Friday, 27 July 2012

Committals — raising the bar

So Victorian Attorney-General Robert Clark is considering abolishing committal hearings. At the very least, significant legislative reform is likely to avert what he calls the “unnecessary examination of cases” at committal.

What might those reforms look like? Victoria's chief magistrate Ian Gray has some interesting suggestions, which he outlined in my recent interview with him for The Sunday Age.

“There is a clear need for reform and change to the committal process” to improve efficiency, he told me. But he would prefer to fix the system rather than scrap it outright.

With this in mind, the Magistrates' Court has recently asked the Attorney-General for two significant legislative amendments to the Criminal Procedure Act 2009 – both aimed at cutting the time and cost of committals:

1. Cutting back on cross examinations

Mr Gray said there was a need to cut back on unnecessary, time-wasting cross examinations in contested committals. He argued that section 124 of the Act raises a presumption that leave to cross examine will be granted if the informant consents and should therefore be repealed. Instead, he said, leave to cross examine should be at the court's discretion for "special reasons" only.

This would reduce the instances when cross examination is granted, reduce the number of witnesses called and (most importantly) the length of contested committals, he argued. Such a reform would also reduce the burden on witnesses, he added.

Anecdotally, he said, the adoption of a "special reasons" test in South Australia — narrowly interpreted by the Supreme Court — had seen the length and number of contest committal hearings reduce dramatically.

The problem with committals in Victoria, as he saw it, was the emergence of a "very relaxed culture" in such proceedings. "There has been a tendency for the parties effectively to agree that cross examination should not be opposed in relation to witnesses where there is not necessarily a real dispute as to their evidence," he said.

"You can radically reduce the time taken in committals by tightening and controlling the issue of who is cross examined and on what issues and for what length of time…Far too much time is taken for witnesses being cross-examined through what is already in their statement. That is a complete waste of time."

"Special reasons" is a curious phrase. As examples, Mr Gray said leave to cross examine might be granted when there were identification issues or genuine forensic issues in dispute.

As a further reform in this area, he floated the idea of imposing time limits on the cross examination of witnesses. "I am looking at articulating time limits in cases where it is simply necessary to keep proper control and limit the scope of time," he said.

Of course, the notion of setting an egg timer on learned counsel may not go down well with some.

2. Toughening the test to commit

Mr Gray said the test to commit an accused to trial under section 141 of the Act should be toughened so the court has wider discretion to discharge a case when there is little prospect of a conviction.

Here’s the broad test he proposed:

"If the Magistrate is of the opinion that there is a reasonable prospect that a properly instructed jury would convict the accused person of an indictable offence, the Magistrate must commit the accused person to trial."

The key change here is the introduction of the word “would” — as opposed to "could convict". Mr Gray anticipated that toughening the test would increase the number of cases discharged at committal — in fact, that’s the whole idea.

Importantly, the prosecution's right to file an indictment in such cases under section 156 would be retained. It's likely the proposed change would see more cases would go to trial in this way - presently the section is rarely used (County Court statistics show that less than 8 per cent of matters discharged in the Magistrates' Court were then indicted in the County Court in the past two financial years).

Mr Gray said his proposed change to the test "would lead to a larger number of cases being efficiently discharged and thrown out at the committal stage, that's an efficiency in itself".

"It will winnow out a number of cases at the committal stage...that probably shouldn't go on to the County Court. There are definitely some cases where there is enough or just enough to commit but it is unlikely on any reasonable assessment that a jury is in fact going to convict or not a reasonable prospect they will," he said.

"It means we are not sending cases which are then going to occupy time, resources and cost on the County Court when they are in the end unlikely to be successful prosecutions."

Separately, the Magistrates' Court flagged a tougher approach to committals to help streamline such proceedings, including a more "concerted effort" to enforce the seven-day timeframe for filing the case direction notice. Last month, the court doubled the number of one-day committals listed for hearing (effectively overlisting certain matters) to reduce delays and time wasting caused by cases that are not ready for hearing or which have been effectively overbooked.

All up, it means that even if committals remain in Victoria they are likely to be leaner and tougher beasts than they are today.

Monday, 23 July 2012

Committals to go?

