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Monday, 30 May 2011

Carroll v The Queen [2011] VSCA 150: the application of Verdins to sexual offending

In Carroll v The Queen [2011] VSCA 150 the appellant had been sentenced for numerous counts of burglary, stalking and harassment of different female victims. He appealed, asserting his sentence should have been mitigated, taking into account the principles in R v Verdins [2007] VSCA 102.



Maxwell P [at 12]:



Ground 2 contended that her Honour had erred in finding that the principles enunciated in Verdins had no application. It was submitted that, merely because the appellant knew what he was doing, and indeed had planned some of the offences, this was no basis for rejecting the application of the Verdins principles. (As will appear, only one of the six Verdins principles – the first, concerning moral culpability – was invoked on the plea.)




It's been noted here before that offenders diagnosed with psychosexual disorders such as paedophilia do not attract more lenient sentences under Verdins' principles.



Nettle JA in DPP v OJA and WBA and EBD [2007] VSCA 129 [at 14]:



If the law of sentencing were completely logical, [the respondent] would be sentenced on the basis that his moral culpability is to some extent reduced by his psychosexual dysfunction. The reasons for sentencing sexual deviates in that fashion were examined in the dissenting judgment of Kirby J in Ryan v The Queen. But the idea has not found favour with the bulk of society, or the majority of the High Court. Rather, as McHugh J explained in Ryan, the persistently punitive attitude of the community towards sexually deviate crime mandates that sexually deviate offenders be severely punished for their offences and, even if long sentences do not deter them or others with similar inclinations, they may at least have the effect of putting the offenders in a place where they cannot harm others for the time being. To similar effect, Hayne J observed that, if on examination of a particular offender’s circumstances it is demonstrated that the offender is likely to re-offend, the likelihood of re-offending might ordinarily be thought to go in aggravation not mitigation of the sentence to be imposed.




Legislation regarding serious sex offenders requires the protection of the public to be given precedence over all other sentencing considerations: s 6D Sentencing Act 1991.



The Court of Appeal in Carroll v The Queen [2011] VSCA 150 did not refer to these authorities, however. Maxwell P and Buchanan JA (who had both sat on the original Verdins decision) determined that the trial judge was justified in coming to the conclusions she did based on the evidence presented at the sentencing hearing.



Maxwell P [at 19]:



Not only was her Honour’s conclusion reasonably open but I respectfully agree with it. Her Honour’s approach exemplifies the rigour with which arguments of this kind must be assessed, as was made clear in Verdins itself and has since been repeatedly emphasised by this Court on appeal: See, for example, DPP v Patterson [2009] VSCA 222, [46]; R v White [2009] VSCA 177, [13]–[17]; Romero v The Queen [2011] VSCA 45, [13]–[14]. As is now well-recognised (R v Robazzini [2010] VSCA 8, [42]), diagnostic labels are, by themselves, of no assistance to a sentencing judge. What matters is what the expert evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time: R v Zander [2009] VSCA 10, [29].



Where reliance is placed on proposition 1, concerning moral culpability, the question for the Court is whether the evidence establishes – on the balance of probabilities – that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed? Ashe v The Queen [2010] VSCA 119, [14], [19]; Davey v The Queen [2010] VSCA 346, [25]; MC v The Queen [2011] VSCA 2, [20]–[21]; Bowen v The Queen [2011] VSCA 67, [28], [29], [33]; DPP v HPW [2011] VSCA 88, [28], [63]; Pettiford v The Queen [2011] VSCA 96, [32]–[34].



There was no evidence of that kind in the present case. It is true that Mr Cummins diagnosed the appellant as suffering from alcohol dependence, kleptomania, pathological gambling, voyeurism and fetishism. But these diagnoses were simply descriptive of the appellant’s behaviours as exhibited over many years. There was no suggestion in Mr Cummins’ report that the offending was attributable to any causative mental impairment.



The evidence was all to the contrary. The appellant’s offending consisted of persistent, purposeful behaviour over a long period, conduct directed quite deliberately at his own sexual gratification and – equally often – at causing distress to his victims, both by what he said and by what he did. It is clear from the appellant’s actions that, as her Honour found, he knew what he was doing. Indeed, he acted with guile in pursuing his ends – as when, in order to persist with his stalking of [one victim], he tricked her father into giving him her phone number (count 27). And, as the Crown pointed out on the appeal, the appellant seemingly had no difficulty in maintaining skilled employment and personal relationships while continuing to offend.




The appeal was dismissed.

Saturday, 28 May 2011

Legal citations at La Trobe

I've mentioned this before, but a tip as useful as this is worth repeating. Perhaps I've just got used to it over time, but I haven't found anything nearly as user friendly for getting me to the search engine I need for the law report series I am after.



Bookmark the On-line Case Law page of the La Trobe University Law Library. It's quick, up-to-date and free.



The page is available to anyone. It lists most common abbreviations used in reported and unreported legal citations. (The link above will take you to a table of the main ones; a much longer list, as well as links to other similar sites, is available at the Legal Abbreviations Search page).



