Criminal division – sentencing

“Rule 1 A plea in bar (autrefois convict or autrefois acquit) is available only in relation to an offence the elements of which are the same as, or are included in, the elements of an offence for which an accused has been tried to conviction or acquittal.

Rule 2 Where no plea in bar is available in relation to the second offence, prosecution of that offence may nevertheless be stayed as an abuse of process if it would be vexatious or oppressive or unfair.

Rule 3 As a matter of sentencing, persons found guilty of two offences must not be punished twice for an act which is common to the two offences.^”

These rules could equally have been based on s.51(1) Interpretation of Legislation Act 1984 (Vic). As the Court of Appeal noted in R v Nor (2005) 152 A Crim R 118 at 123, Rules 1 and 2 go to conviction “in the sense that, if conviction has been secured in breach of either of the two aspects of double jeopardy it will ordinarily be set aside.” Rule 3, on the other hand, goes to sentence. See also Lipp v The Queen [2013] VSCA 384 esp at [23]-[24].
In Neill v County Court of Victoria & Anor [2003] VSC 328 at [65] Redlich J noted that the fact that offences are similar or arise substantially out of the same facts is not determinative of whether the principle of double jeopardy applies:

“Whether as a consequence of the common law or by virtue of s 51 Interpretation of Legislation Act 1984 an offender cannot be punished twice for the same act or omission. Whilst the boundaries of the doctrine remain uncertain they extend to prohibit conviction where the elements of the offences are the same, or where the two offences contain elements established by the same act unless there are different consequences from the same act. Though the doctrine has a scope of operation beyond such circumstances, the fact that the offences are similar or arise substantially out of the same facts is not determinative of whether a conviction on both offences offends these principles.”

In R v WWS [2009] VSCA 125 at [27] Vincent, Nettle & Neave JJA approved the aforementioned dicta of Redlich J in Neill’s Case and made it clear at [30] that the prohibition on double punishment does not prevent the prosecution of an offender for more than one offence where an offender’s single action causes harm to more than one person. Referring with approval to-

• 
  Phillips v Carbone (No.2) (1992) 67 A Crim R 392 where the Full Court of the Supreme Court of Western Australia held that double jeopardy did not apply in a situation where an offender caused bodily harm to two persons by a single act of dangerous driving; and
  
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  dicta of the Court of Appeal in R v Bekhazi (2001) 3 VR 321 holding that an offender who drove a car while under the influence of drugs, killing one victim and recklessly endangering another, could be convicted of two offences arising out of that action-
  

their Honours concluded at [33]:

“The applicant’s act of masturbation affected each of the three young girls who were present when this action was performed. The situation is therefore similar to that arising in Phillips. If the applicant had been convicted of only one of these offences, the judge would not have been able to sentence the applicant for the effects of his action of the other two girls.”

Double jeopardy may also arise where cumulation has been ordered in respect of two offences which share some common elements in circumstances where those elements have already been taken into account in sentencing for one of the offences. In R v Orgill [2007] VSCA 236 the appellant had been sentenced to 4 years imprisonment on a count of stalking and to partly cumulative sentences of imprisonment on 2 counts of burglary. At [17]-[18] Redlich JA, with whom Chernov & Vincent JJA agreed, said:

“It is arguable that entry to the premises for the purposes of the offence of stalking is of a different character to entry for the purposes of the offence of burglary. The same may be said of the actus reus of the offence of theft and interference with the victim’s property in the offence of stalking. But if there be a distinction in the present circumstances between acts constituting the actus reus of those offences, it was a distinction which should not be drawn. As the joint judgment of McHugh, Hayne and Callinan JJ and the judgment of Gummow J in Pearce v The Queen (1998) 194 CLR 610, 614, 624, 628-9 illustrate, to the extent that offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. That has been understood to mean that the offender is not to be punished twice for the same act: R v Henderson, supra, 836; R v Chhom Nor [2005] VSCA 46 at [15] (Chernov JA). The joint judgment in Pearce cautioned [at 623] against the use of ‘excessive subtleties and refinements’ in determining whether the same act is common to two offences and that the task should be approached with common sense.

