Monday, 16 January 2012

Community Correction Orders

The Sentencing Amendment (Community Correction Reform) Act 2011 substantially takes effect in Victoria today.


We blogged about the bill here. In summary:

  • Combined Custody and Treatment Orders, Intensive Correction Orders and Community Based Orders are no longer available as sentencing options in any court. They are replaced by a single flexible order called a Community Correction Order. Unlike the old ICO, a CCO order is not a term of imprisonment.
  • Orders made prior to 12 January 2012 will remain active until completed or discharged.
  • A CCO may be imposed for any offence punishable by more than 5 penalty units, but only if the offender consents: s 37. A court must order a pre-sentence report if considering ordering a CCO: s 8A(2), except when making an order for unpaid community work up to 300 hours with no other conditions attached: s 8A(3). (The maximum number of hours that can be awarded is 600 hours: s 48C). A CCO must commence within 3 months of the passing of sentence.
  • A court may order the production of a pre-sentence drug and alcohol report if the the court is satisfied that the offender had a drug or alcohol dependency that contributed to the offender's criminal behaviour.
  • The maximum period that a CCO awarded in the Magistrates' Court may run for is 2 years: s 38. For other courts it will be the maximum period of imprisonment allowed.

Conditions of a Community Correction Order

The mandatory generic conditions of a CCO are found at s 45:

45 Terms of a community correction order

(1) The following terms are attached to each community correction order—
(a) the offender must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;

(b) the offender must report to, and receive visits from the Secretary during the period of the order;

(c) the offender must report to the community corrections centre specified in the order within 2 clear working days after the order coming into force;

(d) the offender must notify the Secretary of any change of address or employment within 2 clear working days after the change;

(e) the offender must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;

(f) the offender must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that the offender complies with the order.

Section 48 gives courts a residual power to award any additional condition they consider appropriate (except conditions relating to compensation, costs or damages). Additional conditions specifically provided for include:

  • unpaid community work (s 48C);
  • treatment and rehabilitation (s 48D);
  • supervision (s 48E);
  • non-association (s 48F);
  • residence restriction or exclusion (s 48G);
  • place or area exclusion (s 48H);
  • curfew condition (s 48I);
  • alcohol exclusion(s 48J);
  • and judicial monitoring (s 48K).

If a CCO of more than six months duration is ordered, the court may impose an intensive compliance period. During this period additional conditions attached to that order can be imposed. These expire at the end of the intensive compliance period, while the remainder of the CCO continues.

Contravention of orders

Contravention of an adjourned undertaking, suspended sentence or community correction order court will now be an offence, punishable by fine.

It's not clear but I suspect parliament's intent in creating additional penalties for contravention without interference to the original order is to encourage Corrections Victoria to bring proceedings against people who are not complying with their orders. The trend in recent years has been to repeal breaches proceedings as discrete offences, and instead make them punishable by a court on application.

Proceedings for contravention are dealt with under Divison 2, ss 83AG to 83AT.

In the case of suspended sentences, courts will now have the option of imposing a separate penalty for contravention, rather than just deciding whether or not to restore the original sentence.

Licence cancellation, suspension and disqualification

As the result of the insertion of a new s 89 into the Sentencing Act, courts will possess a discretion to suspend or disqualify an offender's licence for any offence. It reads:

(1) If a person is found guilty or convicted of any offence the court may—

(a) if the person is the holder of a driver licence or learner permit—

(i) suspend the driver licence or learner permit held by the person for the period of time that the court specifies; or

(ii) cancel the driver licence or learner permit held by the person and disqualify the person from obtaining a further driver licence or learner permit for the period of time that the court specifies; or

(b) if the person is the holder of the equivalent of a driver licence or learner permit issued in another State or a Territory of the Commonwealth or another country, disqualify the person from driving a motor vehicle on a road in Victoria for the period for which the person would have been disqualified from obtaining a driver licence or learner permit, had the person held such a licence or permit; or

(c) in any other case where the person is not the holder of a driver licence or learner permit, disqualify the person from obtaining a driver obtaining a driver licence or learner permit for the period of time that the court specifies.

Sub-section (2) of s 89 clarifies that this does not apply to offences under the Road Safety Act 1986. (It does not need to, since these are already dealt with under that Act's s 28(1)).

The old authorities and arguments about the meaning of in connection with the driving of a motor vehicle won't be relevant for much longer.

If no period is specified, a disqualification is for three months. A court may nominate a day other than the day of sentence for the disqualification to start: s 89AD. The process at the end of the disqualification period for applying for a licence under s 89AF is similar to the system that already exists under the Road Safety Act.

Wednesday, 21 December 2011


Well, that's it for regular posting for another year.

