DPP (Vic) v Lecornu (Unreported, County Court of Victoria, Judge Pullen, 5 July 2011)
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CRIMINAL LAW – Appeal – Conviction – Failure to comply with condition of Extended Supervision Order (‘ESO’) – Failure consisting of commission of sexual offence – Whether double punishment to enter conviction of offence of failure to comply with ESO as well as of sexual offence – Pearce v The Queen (1998) 194 CLR 610, applied – Loader v The Queen [2011] VSCA 292 followed – Serious Sex Offenders Monitoring Act 2005 (Vic), s 40(1).
CRIMINAL LAW – Appeal – Sentence – Possession of child pornography – Failure to comply with condition of Extended Supervision Order (‘ESO’) – Whether double punishment to impose individual sentence on offence of failure to comply with ESO as well as on child pornography offence – Serious Sex Offenders Monitoring Act 2005 (Vic), s 40(1) – Crimes Act 1958 (Vic) s 70(1) – Interpretation of Legislation Act 1984 (Vic) s 51(1).
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr C T Carr with Ms E E Ramsay
Michael G Wardell
For the First Respondent
Mr J R Champion SC with Mr P J Doyle
Mr C Hyland, Solicitor for Public Prosecutions
For the Second Respondent
Mr O P Holdenson QC
Russell Kennedy
MAXWELL P:
Summary
This proceeding raises an important question about the rule against double punishment or, more accurately, about the rules against double prosecution, conviction and punishment. The question arises in the following circumstances.
Since May 2007, the appellant (L)[1] has been subject to an extended supervision order (‘ESO’), made by a County Court judge under s 11 of the Serious Sex Offenders Monitoring Act 2005 (Vic) (the ‘Monitoring Act’).[2] It is a condition of the ESO that L not commit a ‘relevant offence’ while the order is in force.[3] Possession of child pornography[4] is a relevant offence.[5]
[1]The abbreviation is used for ease of reference, not for anonymity.
Failing without reasonable excuse to comply with a condition of an ESO is an indictable offence.[6] Any charge for such an offence is to be filed by the Secretary to the Department of Justice (the ‘Secretary’), not by ordinary prosecuting authorities such as the police or the Director of Public Prosecutions (‘DPP’).[7]
[6]Ibid s 40(1).
[7]Ibid.
In 2011, L pleaded guilty to…
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
Lecornu v The Queen [2012] VSCA 137
Case
[2012] VSCA 137
Decision Date
CaseChat Overview and Summary
Lecornu, the appellant, was convicted of committing a sexual offence while under an Extended Supervision Order, and subsequently of failing to comply with the conditions of that order. The appeal before the Court of Appeal concerned the conviction and sentence for these offences. The central issue before the court was whether the conviction and sentence for the failure to comply with the ESO, in addition to the sexual offence, amounted to double punishment, which would be prohibited by section 40(1) of the Serious Sex Offenders Monitoring Act 2005 (Vic). The court considered the relevant legal principles set out in Pearce v The Queen (1998) 194 CLR 610, and the Court of Appeal’s decision in Loader v The Queen [2011] VSCA 292. The court concluded that the failure to comply with the ESO was a separate and distinct offence from the sexual offence, and that it was not a form of double punishment. The court further found that the imposition of a separate sentence for the failure to comply with the ESO did not contravene section 40(1) of the Act, as the failure to comply was a separate indictable offence under section 70(1) of the Crimes Act 1958 (Vic). The court also considered the proper interpretation of section 51(1) of the Interpretation of Legislation Act 1984 (Vic).
The court rejected the appellant's argument that the failure to comply with the ESO should be considered a form of double punishment, as it was a separate offence with its own distinct elements. The court found that the failure to comply with the ESO was a separate indictable offence, and that the imposition of a separate sentence for this offence did not contravene section 40(1) of the Serious Sex Offenders Monitoring Act 2005 (Vic). The court also held that the failure to comply with the ESO was not merely a technical breach of the order, but rather an independent offence with its own elements that needed to be proven. The court found that the appellant's conviction and sentence for the failure to comply with the ESO, in addition to the sexual offence, was not a form of double punishment, and did not contravene any statutory provisions. The appeal was dismissed.