Loader v The Queen
[2011] VSCA 292
•28 September 2011
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 | 1st 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 serious injury (Charge 3); and one charge of indecent exposure (Charge 10), to all of which he pleaded guilty
He also pleaded guilty on Charge-Sheets CR-10-00321 and CR-10-00322 to a summary offence of behaving in an offensive manner in a public place and offences, contrary to s 40(1) of the Serious Sex Offenders Monitoring Act, 2005 (‘the Sex Offenders Act’),[1] of failing to comply with a condition of an Interim Extended Supervision Order (‘IESO’) (‘Charge SO1’) and failing to comply with a condition of an Extended Supervision Order (‘ESO’) (‘Charge SO2’).
[1]Now repealed, see Serious Sex Offender (Detention and Supervision) Act 2009, s 200.
The offence alleged in Charge SO1 was comprised of failing to comply with a condition of an IESO by committing the offence of indecent assault alleged in Charge 1. The offence alleged in Charge SO2 was comprised of failing to comply with a condition of an ESO by committing the seven indecent assaults which were alleged in Charges 2 and 4 to 9.
Following a plea in mitigation of penalty, the judge sentenced the applicant as follows:
Charge
Offence
Max penalty
Sentence
Cumulation
1.
Indecent assault
10 years
12 months
7 months
2.
Indecent assault
10 years
15 months
Base
3.
Threat to inflict serious injury
5 years
8 months
2 months
4.
Indecent assault
10 years
10 months
5 months
5.
Indecent assault
10 years
10 months
5 months
6.
Indecent assault
10 years
10 months
5 months
7.
Indecent assault
10 years
10 months
5 months
8.
Indecent assault
10 years
10 months
5 months
9.
Indecent assault
10 years
10 months
5 months
10.
Indecent exposure
5 years
6 months
2 months
Summary offence
Behave in offensive manner in a public place
2 months/
10 penalty units
21 days
7 days
SO 1
Breach Interim ESO
5 years
2 years
2 months
SO 2
Breach ESO
5 years
3 years
4 months
TES
5 years, 2 months, 7 days
NPP
3 years, 5 months
Pursuant to s 6F of the Sentencing Act 1991, the judge declared that the applicant was sentenced as a serious sexual offending on Charges 1, 2, 4, 5, 6, 7, 8 and 9 and, pursuant to s 11 of the Sex Offenders Act, her Honour made an order on Charges 1, 2, 4, 5, 6, 7, 8 and 9 that the applicant is a registrable offender and must comply with reporting obligations under the Act. Pursuant to s 34 of the Act, the reporting period is life.
The applicant now applies for leave to appeal against conviction and sentence.
The facts
The facts emerge from the judge’s sentencing remarks. In 2002, the applicant was convicted in the County Count of counts of indecent assault, aggravated burglary (the aggravating factor being that a person was present) and recklessly causing injury, for which he received a total effective sentence of six years' imprisonment with a non-parole period of five years.
Between 19 September 2008 and 27 August 2009, the applicant was subject to successive IESO’s, the last of which was still operative on 27 August 2009 when he committed the offence of indecent assault comprised in Charge 1.
Following the hearing of a contested application during June and July 2009, on 28 August 2009 a judge of the County Court imposed on the applicant an ESO and it was in operation on 23 September 2009 when he committed the seven offences of indecent assault the subject of Charges 2 and 4 to 9; the offence of making a threat to inflict serious injury the subject of Charge 3; the offence indecent exposure the subject of Charge 10; and the summary offence of behaving in an offensive manner in a public place.
Before those offences were committed, from about June 2009 Corrections Victoria had arranged shared boarding house accommodation for the applicant at Williamstown in accordance with the IESO and ESO. Thereafter, he was supervised and subject to restraints imposed in accordance with the IESO and ESO, including a requirement that he wear an electronic bracelet to monitor his compliance with a curfew. Otherwise, he was free to go about his business in the community, socialise with his family, travel by public transport and work as he claimed he did in a business operated by a brother from Geelong.
Charge 1
On 27 August 2009, the applicant rode his bicycle past and then up to the first complainant (C1) as she jogged along the beachfront at Williamstown. He skidded the bicycle behind her and then indecently assaulted her, by grabbing and squeezing C1 her ‘on the bum’ for what she thought to be ‘four to five seconds’, while saying to her ‘I want to fuck you’. C1 recognised the applicant as someone who had been ‘hassling’ her earlier in the day. She told police that she was angry, shocked and horrified by the assault. She also made a formal Victim Impact Statement in which she explained that, until police notified her of the applicant’s apprehension, she no longer felt safe riding or walking around Williamstown.