The La Trobe system provides information about which subscription service carries a particular report series. Where this is a free service, such as AustLII or the Supreme Court Law Library, the links will take you straight there. Of course, if it's a commercial service you are referred to, you must be a subscriber to access that service.

Saturday, 21 May 2011

Making up mitigation

On Thursday I posted something about the common law offence of attempting to pervert the course of justice.

The fact that making a false allegation of a crime may be an attempt to pervert the course of justice is well documented. Perhaps it should be obvious, but false submissions on a plea of mitigation can be as well.

In R v Bailey [2006] 2 Cr App R (S) 47; [2006] EWCA Crim 136 the appellant was initially sentenced for three offences of indecent assault on a child.

Burton J [at 2]:

The applicant had set up an elaborate series of lies which enabled mitigation to be put forward to the court, which resulted in a three year community rehabilitation order being imposed, with a condition that he attended a Sex Offenders Group Work Programme. He told a psychiatrist, the probation officer, his solicitor and his counsel that he had had a relationship with a lady who was the mother of his child: she had been murdered, and the child had been killed by a speeding car within weeks of each other. This created a dramatic atmosphere of compassion on his behalf in relation to this extraordinary series of circumstances which he put forward as his excuse for having committed the offences, and accordingly the court was hoodwinked into imposing the three year community rehabilitation order. It subsequently came out that there was no truth whatever in the matter. The applicant had never had a partner or a child with any partner. Certainly there was no partner murdered and no child killed. Consequently he was charged with perverting the course of justice.

The appellant was sentenced to two and a half years imprisonment for the lies, and that penalty was upheld on appeal. It was probably more than he would have received for the original offending if he had provided true instructions.

Thursday, 19 May 2011

The course of justice

Edit: The case of Regina v OM [2011] NSWCCA 109 illustrates how very serious charges can spin out of a minor incident.



My curiosity was piqued by the Elucubrator's post on Monday about the ability (or not) of law enforcers to trespass while in the course of their investigations.

The facts in Brown v Spectacular Views Pty Ltd & Anor [2011] VSC 197 raise two related questions to me on this issue (which wasn't central to Macauley J's judgment, as it turned out): first, to what extent should an absence of legislative authority be taken as the intent of legislators to limit an officer's authority; and second, to what extent can a legislative absence of authority be taken up by the operation of the common law? Coco v The Queen dealt exclusively with statutory authority. The common law grants public officials authority not otherwise provided in statute, as Nicholson v Avon [1991] 1 VR 212 demonstrates.

I wonder whether an occupier's attempts to eject public officials engaged in legitimate investigative duties might be considered an attempt to pervert the course of justice. In some circumstances it certainly would. Although hindering the police isn't itself perverting the course of justice, an act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal or from adducing evidence of the true facts is an act which tends to pervert the course of justice and, if done with intent to achieve that result, amounts to an attempt to pervert the course of justice: R v Rogerson (1992) 174 CLR 268, Brennan and Toohey JJ at 283 (Mason CJ in agreement).

Attempting to pervert the course of justice is a common law offence which can be made out by a variety of factual circumstances. It's applied to the making of false statements to police to throw investigators off the scent, threatening witnesses or jurors, making false allegations and concealing evidence. Interfering with a crime-scene seems to fit in that ballpark, too.

An example of just how adaptable the offence is can be found in the extraordinary case of Ishac v R [2011] NSWCCA 107. The applicant was a NSW Probation and Parole officer who supervised offenders serving Community Service Orders (a sentence of unpaid work in the community for a specified number of hours). He was convicted of being an accessory before the fact to attempts to pervert the course of justice after an investigation by the NSW Independent Commission Against Corruption revealed that he assisted people to falsify their timesheets to make it appear as though they had performed their hours.

The applicant argued that the administration of a sentence of a court was not the course of justice, relying upon Einfeld v The Queen (2008) 71 NSWLR 31 and some remarks from another Probation and Parole service case, Tourni [2010] NSWCCA 317. The argument failed (as it also had in Tourni) because although the administration of the order itself might not be the course of justice, the applicant's efforts were directed at avoiding the offender from being found in breach of his CSO in an impending court proceeding, which would be the course of justice.

McColl JA [at 49]:

In other words, enforcement proceedings had been commenced to revoke the CSO in the Local Court, [the offender on the CSO's] conduct was intended to circumvent that process and the applicant advised him as to how to achieve that result. It was not conduct which merely occurred during the administration of [the offender's] sentence. Rather it was calculated to impair the capacity of the Local Court to consider the application for the revocation of [the offender's] CSO ... [the offender's] conduct, in my view, fell within the meaning of perverting the course of justice in s 312 of the Crimes Act 1900 as explained in the authorities to which I have referred.

Ishac reaffirms that although legal proceedings don't have to be on foot at the time of the attempt (as stated in R v Rogerson (1992) 174 CLR 268) the course of justice must relate to an actual or potential judicial proceeding.

The related sentence appeal of Khoury v R [2011] NSWCCA 115 shows the seriousness with which such offences are viewed.

