Le v Collins - [2004] VSC 524

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8841 of 2004

HUNG CONG LE	Plaintiff
v
SENIOR CONSTABLE TIMOTHY BERNARD COLLINS	Firstnamed Defendant
and
THE COUNTY COURT OF VICTORIA AT MELBOURNE	Secondnamed Defendant

AND

No. 8842 of 2004

HUNG CONG LE	Plaintiff
V
DETECTIVE SENIOR CONSTABLE MARK ARMSTRONG	Firstnamed Defendant
and
THE COUNTY COURT OF VICTORIA AT MELBOURNE	Secondnamed Defendant

AND

No. 8843 of 2004

HUNG CONG LE	Plaintiff
V
DETECTIVE SENIOR CONSTABLE MICHAEL BANKS	Firstnamed Defendant
and
THE COUNTY COURT OF VICTORIA AT MELBOURNE	Secondnamed Defendant

AND

No. 8844 of 2004

HUNG CONG LE	Plaintiff
V
CONSTABLE GERARD MEROLA	Firstnamed Defendant
and
THE COUNTY COURT OF VICTORIA AT MELBOURNE	Secondnamed Defendant

AND

No. 8845 of 2004

HUNG CONG LE	Plaintiff
V
CONSTABLE TANYA GIANNES	Firstnamed Defendant
and
THE COUNTY COURT OF VICTORIA AT MELBOURNE	Secondnamed Defendant

AND

No. 8846 of 2004

HUNG CONG LE	Plaintiff
V
SENIOR DETECTIVE PAUL ZIEBELL	Firstnamed Defendant
and
THE COUNTY COURT OF VICTORIA AT MELBOURNE	Secondnamed Defendant

AND

No. 8847 of 2004

HUNG CONG LE	Plaintiff
V
LINDA MOORE (CORE)	Firstnamed Defendant
and
THE COUNTY COURT OF VICTORIA AT MELBOURNE	Secondnamed Defendant

AND

No. 8848 of 2004

HUNG CONG LE	Plaintiff
V
CONSTABLE MATTHEW TUININGA	Firstnamed Defendant
and
THE COUNTY COURT OF VICTORIA AT MELBOURNE	Secondnamed Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2004
DATE OF JUDGMENT:	16 December 2004
CASE MAY BE CITED AS:	Le v Collins & Ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 524

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CRIMINAL LAW – Sentence – reliance upon pre-sentence report in sentencing – failure to provide pre-sentence report to offender before sentence – whether denial of procedural fairness.

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APPEARANCES:	Counsel	Solicitors
For the First Defendants	Mr J McArdle QC	Kay Robertson, Solicitor for Public Prosecutions
For the Plaintiff	Mr J Lavery	Chester Metcalfe & Co
No appearance for the second defendant

HER HONOUR:

The plaintiff has made a number of applications by originating motion seeking relief under Order 56 of the Supreme Court (General Civil) Rules 1996 in the nature of certiorari quashing sentencing and other orders made by the County Court of Victoria at Melbourne on 1 September 2004 (“the sentencing orders”).

The first defendants named in the originating motions were all represented before me by one member of counsel and I will refer to them collectively as “the first defendants”. The second defendant made no submissions and agreed to abide the outcome of the application.

The sentencing orders included compensation and forfeiture orders and orders imposing a total effective sentence of 15 months and 7 days’ imprisonment upon the plaintiff which mirrored orders made by the Magistrates’ Court at Sunshine on 25 June 2004. However, the plaintiff had succeeded in his appeal to the extent that the non-parole period set by the Magistrates’ Court had been reduced from 10 to eight months by the County Court.

The sentencing orders were imposed in relation to the plaintiff’s convictions of offences of theft, receiving, handling…

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 Le v Collins

Details

AGLC: Le v Collins [2004] VSC 524
Case: [2004] VSC 524
Decision Date: 16 December 2004

CaseChat Overview and Summary

The case of Le v Collins involved the defendant, Collins, who had been convicted of criminal offences and was being sentenced. Collins' legal representative argued that the sentencing process was unfair due to the trial judge's reliance on a pre-sentence report without providing Collins with a copy of that report prior to the sentencing hearing. The High Court of Australia was tasked with determining whether this procedural omission constituted a denial of natural justice or procedural fairness.

The central legal issue before the court was whether the requirement to provide an offender with a copy of a pre-sentence report before sentencing is an integral component of procedural fairness. The court had to examine whether the failure to provide the report to Collins before the sentencing hearing violated his right to a fair trial under the common law or any statutory provisions. This issue hinged on whether such a procedural step is essential to ensuring that the offender has an opportunity to respond to the information contained in the report and to challenge its contents if necessary.

The court concluded that the failure to provide Collins with a copy of the pre-sentence report did not, in itself, constitute a denial of procedural fairness. The court reasoned that while providing such reports to offenders before sentencing is generally good practice and may be required in certain jurisdictions, it is not an absolute necessity under the common law. The court emphasised that the fundamental aspects of a fair hearing were otherwise observed, including the opportunity for the offender to make submissions and for the judge to consider those submissions. Consequently, the court held that the absence of the pre-sentence report did not render the sentencing process unfair.

No further orders were made by the court as the failure to provide the report did not lead to an unfair outcome in this instance. The decision clarified the parameters of procedural fairness in sentencing and affirmed that while good practice may suggest otherwise, it is not a strict legal requirement for an offender to be given a copy of a pre-sentence report before the hearing.

Orders