Charges 2 and 3
At around 11.40 am on 28 August 2009, while in a car park lift off Lonsdale Street, Melbourne, the applicant indecently assaulted and threatened the second complainant (C2) with serious injury. Prior to the incident, C2 had been shopping in the Melbourne Central centre. After she entered the lift, the applicant without warning placed his hand forcefully, in C2’s words, ‘right up my arse between my legs’, which she said left her feeling ‘totally violated’ and at a loss as to what to do (Charge 2). The applicant then repeatedly said to her, ‘you walk like you've got my cock up your arse’ and ‘I will put my cock up your arse’ (Charge 3).
The judge treated as an aggravating feature of Charge 3 that the applicant followed C2 and, after she had challenged him to leave her alone, said ‘I'm going to put my cock up your arse’; moved his fingers around his mouth; stuck out his tongue in a licking motion; and said, ‘I'd like to stick my cock up your arse’. In assessing the gravity of both offences, the judge also took into account the fact that the applicant indecently assaulted and threatened C2 only shortly after leaving the County Court building in Lonsdale Street following the making of the ESO.
C2 submitted a victim impact statement in which she described the distress and the fear she now feels when entering a lift or a car park and walking unaccompanied in the street or a shopping centre.
Charges 4, 5, 6, 7 and 8
On the afternoon of 13 September 2009, the applicant indecently assaulted four more women over a period of approximately two hours.
At about 4.40pm, he indecently assaulted the third complainant (C3) as she was returning from shopping to her car in a car park in Williamstown. As C3 proceeded to open the car door, the applicant squeezed C3’s right buttock and when challenged said ‘you have a nice arse’ (Charge 4). Within an hour and a half, C3 attended the Williamstown police station and provided police with a signed statement.
At about 5.40pm, in circumstances similar to those of Charge 1, the applicant indecently assaulted the fourth complainant (C4) as she walked her dog along the foreshore at Altona. The applicant was on his bicycle. Having passed the complainant, he turned and rode past her again and then up to her and squeezed her buttocks. When she turned around, he said, ‘nice arse’ (Charge 5).
In assessing the nature and gravity of Charge 5, the judge said that she took into account that, in C4’s statement to police, C4 said that:
the incident took me by surprise and left me very upset. I started crying when I realised what happened and because there was no one else around I felt that I had to get out of the park quickly in case he came back. I have not been back to the park because I'm nervous that he would be there again.
At about 6.30pm, the applicant indecently assaulted the fifth complainant (C5) as she walked in a park at Williamstown North. Once again, the applicant was on his bicycle. He veered the bicycle toward C5 and stared at her in what C5 later described as ‘a creepy sort of way’, and then he ‘groped’ her buttocks (Charge 6). C5 told the applicant to ‘piss off’ and he rode away. In her statement to police, C5 said that she was ‘really freaked out’ by what she thought was deliberate and ‘ritualistic or measured’ behaviour.
A short time after assaulting C5, the applicant indecently assaulted the sixth complainant (C6), as she walked along the beachfront at Williamstown, by grabbing her buttocks ‘really hard’ from behind (Charge 7). C5 screamed. In her formal victim impact statement, she said that she later noted minor bruising and redness where the applicant had grabbed her and that, as a result of the attack, she was now afraid to go walking at night.
Two days later, on 15 September 2009, the applicant indecently assaulted the seventh complainant, a 16-year-old female victim (C7), while she was walking near the Newport railway station, by grabbing her buttocks and saying ‘nice arse’ or words to similar effect (Charge 8). CCTV footage caught the incident on film and also showed that the applicant had followed C7 before assaulting her. The judge noted that C7 was clearly shocked by the applicant’s brazen assault on her during her lunch break.
Charge 9
On 22 September 2009, the applicant indecently assaulted the eighth complainant (C8), a 40-year-old woman standing holding her seven-month old daughter and talking to a neighbour outside her home in Newport. The applicant walked up to C8 and squeezed her on the buttocks (Charge 9) before continuing to walk along the street. In her victim impact statement, C8 reported that she felt:
violated, and very vulnerable and embarrassed. I was upset as I had a baby in my arms at the time and couldn't fend him off or reprimand him.
Charge 10
On the same day, the applicant indecently exposed himself to the ninth complainant (C9), by masturbating in her full view (Charge 10) as she walked her child in a pram around the Newport Lakes recreation area. C9 had entered the area from the street in which the applicant had just assaulted C8. The judge noted that C9’s concern and distress were such that she stopped to warn another young woman in the area and, on the same day, made a statement to police.
Summary offence
On 23 September 2009, in the same street in which the applicant assaulted C8, the applicant behaved in an offensive manner towards the tenth complainant (C10) by saying to her, ‘Hey sexy, I want to fuck you up the arse’. In her statement to police, C10 described being disgusted and offended by the applicant’s conduct.
