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Carolan v The Queen

Carolan v The Queen

Case [2015] VSCA 167 26 June 2015

Appeal

Sentencing

Judicial Review

Legitimate Expectation

Constitutional Validity

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0172
ANTHONY JOHN CAROLAN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 May 2015
DATE OF JUDGMENT:	26 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 167
JUDGMENT APPEALED FROM:	[2014] VCC 1095

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CRIMINAL LAW – Indefinite sentence – Appeal against refusal to discharge indefinite sentence pursuant to Sentencing Act 1991 s 18O – Nature of the appeal right – Whether judge erred in refusing to make an order under s 18M – Whether appellant is still a serious danger to the community – Appellant accepts that he would be a serious danger to the community if released unsupervised – Whether s 5(2BD) prevents the court reviewing an indefinite sentence having regard to the regime for supervision and detention under the Serious Sex Offenders (Supervision and Detention) Act 2009 – Construction which least impinges on offender’s liberty to be preferred – Charter of Human Rights and Responsibilities Act 2006 – Whether the existence of the SSODSA regime sufficient to conclude that the appellant would not be a serious danger to the community if indefinite sentence discharged – Appeal allowed – Indefinite sentence discharged and appellant made subject to a five year re-integration period.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis with Ms A I Burchill	Tony Hargreaves & Partners
For the Crown	Mr O P Holdenson QC with Mr J M Davidson	Ms V Anscombe, Acting Solicitor for Public Prosecutions

ASHLEY JA

REDLICH JA
PRIEST JA:

The appellant is subject to an indefinite sentence of imprisonment imposed by the County Court on 25 February 2000.[1] Following an application for review on 8 July 2014, the Chief Judge of the County Court declined to make an order to discharge the sentence pursuant to s 18M(1) of the Sentencing Act 1991 (‘the Act’). As a result, the appellant’s indefinite sentence remains in force. He appeals to this Court pursuant to s 18O of the Act, seeking an order that his sentence be discharged.
[1]R v Carolan (Unreported, County Court of Victoria, Judge Wodak, 25 February 2000).

In his amended notice of appeal, the appellant sought to rely on the following grounds:

1.A miscarriage of justice occurred as a result of the DPP — in breach of its obligations as Prosecutor and under ss 21 and 38 of the Charter of Human Rights and Responsibilities Act 2006 — choosing not to adduce evidence on what steps were likely to be taken to manage the risk presented by the Appellant in the event that his indefinite sentence was discharged.
2.The Chief Judge erred by not ordering, pursuant to s 18I of the Sentencing Act 1991, that the Adult Parole Board and the Secretary to the Department of Justice provide the Court with reports addressing the possible discharge of the Appellant’s indefinite sentence.

However, at the outset of the oral hearing counsel for the appellant conceded that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carolan v The Queen

Details

AGLC: Carolan v The Queen [2015] VSCA 167
Case: [2015] VSCA 167
Decision Date: 26 June 2015

CaseChat Overview and Summary

In Carolan v The Queen, the appellant, Carolan, sought to appeal against the refusal to discharge his indefinite sentence under the Sentencing Act 1991. Carolan was sentenced to an indefinite term for sexual offences and was subject to strict supervision and detention conditions under the Serious Sex Offenders (Supervision and Detention) Act 2009. Carolan argued that the conditions of his supervision and detention under the latter Act meant he was no longer a serious danger to the community, and therefore, his indefinite sentence should be discharged.

The primary legal issues before the court were whether the judge had erred in not making an order under section 18M of the Sentencing Act and whether the existence of the SSODSA regime was sufficient to conclude that Carolan would not be a serious danger to the community if his indefinite sentence was discharged. The court had to interpret section 5(2BD) of the Sentencing Act in light of the SSODSA regime and determine if this precluded the court from reviewing the indefinite sentence with regard to the supervision and detention provisions. Additionally, the court needed to consider the implications of the Charter of Human Rights and Responsibilities Act 2006 on the appellant's liberty.

The court found that the judge had erred by not considering the SSODSA regime in determining whether Carolan was still a serious danger to the community. It held that the proper construction of section 5(2BD) of the Sentencing Act did not prevent the court from reviewing the indefinite sentence with regard to the supervision and detention provisions. The existence of the SSODSA regime indicated that Carolan would not be a serious danger to the community if his indefinite sentence was discharged, given the strict conditions of supervision and detention. The court emphasised that a construction which least impinges on an offender’s liberty should be preferred, aligning with the principles of the Charter of Human Rights and Responsibilities Act 2006. Consequently, the court allowed the appeal, discharged the indefinite sentence, and ordered a five-year re-integration period for Carolan.

Orders