R v Bice - [2000] VSC 223

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 7883 of 1999

THE QUEEN	Plaintiff
v.
KAYE CHRISTINE BICE	First Named Defendant
And
THE COUNTY COURT OF VICTORIA SITTING AT MELBOURNE (CONSTITUTED BY HIS HONOUR JUDGE DUGGAN)	Second Named Defendant

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JUDGE:	TEAGUE, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 APRIL 2000
DATE OF JUDGMENT:	2 JUNE 2000
CASE MAY BE CITED AS:	R. v. BICE & ANOR.
MEDIUM NEUTRAL CITATION:	[2000] VSC 223

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CATCHWORDS: Sentencing Act 1991 (Vic.) s.31 – Sentencing options – Suspended sentence – Intensive correctons order – Meaning of "term of imprisonment".

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	D. Just	Office of Public Prosecutions
For the First Named Defendant	P. Tehan QC with N. Gobbo	Patrick W. Dwyer

HIS HONOUR:

I have been presented with a question of statutory interpretation as a result of the Director of Public Prosecutions (“the Director”) seeking judicial review, by way of declaration or certiorari, of a decision of Judge Duggan in the County Court. His Honour’s decision was on the question: Does a sentencing judge have jurisdiction to order service of imprisonment by an intensive corrections order under s.19 of the Sentencing Act 1991 (“the Act”), when a sentence suspended under s.27 of the Act has been breached, otherwise than in exceptional circumstances? He concluded that the answer was yes in the circumstances before him. I am satisfied that that decision was correct.

On 7 January 1997, Kaye Bice appeared at the Bendigo Magistrates’ Court on two charges of trafficking in cannabis. She opted to appeal from the sentence then imposed, and on 5 March 1997, she appeared before Judge Duggan at Bendigo. Under s.27 of the Act, His Honour imposed a sentence of three months’ imprisonment on each of the two counts, to be served concurrently, and suspended the sentence for 24 months.

On 9 November 1998, Kaye Bice was charged in relation to events that occurred in the latter half of 1998. There were three charges of trafficking in cannabis. One was from 8 July to 31 July 1998, and the others were on 15 October 1998 and 21 October 1998. There were five charges of driving whilst disqualified, the dates being 9, 17, 19, 21 and 22 July 1998. On 29 April 1999, Kaye Bice appeared at the Bendigo Magistrates’ Court on the eight charges. She was convicted and sentenced to imprisonment for eight months, that period to be served in the community under an Intensive Corrections Order (“ICO”) under s.19 of the Act. On 7 August 1999, a Community Corrections Officer prepared a progress report as to the performance of Kaye Bice under the ICO. The report indicated that the response of Kaye Bice to the ICO was positive.

On 10 September 1999, Kaye Bice came before Judge Duggan to be dealt with for the breach of the suspended sentence order made on 5 March 1997 by reason of the convictions on 29 April 1999, relative to events in 1998. Through…

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] VSC 223
Case: [2000] VSC 223
Decision Date: 2 June 2000

CaseChat Overview and Summary

The case of R v Bice involved a defendant who was convicted of a criminal offence and was subsequently sentenced by the Victorian Supreme Court. The nature of the dispute was centred around the appropriate sentencing options available under the Sentencing Act 1991 (Vic.), particularly focusing on the meaning of "term of imprisonment" in the context of a suspended sentence and an intensive corrections order.

The central legal issue that the court had to resolve was whether the term of imprisonment referred to in section 31 of the Sentencing Act included time spent on an intensive corrections order. The court needed to determine the scope of the term "term of imprisonment" to ascertain whether a defendant could be subjected to additional punitive measures while already serving a suspended sentence.

In delivering the judgment, the court meticulously examined the statutory language and the legislative intent behind section 31. It was determined that the term "term of imprisonment" did encompass periods spent on an intensive corrections order. The court reasoned that interpreting the term narrowly would undermine the purpose of the sentencing framework, which aims to ensure that offenders receive appropriate rehabilitation and punishment. The decision thus allowed for the imposition of an intensive corrections order even while a defendant is under a suspended sentence, as long as the total period of incarceration, including the intensive corrections order, did not exceed the maximum sentence prescribed by law.

As a result of this interpretation, the court upheld the defendant's sentence, which included a suspended term of imprisonment coupled with an intensive corrections order. This decision provided clarity on the application of sentencing options under the relevant legislation, ensuring that the judiciary could effectively balance punitive measures with rehabilitative objectives.

Orders