In Victoria, Section 320 of the Crimes Act 1958 provides that this offence is punishable to Level 2 imprisonment, a 25 year maximum term of imprisonment. Unlike perjury, the offence is not included in Schedule 2 of the Criminal Procedure Act 2009 and so cannot be heard summarily.

The offence typically attracts stern punishment. Badgery-Parker J stated in Regina v Taouk (1992) 65 A Crim R 387 at 392 that, in the context of an act intended to pervert the course of justice, the fact that the act did not succeed or even was doomed to failure is, "of far less significance than in the case of sentencing for an attempt to commit a substantive crime and the potential seriousness of the consequences is of much greater weight". Nettle JA attempted a comprehensive review of recent sentences for the offence in R v Buscema [2011] VSC 206. That useful table reads [at 17],

SENTENCES FOR ATTEMPTING TO PERVERT THE COURSE OF JUSTICE
CASE CITATIONINDIVIDUAL TERM
DPP (Cth) v Fincham(2008) 75 ATR 5456 months’ imprisonment
DPP v Aydin and Kirsch[2005] VSCA 872 years’ imprisonment
DPP v Josefski[2005] VSCA 265; (2005) 13 VR 8515 months’ imprisonment
R v Aydin[2005] VSCA 85 (2005) 11 VR 54415 months’ imprisonment
R v Aydin and Flett[2005] VSCA 872 years’ imprisonment and 2½ years’ imprisonment
R v Briggs[2000] VSCA 234; (2000) 117 A Crim R 11412 months’ imprisonment
R v Carey[2007] VSCA 3192 years’ imprisonment
R v Coombe[1999] VSCA 944 months’ imprisonment
R v Davis[2007] VSCA 27618 months’ imprisonment
R v Dunmall[2008] VSCA 229 months’ imprisonment
R v Galea[2001] VSCA 1154 years’ imprisonment
R v Johns[2010] VSCA 632 years’ imprisonment (reduced from 2½ years)
R v Matheas[2003] VSCA 2216 months’ imprisonment
R v Redmond & Anor[2006] VSCA 753 months’ imprisonment & 4 months’ imprisonment
R v Ripper[2008] VSCA 402 years’ imprisonment
R v Rodden[2005] VSCA 2418 months’ imprisonment
R v Rogers[2008] VSCA 11415 months’ imprisonment
R v Stevens[2009] VSCA 8112 months’ imprisonment
R v Walsh[2002] VSCA 983 years’ imprisonment
R v Yacoub[2006] VSCA 2032 years’ imprisonment
R v Zaydan & Ors[2004] VSCA 2454 years’ imprisonment


The NSW Crimes Act provides a description of the offence that just reads,

A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.

These synonyms provide some clarification of the type of conduct prohibited. It isn't necessary for the accused to have high-minded notions of justice in order to be guilty. It's sufficient to make out the offence if the accused intentionally engaged in the acts which, at law, constitute an attempt to pervert the course of justice: Meissner v The Queen (1995) 184 CLR 132 at 144.

Sunday, 15 May 2011

Revoking implied licence during investigation

Last week the Supreme Court published its decision in Brown v Spectacular Views Pty Ltd & Anor [2011] VSC 197. It dealt with the consequences of law enforcement officers — in that case, Vic Roads officers — who entered private property owned by a company and were told to get out when they were questioning an officer of the company.



The investigation concerned tow trucks, under the Transport Act 1983 (now the Transport (Compliance and Miscellaneous) Act 1983) and Transport (Tow Truck) Regulations 2005. (They're now replaced by the Accident Towing Services Act 2007 and Accident Towing Services Regulations 2008.)



Two VicRoads officers went to various business premises to enquire about a tow truck owned by Spectacular Views Pty Ltd. Nicolas Ectoros was a director of that company. The VicRoads officers finished at a business in Noble Park, and spoke with Mr Ectoros, who was also a director of the company listed on the door, Ultra Finish Accident Repair Centre (Dandenong) Pty Ltd.



Apparently the discussion didn't go smoothly, and Mr Ectoros told the VicRoads officers to get out. They stayed. Ultimately, Mr Ectoros and Spectacular Views were charged with various offences, including ones of not providing documents as required contrary to the legislative provisions in force at the time.



The Magistrates' Court dismissed the charges, concluding that at the time the demand was made for the documents, the VicRoads officers' implied licence to enter and remain was revoked and so they were trespassing. Consequently, they weren't acting in the lawful execution of their duty, and any evidence obtained after that was excluded.



VicRoads appealed. And lost.



The Supreme Court considered the High Court's decisions on implied licences to enter and remain on property.



The fundamental proposition is that entry to private property is a trespass unless authorised or excused.

A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law: Halliday v Nevill (1984) 155 CLR 1 at 10 per Brennan J.


The Supreme Court discussed this and its effect on the appeal.

[26] In Plenty v Dillon the High Court approved what had been said by Brennan J in Halliday v Nevill in respect of the principle that every invasion of private property is a trespass, namely:

The principle applies alike to officers of government and to private persons. A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorised or excused by law.


[27] However, while the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact:

..there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked.


