Tulloch v The Queen
[2011] VSCA 174
•14 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0087
| SHAUN WAYNE TULLOCH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | WEINBERG and HANSEN JJA and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 14 June 2011 |
| DATE OF JUDGMENT | 14 June 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 174 |
| JUDGMENT APPEALED FROM | R v Tulloch (Unreported, County Court of Victoria, Judge Chettle, 8 February 2011) |
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CRIMINAL LAW – Appeal – Conviction – Proceedings for breach of community-based order commenced after expiry of statutory limitation period – Sentencing Act 1991 s 47(1A) – Appeal allowed – Verdict of acquittal entered
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr S C Holt with Mr P Smallwood | Victoria Legal Aid |
| For the Respondent | Mr B Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
THE COURT:
On 19 April 2005, the applicant pleaded guilty in the County Court at Melbourne to a series of offences, including criminal damage, attempted theft, and burglary. He admitted a number of prior convictions. He was given a 12 month community-based order. In May and June 2005, he repeatedly breached the terms of that order.
On 8 December 2008, the applicant appeared before the same judge on a charge of breaching that community-based order. The charge was found proved, but no further order was made. The community-based order was, in effect, confirmed.
The applicant was subsequently formally charged with the 2005 breaches in January 2011. On 8 February 2011, he was again brought before the judge who had originally imposed the community-based order, and dealt with for those 2005 breaches, they being the same breaches that led to the December 2008 proceeding. On this occasion, however, the applicant was convicted and sentenced in relation to the original counts, to a term of three months’ imprisonment, wholly suspended for a period of 12 months.
Regrettably, both the judge and the prosecutor overlooked the fact that s 47(1A) of the Sentencing Act 1991 requires that proceedings for breach of a community-based order be commenced within three years after the date on which the offence is alleged to have been committed. In the present case, that did not occur. The conviction cannot be allowed to stand. The appeal must be allowed, and a judgment and verdict of acquittal entered.
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