Wednesday, February 23, 2011

Commonwealth specified discounts

The obligation to quantify the discount for an early guilty plea in Sentencing Act 1991 s6AAA has clearly troubled Victorian judges. From the early comments about trying to unscramble an omelette to complaints about it being an artificial exercise, it is clear that judges are uncomfortable with the deviation from the intuitive synthesis required by the legislation. However, its worth remembering that s6AAA isn't unique. Section 21E of the Commonwealth Crimes Act (not to be confused with the Commonwealth Criminal Code), requires judges to quantify the discount for promised future cooperation. This quantification then becomes relevant as a kind of 'ceiling' on an appellate court if the offender fails to provide the promised cooperation.

Wednesday, February 9, 2011

Setting the law back to the 1800s

First off, I want to congratulate the Human Rights Law Resource Centre for its excellent coverage of the Momcilovic appeal over twitter. In the coming days, I'll sit down with the transcript and give my thoughts on which way the wind was blowing at the hearing. In the meantime, I recommend you all get on Twitter, do a search for #momcilovic, and read the HRLRC's summaries. It's a credit to them that they managed to compress the gist of several party's arguments into the Twitter character limit.

I now want to turn to a brief article I saw in the MX on the way home, which is reproduced in most of the Herald Sun's companion papers. The article warns that "UNDERAGE girls in NSW could be charged with being an accessory to their own rape due to a legal loophole" (link here)

The article goes on to state:

Tuesday, February 8, 2011

Previews of Momcilovic

Today will see the commencement of the High Court hearing in Momcilovic v The Queen. The case, as most readers of this blog (all two or three of us...) are aware, concerns the interaction between the Charter of Human Rights and Responsibilities and the reverse onus provisions in the Drugs, Poisons and Controlled Substances Act. One tip I've heard suggests that all States and Territories will make submissions in response to the s78B constitutional notices and the case will run all week, an incredibly long time for a High Court hearing.

Unfortunately, I won't be able to attend the hearing, so like the rest of us, will have to make do with anything the Castan Centre and others provide on Twitter and media reports on the hearing. However, the media discussion of the case have already started in the Herald Sun.

Monday, February 7, 2011

Harsh and outdated language

Last Friday, the Herald Sun and associated News Limited outlets run a story with this opening:
Appeal judge Justice Geoff Nettle said the sentence handed down to Brett Janson, 40, was so inadequate it would "shock the public consciousness".
By a 2-1 majority the court held that the sentence was "manifestly inadequate" and they re-sentenced him to a total of four years with a two-year minimum.
Over the weekend, Alan Howe, sentencing expert in chief at the Herald Sun (or so it seems), wrote an opinion piece with this opening line:
Perhaps she is a delicate petal, County Court judge Felicity Hampel. But it seems she might be among our worst judges.
The case itself, DPP v Janson [2011] VSCA 19, only became available on Austlii today.

According priority to different trials

While the content of the right to a fair trial is elastic and nebulous at the margins, it is surprising that it includes an obligation to protect an accused from the possibility that he may make statements in one trial that undermine a defence in another. And yet, that seems to be what the Victorian Court of Appeal has just decided.