JWD v The Commissioner of Police

In the matter of JWD v The Commissioner of Police, the defendant appealed against the sentence imposed by the Magistrates’ Court of Victoria. The defendant had pleaded guilty to stalking, using a listening device to record a private conversation, and contravening a domestic violence protection order. The defendant had limited prior criminal history and had served a period of non-declarable pre-sentence custody. The Magistrate emphasised the seriousness of the stalking offence and imposed three concurrent probation orders for the same act. The defendant argued that the sentence was manifestly excessive and that the imposition of multiple probation orders for the same act constituted double punishment.

The legal issues before the court were whether the sentence was manifestly excessive or inadequate and whether the imposition of multiple probation orders for the same act constituted double punishment. The court considered the principles of sentencing outlined in the Sentencing Act 1991 (Vic), including the need to ensure that the punishment is commensurate with the seriousness of the offence and the offender’s culpability. The court also considered the defendant’s limited criminal history and the fact that the defendant had entered an early plea of guilty.

The court found that the sentence for using a listening device to record a private conversation was manifestly excessive, given the defendant’s limited criminal history and the fact that the offence was part of a single course of conduct. The court also found that the imposition of multiple probation orders for the same act constituted double punishment, which was not permissible under the law. The court allowed the appeal and amended the sentences as follows: the sentence for using a listening device to record a private conversation was reduced from three years’ probation to two years’ probation, with no conviction recorded; and the probation orders for contravening a domestic violence order and breach of bail condition were set aside. The court also granted an extension of time to appeal.