DPP v Leys and Leys (Unreported, County Court of Victoria, Judge Allen, 13 February 2012)
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CRIMINAL LAW – Crown appeal against sentence – Whether combination of Community Correction Order and suspended sentence of imprisonment in excess of three months was unlawful – Section 44 of the Sentencing Act 1991 – R v Young (1995) A Crim R 70, considered – Crown appeals allowed – Whether sentences of immediate imprisonment should be imposed – Respondents at liberty – Process of rehabilitation – Discretionary considerations – DPP v Karazisis (2010) 206 A Crim R 14, applied.
CHARTER – Whether Charter required the Court to depart from literal interpretation – Compatibility with the right against arbitrary detention – Compatibility with the right against greater penalties being imposed than applied at time offence committed – Charter of Human Rights and Responsibilities, ss 21(2), 27(2), 32.
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Appearances:
Counsel
Solicitors
For the DPP
Mr J Champion SC with Mr C Carr
Mr C Hyland, Solicitor for Public Prosecutions
For Tyson Leys
Mr O P Holdenson QC
Littleton Hackford & D’Allesandro
For Dillon Leys
Mr D A Dann with Ms A Cannon
Littleton Hackford & D’Allesandro
For the Attorney-General
Mr S McLeish SC with Ms J Davidson
Victorian Government Solicitor
For the Victorian Equal Opportunity & Human Rights Commission
Dr S Donaghue SC
Victorian Equal Opportunity & Human Rights Commission
REDLICH JA
TATE JA T FORREST AJA:
Introduction
The Director of Public Prosecutions has appealed against sentences of imprisonment imposed on the respondents in the County Court on 13 February 2012 which were wholly suspended and Community Correction Orders (‘CCOs’) made, each of which was to commence immediately. The Director has appealed on the ground that the sentences fixed in…
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.
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Details
AGLC
DPP v Leys [2012] VSCA 304
Case
[2012] VSCA 304
Decision Date
CaseChat Overview and Summary
The respondents in DPP v Leys appealed against their sentences, challenging the legality of a combination of a Community Correction Order (CCO) and a suspended sentence of imprisonment. The appeal was heard by the Supreme Court of Victoria. The primary issue before the court was whether the combination of a CCO and a suspended sentence of imprisonment, where the latter exceeded three months, was unlawful under Section 44 of the Sentencing Act 1991. The court also needed to consider whether the sentences of immediate imprisonment should replace the suspended sentences, and how the respondents' process of rehabilitation should be managed. The Crown argued for a strict interpretation of the statute, whereas the respondents contended for a more flexible approach, invoking principles of statutory interpretation and human rights considerations.
The court examined the statutory interpretation of Section 44 of the Sentencing Act 1991, considering the commencement of the CCO regime under Section 37. The court found that the pre-requisites for a CCO were not applicable until the entire Sentencing Amendment (Community Correction Reform) Act 2011 was in operation, and a literal construction would result in illogical and unintended consequences. The court held that principles governing the 'reading in' of words into a statute, as seen in Wentworth Securities Ltd v Jones [1980] AC 74, Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, and Cooper Brookes (Wollongong) Pty v FCT (1981) CLR 297, applied. The court rejected the notion that only 'reading down' was permissible and noted that the words 'actually used' in the statute must be 'reasonably open to such a construction'. The court disapproved of aspects of R v Young (1999) 46 NSWLR 681 and R v PLV (2001) 51 NSWLR 736, which had previously limited the scope of statutory interpretation.
In light of the statutory interpretation, the court found that the sentences imposed on the respondents were unlawful. The Crown appeals were allowed, and the respondents were given liberty to reapply for appropriate sentences. The court held that the sentences of immediate imprisonment should be imposed, considering the discretionary factors outlined in DPP v Karazisis (2010) 206 A Crim R 14. The court also considered the human rights implications, finding that the Charter did not require a departure from the literal interpretation. The sentences were deemed compatible with the right against arbitrary detention and the right against greater penalties being imposed than those applied at the time of the offence, as per the Charter of Human Rights and Responsibilities, sections 21(2), 27(2), and 32.