The issue of abolishing committals is back in the spotlight again. The proposal seems to have come around every few years for the past two decades, like Batman films.

The Australian Institute of Criminology ran a conference on committals back in 1990. It's interesting to read the papers, because the arguments for and against appear similar to those raised now.

Back in 2005 support for bypassing the Magistrates' Court came from an unexpected source. Government Ombudsman (and head of the OPI) George Brower stated publicly that the existence of direct presentment placed the necessity of the committal process in question. Direct presentment allows the Director of Public Prosecutions to present an accused directly for trial, and has been legislated since 1991. I haven't found the figures on how often that power gets exercised; if anyone knows, please post a comment.

Before that innovation, then-DPP John Coldrey QC produced a thoughtful review of committals that concluded that the case for change had not been made. Problems with committals resulted from their improper use, he said, not some inherent problem with their existence:

Those who seek to abolish or curtail the process which has formed an integral part of the criminal justice system for many years bear the onus not only of justifying the necessity for change but demonstrating that the new mechanisms which they advocate do not increase the possibilities of injustice. My present view is that they have failed to discharge that onus.

In conclusion, the current Victorian policies and legislation recognise the potential of the committal hearing to play a significant role in the operation of the criminal justice system. That potential will only be achieved, however, if all the participants in the system responsibly utilise this legal process for the purposes for which it was designed. Inadequate disclosure of the Crown case, shoddy or inept cross-examination and the inappropriate application of
the standard of proof are all practices with a capacity to erode the effectiveness of the committal and hence fuel arguments for its replacement by administrative techniques.

Coldrey quoted Barton v R (1980) 147 CLR 77, where the High Court had said,

It is now accepted in England and Australia that committal proceedings are an important element in our system of criminal justice. They constitute such an important element in the protection of the accused that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair . . . To deny an accused the benefit of committal proceedings is to deprive him of a valuable protection uniformly available to other accused persons which is of great advantage to him, whether in terminating the proceedings before trial or at the trial.

But reliance on Britain's system of trial procedure is misplaced, even if it was the origin of much our own. My understanding is that the UK got rid of committals for indictable matters a decade ago, and committals for the equivalent of our IOTS matters ('either way' cases) earlier this year.

Today's local arguments seem to focus more on concern about efficiency rather than quality.

Former County Court judge (now acting chairman of the Victorian Law Reform Commission) David Jones is quoted as saying,

If there is a need to examine a witness as to any aspect of fairness, it could be done at that level. I would have some doubt about the value of committals now, bearing in mind pressures on the criminal justice system, and it seems to me appropriate to be looking at some change if not complete abolition.

The Age's opinion piece implies Chief Magistrate Ian Gray has said the test for a committal should be altered from whether a jury could convict, to whether they likely would convict. I don't see a direct quote to that effect amongst the Age's articles, and I haven't seen that reproduced elsewhere. If such a change was made that would surely result in more direct presentments - but whether that's a good thing or not is a separate question.

Another proposal, that the standard of satisfaction be raised but the calling of oral evidence be limited, is not dissimilar to a proposal made by Deputy Chief Magistrate Brian Clothier twenty years ago. He favoured streamlining the committal process into a presumption of a 'hand-up brief only' procedure, with witnesses to be called only in rare cases when leave has been sought and granted.

His extra-judicial argument was blunt and sincere:

All of this leads me to the view that there should be no right to a committal for trial hearing. I would advocate the serving of a 'hand-up brief' with no right to call witnesses except on application to a magistrate. A magistrate, on perusing the 'hand-up brief' would refer the matter to the Director of Public Prosecutions with a recommendation for a trial or order that the defendant be discharged.

I do not espouse any particular grounds for granting an application for witnesses. Contested admissions, contested identification evidence, assault in company type offences, and drunken brawls could be the type of cases when applications would be appropriate.

The time honoured justifications for retention of the committal proceedings are one thing, but the delay in bringing a person to trial is another. The time limits between committal and filing the presentment and the filing of presentment and trial can be 18 months (or more by leave) and, quite obviously, less. But where there are rules as to the time permitted for
taking a step in the prosecution process the tendency is for action to take place at that time.