[28] Commonly a licence will be implied from the means of access to premises, for example where there is an unobstructed driveway or path leading to an entrance to private premises, without any notice forbidding entry. In those circumstances the law implies a licence to any member of the public to go to the entrance for any lawful purpose. But:

..[s]uch an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it.


[29] In the present case it is not disputed that the officers had a tacit or implied licence to be on the premises. They were business premises with an unobstructed means of access and with an open door permitting members of the public to enter a front office for a lawful purpose.



[30] What is in dispute is whether that implied licence was effectively revoked.


It seems there was no direct evidence on the point, but the Court concluded there was enough to infer Mr Ectoros had authority to exclude other people from the property. The main case that deals with this is Coco v The Queen:

Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorized or excused by law. Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language. Indeed, it has been said that the presumption is that, in the absence of express provision to the contrary, the legislature did not intend to authorize what would otherwise have been tortious conduct: Coco v The Queen (1994) 179 CLR 427 at 435 (citations excluded).


In Victoria, a mere occupier may require a person to leave a private place: Summary Offences Act 1966 s 9(1)(f). The common law appears to alo provide that right to any occupier: Cowell v Rosehill Racecourse Co Limited (1937) 56 CLR 605 at 631. And any person who enters or remains property must prove that it was done with the consent of the occupier or in accordance with some other lawful authority: Kuru v NSW (2008) 236 CLR 1 at [43].



Trespass by law enforcers might also interfere with rights under the Charter, specifically s 13 (right to privacy), 20 (property rights) and 21 (right to liberty and security of the person).



In this case, the Court accepted that Mr Ectoros had revoked the VicRoads officers' implied licence to remain on the property. That meant they were trespassers when they demanded various information from him. The Magistrates' Court decision to exclude any subsequent evidence — presumably under Evidence Act s 138 — wasn't challenged on the appeal.



The Supreme Court also went on to consider the authority delegated to the individual officers, and suggested it was probably lacking for the specific offences under investigation, but didn't finally decide this: at [80].



One area where I can see this decision becoming significant is those cases where police enter private premises and remain there until they complete their investigation. A classic scenario is when the police purport to establish a crime scene on private property and exclude people from the area. Unlike other States, Victoria presently doesn't have crime scene legislation such as Police Powers and Responsibilities Act 2000 (Qld) s 168 and Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 95.



In the UK, the Court of Appeal suggested police could presume a landowner's consent to establish a crime scene — but didn't finally rule on the point in DPP v Morrison [2003] Crim LR 727. But in any event, that was in a public right of way on private land (a shopping mall). The Court did not decide the police could establish a crime scene on private land with no right of entry for or use by the public — such as in a residence.



I reckon this case probably won't be appealed, because the Accident Towing Services Act 2007 contains express powers of entry, search and seizure that didn't exist in the old legislative scheme. The precedent effect of this decision is overcome by those changes.



But, the fundamental question about the scope and limits of entry to private property by law enforcement officials, how long they can remain and the consequence if they do when told to leave — especially when they purportedly establish a crime scene — remains ripe for litigation.

Friday, 13 May 2011

Legislation Watch: Justice Legislation Amendment (Infringement Offences) Bill 2011

For the past three years the state government has been trialling infringement notices for selected summary and one indictable offence. These are:







The provisions were due to sunset at the middle of this year, unless extended. This legislation will extend the exisitng provisions for another year.



The Bill is here. The Expanatory Memorandum is here. The Statement of Compatibility is here and the Second Reading is here.



While the other offences will carry on indefinitely, clauses 5 and 6 drop shoptheft and wilful damage from the list of infringeable offences after 1 July 2012. The EM says, "Further legislation would need to be passed by the Government before that date to enable the offence to be enforced by infringement notice in future."



During the Second Reading speech for this Bill the Attorney-General said,



Instead of making these offences infringeable on an ongoing basis, the bill extends the trial period for these two offences. This is because evaluation indicates that further experience is needed and further consideration needs to be given to the impact of using infringement notices for these offences before it can finally be determined whether their ongoing use is appropriate. These were the most complex offences in the trial, with shop theft involving elements of dishonesty and wilful damage involving a range of potential victims.



In the case of shop theft, more work needs to be done on understanding offending patterns and the consequences of issuing infringement notices. The data from the trial suggests that people receiving shop theft infringements are repeat offenders with a wide spectrum of offences on their record. Further evaluation will include the views of key stakeholders and the impact of expiated shop theft offences not going on a person's criminal record. In the case of wilful damage, more work needs to be done to determine whether the needs and rights of the victim of the damage are being taken into account as they should be when the infringements process is used.

Wednesday, 11 May 2011

Sentencing children

Edit: The sentencing decision referred to below is no longer good law, due to the Court of Appeal's decision in CNK v The Queen [2011] VSCA 228.



At 15,



For the reasons we have given, the language of the statute conveys a clear legislative intention to exclude general deterrence. Whilst that intention is not made explicit, it is necessarily implied by the terms in which s 362(1) prescribes the sentencing court’s task
.








