DPP v Rees & Anor - [2008] VSC 170

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10137 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF SVEN EAGLES & HEATH ROBERT McCALL)	Plaintiff
V
HUGH DOUGLAS REES & MAGISTRATES' COURT OF VICTORIA	Defendants

AND BETWEEN

No. 10138 of 2007

DIRECTOR OF PUBLIC PROSECUTIONS (ON BEHALF OF SVEN EAGLES & HEATH ROBERT McCALL)	Appellant
V
HUGH DOUGLAS REES	Respondent

---

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2008
DATE OF JUDGMENT:	23 May 2008
CASE MAY BE CITED AS:	Director of Public Prosecutions (On Behalf of Sven Eagles & Heath Robert McCall) v Rees & Anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 170

---

CRIMINAL LAW – Sentencing – Suspended sentence – Defendant guilty of another offence punishable by imprisonment during period of suspension – No order by Magistrate with respect to suspended sentence – No finding of exceptional circumstances – Sentencing Act 1991 ss 31(1), (5), (5A).

---

APPEARANCES:	Counsel	Solicitors
For the Appellant/Plaintiff	Mr D Trapnell	Ms A Cannon, Solicitor for Public Prosecutions
The Respondent/First Defendant appeared in person
There was no appearance for the Second Defendant

HIS HONOUR:

On 15 November 2005, the respondent (to whom I shall refer as “the defendant”) was convicted by the Magistrates’ Court at Ringwood on a charge of cultivating a narcotic plant contrary to s 72B of the Drugs Poisons and Controlled Substances Act 1991. He was sentenced to a term of three months’ imprisonment, such sentence to be wholly suspended for a period of 24 months.

On 28 September 2007, the defendant was charged on summons on one charge of driving a motor vehicle on a highway on 16 August 2007, while the authorisation granted to him to do so was suspended, contrary to s 30(1) of the Road Safety Act 1986. He was also charged, on the same date, with being a driver of a motor vehicle who, when requested by a member of the police force to produce his licence for inspection and to state his name and address, had failed to do so, contrary to s 59(2) of the Road Safety Act.

Subsequently, on 2 November 2007 the plaintiff was charged with driving a motor vehicle on a highway on 5 October 2007, while the authorisation granted to him to do so was suspended, contrary to s 30(1) of the Road Safety Act 1986.

The three charges, to which I have just referred, came for hearing before the Magistrates’ Court at Ringwood on 21 November 2007. On the same date, the informant on the first two charges also applied for an order, under s 31 of the Sentencing Act1991, that the defendant be dealt with for breach of the suspended sentence imposed on him on 15 November 2005. The defendant was represented by counsel. When the matter came on for hearing, there was initially some debate as to whether the Court, on that day, should consider the application that the defendant…

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 DPP v Rees & Anor

Details

AGLC: Director of Public Prosecutions v Rees [2008] VSC 170
Case: [2008] VSC 170
Decision Date: 23 May 2008

CaseChat Overview and Summary

The case before the court involved the Director of Public Prosecutions against Rees and another defendant, concerning sentencing issues. The defendants had been found guilty of certain offences, and the primary legal issue was whether the imposition of a suspended sentence should be activated due to the defendant's commission of another offence punishable by imprisonment during the period of suspension. The court was tasked with determining whether the statutory conditions for activating a suspended sentence were met under the Sentencing Act 1991.

The legal issue centred on the interpretation and application of sections 31(1), (5), and (5A) of the Sentencing Act 1991. These sections outline the conditions under which a suspended sentence can be activated if the defendant commits another offence punishable by imprisonment during the period of suspension. The court considered whether the Magistrate's failure to make an order regarding the suspended sentence, and the absence of a finding of exceptional circumstances, complied with the statutory requirements. The court examined the statutory language and relevant case law to ascertain whether the statutory conditions for activation had been met.

The court concluded that the statutory provisions were clear and required both a finding of exceptional circumstances and an order by the Magistrate for the activation of a suspended sentence. Given that the Magistrate had not made such a finding or order, the court held that the conditions for activation were not satisfied. The court emphasised that the statutory language was unambiguous and that the failure to comply with the statutory requirements meant that the suspended sentence could not be activated. Consequently, the court upheld the original sentencing decision, and the suspended sentence remained in effect.

No further orders were made by the court beyond affirming the original sentencing decision. The court reiterated that the statutory conditions for activating a suspended sentence under the Sentencing Act 1991 had not been met, and the suspended sentence would continue to apply to the defendant.

Orders