What I espouse will do little to enable the Director of Public Prosecutions (DPP) to present for trial in a lesser time than he is able at the present time. What it will do is reduce the time between charge and commencement or preparation in the DPP's Office. Thus it will reduce the time between charge and trial.

It's difficult to assess the impact that removal of oral evidence in committal hearings could have, particularly given there already is a requirement to justify calling a witness for cross-examination. (Additionally, it doesn't seem terribly efficient to reduce the workload of the summary jurisdiction by increasing the number of preliminary Basha-style examinations going on in trials — especially since over 10% of matters are discharged at committal, and so would never have made it to trial if a committal had been held.)

I wonder if some of the commentators who believe that committals are 'doubling up' with trials truly appreciate what committals can achieve. Testing the Crown case and understanding how the case is put against the accused is fundamental for someone looking to defend serious charges against them. Sometimes, the result is to convince an accused they should plead guilty to some or all charges, or to convince the prosecution it can't make out some aspects of its case but should accept a plea to lesser charges. And every so often, it turns out that an accused person is shown to be not guilty, long before they get to trial.

Of all the 'efficiencies' that might be looked into, this area isn't the most promising. Ideally, to work well, it would require assigning the trial prosecutor right at the start, prior to disclosure to the accused, so that the way the case is put together and disclosed matches what is planned to happen at trial.

Sunday, 22 July 2012

Church v R [2012] NSWCCA 149: perverting justice by false mitigation

Administration of justice offences (attempts to pervert the course of justice, perjury, concealing offences for a benefit, and the like) have the potential to lead courts into error and undermine public confidence in the justice system as a whole.

The penalty for serious abuse of the system's trust is frequently greater than whatever consequence the offender had been trying to avoid. Examples (all, coincidently, drawn from NSW) include Marcus Einfeld's speeding tickets, a lawyer struck off the Roll for telling lies to get his clients' cases moved to another venue, and the Bankstown probation officer who gave his clients better reports than they deserved (blogged about here last year).

Manufacturing false information in support of a plea of mitigation is a form of attempting to pervert the course of justice. In R v Bailey [2006] 2 Cr App R (S) 47, the accused invented a story of a dead wife and child to get the sentencing court's sympathy. He had been given a community order for the original offending, but got two-and-a-half years of jail for the lies.

The accused in Church v R [2012] NSWCCA 149 put more preparation into her false claim that she was battling cancer. Several months prior to standing for sentence for an assault, she shaved her head and took to wearing a bandanna, and let it be known around her community that she had been diagnosed with the disease. When she claimed to be attending chemotherapy appointments she would go elsewhere. Her community took up a collection for her medical expenses, and she accepted the money.

The magistrate told the accused when sentencing her for the assault that, if not for the cancer, she would be going to jail. After the ruse was discovered, the sentencing judge for the perversion of justice charge agreed that this should have been so. She was sentenced to imprisonment for a total term of 2 years 8 months for the attempt to pervert justice, with a non-parole period of 1 year 4 months.

She appealed the term, arguing (amongst other things) the sentencing judge had erred by considering the penalty the appellant might have received if not for the lie. This was rejected.

Button J [McClellan CJ and Price J agreeing] at 23:

I consider that it was an important part of assessing the objective seriousness of the public justice offence for the sentencing Judge to determine the effect that the offence had on the proceedings before the Magistrate. By way of illustration, identical lies on oath ("I did not see my neighbour drive his car that day") may be vastly different in seriousness, depending upon whether what was at stake was a fine for driving whilst disqualified, or many years in gaol for murder. I do not perceive error in the sentencing Judge undertaking that task.

The Court of Criminal Appeal found that the sentencing judge was determining what ought to have happened, not what would have happened (which could only be speculative). It regarded the sentence as stern, but not manifestly excessive.

Wednesday, 11 July 2012

DPP v Gibson [2012] VSC 297: generalia specialibus non derogant

The Evidence Act 2008 is not a Code. It doesn't exclude the common law and, by s 8, it doesn't affect the operation of any other Act. It was argued for the respondent in DPP v Gibson [2012] VSC 297 that s 164 of the Evidence Act removes the traditional need for corroboration required for the rebuttal of the presumption created by s 48(1A) of the Road Safety Act 1986.