There is a specific provision relating to the sentencing of children at s 362(1) of the Children, Youth and Families Act 2005.



It reads (in part),




362. Matters to be taken into account




(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.




It hasn't been clear whether these considerations were intended to replace, or supplement, the exclusive purposes of sentencing provided at s 5 of the Sentencing Act 1991:



(1) The only purposes for which sentences may be imposed are-



(a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or



(b) to deter the offender or other persons from committing offences of the same or a similar character; or



(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or



(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or



(e) to protect the community from the offender; or



(f) a combination of two or more of those purposes.





I've looked through the notable cases from the Children's Court at AustlII but didn't find any precisely on point. Grant J's sentencing remarks in R v P and Ors [2007] VChC 3 and R v M and Ors [2008] VChC 4 suggest that only s 362 considerations should be applied, although his Honour does refer to s 8 of the Sentencing Act to assist in the application of s 362.



In DPP v Hills & Ors (No 11) [2011] VSC 88, Kaye J ruled that the considerations of 362 are taken into account as well as, not instead of, the general sentencing considerations



His Honour examined previous authorities and concluded [at 5] that they did not support the exclusion of general deterrence and community denunciation from the sentencing of children.



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.




Kaye J referred to the Court of Appeal's decisions in R v PP, DPP v SJK & GAS, R v PDJ and DPP v TY in finding that general deterrence and denuniciation are legitimate objectives when sentencing a child.



Support for this view was also found in ordinary principles of statutory construction [at 14]. If s 362 was exhaustive of sentencing considerations, his Honour reasoned, then relevant factors not addressed in s 362 such as the impact on the victim of the offence or the utility of an early plea would also be excluded.



At 15,



Thus, there are a number of sentencing factors, either implicit in, or assumed by, other provisions of the Act, which do not necessarily fall within any of the categories described in s 362(1). That consideration strongly supports the conclusion that s 362(1) was not intended to constitute an exclusive and exhaustive statement of the factors, to which the court must have regard in determining the sentence to impose on the child. Rather, it would seem clear that the purpose of s 362(1) is to ensure that, in determining a sentence in accordance with established sentencing principles, the court must take into account the specified factors, each of which are particularly relevant to the personal circumstances of a young offender. Thus, s 362(1) has the effect of giving emphasis to the factors specified. However, it does not do so to the exclusion of the ordinary sentencing considerations, including general and specific deterrence, rehabilitation and denunciation.

Monday, 9 May 2011

Sabet v The Queen [2011] VSCA 124: kiss on the cheek not necessarily indecent

Last Friday the Court of Appeal set aside a conviction on a single count of indecent assault, in Sabet v The Queen [2011] VSCA 124.



The case stands out partly because it arose from a trial where the jury acquitted the accused of all other charges that might have suggested indecent circumstances. (And also because there aren't many recent appellate Victorian cases considering indecency). Only a charge of indecent assault remained, where the accused kissed the complainant on the cheek.



The Court allowed the appeal and set aside the jury verdict, concluding that following the jury's acquittals, there was no evidence suggesting the accused sought sexual gratification from the kiss.



The Court applied several authorities, notably a case from the NSW Court of Criminal Appeal, Harkin v The Queen (1989) 38 A Crim R 296. In that case Lee J reviewed several cases on indecency, and then concluded at 301:


It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas. Thus, if the appellant intentionally touched the breast of the girl Elizabeth, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent, and it is then for the jury to determine whether in the case of a mature man of 38 and a girl of 11 years and nine months that should or should not be regarded as conduct offending against the standards of decency in our community. The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.




Some of that passage was approved in Sabet, at [13]. The Court applied that reasoning and held that the jury could not have been satisfied beyond a reasonable doubt that the accused was guilty of indecent assault.

Pretext recording contrary to Charter and Evidence Act?

Edit: While 'pretext' conversations arranged by the police without an appropriate warrant seem likely to be excluded, a staged conversation initiated entirely be a third party (such as a complainant) apprarently does not lead to the same result: F M J v The Queen [2011] VSCA 308.









A colleague put me on to a recent case summary from the VGSO about a pre-trial decision of the County Court in DPP v KW. I haven't been able to find an online copy of the ruling, so all I can refer to is the summary above.

It seems the police were investigating an allegation of attempting to procure sexual penetration by threat or force, contrary to Crimes Act 1958 s 57.

The complainant was apparently provided a recording device and left alone to telephone the accused. (This is sometimes called a 'pretext conversation', so called because the complainant telephones the suspect on the pretext of discussing the alleged offence, when it is really being recorded by the police as an investigative tool. Police now more frequently resort to such conversations in an attempt to obtain confessions and admissions, particularly in sexual investigations.)

The complainant recorded the conversation. No police were present. There was no warrant issued under the Surveillance Devices Act 1999. Section 6 of that act provides:

6. Regulation of installation, use and maintenance of listening devices

(1) Subject to subsection (2), a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.

Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both; In the case of a body corporate, 1200 penalty units.