In my view, the order for cumulation amounted to double punishment for each of those acts had already been taken into account in fixing the sentence on the count of stalking. The sentence imposed on that count and the remarks of the sentencing judge shows that the appellant’s invasion of the victim’s residence with the intent to steal personal property of the victim and the subsequent theft of the victim’s property were reflected in the sentence of four years’ imprisonment fixed on the count of stalking. To characterise the appellant’s acts of entry to the premises differently for the counts of stalking and burglary was to engage in excessive refinement of the feature common to both counts.”
It is not uncommon in the Children’s Court for an offender to be found guilty of an offence which breaches a supervisory order such as probation. This is complicated by the fact that the breach is frequently not heard at the same time as the substantive offence. A question arises as to whether imposition of an additional sentence in respect of the breach constitutes double jeopardy. Of course, if the breach is constituted by general non-compliance as opposed to commission of a breaching offence, there will be no real issue. But what if the Court, sentencing on the substantive offence, has treated as an aggravating factor the fact that the offence was committed at a time when the offender was on probation? The relevant law is discussed in R v Loader [2011] VSCA 292 where the applicant had been sentenced, inter alia, on eight charges of indecent assault and charges of failing to comply with a condition of an Interim Extended Supervision Order and of failing to comply with a condition of an Extended Supervision Order. The breaches of the Supervision Orders were constituted by committing the eight offences of indecent assault. Some cumulation was ordered on each of the two breaches. A ground of appeal alleged that this constituted double jeopardy. In dismissing the appeal, the Court of Appeal distinguished the case of R v Audino [2007] VSCA 381 at [115]–[119], a case where an offender was charged both with exceeding the prescribed concentration of alcohol (reading 0.141) and with culpable driving. Nettle JA (with whom Warren CJ & Ashley JA agreed) said at [29]-[30] & [53]-[54]:

[29] “There is no injustice in charging or convicting an offender of more than one offence committed in the course of the one episode of criminal behaviour if each offence is comprised of or includes different elements. As the Court said Pearce v The Queen (1998) 194 CLR 610, 621 [31]:

‘To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni, would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately.’

[30] Of course, as was also made clear in Pearce, to the extent that two or more offences are comprised of the same criminal behaviour, a sentencing judge must take care to modify the sentences imposed for each offence in order to avoid the offender being punished more than once for the same conduct. But that is a matter of sentencing. There is no double punishment in the fact of entering a conviction on each offence.”

…

[53] [In Audino], it was held that it was double punishment to impose any penalty on more than one of the offences. But, in this case, there is only a partial overlap between the [indecent assault offences and the offences of breaching the Supervision Orders].

[54] Certainly, to the extent of the overlap, the sentences imposed on the offences of failing to comply with conditions of the [Supervision Orders] must be moderated in accordance with Pearce v The Queen (1998) 194 CLR 610, 623–4; R v Wei Tang (2009) 23 VR 332, 338 [28]. But the offences of failing to comply with the conditions of the orders involved the added criminality of failing to comply with orders of the court. That warrants additional punishment.”
In Lecornu v The Queen [2012] VSCA 137 the Court of Appeal applied similar reasoning, rejecting the appellant’s submission that the decision in R v Loader was “plainly wrong”. In 2007 L had been made subject to an extended supervision order (ESO), a condition of which was that he not commit a relevant offence while the order is in force. Possession of child pornography is a relevant offence. In 2011 L pleaded guilty to two charges of possessing child pornography and two charges of failing, by committing the CP offences, to comply with a condition of the ESO. He was sentenced to IMP 15m on the CP charges and IMP 6m, of which 5m was cumulative, on the breach charges. The Court of Appeal found no abuse of process and no double punishment in L being prosecuted for and convicted of both the CP offences and the breach offences. At [8]-[10] Maxwell P (with whom Hollingworth & Cavanough AJJA agreed) said:

[8] “The offences were different in important respects and it was appropriate to proceed to conviction on charges which, together, reflected the full criminality of L’s conduct.

[9] Nor, in my view, did the sentences imposed on L infringe the rule against double punishment. L does not dispute that, in sentencing him on the CP offences, the sentencing judge was entitled to treat as an aggravating feature of those offences the fact that he had committed them while subject to the ESO. Having done so, her Honour was also entitled to impose sentence for the corresponding breach offences – but only for the separate criminality constituted by L’s disobedience of a Court order.