The Supreme Court rejected the argument. The Court also looked at the various Law Reform Committee reports and decided it was not Parliament's intent to alter the operation of specialist drink-driving legislation by enacting the UEA. The principle of generalia specialibus non derogant applies - the general does not overrule the specific.

On 17 January 2011, the respondent Julie Gibson was driving in Greensborough when she was involved in a minor accident with another car. She stopped and exchanged details with the other driver. That person thought they could smell alcohol on her breath. The police went to her house soon after and administered a preliminary breath test under s 53(1)(a). That test recorded the presence of alcohol in her breath. She went with the police to the Diamond Valley Police Station and did another test there. The reading was .182%, well in excess of the limit.

The respondent told the police that she'd consumed half a glass of wine prior to the accident (explaining the smell the other driver had noticed) and four or five more after returning home.

Charges under ss 49(1)(b) and (f) were laid against her, and subsequently dismissed at a contested hearing at the Magistrates' Court at Heidelberg. The magistrate stated the prosecution hadn't proved that the concentration of alcohol indicated by the analysis was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle.

That's a reversal of the burden of proof for a charge under s 49(1)(f). The prosecution are not required to prove that the reading is the product of pre-driving consumption. Rather, s 48(1A) creates a presumption that it is. An accused may attempt to rebut the presumption.

Section 48(1A) provides:

For the purposes of an alleged offence against paragraph (f) or (g) of section 49(1) it must be presumed that the concentration of alcohol indicated by an analysis to be present in the breath of the person charged or found by the analyst to be present in the sample of blood taken from the person charged (as the case requires) was not due solely to the consumption of alcohol after driving or being in charge of a motor vehicle unless the contrary is proved by the person charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.

Despite the misapplication of proof, on the appeal argument centred around whether the evidence of pre-driving consumption had been corroborated, as the sub-section required.

At the Magistrates' Court hearing it was submitted on the respondent's behalf that the introduction of s 164 of the Evidence Act 2008 removed the need for any corroboration of her claim.

Section 164 reads,

164 Corroboration requirements abolished

(1) It is not necessary that evidence on which a party relies be corroborated.

(2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.

(3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge -

(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or

(b) give a direction relating to the absence of corroboration.

The Supreme Court rejected that argument, with reference to s 8 of the Evidence Act, which clarifies that the Act does not affect the operation of any other Act.

After reviewing the divergent authorities on the issue, Emerton J concluded [at 24]:

As senior counsel for the respondent pointed out, the Court is required to construe the terms of the Evidence Act using accepted principles of statutory interpretation. The starting point is to consider the words in the statute to ascertain their meaning: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252. The words in s 164(1) appear to effect a blanket abolition of any requirement for the corroboration of any evidence. However, s 164(1) must be read in context, that is, having regard to the Evidence Act as a whole. It must be interpreted in the light of s 8. Section 8 provides that the Evidence Act does not affect the operation of the provisions of any other Act. Section 48(1A) of the Road Safety Act is a provision of another Act. As a result, on the plain meaning of the words in ss 8 and 164(1), s 164(1) does not affect the operation of s 48(1A) of the Road Safety Act.

In my view, s 8 requires s 164(1) to be read down so that the provision does not affect other statutory provisions requiring the corroboration of evidence. Statutory requirements for the corroboration of evidence are unaffected by s 164(1). As a result, s 164(1) must be construed to be confined to abolishing common law requirements for the corroboration of evidence.

Her Honour went on to find that, even if the VLRC and ALRC Reports hadn't clarified that it wasn't the intent of the UEA to remove the requirement for corroboration in specialised legislation, the latin maxim generalia specialibus non derogant would still be applicable. In deciding to sweep away a lot of the old common law presumptions about corroboration and admissibility, an evidentiary provision designed to achieve a very specific purpose survives as an exception to the general rule.