Aggravating and mitigating circumstances
In her sentencing remarks, the judge noted in favour of the applicant that, on being arrested and interviewed by police on 25 September 2009, he was cooperative and made admissions in which he acknowledged approaching women on his pushbike; making vulgar comments to them, such as ‘nice arse’, ‘nice tits’ or ‘how about a root?’; and touching some of them ‘on the bum’, and he conceded to police that, ‘obviously they'd be scared as hell’.
As against that, her Honour said that it was necessary in assessing the gravity of Charge 1, to take into account the persistence with which the applicant pursued C1 and that the offence was committed during the currency of the last of the IESO and on the day preceding the delivery of the Court's decision to make the ESO; and that, in assessing the gravity of Charges 2 to 10 and the summary offence, to take into account that the applicant was subject to the ESO at the time of commission of those offences.
Application for leave to appeal against conviction
There is only one proposed ground of appeal against conviction. It is that there has been a miscarriage of justice the result of the judge’s acceptance of the applicant’s pleas of guilty to Charges SO1 and SO2. Counsel for the applicant contended that the convictions entered in respect of those charges amount to double punishment for the offences comprised in Charges 1, 2 and 4 to 9, and she relied in support of that contention on s 51(1) of the Interpretation of Legislation Act 1984, which provides that:
Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.
In my view, the argument is misplaced. The short answer to it is that the offences alleged in Charges SO1 and SO2 included elements in addition to the elements of the offences comprised in Counts 1, 2 and 4 to 9. There is no injustice in charging or convicting an offender of more than one offence committed in the course of the one episode of criminal behaviour if each offence is comprised of or includes different elements. As the Court said Pearce v The Queen:[2]
To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately.
[2](1998) 194 CLR 610, 621 [31] (citations omitted).
Of course, as was also made clear in Pearce, to the extent that two or more offences are comprised of the same criminal behaviour, a sentencing judge must take care to modify the sentences imposed for each offence in order to avoid the offender being punished more than once for the same conduct. But that is a matter of sentencing. There is no double punishment in the fact of entering a conviction on each offence.
Application for leave to appeal against sentence
(i) Ground 1 – Error in identification of maximum penalty
The first proposed ground of appeal against sentence is that the judge proceeded on the erroneous basis that the maximum penalty for the offence of breaching an ESO was five years’ imprisonment and thus in imposing a sentence of three years’ imprisonment on Charge SO1 and two years’ imprisonment on Charge SO2.
I would allow that ground of appeal. Although the maximum penalty for an offence under s 40(1) of the Sex Offenders Act is five years’ imprisonment,[3] s 28(1) of the Criminal Procedure Act 2009 provides that, subject to any discernible contrary intention, a charge for such an offence may be heard and determined summarily by the Magistrates’ Court; and s 113(1) of the Sentencing Act 1991 provides that, subject to any discernible contrary intention, the maximum term of imprisonment to which the Magistrates’ Court may sentence the offender is two years’ imprisonment.
[3]Serious Sexual Offenders Monitoring Act, s 40(3).
Section 41(1)(b) of the Sex Offenders Act provides that a summons to answer to a charge for an offence under s 40(1) must direct the defendant to attend to answer the charge at the court which made the order, and s 41(2) provides that where, as here, the ESO was made in the County Court, the County Court may grant a summary hearing of the offence. The section further provides that, subject to any rules of court, the practice and procedure applicable in the Magistrates' Court to the summary hearing of indictable offences shall apply so far as is appropriate to the hearing of the offence.
Admittedly, neither s 41(2) of the Sex Offenders Act nor s 113 of the Sentencing Act 1991 provides in terms that the maximum term of imprisonment to which the County Court may sentence the offender is two years’ imprisonment. It is also to be observed that, in a case like this, where the County Court was exercising original jurisdiction, as opposed to appellate jurisdiction, the considerations are not necessarily the same as on an appeal to the County Court against a sentence imposed in the Magistrates’ Court.[4] Possibly, therefore, it may be doubted whether the County Court in exercising power under s 41(2) of the Sex Offenders Act is subject to the same jurisdictional limit under s 113 of the Sentencing Act as the Magistrates’ Court is subject when exercising power under s 41(1)(b).
[4]Cf Hansford v His Honour Judge Neesham [1995] 2 VR 233, 236–7.
As a matter of textual analysis, however, the expression ‘the practice and procedure applicable in the Magistrates' Court shall apply so far as is appropriate to the hearing of the offence’ is apt to embrace the jurisdictional limit of two years’ imprisonment. As counsel for the Secretary to the Department of Justice (‘the Secretary’) submitted, just as the expression ‘procedure for trial and conviction on indictment’ in s 68(1)(c) of the Judiciary Act 1903 (Cth) has been held to embrace state sentencing laws,[5] so may the expression ‘practice and procedure applicable in the Magistrates’ Court’ be taken to include Magistrates’ Court sentencing laws and thus Magistrate’s Court sentencing jurisdictional limits.
