Voluntary Assisted Dying Bill

The Voluntary assisted dying Bill is currently before Parliament. Some members have expressed an interest in making a private submission or similar in relation to the proposed Act’s interaction with the criminal law. John Hassett is interested in talking with any member who would like to discuss and or draft such a submission – he may be contacted at jthass@bigpond.com

Residential rehab and mitigation: Akoka v R [2017] VSCA 214

Akoka v The Queen [2017] VSCA 214

On 25 August 2017, the Court of Appeal (Warren CJ, Kyrou and Redlich JJA) allowed an appeal against a TES of enter 6 years’ for armed robbery, aggravated burglary, trafficking methylamphetamine and related offences on the basis that http://www.assurancesdeparis.com/?ispaniso=sistema-harvard-apa-de-citas-y-referencias-bibliogr%D0%93%D0%8Eficas&82a=62 the sentencing judge failed to moderate the sentence on account of 12 months spent by the applicant in a residential rehabilitation facility (Odyssey House) prior to sentence.

The applicant pleaded guilty to 10 charges on two indictments, one arising from an armed robbery in June 2015 and the other arising from an aggravated burglary six months later. The armed robbery involved the applicant entering a flat armed with an extendible baton, stealing a range of items, threatening to kill the occupant and brandishing the baton. The aggravated burglary involved the applicant, armed with a hammer, and two accomplices, one armed with a knife, entering a house through an unlocked back door and threatening to stab the occupant or bust his knee caps with the hammer while demanding drugs and money and stealing a number of items.

At the time of the offending, the applicant was 21 and 22 years old, had relevant prior convictions, was on bail and was the subject of a community correction order.  He was using methylamphetamine daily and trafficking regularly. However, he made significant progress towards drug rehabilitation during a 12 month stay at Odyssey House prior to sentence.

Prior to this appeal, the Court of Appeal had not directly considered the issue of how the punitive nature of residency at a rehabilitation facility is to be taken into account in the exercise of the sentencing discretion. The Court held that the approach adopted by the New South Wales Court of Criminal Appeal and the Supreme Court of the Australian Capital Territory is correct and should be followed in Victoria. That approach involves taking into account time spent as a resident in a rehabilitation facility as time spent in ‘quasi-custody’.

get link The Court held that sentencing courts in Victoria must take into account the punitive element of residency in a rehabilitation facility, separately and in addition to the rehabilitation achieved during that residency. The extent of the credit to be given will depend on the circumstances of each case, including the duration of the residency and the nature and severity of the restrictions to which an offender has been subject. However, residency at a rehabilitation facility, no matter how restrictive, is not equivalent to time spent in custody and will not ordinarily result in a deduction of the entire period of residency from a custodial sentence.

The Court of Appeal concluded that the judge misapprehended the real significance of the punitive element of the applicant’s residency at Odyssey House and accordingly fell into error.

The Court also considered the principle of mercy and how it may inform the sentencing range. The Court held that while there must always be a place for the exercise of mercy where the circumstances warrant it, it is important to recognise that ‘just’ punishment and proportionality do not permit the imposition of a merciful sentence that is plainly inadequate. In the present case, the judge did not err in refusing to make a community correction order.

The Court of Appeal resentenced the applicant to a total effective sentence of http://mullbergaskolan.se/?pankreatit=Cialis-Billig-preis&53f=a0 5 years’ imprisonment with a non-parole period of 2 years and 6 months

Australian Academy of Forensic Science AGM

CBA members are invited to the Australian Academy of Forensic Science (Victorian) Chapter Annual General Meeting and Dinner on 17 August 2017 at 6:30pm at Melbourne University House, The University of Melbourne, 112 Professors’ Walk, Melbourne.

The Dinner will be followed by a plenary presentation by The Hon. Justice Chris Maxwell AC, President, Victorian Court of Appeal.

The AAFS RSVP form and payment must be received by 3 August 2017. Please contact Eva Bruenisholz, email: eva.bruenisholz@anzpaa.org.au to secure a place.

Supreme Court – Judicial Registrar role

As at Monday 29 May 2017 the Supreme Court (Criminal Procedure) Rules 2008 have been amended to expand the role and authority of the Judicial Registrar in the Criminal Trial Division of the Supreme Court. Judicial Registrar Pedley will conduct post-committal directions hearings and directions hearings where a matter has not been allocated to a trial judge. A Notice to Profession (002) on the changes is attached. 

e-briefs from the OPP

The CBA has been consulting with the OPP on a proposal to pilot electronic briefs. John Cain, the solicitor to the OPP came and spoke to the Committee about it. There has long been concern that electronic briefs will essentially involve cost shifting to counsel who would ultimately bear the cost of printing. Whilst we might all need to recognise that briefs are becoming more digital – the sky is not going to fall in – we have been reassured that the use of electronic briefing will be carefully piloted to ensure and that the sorts of concerns we have raised as to costs and the like will be addressed. We would welcome any feedback about members’ experience.

Plea hearing time estimates

The County Court has requested some assistance in managing plea hearings. The Court allocates hearings according to estimates, usually according to whether the hearing will last for 1 hr, 2 hrs, 1/2 day or 1 day (or more).

Members are requested to include a short indication at the start of their written outline of plea submissions indicating whether the hearing is estimated to run for 1 hr, 2 hrs, 1/2 day or 1 day (or more). NB – written outlines are due at least 2 days before the hearing (Practice Note 7.12).

Members Drinks – Fri 24 Feb

Come to Marble Fox (foyer of 533 Little Lonsdale Street, below Coldrey and Gorman Chambers) for a welcome ale to settle in the new year. You know you have stories to tell from your first few weeks back. Friday 24 Feb from 5 – 7 pm.

Ronald Ryan anniversary – 3 February 2017

The Supreme Court of Victoria will mark the 50th anniversary of Ronald Ryan’s death with a re-enactment of parts of the trial in Court 4 – where Ryan’s trial took place – followed by brief remarks in the Library with special guests Brian Bourke, Barry Jones AC and Mike Richards introduced by the Honourable Chief Justice Marilyn Warren. Friday 3 February 2017 from 4.30pm for 4.45pm commencement. RSVP to libraryevents@supcourt.vic.gov.au

COA Appeal periods over Xmas / NY

The Court of Appeal registry’s approach to the calculation of time over the vacation period (24 December to 9 January) will be as follows.

The Supreme Court (Criminal Procedure) Rules 2008 provide that in calculating the time fixed by or under the Rules, the period from 24 December to 9 January next following shall be excluded, unless the Court orders otherwise (r 1.09). The Court may extend any time fixed by or under the Rules (r 1.08).

Sections 275, 279 and 288 of the Criminal Procedure Act 2009 set the time limits for filing applications for leave to appeal against conviction, sentence or sentence and conviction. Section 298 of the Criminal Procedure Act 2009 sets the time limits for filing an application for leave to appeal against an interlocutory decision. These time limits are not fixed by or under the Rules and so the provisions of the Supreme Court (Criminal Procedure) Rules 2008 relating to the exclusion of the vacation period in calculating time do not apply. This means that the time for filing an application for leave to appeal, pursuant to ss 275, 279, 288 and 298 of the Criminal Procedure Act 2009, continues to run over the vacation period.

The usual provisions with respect to any application for extension of the 28 day period pursuant to s 313 of the Criminal Procedure Act 2009 will apply.

Practice Direction 2 of 2011 (1st Rev) is currently under revision and will be reissued in due course to reflect the above.


Questions should be directed to the Court of Appeal Registry.

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