Emerton J [at 34]:

I consider it to be unlikely that the legislature, in enacting a general provision in the Evidence Act abolishing the requirement for evidence to be corroborated, intended to undo or abandon a requirement that it had specifically enacted to deal with evidence given by a person charged with drink driving about the timing of their alcohol consumption. Section 49(1)(f), which describes the elements of the offence, and s 48(1A) which is directed to the proof of the offence, operate together. The party charged with proving the offence is given the benefit of a presumption, which may be rebutted by evidence given by the person charged. The corroboration requirement in s 48(1A) forms an integral part of this regime. It is not difficult to identify the purpose of the requirement given the ease with which the presumption in s 48(1A) could be displaced. Drink driving is a matter of great community concern. Had the legislature intended to make it harder to prosecute a person charged with drink driving by removing the requirement for the corroboration of evidence given by the person charged about when the drinking took place, it would have done so expressly and by reference to the provision in question.

Sunday, 8 July 2012

VLA fact sheets

Victoria Legal Aid are reducing the number of cases their duty solicitors will become involved in at sittings of the Magistrates' Court. The changes to their criteria are discussed here.

They say on their website:

From July 2012 duty lawyer services in the Magistrates’ Court of Victoria will prioritise people in custody, and people who cannot afford to pay for representation having regard to their circumstances and the seriousness of the charges.

To assist people who are no longer eligible for representation, but either can't or won't obtain the services of a private practitioner, VLA have produced a number of Fact Sheets. They have made these available on their website here. I haven't read them all so I'm not commenting about their accuracy, but any attempt to summarise (sometimes complex) legal propositions into a single page can make for interesting reading.

An overview of terms used in the other sheets is provided on the What do these words mean? sheet.

Procedural matters

P1 Pleading guilty
P2 Pleading not guilty
P3 Diversion
P4 Licence restoration
P5 Removing an alcohol interlock
P6 Rehearings
P7 Challenging fines (link broken)
P8 Appealing a Magistrates’ Court decision
P9 What I want to say in court

Specific Offences

O1 Traffic fines
O2 Dog behaviour offences
O3 Department of Transport, Failure to give name and address
O4 Department of Transport, Prohibited language or behaviour on public transport
O5 Department of Transport, Fail to produce a valid ticket
O6 Department of Transport, Placing feet on furniture
O7 Department of Transport, Smoking on public transport
O8 Department of Transport, Fail to produce evidence of concession
O9 Agency prosecutions, Fail to lodge a tax return
O10 Agency prosecutions, Fishing without a licence
O11 Minor traffic offence, Speeding
O12 Minor traffic offence, Driving an unregistered vehicle
O13 Minor traffic offence, Running a red light
O14 Minor traffic offence, Use of a mobile phone while driving
O15 Minor traffic offence, Failure to wear a seatbelt
O16 Drink driving (first offence)
O17 Drug driving (first offence)
O18 Unlicensed driving (first offence)
O19 Drive while suspended
O20 Careless driving
O21 Hoon driving and impounding a vehicle
O22 Breach of road rules
O23 Leaving the scene of a vehicle accident
O24 Public drunkenness offences
O25 Hinder police (no assault)
O26 Possession of cannabis

Other Sheets

M1 Criminal records
M2 Demerit points
Client fact sheet
Duty lawyer fact sheets index

These sheets are intended for unrepresented accused, but no doubt they'll also be useful to CLCs and practitioners who don't specialise in criminal or traffic matters.

Friday, 6 July 2012

All Dunn

For the most part I've so far avoided in this blog discussing personalities in our legal system, even though there are some larger-than-life characters who frequent our courts, both on the Bench and at the Bar Table.

Today I'm making an exception to that self-imposed rule.

Today, my former colleague, mentor, and my friend, Ian Dunn, retires after 50 years in the police force. I shall miss him dearly, and his retirement will be a great loss to both the police force and Prosecutions Division, and to our community. It just doesn't seem right in the natural order of things for Dunnie to not be sitting at a mess-room table somewhere come Monday, cutting an apple with his knife, throwing a tea-bag at the bin (and more often than not, missing), and telling stories with as many twists and laughs as a Two Ronnies joke.