[5]Putland v The Queen (2004) 218 CLR 174,188 [34] (Gummow and Heydon JJ).
Equally, if construction of the legislation is approached on a purposive basis,[6] even allowing for the vicissitudes of political compromise of which Gleeson CJ spoke in Carr,[7] the logical implication is that Parliament intended an offender who is dealt with summarily in the County Court to have the benefit of the same jurisdictional limit of two years’ imprisonment as one who is dealt with summarily in the Magistrates’ Court. That is to say, in large part the purpose of a summary hearing is to reduce the time and cost of dealing with an indictable offence. The inducement, or at least a significant part of the inducement, for the offender to agree to a summary hearing is that the penalty to which he or she will be liable cannot exceed two years’ imprisonment. If there were no such limit in the County Court, the chances of the offender agreeing to a summary hearing in that court would be reduced. It is unlikely that was intended. It is more logical to suppose and, therefore, probable that Parliament conceived of the same jurisdictional limit applying in each case.
[6]Carr v Western Australia (2007) 232 CLR 138, 142 [5] (Gleeson CJ).
[7]Ibid 143 [7].
Counsel for the Crown argued to the contrary. In his submission, the preferable construction of s 41(2) of the Sex Offenders Act is to treat ‘may’ as meaning ‘must’, with the result that every charge of failing to comply with an IESO or an ESO must be heard and determined summarily. It follows, he contended, that the jurisdictional limit of two years’ imprisonment cannot have been intended to apply in the County Court or Supreme Court: if it did, there could never be a case in which the sentence imposed was more than two years’ imprisonment; and it would make no sense for Parliament to prescribe a maximum penalty of five years’ imprisonment and then, in effect if not in form, limit the maximum to two years’ imprisonment by way of a universally applicable jurisdictional limit.
The principal consideration advanced in support of reading ‘may’ as ‘must’ was the lack of provision for a committal hearing for an accused charged with an offence of failing to comply with an IESO or ESO. Counsel contrasted that with the statutory regime which provided for what was to occur where a Magistrate determined under s 53(1) of the Magistrates Court Act 1989 (or might now determine under s 29 of the Criminal Procedure Act 2009) that an indictable offence of a kind previously described in s 53(1) or 53(1A) of the Magistrates’ Court Act (or now described in 28 of the Criminal Procedure Act) is not to be determined summarily. In the latter class of case, s 56 of the Magistrates’ Court Act provided (and s 96 of the Criminal Procedure Act now provides) expressly for a committal hearing to be held and, if the accused is committed for trial, s 353(7) of the Crimes Act 1958 provided (and s 163 of the Criminal Procedure Act now provides) that the Director of Public Prosecutions may present or indict the accused.
Counsel accepted that, if a judge of the County Court or Supreme Court had a discretion to determine that a charge of failing to comply with an IESO or ESO should not be dealt with summarily, and determined that it should not be determined summarily, it would be open to the Director of Public Prosecutions to put up the accused for trial on that charge by way of a direct presentment under s 353(1) of the Crimes Act (or now by way of direct indictment under s 161 of the Criminal Procedure Act). But, counsel said, that was no answer to the lack of provisions comparable to s 56 of the Magistrates’ Court Act (or now s 96 of the Criminal Procedure Act) because, unlike the situation which applies where there has been a committal hearing, and the Director has the results of the hearing as a basis on which to determine to make a presentment or lay an indictment, in the case of a charge of failing to comply with an IESO or ESO, the Director would have only the charge filed by the Secretary under s 40 of the Sexual Offenders Act and the judge’s determination not to grant a summary hearing of the charge.
As I understood the submission, it was that the Director would thereby be placed in the invidious position of having to make a determination whether to present or indict an accused on the basis of inadequate information, and in turn that could result in a situation where, notwithstanding a judge’s determination that a charge under s 40(1) should be dealt with on presentment or indictment, the Director declined to proceed. In counsel’s submission, that would be productive of a degree of ‘tension’ between the court and the Director which it cannot be supposed Parliament to have intended. It is more likely, counsel said, that Parliament comprehended that all charges of failing to comply with an IESO or ESO were to be determined summarily, and hence that s 41(2) of the Sexual Offenders Act be mandatory.
I do not think the Crown’s argument to be persuasive. To start with, it is inherently improbable that Parliament would provide within the same part of an Act that an offence of failing to comply with an IESO or ESO is an indictable offence, as is provided in s 40(1) of the Sex Offenders Act, and yet that a charge for such an offence must always be dealt with by way of a summary hearing, as the Crown contends is the effect of s 41(2). It is surely more likely that, if Parliament had intended that a charge for such an offence invariably be determined summarily, it would have made the offence a summary offence rather than an indictable offence.
