Sentencing Act 1991 – Sections 18Q, 18R and 18W – Combined Custody and Treatment Order – prisoner released from custody to serve balance of sentence in the community – breach of all conditions of the C.C.T.O.
Exceptional circumstances – whether open to Magistrate to conclude that exceptional circumstances had arisen, thus enabling him to order return of releasee to prison – circumstances not exceptional, being merely changed circumstances.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr. R. Shepherd
Public Correctional Enterprise
For the Respondent
Mr. P. Mellas
Doyle Considine
HIS HONOUR:
In this appeal the appellant appeals by way of s.92 of the Magistrates' Court Act 1989 against an order of the Magistrates' Court at Geelong made on 17th August 1989.
The appellant was and is a community corrections officer employed by the Department of Justice of Victoria, in the Public Correctional Enterprise known as CORE. He performed his duties at Geelong as a community corrections officer and it was part of his duty from time to time to prosecute offenders who were in breach of Combined Custody Treatment Orders (C.C.T.O. or C.C.T.O.'s) made under the Sentencing Act 1991 ("the Act"). I will in due course set out the relevant provisions of the Act.
On 3rd August 1999 the appellant made and filed a charge against the respondent alleging a breach by the respondent of s.18W(1) of the Act, in that without reasonable excuse he had failed to comply with a C.C.T.O. made by the Magistrates' Court at Geelong on 27th November 1998. On the hearing of this charge the respondent Wilson was represented by his solicitor and the appellant conducted the prosecution. The breach of the C.C.T.O. was admitted. According to the appellant's affidavit sworn and filed 14th September 1999 and its exhibits, the Court register shows that the breach of the C.C.T.O. was admitted, that the C.C.T.O. was confirmed, with conviction, and that the respondent Wilson was fined $600, with a stay until 14th September 1991. The original convictions imposed and recorded on 27th November 1998, in respect of which the C.C.T.O. was made, are set out in Exhibit 1 to the appellant's affidavit of 14th September 1999. These were very serious offences, including trafficking in and use of heroin, possession of a weapon, the introduction of a prohibited drug into another person and handling stolen goods, an incomplete list. On that occasion the respondent was sentenced to nine months' imprisonment, six months of which to be served in custody and the balance in the community. The form of this sentence was driven by the relevant provisions of the Sentencing Act in relation to offences which were drug-use connected.
This is a convenient point at…
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
Kent v Wilson [2000] VSC 98
Case
[2000] VSC 98
Decision Date
CaseChat Overview and Summary
In the matter of Kent v Wilson, the respondent, Kent, appealed against a decision of the Magistrates Court of Victoria that had revoked his Combined Custody and Treatment Order (CCTO) and ordered his return to prison. The appeal centred on the interpretation and application of Sections 18Q, 18R, and 18W of the Sentencing Act 1991 concerning CCTOs, particularly the circumstances under which a prisoner released from custody could be returned to prison upon breaching the conditions of the CCTO.
The primary legal issue before the court was whether the Magistrate had the discretion to conclude that exceptional circumstances had arisen, which would justify the revocation of the CCTO and the prisoner's return to prison. The court had to determine the scope and meaning of "exceptional circumstances" under the Act and whether the Magistrate's decision was justified by the changed circumstances that led to the breach of the CCTO. Specifically, the court examined whether the changed circumstances were so significant as to constitute "exceptional circumstances" warranting a return to prison, or if they merely represented a breach of the order that could be managed within the community.
The court held that the Magistrate's decision to return Kent to prison was not supported by a finding of exceptional circumstances. The changed circumstances that led to the breach of the CCTO were not deemed exceptional in the context of the Act. Instead, the court found that the changed circumstances were a factor to be considered in managing the breach but did not justify the conclusion of exceptional circumstances. Consequently, the court determined that the Magistrate had overstepped his authority by ordering Kent's return to prison without a proper finding of exceptional circumstances. The appeal was thus allowed, and the order revoking the CCTO and returning Kent to prison was set aside.
The court ordered that Kent should remain in the community under the conditions of the CCTO, with appropriate adjustments to address the circumstances that led to the breach. The court also directed that the parties should explore further community-based options to ensure compliance with the CCTO terms.