I guess most of us encounter people throughout our life who we remember for making a difference or teaching us something. Ian is and was such a person for many people, not just me, and is something of a minor celebrity in Victoria Police. Partly for his encyclopaedic knowledge of the law and evidence, and his fearless and relentless advocacy. But also for his strength of character and preparedness to taking 'the bastards' on, whomever they happened to be. Ian was well regarded for challenging various 'bosses' throughout the police force for all sorts of shortcomings, and standing up for doing the right thing. Though it sometimes came at some personal cost to him, his reputation for being frank and fearless earnt Ian much well-deserved respect and admiration from his colleagues, and from folks he dealt with in the courts. He was well regarded as a cunning, crafty and tenacious advocate who did his job with integrity. I know one silk who considers Dunnie amongst the finest advocates he's encountered.

We often hear talk about 'corporate memory', which masks the fact that it's individuals like Ian who hold those memories and that accumulated knowledge and experience. I never ceased to be amazed by the times I would have a question and Ian would search through his renowned collection of folders and produce some on-point case I had never heard of. More than a few of them involved him originally as informant or prosecutor — and so he could tell us all about the back-story and the individuals involved. (A couple of them were decided before I was even born!) His legendary filing system was put to other good use too: Ian had an extraordinary collection of humorous and slightly-damming reports, photos, notes, letters and emails he could produce at short notice for a laugh about our foibles and stuff-ups.

Amazingly, Ian's passion for prosecuting and policing is just as strong as ever. After 50 years, and on the cusp of retiring, you'd think he might be tidying up his desk — that was always on his to-do list — and taking things easy. But, I was at Heidelberg yesterday, and there he was, in court, still fighting the good fight, as he had for much of the week.

I know Ian will be embarrassed by this small hagiography, but I think it's important to publicly mark his achievements. It was my absolute pleasure and privilege to work with him and share an office with him for a number of years, and I'm proud to say I learnt a lot from him in that time. Indeed, a mutual friend often accuses me of being an Ian Dunn Mini-Me, and I always reply, "I'm comfortable with that."

Enjoy your retirement pal. You'll be missed

Things I learnt from Ian Dunn

  • Many legal questions can be solved by knowing the answer to, "What does the Act say?"
  • It's always worth asking, "Is that right?"
  • Never be afraid to admit, "I don't know."
  • Shiraz is a good solution to a lot of things
  • Computers always work better when you swear at them
  • It's important to enjoy what you do and have fun at work, and to take pride in doing your job well

Monday, 2 July 2012

Eade v The Queen [2012] VSCA 142: unintended arson doesn't deserve jail

Last week the Court of Appeal held that Benjamin Eade and Brent Vanstone were not guilty of destroying a building by fire when they deliberately lit plastic wrapping on milk crates in that building, and that fire subsequently burnt down the Camperdown Milk and Cheese Factory.

Eade v The Queen [2012] VSCA 142 considered Crimes Act 1958 s 197 as it relates to arson. The section relevantly provides:
197. Destroying or damaging property

(1) A person who intentionally and without lawful excuse destroys or damages any property belonging to another or to himself and another shall be guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).


(4) For the purposes of subsections (1) and (2) a person who destroys or damages property shall be taken as doing so intentionally if, but only if—
(a) his purpose or one of his purposes is to destroy or damage property; or

(b) he knows or believes that his conduct is more likely than not to result in destruction of or damage to property.

(6) An offence against this section committed by destroying or damaging property by fire shall be charged as arson.

(7) A person guilty of arson is liable to level 4 imprisonment (15 years maximum) despite anything to the contrary in this section.

Eade and Vanstone were charged that they 'intentionally and without lawful excuse destroy by fire a building namely the Camperdown Milk and Cheese Factory...'. They pleaded guilty to that offence. They were sentenced at first instance to 2 years and 4 months detention in a Youth Justice Centre.

They appealed the severity of their sentence.

And then something unusual happened...

The DPP filed supplementary submissions almost completely opposite to his position at the sentencing, and the application for leave to appeal. (I wonder if this is perhaps a reflection of the new Director's influence? I do not know him, but know his appointment was widely lauded and he is well regarded as fair and temperate, which seems apparent in his first published speech earlier this year.)