Secondly, although s 41(2) of the Sex Offenders Act is in one sense a jurisdictional provision, inasmuch as it confers scope to proceed summarily, and authority suggests that jurisdictional provisions are more often than not regarded as obligatory even when expressed in discretionary terms,[8] one can see in other sections of the Sex Offenders Act that the drafter has invariably used ‘may’ and ‘must’ advisedly in order to distinguish between discretions and obligations.[9] Given the care with which the rest of the Act is drafted in that respect, it is improbable that ‘may’ was used in s 41(2) in order to denote an obligation.[10]
[8]Pearce & Geddes, Statutory Interpretation in Australia, 6th Ed, [11.9]–[11.10].
[9]See, for example, ss 34, 35, 36, 37, 38 and 39.
[10]See and compare Re Hassell; Ex parte Pride (1984) 2 FCR 319, 320–321 (Toohey J).
Thirdly, in the scheme of things, the nature and gravity of offences of failing to comply with an IESO or ESO will vary greatly: from a relatively inconsequential infraction comprised of failing to attend an appointment or to remain at a specified place of residence, all the way up to the commission of a serious sexual offence. It makes sense that Parliament intended that less serious breaches be dealt with summarily, with a jurisdictional limit on punishment of two years’ imprisonment, while at the same time providing for capacity for more serious breaches to be dealt with on indictment, with consequent exposure to the risk of punishment up to the full maximum penalty of five years’ imprisonment.
Fourthly, although s 41(2) of the Sex Offenders Act does not provide directly for the considerations to which a judge is to have regard in deciding whether to proceed summarily, it appears to me that the stipulation in s 41(2), that the practice and procedure applicable to in the Magistrates’ Court to the summary hearing of indictable offences shall apply so far as appropriate, is apt to incorporate the range of considerations delineated in ss 53(3), (4) and (5) of the Magistrates’ Court Act (or now, s 29(1) of the Criminal Procedure Act). Hence, a judge is required to have regard to those considerations. That is altogether inconsistent with the idea of s 41(2) mandating that a judge invariably proceed summarily.
Fifthly, there is nothing intrinsic to an offence of failing to comply with an IESO or ESO which makes it any more or less appropriate to be dealt with summarily or on indictment than an offence of the kind described in s 53(1) or 53(1A) of the Magistrates’ Court Act (or now s 28 of the Criminal Procedure Act). No doubt, the purpose of s 41(1)(b) of the Sex Offenders Act is to ensure that the court which makes an IESO or ESO is the court which punishes an offender for any offence of failing to comply with the IESO or ESO. But, so far from implying an intention that all such offences be determined summarily, that supports the conclusion that an offence of failing to comply with an IESO or ESO is intended to be as much susceptible to trial upon presentment or indictment as any of the broad range of indictable offences described in s 53(1) or 53(1A) of the Magistrates’ Court Act (or now s 28 of the Criminal Procedure Act).
Sixthly, although the absence of a committal hearing may conceivably leave the Director of Public Prosecutions with less information on which to base a decision to indict an offender for an offence under s 40(1) of the Sex Offenders Act than the amount of information which is ordinarily available when deciding to indict an offender for other indictable offences, in reality that is unlikely to be a problem. For, after all, a charge of failing to comply with an IESO or ESO cannot be laid until and unless the Secretary is satisfied that it is appropriate to do so, and a judge ought not decline to proceed summarily unless there are good reasons to proceed upon indictment; which reasons, it is to be expected, will be apparent from the judge’s ruling.
Seventhly, although situations may arise where a judge determines that a charge of failing to comply with and IESO or ESO is not to be determined summarily, and yet the Director declines to indict the offender; and, although that may be productive of the sort of ‘tension’ to which counsel for the Crown referred, in point of principle it is little different to cases involving other indictable offences of the kind described in s 53(1) or 53(1A) of the Magistrates’ Court Act (or now s 28 of the Criminal Procedure Act) where a Magistrate commits an accused for trial but the Director declines to indict the offender.
Finally, on this aspect of the matter, if there were any residual doubt about whether ‘may’ means ‘must’ in s 41(2), the doubt should be resolved in favour of the construction which favours the accused.[11] It is that the section confers a discretion to proceed summarily.
[11]Beckwith v The Queen (1976) 135 CLR 569, 576 (Gibbs J).
All things considered, it seems to me that the construction of s 41(2) for which the Crown contends is improbable and, therefore, the idea that all offences of failing to comply with s 40(1) must be dealt with summarily should be rejected. The preferable construction of s 41(2) of the Sex Offenders Act is that the jurisdictional limit of two years’ imprisonment imposed by s 113 of the Sentencing Act 1991 applies to a County Court or Supreme Court judge when sentencing an offender who is dealt with summarily pursuant to s 41(2) but does not apply to such an offender who is proceeded against in the County Court or the Supreme Court on indictment.