[10] Had the sentences on the breach counts also punished L (to any extent) for the criminality involved in his acts of possessing child pornography, the rule against double punishment would have been infringed. But there is nothing in the sentences imposed to suggest that this occurred, and the sentencing reasons explicitly addressed the need to avoid double punishment.”

In Dang v The Queen [2014] VSCA 49 at [39]-[85] the Court of Appeal discussed in detail the principle of double punishment as applied in Pearce v The Queen (1998) 194 CLR 610 and its application to circumstances where the offences have been charged as Giretti charges: R v Giretti and Giretti (1986) 24 A Crim R 112.
For further discussion of the principles prohibiting "double punishment" see the decision of the High Court in R v Hoar (1981) 148 CLR 32 at 38, the decision of the Full Court in R v Wedding [1959] VR 298 and the decisions of the Court of Appeal in R v Gruber, Ridgeway & Rowley [2004] VSCA 100 at [18]-[19] per Callaway JA (with whom Warren CJ & Vincent JA agreed); R v Langdon (2004) 11 VR 18; R v El-Kotob (2002) 4 VR 546; R v Langdon & Langdon (2004) 11 VR 18; [2004] VSCA 205 at [1] per Batt JA, [35]-[37] & [88]-[97] per Gillard AJA; R v Ly & Others [2004] VSCA 45 at [29]-[30]; R v Zaydan & Others [2004] VSCA 245 at [42]; R v Chhom Nor (2005) 11 VR 390, 396 [15], 400 [22]; [2005] VSCA 46 at [13]-[23]; R v Chin Poh Tan [2005] VSCA 54 at [10]; R v Carne [2006] VSCA 2 at [33]-[34]; R v Lacey [2006] VSCA 4 at [22]-[26]; R v Spero [2006] VSCA 58 at [53]; R v Duncan [2007] VSCA 137 at [28]-[30] per Nettle JA; R v Alashkar – R v Tayar [2007] VSCA 182 at [47]-[53]; R v Henderson-Drife [2007] VSCA 211 at [26]-[29]; R v Norris [2007] VSCA 241 at [44]-[49]; R v King - R v Ngyouen [2007] VSCA 263 at [29]; R v Ahmed [2007] VSCA 270 at [18]-[19]; R v Audino [2007] VSCA 318 at [12]-[18]; R v Healey [2008] VSCA 132 at [27]-[34]; R v Mario Katsoulas [2008] VSCA 278 at [7]; R v Bidmade [2009] VSCA 90 at [24]-[27]; R v Doherty [2009] VSCA 93 at [22]-[24]; R v Stamenkovic [2009] VSCA 185; R v Le [2009] VSCA 247 at [5]-[13]; R v Bradley [2010] VSCA 70 at [23]-[25]; R v Nguyen [2011] VSCA 139 at [15]; DPP v Farrugia [2011] VSCA 201 at [24]-[25]; R v Grixti [2011] VSCA 220 at [9]-[12]; DPP v Salisbury [2011] VSCA 366 at [26]-[27]; R v Azzopardi, R v Baltatzis, R v Gabriel [2011] VSCA 372 at [26]-[28]; R v Kam Tin Ho & Ors [2011] VSCA 344 at [123]-[125] applying R v Wei Tang (2009) 23 VR 332, 340-1, [32]-[34]; R v Tran [2011] VSCA 363 at [14]-[22]; Shields v The Queen [2011] VSCA 386 at [11]-[12]; R v Charles [2011] VSCA 399 at [187]-[195]; R v White [2011] VSCA 441 at [62]-[66]; R v Orbit Drilling Pty Ltd; R v Smith [2012] VSCA 82 at [68]-[70]; DPP v Gangur [2012] VSCA 139 at [10]-[25]; DPP v El-Waly [2012] VSCA 184 at [88]-[93]; Nguyen v The Queen [2013] VSCA 63 at [27]-[30]; Lipp v The Queen [2013] VSCA 384 at [23]-[39]; Kruzenga v The Queen [2014] VSCA 10 at [14]-[21]; Buddle v The Queen [2014] VSCA 232 at [18]-[22].
For discussion of the issues of “commonality between offences” and “minimal additional criminality” see Dang v The Queen [2014] VSCA 49 at [86]-[96]; Mustica v The Queen; DPP v Mustica (2011) 31 VR 367 and Trajkovski v The Queen (2011) 32 VR 587.