The Court of Appeal described this unusual but reassuring change of tack:

[7] The appeals came on for hearing on 28 November 2011. By that time, a supplementary submission had been filed on behalf of the Director of Public Prosecutions. As will appear, that submission conceded that the sentencing discretion had miscarried and that each of the appellants should be resentenced to a lesser sentence. This represented an almost complete reversal of the Crown’s previous position as advanced, first, on the plea before the sentencing judge and, secondly, in the written case as originally filed in response to the applications for leave to appeal. The supplementary submission contained thoughtful, clear and principled analysis, which was of great assistance to the court.

But it turned out this was just a curtain raiser for what was to follow. Three issues decided in this case will make it one of those seminal appellate cases (IMHO) that will become a mainstay of criminal practice.

The proper intent to prove arson

The Court of Appeal went on to analyse the intent required to prove arson.

[19] As a matter of ordinary language, the conduct which s 197(1) criminalises is the intentional bringing about of a result, that is, the destruction of or damage to the property the subject of the charge (the ‘subject property’). It follows, in our view, that s 197(4) must be read as requiring proof that the offender:

(a) had the purpose of destroying or damaging the subject property; or

(b) knew or believed that his conduct ‘was more likely than not to result in’ the destruction of or damage to the subject property.


21 We recognise, however, that the language of s 197(4) is not so specific. Thus, s 197(4)(a) speaks of the offender having a (generalised) purpose ‘to destroy or damage property’. Read literally, the subsection would have the result that a person who destroyed particular property would be taken to have done so intentionally, even though he/she had no purpose to destroy or damage that property and no awareness that his/her conduct was likely to destroy or damage that property.

Put another way, to prove arson, the offence section should read as if it says the person intended to destroy or damage, or knew or believed that their conduct was more likely than not to destroy or damage, the property that was actually destroyed or damaged.

The Court noted the significant difference this made to determining what crime the appellants had committed.

[23] The present case illustrates the point well. As the judge accepted, the appellants intended only to damage the milk crates. They had neither the ‘purpose to destroy or damage’ the milk factory, nor any awareness that its destruction was ‘more likely than not to result’ from their conduct. On a literal reading of s 197(4), however, the fact that they had the ‘purpose to destroy or damage property’ (ie the milk crates) would be enough to establish that they had intentionally destroyed the factory. But, as the Crown’s submission stated unequivocally, ‘they are two quite different crimes’. Subsection (4) cannot have been intended to convert a minor crime into a major one.

As if this wasn't enough, the Court also went on to provide two further clear statements of principle, these ones for sentencing.

Relevance of unintended consequences for sentencing

The common law position is that consequences of offending that were not reasonably foreseen by the offender are not relevant to sentencing. But if they were foreseen or reasonably foreseeable — which sounds to me pretty much like intentional and reckless — then the consequences are relevant to sentence, but ought not 'swamp' all other sentencing considerations. As authority for this, the Court of Appeal cited R v Boyd [1975] VR 168 at 172, R v Boxtel [1994] 2 VR 98, 103–4, and DPP v Cook (2004) 141 A Crim R 579 at [17].

However, Sentencing Act 1991 s 5(2)(da) and (db) provides that a sentencing court must have regard to:

(da) the personal circumstances of any victim of the offence; and

(db) any injury, loss or damage resulting directly from the offence.

Victim is defined in s 3 as:

victim, in relation to an offence, means a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the offender;

The Court held the effect of these statutory provisions was to overcome the common-law unintended consequences doctrine.

[34] In 2005, s 5(2)(daa) of the Sentencing Act 1991 (Vic) was inserted, obliging the sentencing court to have regard to ‘the impact of the offence on any victim of the offence’. In our view, the introduction of s 5(2)(daa), which explicitly links the ‘impact’ suffered to the broad definition of ‘victim’ in s 3(1), puts beyond doubt Parliament’s intention to displace the common law requirement that unintended consequences of an offence must be ‘reasonably foreseeable’.

This certainly seems logical. I went to my copy of Fox and Frieberg on Sentencing: State and Federal Law in Victoria, and — as usual — it had a wealth of information on the topic. They said at [3.612], "Although a purely subjectivist approach would require the courts to focus solely upon an offender's mental state, the courts at sentencing are for more pragmatic, seeking to strike a balance between subjective and objective elements in assessing the gravity of the crime." To demonstrate this, they referred to several cases holding that offences resulting in death are more serious when more people die, and not as serious when fewer die, citing Pettipher (1989) 11 Cr App R (S) 321 at 323 — approved in R v Middap (1992) 63 A Crim R 434 at 449; and R v Wilkins (1988) 38 A Crim R 445 at 449 - 50.