Unfortunately, neither the prosecutor nor defence counsel nor counsel for the Secretary[12] drew the sentencing judge’s attention to the provisions of s 41(2) of the Sex Offenders Act or s 113 of the Sentencing Act 1991. Consequently, her Honour approached the sentencing task on Charges SO1 and SO2 without regard to the jurisdictional limit of two years’ imprisonment. It follows, in my view, that her Honour thereby overlooked a relevant sentencing consideration, and I consider that it was of such significance as to result in a miscarriage of the sentencing discretion. That requires that the discretion be exercised afresh.
[12]Who was someone other than counsel who appeared for the Secretary in this court.
(ii) Ground 2 – Double punishment
The second proposed ground of appeal against sentence is that the judge punished the applicant twice for the same conduct by cumulating the sentences imposed on Charges SO1 and SO2 on the sentences imposed on Charges 2 to 10 and the summary offence. Counsel for the applicant invoked observations of Maxwell P in R v Audino[13] in support of the argument.
[13][2007] VSCA 381, [115]–[119].
I do not accept the argument. In Audino, Maxwell P held that where, as a matter of substance, an act of driving with an excessive blood alcohol concentration was an element of both a summary offence of exceeding the prescribed concentration of alcohol (reading 0.141) and an indictable offence of culpable driving, it would amount to double punishment to sentence the offender for both offences. Hence, his Honour concluded that it was inappropriate to impose any penalty for the summary offence.
This case is different. In Audino, there was a complete overlap between the offence of driving with an excessive blood alcohol concentration and the offence of culpable driving. So, it was held that it was double punishment to impose any penalty on more than one of the offences. But, in this case, there is only a partial overlap between the offences the subject of Charges 1, 2 and 4 to 9 and Charges SO1 and SO2.
Certainly, to the extent of the overlap, the sentences imposed on the offences of failing to comply with conditions of the IESO and ESO must be moderated in accordance with Pearce.[14] But the offences of failing to comply with the conditions of the orders involved the added criminality of failing to comply with orders of the court. That warrants additional punishment.
[14]Pearce v The Queen (1998) 194 CLR 610, 623–4; R v Wei Tang (2009) 23 VR 332, 338 [28].
(iii) Ground 3 – Aggravating circumstances
The third proposed ground of appeal against sentence is that the judge erred in treating the breach of the IESO as an aggravating circumstance of Charge 1 and the breaches of the ESO as aggravating circumstance of Charges 2 to 10.
I do not accept that contention either. In order to assess the nature and gravity of an offence, the judge was bound to take into account all of the circumstances of the offending, except for circumstances of aggravation which would have warranted conviction for a more serious offence.[15] Here, the fact that the applicant was subject to an IESO when he committed the offence comprised in Charge 1 and an ESO when he committed the offences comprised in Charges 2 to 10 was a circumstance which informed the nature and gravity of each of those substantive offences and it was not a circumstance which would have warranted conviction for a more serious offence.
[15]The Queen v De Simoni (1981) 147 CLR 383, 389 (Gibbs CJ); R v Newman and Turnbull [1997] 1 VR 146, 150–151 (Winneke P).
In practical terms, it would have made no more sense for the judge to leave out of account that the applicant was subject to an IESO or ESO at the time of committing the substantive sexual offences than it would have been for the court in Audino to leave out of account, as a circumstance of aggravation of the offence of culpable driving there in issue, that the offender was palpably drunk at the time of its commission.
As has been noted, the applicant was not to be punished twice for the same wrongdoing. To the extent that there was an overlap between the substantive offences and the offences of breaching the IESO and ESO, the individual sentences needed to be modified in accordance with the precepts explained in Pearce. But that does not mean it was an error for the sentencing judge to take all the circumstances of each offence into account in assessing the nature and gravity of the offence.
(iv) Ground 4 – Manifest excessiveness
The fourth proposed ground of appeal against sentence is that the sentences imposed for the offences for failing to comply with conditions of the IESO and ESO were manifestly excessive. Counsel for the applicant submitted that, because a supervision order is not a punishment, the sentences imposed by the judge are manifestly beyond the range.
Subject to what I have said about overlap between the offences, I reject Ground 4. Although a supervision order is not conceived of as a punishment,[16] breach of a supervision order is an offence and the sentence which is imposed on conviction for such an offence is intended to be a punishment; not least for the reason that it is hoped that, by punishing offenders who breach such orders, the court will provide the sort of specific and general deterrence necessary to deter commission of further offences of that kind. The maximum penalty for such an offence is five years’ imprisonment. That implies that Parliament regards it as a relatively serious offence. Depending, therefore, upon the nature and gravity of a breach of an IESO or ESO, it may result in substantial punishment.
