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Loader v The Queen

Loader v The Queen

Case [2011] VSCA 292 28 September 2011

Statutory Interpretation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0167 S APCR 2011 0025
IAN PAUL LOADER	Applicant
v
THE QUEEN	First Respondent
and
THE SECRETARY TO THE DEPARTMENT OF JUSTICE	Second Respondent

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JUDGES	WARREN CJ, NETTLE and ASHLEY JJA
WHERE HELD	BENDIGO
DATE OF HEARING	21 September 2011
DATE OF JUDGMENT	28 September 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 292	1^st Revision 28 September 2011 [64], [65]
JUDGMENT APPEALED FROM	R v Loader (Unreported, County Court of Victoria, Judge Millane, 6 May 2010)

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CRIMINAL LAW – 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 – Serious Sex Offender Monitoring Act 2005, s 40(1).

Criminal Procedure – Summary determination of indictable offence – Failure to comply with condition of ESO – Provision for summary determination of charge in County Court – Whether provision mandatory or discretionary – Hansford v His Honour Judge Neesham [1995] 2 VR 233, distinguished – Serious Sex Offenders Monitoring Act 2005, ss 40(1), 41(1)(b), 41(2); Sentencing Act 1991, s 113; Magistrates’ Court Act 1989, s 53(1), 53(1A), and 56; Crimes Act 1958 ss 353(1) and 353(7); Criminal Procedure Act 2009, ss 28, 29, 161 and 163.

Sentencing – Jurisdictional limit of two years’ imprisonment applicable to indictable offences determined summarily in Magistrates’ Court – Whether applicable to charge of failure to comply with ESO determined summarily in County Court – Double punishment – Whether double punishment to impose individual sentence on offence of failure to comply with ESO as well as on sexual offence – Putland v The Queen (2004) 218 CLR 174, applied; R v Audino [2007] VSCA 381, distinguished; The Queen v De Simoni (1981) 147 CLR 383, Fardon v Attorney General (Qld) (2004) 223 CLR 575, referred to – Serious Sex Offenders Monitoring Act 2005, ss 41(2); Sentencing Act 1991, s 113.

Statutory Interpretation – Whether ‘may’ to be read as ‘must’ – Serious Sex Offenders Monitoring Act 2005, s 41(2).

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Appearances:	Counsel	Solicitors
For the Applicant	Ms H Spowart	Victoria Legal Aid
For the First Respondent	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Second Respondent	Mr O P Holdenson QC	Russell Kennedy

WARREN CJ:

I have had the considerable benefit of reading in advance the draft judgment of Nettle JA. I would dispose of the conviction and sentence appeals in the manner and for the reasons set out in his Honour’s judgment.

NETTLE JA:

On 19 April 2010, the applicant was arraigned before a judge of the County Court at Melbourne, on Indictment C 1007348, on eight charges of indecent assault (Charges 1, 2 and 4 to 9); one charge of making a threat to inflict…

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 Loader v The Queen

Details

AGLC: Loader v The Queen [2011] VSCA 292
Case: [2011] VSCA 292
Decision Date: 28 September 2011

CaseChat Overview and Summary

The appellant, Loader, was convicted in the County Court of Victoria of an offence of failing to comply with a condition of an Extended Supervision Order (ESO). The underlying offence that constituted the breach of the ESO was a sexual offence. The central issue before the court was whether the conviction for the failure to comply with the ESO, when the failure involved the commission of a sexual offence, amounted to double punishment. Additionally, the court had to determine whether the charge of failure to comply with the ESO, when determined summarily in the County Court, is subject to a two-year jurisdictional limit on imprisonment typically applicable to indictable offences determined summarily in the Magistrates’ Court.

The court found that the conviction for failure to comply with the ESO, when the failure involved the commission of a sexual offence, did not constitute double punishment. It applied the principles from Pearce v The Queen and concluded that the conviction for failure to comply with the ESO was not to be regarded as a punishment for the underlying sexual offence but rather as a distinct breach of the conditions of the ESO. Furthermore, the court determined that the jurisdictional limit of two years’ imprisonment, applicable to indictable offences determined summarily in the Magistrates’ Court, did not extend to the charge of failure to comply with an ESO determined summarily in the County Court. The court held that the legislative intent was to permit the imposition of individual sentences for both the failure to comply with the ESO and the underlying sexual offence, thus avoiding any double punishment.

Based on the court's reasoning, it was established that the conviction for the failure to comply with the ESO, when the failure involved the commission of a sexual offence, did not amount to double punishment. Additionally, the jurisdictional limit on imprisonment did not apply to the charge of failure to comply with the ESO determined summarily in the County Court. Consequently, the court found that the appellant could be sentenced for both the failure to comply with the ESO and the underlying sexual offence without breaching the principle against double punishment.

The final orders of the court confirmed the conviction of the appellant for the failure to comply with the ESO but did not specify any particular sentence, leaving it to the discretion of the County Court to determine the appropriate penalty for the offence.

Orders