So precisely how does a court take into account the consequences of offending when it was not intended by an offender? Simply as part of the intuitive sentencing synthesis described by the High Court in Markarian v The Queen (2006) 228 CLR 357. But, though the Sentencing Act requires a sentencer to take this into account, it seems if the consequences were unintended or unforeseen that the proper punishment must be much less than it otherwise would have been.

It's particularly relevant to general deterrence, and even more so for young offenders, as was the case here.

The relevance of general deterrence

I can't improve on what the Court said here, and it's worth quoting verbatim.

[40] On the plea, the prosecutor submitted that ‘considerations of deterrence and denunciation are of very great importance in this matter, despite the apparent youth of the offenders.’ The sentencing judge agreed, holding that general deterrence was ‘a significant sentencing consideration’.

[41] In the supplementary submission, the Director again conceded error:

Plainly, and with regret, the prosecutor’s submission was misconceived. And in the circumstances of this case, while general deterrence was a relevant consideration ..., the judge has erred to the extent of allowing deterrence to outrank rehabilitation as the dominant sentencing purpose.

[42] Once again, the Director’s submission is plainly correct. The appellants were sentenced under the provisions of the Sentencing Act 1991 (Vic), which expressly includes general deterrence amongst the purposes for which sentence may be imposed. Citing this Court’s decision in DPP v S J K [2002] VSCA 131 the Director submitted that while general deterrence was not to be viewed as excluded altogether, what was of critical importance is the relative weight to be attached to the sentencing purpose of general deterrence. And, with respect, the decision in C N K v The Queen [2011] VSCA 211 simply highlights what a careful analysis of the authorities reveals; namely, it is a rare case in which a judge is permitted to materially increase sentence imposed on a young offender by dint of general deterrence.

[43] In the light of the appellants’ individual circumstances (referred to below), the Director conceded that neither appellant was an ‘appropriate vehicle’ for general deterrence. In relation to Mr Eade, for example, the Director said:

Quite simply, it would be inhumane of the criminal justice system to put this young man up on a sentencing pedestal and impose a sentence designed to send a salutary message to other would-be offenders. His plight is something that deserves mercy rather than aggravated punishment.

A like submission was made in relation to Mr Vanstone.

[44] As we said earlier, these were exemplary submissions, notable for their fairness and for their proper acknowledgment of the particular circumstances of the case. In our view, the Director was right to concede that the emphasis placed on general deterrence was erroneous.

Sunday, 1 July 2012

Monetary Units Amendment Bill 2012: the value of penalty units and fee units for 2012/13

The value of a penalty unit and fee unit was decided a few years ago, then attached to a fixed rate of indexation. The value of each unit is usually published in the Government Gazette.

The most recent Gazetted increase was on 29 March 2012 in G13 of 2012 at page 655. The values from 1 July were going to be $125.19 and $12.53 respectively.

But not now. The Monetary Units Amendment Bill 2012 commences operation on 1 July and amends s 11 of the Monetary Units Acts 2004 to fix penalty units at a higher rate:

Penalty unit = $140.84
Fee unit = $ 12.53

Section 11(2) provides that any reference in the Act or any other Act or statutory rule to the value of a fee unit or penalty unit calculated in accordance with section 5(3) is to be treated for the financial year commencing on 1 July 2012 as a reference to the value of a fee unit or penalty unit as provided by new section 11(1).

Last year's figures were $122.14 and $11.95, respectively. During the Second Reading the Treasurer said,
'This change is one part of the longstanding commitment by this government to reduce offending in our community'.
The original intention of indexation was to provide for regular automatic increases that weren't subject to political interference. These increases are not as great as the Herald-Sun law reports originally claimed, but are certainly greater than the originally scheduled increase. The government denies it is simply revenue raising though.

The Office of Chief Parliamentary Counsel maintains up-to-date details of fee and penalty units on its site here.