R v Bice - [2000] VSCA 226

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7883 of 1999

THE QUEEN
	Appellant
v.
KAYE CHRISTINE BICE and THE COUNTY COURT	Respondents

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JUDGES:	ORMISTON and CALLAWAY, JJ.A. and SMITH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2000
DATE OF JUDGMENT:	6 December 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 226

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CRIMINAL LAW – Sentencing – Whether suspended sentence of imprisonment may be ordered, on breach, to be served by way of intensive correction – Sentencing Act 1991, ss.7, 19, 26, 27, 29, 31.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D. Just	P.C. Wood, Solicitor for Public Prosecutions
For the First Respondent	Mr J.W.K. Burnside, Q.C. and Ms N. Gobbo	Victoria Legal Aid
No appearance by Second Respondent

ORMISTON, J.A.:

In considering this appeal I have had the benefit of reading the reasons of Callaway, J.A. in draft form and, for the reasons he expresses, I am of opinion that the appeal should be allowed. I also agree with his observations about whether the sentencing judge might now, in the light of what has occurred, consider whether “exceptional circumstances” have arisen within the meaning of s.31(5A) of the Sentencing Act 1991, as described in the penultimate paragraph of the judgment of Callaway, J.A. However, in the absence of exceptional circumstances when the order under s.31(5) was originally made, which appears to have been the finding of the learned sentencing judge at that time, the judge was obliged by reason of sub-ss.(5) and (5A) of s.31 to “restore” the original sentence of imprisonment which had been in unqualified terms. Further, I agree with Callaway, J.A., although I have not found the point easy, that s.27 and the other related provisions concerning suspended sentences do not contemplate that certain other orders, such as intensive correction orders, may be the subject of suspension, notwithstanding that for many purposes they are treated as sentences of imprisonment. I should add that, although the recent decision of the High Court in Dinsdale v. The Queen[1] was mentioned in argument, it was not suggested that anything said in the judgments of the court should bear on any of the issues on this appeal.

CALLAWAY, J.A.:

[1][2000] H.C.A. 54; 175 A.L.R. 315.

The first respondent, to whom I shall hereafter refer simply as "the respondent",[2] was convicted and sentenced in the Magistrates' Court on two charges of trafficking in cannabis L. She appealed pursuant to s.83 of the Magistrates' Court Act 1989 and was re-sentenced in the County Court on 5th March 1997. A sentence of three months' imprisonment was imposed on each charge. A direction for
[2]The second respondent is the County Court, which will submit to such order as this Court may make.

cumulation resulted in a total effective sentence of six months' imprisonment, which

was wholly suspended for an operational period of two years. The respondent committed offences punishable by imprisonment within that period and, on 10th September 1999, was brought up before the learned judge who had sentenced her…

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 R v Bice

Details

AGLC: R v Bice [2000] VSCA 226
Case: [2000] VSCA 226
Decision Date: 6 December 2000

CaseChat Overview and Summary

The case of R v Bice involves the defendant, Bice, who was convicted of an offence and sentenced to a suspended sentence of imprisonment. Upon breaching the terms of the suspended sentence, the question arose as to whether the court could order that the sentence be served by way of an intensive correction order, as opposed to serving the original sentence of imprisonment. This appeal was heard in the Supreme Court of Victoria.

The legal issues that the court had to address centred around the interpretation and application of various sections of the Sentencing Act 1991, specifically sections 7, 19, 26, 27, 29, and 31. The primary question was whether the court had the authority to modify the form of the sentence of imprisonment, which had already been suspended, to an alternative punishment, such as an intensive correction order, upon a breach of the suspended sentence. Additionally, the court had to consider whether such a modification was in accordance with the principles and objectives of the Sentencing Act.

The court held that the provisions of the Sentencing Act did not permit the court to order that a suspended sentence of imprisonment be served by way of an intensive correction order upon a breach. The court found that the power to order an alternative punishment, such as an intensive correction order, only arose when the original sentence was an intensive correction order or when the court had not yet determined the form of the sentence at the time of the breach. As the original sentence in this case was a suspended sentence of imprisonment, the court did not have the authority to modify the form of the sentence upon a breach. The court also emphasised the importance of adhering to the principles and objectives of the Sentencing Act, which include proportionality, deterrence, and rehabilitation.

The final orders of the court were that the appeal was dismissed, and the defendant was to serve the original sentence of imprisonment as determined by the original sentencing court. The court's decision in this case provides clarity on the scope of the court's power to modify a suspended sentence of imprisonment upon a breach and reinforces the importance of adhering to the principles and objectives of the Sentencing Act.

Orders