Drunken brawl appeal prompts clarification of the new community correction orders regime

DPP v Leys & Leys [2012] VSCA 304 (12 December 2012)


On 16 January 2012, community correction orders (CCO) were introduced as a sentencing option under the Sentencing Act 1991 (Vic). CCOs replaced a number of separate sentencing orders such as intensive correction orders and community-based orders.

CCOs are provided for under the new section 37 of the Act, enabling a court to make such an order if:

  • the offender has been convicted or found guilty of an offence punishable by more than five penalty units;
  • the court has had regard to any pre-sentence report (if required) and its recommendations; and
  • the offender consents to such an order.

When a court imposes a CCO, basic conditions are included and must be abided by offenders (i.e. not reoffending and not leaving Victoria without permission). However, other optional conditions can then be implemented. This enables court discretion to impose the types of conditions depending on the purpose of sentencing. The Act provides that CCOs can only be combined with an imprisonment sentence, if imprisonment (or the aggregate of terms of imprisonment) is less than three months (section 44).

In the recent case of DPP v Leys & Leys [2012] VSCA 304, the Director of Public Prosecutions (DPP) appealed a decision of the County Court, which had ordered CCOs in addition to suspended imprisonment sentences of two years and 18 months. Between the appeal hearing and the decision recently handed down on 12 December 2012, the Victorian Parliament clarified that CCOs can be combined with a term of imprisonment sentence of three months or less; however, this can only be done if the imprisonment sentence is not suspended.


On 21 February 2010, the respondent brothers were drinking heavily at the McCartin Hotel in South Gippsland. After leaving the venue, the respondents began a “punching and wrestling contest” with another intoxicated patron who suffered multiple injuries and was ultimately rendered unconscious. A bystander also suffered multiple fractures and a detached retina after attempting to intervene.

On 13 February 2012, the Latrobe Valley County Court found both respondents guilty of:

  • recklessly causing serious injury under section 17 of the Crimes Act 1958 (Vic);
  • intentionally causing injury under section 18 of the Crimes Act 1958 (Vic); and
  • affray at common law.

The respondents received total effective sentences of two years and 18 months imprisonment respectively. The durations of each individual charge that the respondents were found guilty of were between nine months and two years. Both respondents had their imprisonment sentences wholly suspended for two years and were given a two year CCO under section 37 of the Act.

The DPP appealed to the Victorian Supreme Court of Appeal against the sentencing judge's decision on the grounds that the sentences were:

  • unlawful, as section 44 of the Act did not permit the combination of the sentences imposed; and
  • manifestly inadequate.


Commencement of the new CCO regime

Their Honours Redlich and Tate JJA and Forrest AJA first considered when sections 37 and 44 of the Act commenced and whether these sections applied to the respondents' offending conduct which occurred in February 2010.

The court noted that, on a “literal” construction of the Act's transitional provisions, section 37 only applies to sentences for offences committed on or after the commencement of the whole Amending Act (a date no later than 30 June 2013). However, the court held that a "purposive" construction was necessary to ensure that courts were not prevented from imposing CCOs on or after 16 January 2012, when the repeal of the previous regime took effect. Accordingly, the court held that the Act applied to sentences imposed on or after 16 January 2012.

Ground 1 – construction of section 44

The DPP and the respondents each submitted alternative constructions of section 44. The DPP submitted that the sentencing judge contravened:

  • section 44(1) by imposing suspended sentences on the respondents; or alternatively
  • section 44(2) by combining an aggregated term of imprisonment exceeding three months with a CCO, contrary to the plain meaning of the sub-section.

The court upheld the DPP's second alternate contention that the sentencing judge had erred in construing section 44(2) of the Act. On the correct interpretation of section 44(2), the sentencing judge was not entitled to make a CCO on any of the charges in question as the aggregate term of imprisonment on the other charges exceeded three months. It did not matter whether the sentences were to be served immediately or were wholly or partly suspended.

Ground 2 – adequacy of the sentences

The court noted that there was considerable weight in the DPP's contention that the sentences imposed in respect of each respondent were manifestly inadequate. However, the court held that as the first ground was made out, it was unnecessary for it to determine this second ground.

Re-sentencing the respondents

The court re-iterated that when an appellant court must re-sentence a respondent, it must deal with the offender in light of the circumstances which exist at the time of the appeal.

The judges noted the "violent" and "frightening" nature of the respondents' conduct and that had they been involved in the initial sentencing of the respondents, they would have had little hesitation imposing immediate and significant terms of imprisonment. However, as the respondents had completed a large proportion of the community work components of their CCOs, these circumstances had to be taken into consideration when re-sentencing. Accordingly, the appellant court imposed imprisonment sentences of two years and three months and one year and eight months respectively. However, both sentences were wholly suspended for two years from 13 February 2012, to enable the rehabilitative process already underway to continue.


In response to the oral submissions made in the appeal, the Victorian Parliament introduced further amendments to the Act (including a substituted section 44), via the Road Safety and Sentencing Acts Amendment Act 2012. These amendments came into operation on 18 August 2012 and clarify that:

  • Courts have the ability to impose CCOs from 16 January 2012.
  • All CCOs imposed since 16 January 2012 are valid.
  • A court can combine a CCO with a maximum term of imprisonment of three months, but cannot combine a CCO with a suspended sentence.
  • If a court makes a CCO, in addition to imposing a sentence of imprisonment (under three months), the CCO commences on the release of the offender from imprisonment.

Editor’s note

A key issue on appeal was the construction of the transitional provisions. A literal interpretation would have precluded courts from making CCOs until June 2013. The court ultimately relied on ordinary principles of statutory interpretation to depart from such a literal interpretation, adopting a purposive construction to give effect to the “unmistakable legislative intent”. Although the decision turned on these ordinary principles, both the Attorney-General and the Commission intervened in proceedings and made submissions on the relevance of the Charter to these questions of construction.

The Solicitor-General submitted that reliance on ordinary principles of statutory interpretation was sufficient in this case but also urged the court to conclude that, properly construed, the transitional provisions were compatible with the right in section 27(2) of the Charter not to have a greater penalty imposed than that which applied at the time the offence was committed. In considering the scope of the right in section 27(2), the court opined that “[t]he penalty to which s 27(2) refers as ‘the penalty that applied to the offence’ is the maximum penalty prescribed for the offence. A penalty imposed within that prescribed limit does not offend that requirement.” (emphasis added) In their Honours’ view, removing CCOs as a sentencing option would thus not engage the right in section 27(2). Consequently, section 27(2) has no role to play in interpreting the transitional provisions.

The Commission submitted that a literal interpretation of the transitional provisions would engage the protection against arbitrary detention in section 21(2) of the Charter. A literal interpretation would have the effect that a CCO was not an available sentencing option for the respondents, who would thus likely go to prison. Because the unavailability of a CCO would be the result of an accidental drafting error, rather than a deliberate change in policy, the imprisonment that would likely result would be arbitrary. The meaning of the transitional provisions thus engaged the section 21(2) right and, the Commission submitted, the interpretive mandate in section 32(1) of the Charter required a departure from the literal meaning in preference of a more purposive, rights compatible construction.

As the court had already decided to depart from a literal construction of the transitional provisions, their Honours did not consider it necessary to determine the Charter questions raised by the interveners.

This decision is available online at: http://www.austlii.edu.au/au/cases/vic/VSCA/2012/304.html

Anna Landau is a solicitor and Sophie Payton is a law graduate at DLA Piper.