DPP v Shoan

(2009) 24 VR 457; [2007] VSCA 220

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Sentencing
3. › Appeal
4. › Crown appeal from Magistrates' Court to County Court
5. › Right of offender to seek leave to appeal to Court of Appeal
6. › Whether 'appellant' in s 91(2) includes offender who was respondent in County Court
7. › Magistrates' Court Act 1989 (Vic), ss 83, 84, 85, 86, 91(2)
1. Criminal Law
2. › Sentencing
3. › Appeal
4. › Nature of appeal from Magistrates' Court to County Court
5. › Hearing de novo
6. › Whether principles governing Crown appeals under s 567A of Crimes Act 1958 apply
7. › Magistrates' Court Act 1989 (Vic), s 85
1. Criminal Law
2. › Sentencing
3. › Procedural fairness
4. › Duty of sentencing judge to alert counsel to contemplated sentence
5. › Failure to inform counsel that imprisonment was being considered
6. › Whether denial of natural justice where both counsel assumed imprisonment not in issue
1. Statutory Interpretation
2. › Construction of word 'appellant'
3. › Whether word used in sense of 'offender' rather than party who initiated appeal
4. › Contextual and purposive construction
5. › Magistrates' Court Act 1989 (Vic), s 91(2)

Quick Take

An offender sentenced to imprisonment for the first time by the County Court on a DPP appeal from the Magistrates' Court has a right to seek leave to appeal to the Court of Appeal under s 91(2) of the Magistrates' Court Act 1989 (Vic), notwithstanding that the offender was the respondent rather than the appellant in the County Court. A County Court judge hearing a DPP appeal under s 84 must alert counsel if contemplating a sentence beyond the scope of what both counsel have assumed to be in issue, or risk a finding of denial of procedural fairness.