Corporate identity, statutory interpretation and keywords

Monday 29 November 2010 has been a busy day for Victorians. After a long wait, John Brumby conceded defeat in the Victorian state election. However, while politics tragics may have been waiting most of the day with bated breath, criminal law geeks received a feast of decisions from the Court of Appeal. Three in particular deserve special mention.

Children, crime and mental illness

Patrick McGorry has been in the news a lot this year since he was named Australian of the year, for his work highlighting the poor state of mental health services for children. Sadly, there is an all too common link between crime and mental illness. In its more serious forms, mental illness can rob a person of the chance to meaningfully participate in a trial. For that reason, Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 deals with the issue of what a court should do in that situation. Unfortunately, as CL (A minor) v Lee [2010] VSC 517 demonstrates, the law is not entirely thorough in its coverage of youth unfitness.

VLA's response to Rapke's global challenge

The Sentencing Act 1991 specifies a number of factors a court must have regard to when sentencing for an offence, the first three of which are:

(a)  the maximum penalty prescribed for the offence; and
(b)  current sentencing practices; and
(c)  the nature and gravity of the offence; and

In several cases through 2008 - 2010, the Court of Appeal has expressed concern about the adequate of current sentencing practices, in light of the prescribed maximum penalty for the offence. The Court has consistently stated that, in the interests of procedural fairness, the Court cannot hear arguments about the adequacy of sentencing practices for the first time on an appeal.

Confiscation and human rights

While Victoria waits with general indifference for the commencement of the Confiscation Act 2010 (some time before January 2012), the Supreme Court has handed down DPP v Ali (No 2) [2010] VSC 503, concerning the operation of the current scheme and the effect of the Charter. Section 38 of the Confiscation Act 1997 allows the DPP to seek confiscation of restrained property if-

Don't mention the Charter

Update - Dr Manhatten has also discussed this case - http://www.summarycrime.com/2010/11/wells-v-queen-no-2-charter-points-not.html

In my first post on this blog, I discussed the Court of Appeal's refusal to answer questions referred to it under s33 of the Charter of Human Rights and Responsibilities Act 2006. Last Thursday, the court sought to dissuade practitioners from using another avenue to obtain early and authoritative answers to questions arising under the Charter.

The limited value of specified sentence discounts

In Sharkey v R [2010] VSCA 273, one of the recent flurry of non-precedential appeals, Ashely JA remarked that

... this is yet another instance in which, despite an early plea of guilty and accepted remorse, a sentencing judge made a s 6AAA declaration which reveals, on its face, a minimal discount in the sentence passed in recognition of the plea. The revealed discount is indicative sentencing error. But it is unnecessary to decide whether, on that account alone, the sentencing discretion should be re-opened; because the respondent accepts that the sentence passed on the count of armed robbery was outside the range.

In contrast, the Court of Appeal in Scerri v R [2010] VSCA 287, the Court rejected a ground of appeal that the judge erred by imposing a discount of only 20% for a plea of guilty. The Court stated (footnotes omitted):