TSL v The Secretary to the Department of Justice
[2006] VSCA 19914 VR 109
166 A Crim R 69
(Judgment by: Buchanan JA)
TSL
v The Secretary to the Department of Justice
Judges:
Callaway AP
Buchanan JAColdrey AJA
Subject References:
CRIMINAL LAW
Extended supervision order
Appellant sentenced in 2001 to four years and three months' imprisonment, with non-parole period of two years and three months, for ten relevant offences
Three previous convictions, from one court appearance, for relevant offences
meaning of "satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence"
Appeal provisions
Whether finding that appellant was likely to commit a relevant offence was flawed
Relationship between s 8, dealing with assessment reports, and s 11
Nature of decision under s 11(1)
Matters to consider in making a finding whether an offender is likely to commit a relevant offence
Choice between revoking extended supervision order and confirming decision of court below, there being no power to send case back for reconsideration
Extended supervision order revoked
Legislative References:
Serious Sex Offenders Monitoring Act 2005 - ss 1, 3, 4, 5, 8, 11, 12, 15, 16, 23, 24, 26, 36, 37, 38, 39, 40, 42
Corrections Act 1986 - s 69
Interpretation of Legislation Act 1984 - s 45
Sentencing Act 1991 - Part 2A, ss 6E, 18B
Charter of Human Rights and Responsibilities - s 7(2)
Other References:
(VIC) Serious Sex Offenders Monitoring Act 2005 ss 1, 3, 4, 5, 8, 11, 12, 15, 16, 23, 24, 26, 36, 37, 38, 39, 40, 42
(VIC) Corrections Act 1986 s 69
(VIC) Interpretation of Legislation Act 1984 s 45
(VIC) Sentencing Act 1991 Pt 2A, ss 6E, 18B
(CTH) Charter of Human Rights and Responsibilities s 7(2)
Judgment date: 4 September 2009
Judgment by:
Buchanan JA
[45] I agree with Callaway AP. The County Court judge appears to have considered only the matters set out in s 8(1) [43] of the Serious Sex Offenders Monitoring Act 2005 as if her Honour's task were to review the assessment reports prepared by Ms Owen and Mr Joblin. For the reasons stated by Callaway AP I am of the opinion that such an approach was mistaken. Her Honour was required to determine whether the appellant should be the subject of an extended supervision order after considering all relevant matters, including the assessment reports.
[46] I also agree with Callaway AP's analysis of s 11 and his comments with respect to the shortcomings of s 39 of the Act.