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.)