from the prosecution having to prove the authorisation of the person certifying in order to prove the offence. It follows, by reason of the above, that the answer to the question posed on the appeal is no.

The appeals were granted and the matters remitted for rehearing.