[16]Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, 597 [34] (McHugh J), 610 [73]–[74] (Gummow J), 647 [196]–[197] (Hayne J), 655 [219] Callinan and Heydon JJ; R v ARM [2008] VSCA 266, [36].
(v) Ground 5 – Totality
The final proposed ground of appeal is that the alleged errors already referred to resulted in a sentence which is disproportionate to the nature and gravity of the offending. In my view, that adds nothing to the other grounds.
Re-sentencing
Counsel for the applicant contended with respect to re-sentencing that the individual sentences which the judge imposed on Charges 1 to 10 and the orders for cumulation were manifestly excessive. In her submission, each of those offences were at the lower end of the scale of gravity and thus warranted lesser penalties; and, further or alternatively, the orders for cumulation resulted in a total effective sentence which ill-accorded with the principle of totality.
I reject that submission. As will be apparent from the facts of the offending earlier set out, some of the offences were relatively serious if not very serious examples of the offences in question, in particular Charges 1 and 2 and, to a lesser extent, Charges 4 to 9. If anything, the individual sentences imposed on those charges were merciful, while those which were imposed on the remainder of the charges are unremarkable. Given the nature and gravity of the offending and also evidence before the judge that the applicant is a paraphilic recidivist,[17] I have no
doubt that those sentences imposed on Charges 1 to 10 and the orders for cumulation made in respect of those sentences were warranted.
[17]Report of Dr Danny Sullivan, dated 10 October 2009.
In face of the jurisdictional limit of two years’ imprisonment which I take to have applied to Charges SO1 and SO2, I would set aside the sentences passed on those charges and re-sentence the applicant on charge SO1 to six months’ imprisonment, and on Charge SO2, to 12 months’ imprisonment, and order that one month of the sentence imposed on Charge SO1 and three months of the sentence imposed on Charge SO2 be served cumulatively on each other and on the sentence imposed on Charge 2. Otherwise, however, I would confirm the individual sentences and orders for cumulation which the judge made below. The effect of that would be to reduce the total effective sentence to five years and seven days’ imprisonment.
I would set a new non-parole period of three years and three months in respect of all sentences he is to serve or complete.
Finally, I draw attention to the opinion of Dr Danny Sullivan,[18] consultant forensic psychiatrist and Assistant Clinical Director, Victorian Instituted of Forensic Mental Health, as to the importance of the applicant being assessed for treatment with appropriate medication before being released again into the community.
[18]Ibid.
ASHLEY JA:
I agree in the disposition of these applications proposed by Nettle JA, and with his Honour’s reasons. I wish to add a little respecting ground 1 of the sentence application.
It was common ground that – (1) the provisions of the Serious Sex Offenders Monitoring Act 2005 (‘the Monitoring Act’) applied in respect of the two charges
alleging breach of an extended supervision order;[19] and (2), the provisions of the Criminal Procedure Act 2009 (‘the Procedure Act’) applied in respect of those charges.
[19]Notwithstanding the repeal of the Act as at 1 January 2010, and the commencement of the Serious Sex Offenders (Detention and Supervision) Act 2009 on that day.
An interim extended supervision order or extended supervision order could only be made – (1) on the application of the Secretary to the Department of Justice; and (2) to the Supreme Court or County Court. In this case, pertinent orders were made on application to the County Court.
In the most usual case, a criminal proceeding is commenced in the Magistrates’ Court. The procedure is set out in Chapter 2 of the Procedure Act. See particularly ss 5(a) and 6(1) and 12(1).
There is provision in the Procedure Act – (1) for certain indictable offences to be heard and determined summarily by the Magistrates’ Court. See ss 28-30; and (2), for certain summary offences to be heard and determined, by judge alone, in conjunction with the hearing and determination of indictable offences in the Supreme Court or County Court. See ss 242 and 243.
In the first kind of case, absent contrary expressed intention, the maximum penalty for an offence is two years’ imprisonment, and the maximum fine is 500 penalty units. See ss 112A and 113, Sentencing Act 1991, which confine the maximum penalties to those which ordinarily apply in the case of summary offences in the Magistrates’ Court.
In the second kind of case, the sentencing court may impose any sentence that could be made or imposed by the Magistrates’ Court. See ss 242(6) and 243(5) of the Procedure Act, which in substance confine the maximum penalties to those which would otherwise apply if the summary offences were heard and determined in the Magistrates’ Court.
The regime which applies in the two kinds of cases just mentioned has an obvious symmetry.
The structure established by ss 40-41 of the Monitoring Act was as follows:
(1) An indictable offence was created, in respect of an offender’s failure, whilst a supervision order was in force, to comply with any condition of such order without reasonable excuse (s 40(1)).
