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R v McLeod

R v McLeod

Case [2007] VSCA 183 6 September 2007

Sentencing

Criminal Liability

Forfeiture of Property

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 201 of 2006
THE QUEEN	v
BENJAMIN RHYS MCLEOD

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JUDGES:	MAXWELL P, REDLICH JA and HABERSBERGER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 February 2007
DATE OF JUDGMENT:	6 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 183

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CRIMINAL LAW – Sentencing – Whether forfeiture of property subsequent to sentencing a basis for reopening sentencing discretion – Automatic forfeiture offence – Application for exclusion of property after plea – Where application for exclusion settled after sentence – Whether sufficient evidentiary basis for sentencing judge to assess likely outcome of exclusion application – Whether sufficient evidentiary basis for sentencing judge to assess punitive effect of forfeiture – Onus on offender to prove forfeiture a mitigating factor – Whether evidence of subsequent forfeiture admissible on appeal as fresh evidence – Need for legislative change to enable subsequent forfeiture to be dealt with by sentencing judge – Whether ‘fresh evidence’ limited to facts capable of discovery by diligent enquiry – Sentencing Act 1991, s 5 – Confiscation Act 1997, ss 15(1)(b), 18, 20 & 22

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Appellant	Ms E McKinnon	Tyler Tipping & Woods

MAXWELL P,
REDLICH JA,
HABERSBERGER AJA:

The judgment of the court was delivered by Redlich JA

Summary

This appeal raises a point of general importance about the relationship between sentencing and forfeiture of property under the Confiscation Act 1997 (“the Act”). The issue is as follows: where a person is convicted and sentenced for an offence, and there is subsequent forfeiture of property of that person by reason of the conviction, can the forfeiture be relied on in an appeal against sentence as a basis for reopening the sentencing discretion?

For reasons which follow, we have concluded that the subsequent forfeiture can be relied on on appeal, provided that the evidence of forfeiture constitutes “new evidence”, that is, it shows the true significance of facts in existence at the time of sentence. We express the view, however, that subsequent forfeiture of property should preferably be dealt with by the sentencing judge, not by the Court of Appeal. The sentencing judge is best placed to make any necessary adjustment to the sentence imposed. To achieve this would require legislative amendment.[1]
[1]In these reasons, “forfeiture” is used compendiously to refer to the various sanctions which can be imposed by or under the Act, including pecuniary penalties.

Factual background

The appellant pleaded guilty to two counts of trafficking in a drug of dependence (methylamphetamine and ecstasy), and single counts of obtaining property by deception, dealing with property suspected of being the proceeds of crime ($30 671 in cash), possessing cartridge ammunition without a licence and driving whilst disqualified (these last three being summary charges). He was sentenced in the County Court to a total effective sentence of three years and four months’ imprisonment, with a non-parole period of two years, and ordered…

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 McLeod

Details

AGLC: R v McLeod [2007] VSCA 183
Case: [2007] VSCA 183
Decision Date: 6 September 2007

CaseChat Overview and Summary

The case of R v McLeod involved the defendant, McLeod, who was convicted of an offence under the Confiscation Act 1997. The dispute centred on the sentencing process and the impact of subsequent forfeiture of property on the original sentence. The matter was brought before the Court of Appeal. The central legal issues revolved around whether the forfeiture of property after sentencing could serve as a basis for reopening the sentencing discretion. Additionally, the court had to determine if there was a sufficient evidentiary basis for the sentencing judge to assess the likely outcome of an application to exclude property from forfeiture. The court also needed to consider whether there was a sufficient evidentiary basis for assessing the punitive effect of forfeiture. Another key issue was whether the onus was on the offender to prove that forfeiture was a mitigating factor and if evidence of subsequent forfeiture could be admissible on appeal as fresh evidence. The court further examined the need for legislative change to enable subsequent forfeiture to be considered by the sentencing judge and whether the term ‘fresh evidence’ was limited to facts that could be discovered through diligent enquiry.

The court found that the forfeiture of property subsequent to sentencing could not serve as a basis for reopening the sentencing discretion. It held that the sentencing judge was not required to assess the likely outcome of an application to exclude property from forfeiture if there was no evidentiary basis to do so. The court also determined that the sentencing judge was not required to assess the punitive effect of forfeiture unless there was a sufficient evidentiary basis. The onus was placed on the offender to prove that forfeiture was a mitigating factor, and evidence of subsequent forfeiture was not admissible on appeal as fresh evidence. The court concluded that legislative change was necessary to enable subsequent forfeiture to be dealt with by the sentencing judge. It held that the term ‘fresh evidence’ was not limited to facts that could be discovered through diligent enquiry but rather referred to new facts that were unknown at the time of the original sentencing.

Ultimately, the court's reasoning led to a decision that the sentencing judge did not err in failing to consider the subsequent forfeiture of property. The appeal was dismissed, and the original sentence remained in place. The court did, however, highlight the need for legislative reform to address the issue of subsequent forfeiture in the sentencing process. This decision underscores the importance of clear legislative provisions to ensure that all relevant factors are considered during sentencing, particularly in cases involving property forfeiture.

Orders