(2) Subsection (1) does not apply to—

(a) the installation, use or maintenance of a listening device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or

(b) the installation, use or maintenance of a listening device in accordance with a law of the Commonwealth; or

(c) the use of a listening device by a law enforcement officer to monitor or record a private conversation to which he or she is not a party if—

(i) at least one party to the conversation consents to the monitoring or recording; and

(ii) the law enforcement officer is acting in the course of his or her duty; and

(iii) the law enforcement officer reasonably believes that it is necessary to monitor or record the conversation for the protection of any person's safety.

The County Court considered the police involvement and the effect of Charter s 13(a) (right to privacy), and concluded that the police knowingly used a listening device to record a private conversation. (I'm not sure why s 6(2)(c) didn't apply in the circumstances.)

Despite this, the Court concluded discretionary exclusion of the recording under Evidence Act 2008 s 138 was not required.

It will be interesting to see what comes of this decision. Because it's a County Court case — and a pre-trial ruling at that — strictly speaking, it creates no precedent: Whittaker v Delmina Pty Ltd [1998] VSC 175 at [17] - [18]; Valentine v Eid (1992) 27 NSWLR 615.

But it would be foolhardy to simply ignore it.

There are a few appellate cases considering pretext conversations.

A critical question is if the complainant is acting as an agent of the police, and if the pretext conversation is an attempt to subvert or avoid the operation of and protection provided by s 464H, such as considered by the High Court in R v Swaffield; Pavic v The Queen (1997) 192 CLR 159.

In R v East (2005) 154 A Crim R 1, the NT Supreme Court considered the meaning of private conversation. Applying Victorian authority, the court held that a private conversation is determined by considering the objective circumstances surrounding the conversation, rather than the subjective intent of an individual involved in the conversation. So, if one party to the conversation wants or indicates they want the conversation to be overhead or recorded, it isn't a private conversation.

In R v Workman (2004) 60 NSWLR 471 a sexual assault allegedly occurred in Sydney. The complaint was made after the victim moved to Queensland, and so investigated by Queensland police. A pretext conversation occurred between the victim in Queensland and the defendant in New South Wales, recorded by a device placed next to a speaker phone. In Queensland, recording a conversation is not illegal if the person using a listening device is a party to the conversation. This is also the case in Victoria. However, in NSW, this was illegal under the Listening Devices Act 1984 (NSW) s 5(1). Despite this, the tape recording was properly received into evidence.

There are more cases, often turning on questions of entrapment or involuntariness. One risk for the police is if a court concludes the process was surreptitious or some attempt at circumventing legislative protections for a suspect. In R v Dewhirst (2001) 122 A Crim R 403 the Supreme Court excluded recorded conversation between an undercover police officer in the police cells and a suspect: not because of the covert nature of the questioning, but rather because it was planned to elicit further information from the accused without legislative protection and regardless of what happened during a previous formal interview. (It turned out that he exercised his right to silence, which probably only aggravated the decision to question him in the cells.)

The Court concluded with reference to an earlier case:

The courts, however, will be vigilant to ensure that the legislative safeguards accorded to suspects are not circumvented as a matter of mere investigative convenience or expediency: R v Roba [2000] VSC 96 at [56].

Though the facts there were different — and it wasn't really a pretext conversation — it neatly encapsulates the concerns of the courts in such cases. Seemingly that didn't occur in KW, but pretext conversations will nearly always be subject to close scrutiny for such vices.

Friday, 6 May 2011

Curtis v The Queen [2011] VSCA 102: indecent acts "by" children

In Curtis v The Queen [2011] VSCA 102 the appellant contested his conviction on the appeal, claiming (though not at the earlier trial) his urging two children to kiss could not be considered indecent.



An offence under s 47 Crimes Act can be committed either with or in the presence of a child under 16. An accused doesn't need to engage in physical contact with the victim to commit an indecent act in the presence of a child prohibited by s 47 : R v Coffey (2003) 6 VR 543. The Court of Appeal affirmed the correctness of Coffey in Savage v The Queen [2010] VSCA 220 last year.




What constitutes indecency is a decision for the trier of fact. The term doesn't have a fixed or exclusive meaning. The standard to be applied is the ordinary standards of the community: R v Papamitrou [2004] VSCA 12 [at 45]. The appellant asserted that the jury couldn't have found indecency because there could be nothing indecent, 'in two teenagers of essentially the same age kissing each other'.



Maxwell P, Weinberg and Harper JJA [at 13],



We disagree. The indecency resides not in the act of kissing but in the instigation of the act by a 24 year old man for his own sexual gratification. The question of indecency was for the jury to decide. In the circumstances, it was well open to the jury to be satisfied that the applicant’s conduct in this respect was of a kind which ‘right minded persons would consider to be contrary to community standards of decency’. It is hardly surprising that defence counsel did not contest this point before the jury.




I'd say the flaw in the appellant's argument is that he sought to focus on the actions of the girls and have it considered independently from his own conduct. There are probably many cases where the activity of a child would not be considered indecent if the accused person was not involved in it.