If last year is any guide, we'll be trying out some new things during the hiatus. There's lots to be done, with this blog and otherwise. Normal service will resume at the beginning of February.

The best wishes of the season to you and yours.

Saturday, 17 December 2011

R v Smith (No 5) [2011] NSWSC 1459: relevant but weak evidence

With the end of the year rapidly approaching I'm yet again caught with a pile of interesting (and possibly important) cases sitting in my inbox, and no time to properly digest them.

An example is R v Smith (No 5) [2011] NSWSC 1459. Like many trial court decisions it's useful as an application of the law (made on what Ipp J described as the 'factory floor' of justice) rather than for containing any particular revelations.

The Crown proposed to lead evidence of a podiatrist at trial. He held the expert opinion that shoes left at the scene of the murder could belong to the accused, because of a series of individual biometric factors.

Importantly to this Cinderella story, the Crown sought to rely upon the evidence as establishing that the accused could have been the wearer of the shoes, not that he was. Does this even pass the threshold test of relevance at s 55 of the Evidence Act? Your answer probably depends on your philosophical understanding of a trial.

Buddin J's ruling traverses the applicable principles of admissibilty, as well as offering a look at an evolving branch of forensic science.

Sunday, 11 December 2011

Road Safety Amendment (Drinking while Driving) Bill 2011: no more travellers

This 'emergency legislation' was rushed through the Victorian parliament in the last few days. Introduced on the 6th December, it was read twice in a day and passed the Upper House two days later. It will take effect immediately after receiving Assent.

The Bill, as it was passed, is here. The Second Reading is here. The Statement of Compatibility is here, and the Explanatory Memorandum here.

The new section 49B of the Road Safety Act 1986 will prohibit the consumption of alcohol by the driver of a motor vehicle.

It will read (in part),

49B Offence to consume intoxicating liquor while driving

(1) A person must not consume intoxicating liquor while the person is driving a motor vehicle or is in charge of a motor vehicle.

Penalty: 10 penalty units.

(2) For the purposes of subsection (1) a person is not taken to be in charge of a motor vehicle unless that person is a person to whom section 3AA(1)(a), (b) or (c) applies.

The reason for the haste is a mystery. Unlike previous events where a precipitating incident has led to a rush for reform, I don't know of any particular incident that has prompted a public outcry about this issue.

During the second reading the A-G's explanation was,

It is inconsistent with the road safety message to the community about drinking and driving that a driver can lawfully consume alcohol while driving a vehicle in Victoria.

The change will mean a significant cultural shift for those accustomed to buying a traveller for the trip home. It might also mean that police officers will have to caution a driver before asking questions intended to eliminate mouth alcohol as the cause of a positive preliminary test result.

Thursday, 8 December 2011

RTF or PDF, please

Supreme Court Practice Note 9 of 2011 was signed last month. It replaces Practice Notes No 3 of 2004 and No 1 of 2006.

The Note lends increased legitimacy to medium neutral citations and might even help to reduce the amount of unnecessary photocopying that goes on. It also draws attention to the preference for Rich Text Format (RTF) prints from AustLII rather than the direct-from-screen prints sometimes used. (The latter have an AustLII banner prominently at the top of the first page).

The Note includes the instructions on how to produce RTF prints:

1) Click on the link to view the judgment.

2) Choose the “Download” option in the toolbar above the case citation.

3) Click on the “Rich Text Format (RTF)” or “Portable Document Format (PDF)”
hyperlink below the heading “Available Data Formats”.

4) Print the document and provide in this format.

I should also mention the Court's Practice Note 8, which clarifies the status of decisions which have the phrase no point of principle in their headnote. The Note prohibits reference to such cases without leave.

Caen discusses the problems with this direction here. I'd always thought that the catchwords of a headnote didn't form part of the judgment they summarise, and shouldn't be assumed to have been written by the authors of the judgment.

Wednesday, 7 December 2011

Programming note

If you haven't seen it and don't want to buy it, remember to set the DVR this Friday for The Staircase. The first episode is still available from the SBS website here. It's from the same documentary team who did the fly-on-the-wall series Sin City Law.

Saturday, 3 December 2011

Australian Crime Commission v Stoddart [2011] HCA 47: No spousal privilege at common law

There is no common law privilege against incriminating your spouse.

There never has been, it seems. Centuries ago in Britain a wife was neither competent or compellable to give evidence against her husband due to the legal fiction (derived from the Bible) that man and wife were the one flesh. Even by the time of the establishment of the Australian colonies that position was changing. David Lusty's 2004 article, along with every other textbook dealing with the subject, will need to be revised.

