Director of Public Prosecutions (Vic) v Toulmin (aka Harris)

In the case of Director of Public Prosecutions (Vic) v Toulmin (aka Harris), the Director appealed against the sentence imposed on the respondent, who had been convicted of being an accessory after the fact to manslaughter and two counts of obtaining property by deception. The original sentencing took place in 2009, where the court imposed a wholly suspended sentence of three years' imprisonment, but also incorrectly set a non-parole period of two years, contrary to established legal precedent. The respondent was subsequently dealt with for breaching the suspended sentence in 2012, without the court recognising the invalidity of the 2009 order at that time. The Director's appeal concerned whether the invalid portion of the 2009 sentencing orders was severable, and if the 2009 suspended sentence order could support the 2012 orders. The court found that the 2009 non-parole period was not severable from the suspended sentence, and that the 2009 order could not found the 2012 orders, leading to the restoration of the 2009 suspended sentence with a new non-parole period of one year imposed.

The legal issues before the court were the validity of the 2009 sentencing orders, the effect of orders made beyond the sentencing court's power, and whether the 2012 sentence was validly imposed. The court concluded that the 2009 non-parole period was not severable and the 2009 suspended sentence order could not found the 2012 orders. It applied the principle from Ludeman v The Queen (2010) 31 VR 606, which states that orders made beyond the court's jurisdiction are of no legal effect. The court also considered the respondent's application for leave to appeal against her 2012 conviction, but found that the fresh evidence did not warrant reopening the sentencing discretion, given the protracted history of the matter and the Director's failure to raise the invalidity of the 2009 order in a timely manner.

The court allowed the Director's appeal, severing the invalid 2009 non-parole period, and restoring the 2009 suspended sentence with a new non-parole period of one year. The court also allowed the respondent's appeal against the 2012 sentence, imposing a 'straight sentence' of nine months' imprisonment. The court found that the respondent had committed further offences upon release on bail after belatedly discovering the invalidity of the 2009 order, and that support was necessary to facilitate her re-integration into the community. The final orders of the court were the restoration of the 2009 suspended sentence with a new non-parole period of one year and the imposition of a 'straight sentence' of nine months' imprisonment for the 2012 sentence.