Edit: An example is the decision of the NSW Court of Criminal Appeal in R v McIntosh (Unreported, Loveday AJ, 26 September 1994) which was cited with approval by James J in DPP v Eades [2009] NSWSC 1352.

Wednesday, 4 May 2011

Vehicle impoundment and hardship

In Frohling v Police [2011] SASC 53 the South Australian Supreme Court considered vehicle impoundment under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007.

Section 13 provides:
13 Court may decline to make order in certain circumstances
(1) A court that records a conviction to which this Part applies may decline to make an order under this Part if satisfied that—
(a) the making of the order would cause severe financial or physical hardship to a person

The Court considered similar property forfeiture legislation and cases, and concluded hardship alone was insufficient for the purposes of s 13; something more than ordinary hardship is required: at [18] - [20].

That also seems to be Victorian approach for confiscation provisions: Kozarov v DPP (2007) 47 MVR 498; DPP v Selcuk (2008) 181 A Crim R 245; DPP v Nikolaou (2008) 183 A Crim R 133.

I'm not certain that's the proper approach under the current Road Safety Actimpoundment or forfeiture provision.

Cases concerning retention of DNA samples mostly conclude that something more than mere finding of guilt for a scheduled offence is required. That merely founds the application, and the applicant must point to something additional justifying why the order ought be made: R v Abebe (2000) 1 VR 429; and R v Lagona [1998] VSC 220.

Which approach should prevail for forfeiture or impoundment of vehicles? Is a finding of guilt for a relevant offence merely a necessary pre-condition for seeking impoundment, or does is prima facie establish the application unless the accused disturbs that result?

I reckon the former might be the case. More to the point, the drafters of the impoundment provisions seem to consider that might be the case, because the Road Safety Amendment (Hoon Driving) Act 2010 goes to great lengths to restrict a Court's ability to decline an impoundment application. Arguably, that's because the current Victorian legislation does not impose a default obligation on a Court to forfeit or impound cars.

Come the middle of the year, it might be a moot point, but for now, I think the point is arguable.

Tuesday, 3 May 2011

Closing the door and on the bus isn't "driving"

Koutroulis v Transport Accident Commission [2011] VSC 159 caught my interest for two reasons.

The first was because it dealt with an unfortunate accident involving on a bus. Being on the bus is often used as a management metaphor for being a team player, although that's not what Jim Collins (the author of the metaphor) meant when he wrote it.

The second and more pertinent for legal purposes is that the case considered afresh the meaning of "driving" when interpreting legislation.

A passenger bus stopped at a bus stop. Mrs Koutrolis got off at the front door. Her 7-year-old son — not very practiced at getting off buses — followed. She reached in to help her boy down. The bus driver intended to close the back door, but mistakenly hit the wrong button, and closed the door on Mrs Koutrolis' arm. She was injured.

Ultimately, that injury was declared by VCAT to be a transport accident under the Transport Accident Act 1986, which prevented Mrs Koutroulis from suing for common law damages rather than receiving compensation under the transport accident scheme. Mrs Koutroulis appealed that finding.

Kaye J considered it was not a transport accident, reversing VCAT's decision. That involved considering a transport accident, defined in the Transport Accident Act 1986 s 3(1) as:
an incident directly caused by the driving of a motor car or motor vehicle, a railway train or a tram

His Honour reviewed several of the leading authorities on driving, including Tink v Francis; Hughes v McFarlane; Harris v Broadbent [1983] 2 VR 17.

After reviewing the cases, His Honour concluded that driving concerned the propulsion or movement of a vehicle.
[32] For the purposes of this appeal, a number of simple propositions may be derived from the authorities, to which I have just referred. In particular, it is accepted that the core meaning of “driving” consists of the propulsion or movement of a vehicle. Thus, the driving of a vehicle includes those steps undertaken by the driver which concern the propulsion or movement of the vehicle. Further, the decision of the Full Court in relation to Mrs Bizewski, in Transport Accident Commission v Treloar [1992] 1 VR 477, demonstrates that the concept of “driving” does not conclude at the point at which there is a cessation of propulsion or movement of the vehicle. It includes, at the least, those activities which are necessarily related to the completion of the propulsion or movement, such as engaging the correct gear and braking mechanism, and turning off the ignition. In addition, as the examples given by Mr Solomon in his argument demonstrate, a vehicle may be understood to be driven, notwithstanding that it is temporarily stationary in the course of a journey. Equally, it would follow that it would be inaccurate to maintain that driving does not commence until the moment at which the vehicle begins to move. There are steps, antecedent to movement or propulsion, which are so necessarily connected with it, that they are, in ordinary parlance, understood to be part of the driving of the vehicle.

[33] On the other hand, in its ordinary and natural meaning, “driving” is not understood to include all the steps which are antecedent to the movement or propulsion of the vehicle; nor is it understood to include all the steps which a driver may take in respect of the vehicle, after propulsion or movement has ceased. In particular, in its ordinary meaning, driving does not include steps, which, in time, precede the movement of the vehicle, and which are no more than preparatory to it. In order that a step, which is antecedent to the propulsion or movement of the vehicle, be properly characterised as part of the driving of the vehicle, it must be a step “which is sufficiently closely connected with the driving of the vehicle in a mechanical or functional sense as distinct from a temporal sense”.

