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Heath (A Pseudonym) v The Queen

Heath (A Pseudonym) v The Queen

Case [2014] VSCA 319 11 December 2014

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0149
JACK HEATH (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 October 2014
DATE OF JUDGMENT:	11 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 319
JUDGMENT APPEALED FROM:	DPP (Vic) v [Heath] (Unreported, County Court of Victoria, Judge Montgomery, 13 June 2014)

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CRIMINAL LAW – Breach of conditions of orders under Serious Sex Offenders (Detention and Supervision) Act 2009 – Failure to comply with case workers’ directions not a breach of conditions – Serious Sex Offenders (Detention and Supervision) Act 2009 ss 20, 160(1), considered – Conviction quashed – Aggregate sentence for breaches fixed – Re-sentencing on remaining breaches – Criminal Procedure Act 2009 s 277 – Scope of Sentencing Act 1991 s 5(2BD) – Crown concession that time served sufficient – Aggregate sentence of five months’ imprisonment imposed.

CRIMINAL LAW – Practice and procedure – Publication of court’s reasons – Prohibition against publication – Serious Sex Offenders (Detention and Supervision) Act 2009 ss 182, 183, considered – ‘Person’ does not include ‘court’ – Handing down of reasons to public not publishing within meaning of s 182(4) – JPH v The Queen [2014] VSC 242, followed in part.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Carr	Victorian Aboriginal Legal Service
For the Crown	Mr B F Kissane SC	Mr Craig Hyland, Solicitor for Public Prosecutions

REDLICH JA

BEACH JA:

Following pleas of guilty in the County Court, the applicant was convicted on three charges of breaching a supervision order and sentenced as follows:

Charge	Offence	Maximum	Sentence
1.	Breach of Supervision Order [Serious Sex Offenders (Detention and Supervision) Act 2009 s 160]	2 years’ imprisonment[2]	12 months’ imprisonment (aggregate)
2.	Breach of Supervision Order [Serious Sex Offenders (Detention and Supervision) Act 2009 s 160]	2 years’ imprisonment	12 months’ imprisonment (aggregate)
4.	Breach of Supervision Order [Serious Sex Offenders (Detention and Supervision) Act 2009 s 160]	2 years’ imprisonment	12 months’ imprisonment (aggregate)
Total Effective Sentence:	Aggregate sentence of 12 months’ imprisonment
Non-parole Period:	N/A
Declaration pursuant to s 6AAA of the Sentencing Act 1991	20 months’ imprisonment

[2]As the County Court granted a summary hearing of the matter pursuant to s 172(5) of the Serious Sex Offenders (Detention and Supervision) Act 2009, the maximum penalty for the offences was two years’ imprisonment: Sentencing Act 1991 s 113.

The applicant sought leave to appeal against conviction on charge 4 on the following ground:

A substantial miscarriage of justice has occurred in that I was convicted of a charge that, on the admitted facts, I was in law not guilty of.

He sought leave to appeal against his sentence on the following grounds:

1. The…

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 Heath (A Pseudonym) v The Queen

Details

AGLC: Heath (A Pseudonym) v The Queen [2014] VSCA 319
Case: [2014] VSCA 319
Decision Date: 11 December 2014

CaseChat Overview and Summary

In the case of Heath (A Pseudonym) v The Queen, the appellant challenged his conviction and sentence for breaches of the conditions of orders under the Serious Sex Offenders (Detention and Supervision) Act 2009. The appellant argued that his failure to comply with directions from his case workers did not constitute a breach of the conditions. The Court of Appeal was tasked with determining whether the appellant's actions amounted to a breach of the conditions and, if not, whether the court could impose a sentence for the breaches already found.

The legal issues before the court included whether the appellant's non-compliance with case worker directions constituted a breach of the conditions of his orders, and if not, what the appropriate remedy was. Additionally, the court had to consider the scope of sentencing provisions and whether the court's reasons for the decision could be published given the prohibitions in the Serious Sex Offenders (Detention and Supervision) Act 2009.

The Court of Appeal found that the appellant's failure to comply with case worker directions did not constitute a breach of the conditions. The court clarified that the provisions of the Act were concerned with the appellant's compliance with specific conditions, not his general conduct. The court quashed the appellant's conviction and fixed an aggregate sentence for the breaches. The Crown conceded that the time served was sufficient, and the court imposed an aggregate sentence of five months' imprisonment. Regarding the publication of the court's reasons, the Court of Appeal held that the handing down of reasons to the public did not constitute publication within the meaning of the Act, and followed the decision in JPH v The Queen [2014] VSC 242 in part.

The final orders of the court were that the appellant's conviction was quashed, an aggregate sentence of five months' imprisonment was imposed, and the reasons for the decision were published. The court's reasoning clarified the scope of the Act and provided guidance on the appropriate remedy for non-compliance with case worker directions.

Orders