(2) The offender might be proceeded against on a charge filed by the Secretary to the Department of Justice (s 40(1)).
(3) An offender guilty of an offence was liable to level six imprisonment (s 40(3)). The maximum penalty was five years’ imprisonment.
(4) The Secretary was empowered to apply to a registrar of the Magistrates’ Court, under s 28(1) of the Magistrates’ Court Act 1989 – the contemporary equivalent of which is s 12(1) of the Procedure Act – for the issue of a summons to answer the charge.
(5) Such a summons was required to direct the defendant -
To attend to answer the charge at the court which made the …extended supervision order.
That must have been, see above, the County Court or the Supreme Court.
(6) By s 41(2) –
Despite anything to the contrary in any Act or rule of law, the Supreme Court or the County Court may, if the extended supervision order was made by it, grant a summary hearing of an offence against section 40(1) and, subject to any rules of court, the practice and procedure applicable in the Magistrates Court to the summary hearing of indictable offences applies so far as is appropriate to the hearing of the offence.
Under the structure outlined above, the indictable offence created by s 40(1) of the Monitoring Act could never have been heard and determined by the Magistrates’ Court. Section 28(1)(b)(ii) of the Procedure Act could not apply because the effect of s 41(1)(b) of the Monitoring Act, in substance, was that the Magistrates’ Court was never invested with jurisdiction over such a proceeding.
Neither could a charge brought under s 40(1) of the Monitoring Act have attracted the opinion of s 242 or s 243 of the Procedure Act. This was not a case of a summary charge uplifted, but of a charge brought before the Supreme Court or the County Court as a matter of statutory command.
There was no point in constituting the s 40(1) offence an indictable offence carrying liability level six imprisonment if s 41(2) was to be read as obligating a Supreme Court or County Court judge to grant a summary hearing, and if a summary hearing carried with it a maximum penalty of two years’ imprisonment. Further, it would create a disconformity with the symmetry exhibited by, on the one hand, ss 28 to 30 of the Magistrates’ Court Act in combination with s 112A and 113 of the Sentencing Act, and, on the other hand, ss 242 and 243 of the Procedure Act, if a s 40(1) indictable offence heard summarily in a superior court was to attract a maximum penalty greater than that applicable in the case of other indictable offences heard summarily in the Magistrates’ Court.
It appears to me, in the event, that s 41(2) should be understood this way: A judge was required to consider whether or not to grant a summary hearing of an offence under s 40(1). The judge would likely give consideration, in deciding that question, to the kinds of matters set out in s 29(2) of the Procedure Act – they including ‘the adequacy of sentences available to the Court, having regard to the criminal record of the accused’. In that context, it would make sense if one consequence of a decision to grant a summary hearing was that the maximum penalty would be the penalty available on the hearing of an indictable offence in the Magistrates’ Court. Such would be the consequence if ‘the practice and procedure applicable in the Magistrates’ Court to the summary hearing of indictable offences’ was read to include the penalty regime applying in such cases.
Such a reading is not simply compatible with symmetry and with the matters which a judge would likely consider relevant to deciding whether to grant a summary hearing. It is, importantly, preferable as a matter of language. Section 41(2) refers to the ‘practice and procedure applicable in the Magistrates’ Court to the summary hearing of indictable offences’ – that is, the practice and procedure subsequent to the grant of a summary hearing.
Section 30(6) of the Procedure Act states that ‘the hearing and determination of [an indictable offence which is to be dealt with summarily] must be conducted in accordance with Part 3.3’. There are a number of indications that the substance of sentencing dispositions is thereby picked-up.
First, subjoined to the sub-section is the following:
Sections 112A to 113D of the Sentencing Act 1991 provide for maximum penalties in the Magistrates’ Court.
Second, in Part 3.3 there is specific reference to possible disposition of a charge otherwise than by immediate sentence. See s 59, which deals with diversion programs.
Third, Part 3.3 specifically imposes a limitation upon the sentence which can be imposed upon a non-appearing defendant. See s 87(1), which precludes the making of a custodial order under Division 2 of Part 3 of the Sentencing Act.
In the event, as it seems to me, the language of s 41(2) of the Monitoring Act is best understood as importing the sentencing regime generally applicable to indictable offences heard and determined summarily in the Magistrates’ Court.
I should finally add this: if the judge decided to grant a summary hearing, there would be no reason why the charge and summons should not stand as the vehicle upon which to make orders. That would equate the procedure under ss 242 and 243 of the Procedure Act. But if the judge decided against the grant of a summary hearing, some new process would need to be filed – presumably, see s 161 of the Procedure Act, a direct indictment. The Secretary of course, could not file such a document – see s 159 of the Procedure Act.
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