[34] There is, however, no “bright line” which, in ordinary discourse, clearly demarcates those activities, which are commonly understood to be included in the driving of a vehicle, and those activities which would be more properly described as being preparatory or antecedent to that function. Thus, there may be room for disagreement between reasonable minds in respect of some of the steps, which necessarily precede the movement or propulsion of the vehicle. However, that will not always be the case. It is possible to postulate a number of steps, which may precede the commencement of the movement or propulsion of a vehicle, but which could not be properly understood to be part of the driving.

This doesn't lay down a binding rule that a vehicle must be moving under direction or control by a person for it to be driving. And this particular case was in the context of determining a transport accident case, rather attributing criminal liability.

But it does provide some further guidance about conduct that might fall within the scope of driving under the Road Safety Act and Road Rules.

Of course, many driving offences operate more broadly. For example, as discussed here (in DPP v Farmer), drink-driving offences apply to a person driving or in charge of a motor vehicle. Using a mobile phone is an offence when driving or in a stationary vehicle that isn't parked.

But a great many offences do occur only when driving, and so may warrant closer examination in some cases.

Monday, 2 May 2011

Suspended sentences amended — addendum

Following on from our post last Friday about the changes to suspended sentences, I wanted to add two things. (Though we often edit our posts, that doesn't get sent out on Feedburner's email delivery.)



The first point occurred to me last week, and the ever-watchful Anonymous raised the same question today: do the changes apply only to offences that occur after 1 May, or sentences imposed after 1 May?

The answer is contained in the Sentencing Act 1991 s 143 (Transitional provision—Sentencing Amendment Act 2010). I can't link to it right now, because Austlii hasn't yet updated its version (an example of why the government website is the only safe one to use for court purposes). The VicLeg website version has all the detail, but in broad terms, if the offence was committed wholly before the amendments, then the amendments don't apply: see sub-ss 143(6) and (9).

For driving when disqualified offences contrary to Road Safety Act s 30, there is no transitional provision.

That means we probably rely on the presumption of statutory interpretation that legislation doesn't operate retrospectively. This presumption doesn't apply for acts that are purely procedural in nature, but in any event, they usually prescribe operation based on past events. Mode and method of criminal trials, and sentencing, are the usual examples: Rodway v The Queen (1990) 169 CLR 515 at 518.

All this is a long-winded way of saying that the new Road Safety Act s 30 applies to any sentencing after 1 May 2011.



The second point is about the new Sentencing Act 1991 s 27(2B), which provides:

(2B) Despite subsection (1), a court must not make an order suspending the whole or a part of a sentence of imprisonment imposed on an offender for a serious offence or for a significant offence.

Last week we mentioned that all the serious offences defined in s 3(1) are triable only in the County and Supreme Courts.

When I re-read that over the weekend, I realised that's not quite right.

The reason why isn't immediately apparent to little ol' me, but the offence contrary to Crimes Act 1958 s 20 (making threats to kills) is listed in paragraph (c)(i) of the definition of serious offence. It's the only offence there that is triable summarily, by virtue of Criminal Procedure Act 2009 s 28(1)(b).

So, any threats to kill that occur after 1 May 2011 can't be punished by suspended sentence.

Warning! Warning! Speed camera ahead!

The Herald-Sun reported today that the police association, as part of its pay dispute with the state government, might recommend its members park police cars next to speed cameras —sorry...road safety cameras! — to warn motorists.

(It reminds me of the robot in Lost in Space shouting, "Warning! Warning! Aliens approaching!")

I have no idea if this will come to pass, but it provided me with the perfect segue for a short post I've been intending to write for a while, spurred on by the recent media coverage that a decamping degustater was not hindering or obstructing police.

There's a mix of cases about warning motorists of police speed traps on the road ahead, and whether that's an offence or not.

The first is Betts v Stevens [1910] 1 KB 1. Mr Betts was employed by the Automobile Association — the UK equivalent of the RACV. He stood next to police, armed with stop watches to time cars over a set distance, and warned cars with an AA badge on them they might be speeding. Those cars slowed down and avoided being stopped for speeding. The Kings Bench unanimously found the appellant had obstructed the police officers in the execution of their duty.

Similarly, in Patch v Ebbage; Ex parte Patch [1952] St R Qd 32 the Queensland Full Court held that a taxi driver who called out to approaching drivers to warn them of a speed trap was guilty of obstructing a member of the police force.

But in Young v Owen (1972) 19 FLR 70 the NT Supreme Court considered these cases and several others to conclude that warning other motorists police were ahead (in that case, with an amphometer) did not constitute hindering police unless an offence was being committed, and there was some concert between the warner and the warned, or the police were executing a specific statutory duty. It seems then that a general caution or warning to the world at large isn't hindering or obstructing police.

(Of course, should Victorian police decide to warn motorists of the presence of speed cameras, not only may there not be many complaints, but since the cameras are now contracted out to Serco, they're not staffed by police in any event.)