But despite the media interest and some hysteria to the contrary, this won't make the slightest difference to the operation of the law in practice. (Except, perhaps, where coercive investigative powers are in play). Section 18 of the Evidence Act (and before that, s 400 of the Crimes Act) provides a broad discretion to judicial officers to excuse people from giving evidence against their partners because of the potential damage the relationship may suffer. The UEA deals with this as an issue of compellability, not privilege.

(In NSW, s 19 creates an exception in the case of various violent and sexual offences. Those exceptions don't exist here.)

This case, involving the Australian Crime Commission and its use of its inquisitorial powers, has been in the system for a while. It was discussed back here as Stoddart v Boulton [2009] FCA 1108 back when it was an application for injunctive relief before the Federal Court. The decision was reversed by the Full Federal Court, then recently decided as Australian Crime Commission v Stoddart [2011] HCA 47 before the High Court.

Statutory protection for spouses and significant others has existed for so long that it was reasonable to suppose the principle of spousal privilege, like so many others, has its foundation in judicial precedent. But [as Heydon J states unreservedly at 56] there is no case in the legal history books precisely on point, until the very recent decisions in coercive powers cases Callanan v B [2004] QCA 478 and S v Boulton [2006] FCAFC 99 which didn't engage in a thorough historical analysis.

The appellant successfully urged the High Court not to, 'join the dots and lend colour to an apparition that is really nothing more than an historical relic at best'.

French CJ and Gummow J [at 41, Crennan, Keiffel and Bell JJ in agreement]:

In our view, it cannot be said that at the time of the enactment of the Act in 2002 the common law in Australia recognised the privilege asserted by Mrs Stoddart or that it does so now. We agree with the conclusion of Kiefel J in Boulton [2005] 155 A Crim R 152 that in All Saints and the subsequent decisions, in particular Hoskyn and Riddle, the term "compellable" was used to indicate that the witness might be obliged to give evidence in the ordinary sense of the term, not that, in response to particular questions, a privilege might be claimed by the witness.

Heydon J dissented, embarking on his own detailed discussion of the legal history. Finding that not all principles of the common law can be found in ratio decedendi may be controversial to some (certainly the majority of the Court), but his finding that the ACC legislation does not contain the express language or necessary implication from Coco v The Queen (1994) 179 CLR 427 [at 438] is fairly orthodox reasoning.

The dissent is also worth reading for drawing attention to this little gem from Griffiths CJ in Riddle v The King [1911] HCA 33; (1911) 12 CLR 622 [at 629], quoting an unnamed 'distinguished lawyer from England':

The law is always certain although no one may know what it is.

Sunday, 27 November 2011

Swearing at the police can still be a crime

For the last week or so the UK media has made a lot of noise about a recent judgment where the Queen's Bench upheld an appeal by Denzel Harvey against his conviction for using threatening, abusive or insulting words within the hearing of a person likely to be caused harassment, alarm or distress, contrary to s 5(1) of the Public Order Act 1986. (It's similar to Summary Offence Act 1966 s 17(1), but has a slightly different element of causing harassment, alarm or distress, rather than threat, abuse or insult.)

Here's one example from the BBC, one from The Mirror and one from The Telegraph.

The case excited a lot of comment on twitter, until folks got their hands on what the judgment actually said rather than what the media reported.

F*** you, bad reporting by @_millymoo highlighted the real problem: the prosecutor hadn't adduced any evidence of harassment, alarm or distress and so failed to establish an element of the offence.

In Harvey v DPP [2011] EWHC Crim B1, the Queen's Bench said:

It is now time to answer the questions posed for the opinion of the court by the justices. In answer to the first question: as part of the reasons for their decision, they were entitled to conclude that the use by the appellant of the expletives I have outlined, a total of three times, amounted to abusive or insulting words or behaviour. But I find that there was no evidence in this case on which they could have concluded that either of the police officers had been caused or was likely to have been caused harassment, alarm or distress as a result of the use of those words.

Notably, the law in the UK doesn't proscribe public swearing alone.

A number of cases establish that expletives such as "fuck" or "fucking" are potentially abusive words, whether the addressee is a police officer or a member of the public. But Parliament has not made it an offence to swear in public as such.

Had the police actually been alarmed or distressed the offence might well have been made out.

Where witnesses have given oral evidence of an incident which forms the basis of a charge under section 5 of the Public Order Act 1986, but have said nothing and been asked nothing about experiencing harassment, alarm or distress, there is no sound basis for the court to reach that conclusion for itself. This is particularly so in the case of police officers because, as Glidewell LJ observed in Orum, they hear such words all too frequently as part of their job. This is not to say that such words are incapable of causing police officers to experience alarm, distress or harassment. It depends, as the court said in Orum and Southard, on the facts; but where a witness has been silent on the point it is wrong to draw inferences.