DIRECTOR OF PUBLIC PROSECUTIONS
OFFICE OF PUBLIC PROSECUTIONS
COMMITTEE FOR PUBLIC PROSECUTIONS
ANNUAL REPORT
2009/10
CONTENTS
ONE
The Year’s Highlights
TWO
Summary of the Court and Prosecution Process
THREE
FOUR
SIX
EIGHT
TEN
TWELVE
THIRTEEN
FOURTEEN
The Prosecution Process
Report of the Director of Public Prosecutions
DPP Appeals
Report of the Chief Crown Prosecutor
Message from the Solicitor for Public Prosecutions
OPP Office Structure
OPP Legal Practice Structure
Goal One – Deliver Quality Prosecution Services
EIGHTEEN
Goal Two – Achieve Just Outcomes Efficiently
TWENTY
Goal Three – Enhance Responsiveness of the
Prosecution Service to Victims of Crime
TWENTY-TWO
Goal Four – Influence Policy and Law Reform
TWENTY-FOUR
Goal Five – Deliver Strong Governance and Professional Capability
TWENTY-SIX
TWENTY-SEVEN
TWENTY-EIGHT
ONE HUNDRED AND EIGHT
DPP & OPP Representation on Committees and Advisory Groups
Summary of Financial Performance
Committee for Public Prosecutions Annual Report
Glossary
ANNUAL REPORT 2009/10
This document includes:
The 2009/10 Annual Report of the Director
of Public Prosecutions pursuant to section 12
of the Public Prosecutions Act 1994
The 2009/10 Annual Report of the Office of
Public Prosecutions pursuant to the Financial
Management Act 1994
The 2009/10 Annual Report of the Committee
for Public Prosecutions pursuant to section 45
of the Public Prosecutions Act 1994
Full financial statements for the Office of Public
Prosecutions are either provided in this report
or can be accessed at www.opp.vic.gov.au
Office of Public Prosecutions
565 Lonsdale Street
Melbourne Victoria 3000
THE YEAR’S HIGHLIGHTS
The Office of Public Prosecutions (OPP) enhanced its professionalism and leadership
role in the criminal justice system throughout 2009/10. Among the year’s highlights:
Guilty outcomes achieved in
85 per cent of prosecutions.
Of cases that resolved as pretrial guilty pleas, 87 per cent
settled at or before committal.
A Regional Prosecutions
Directorate was formed to
improve efficiencies and
standardise practices across
Victoria.
The number of in-house OPP
Solicitor Advocates was
increased in conjunction with the
development of a sophisticated
advocacy competency and
training program.
Support for the early resolution
of cases increased, including
the appointment of an Early
Resolution Legal Prosecution
Specialist (LPS), and three early
resolution advocates in regional
Victoria.
A record number of victims and
witnesses were assisted – up
32 per cent on the previous
year – reflecting extra demand
for services and increased
resourcing.
Planning was undertaken to
merge Higher Court Appeals and
County Court Appeals into an
Appeals Directorate, creating a
more co-ordinated and strategic
approach to conducting appeals.
A smooth implementation of
the Evidence Act 2008 and
Criminal Procedures Act 2009
was achieved with the OPP
providing comprehensive
training for staff and other
members of the legal sector.
Liaison and interaction with
the wider criminal justice
community was expanded,
including the OPP hosting
a national forum to share
knowledge.
Litigation resulted in the
largest single case for a victim’s
compensation payout ever made
in Victoria worth $15 million.
‘THE OPP WILL
CONTINUE TO EVOLVE
AND RESPOND TO
THE DEMANDS PLACED
UPON IT AND BE A
LEADER IN CRIMINAL
JUSTICE INITIATIVES’
SOLICITOR FOR PUBLIC PROSECUTIONS,
CRAIG HYLAND (MARCH 2010)
Investment was made in
technology including a new,
sophisticated computer
system to enhance audio-visual
evidence.
Work began on the
redevelopment of the OPP’s
practice management system,
website and intranet, and a
communications audit was
conducted with external
stakeholders.
The first staff survey to
be conducted at the OPP
was analysed and informed
workplace changes.
A new position of Sentencing
Analyst was created to focus on
current sentencing practices and
analyse data.
ONE
SUMMARY OF THE COURT
AND PROSECUTION PROCESS
Investigation stage
Crime reported
Proceeds of crime identified and
referred to OPP for consideration
Investigation by police
Charges are not filed
Police charge the offender
Offender held in custody (remand)
or released on bail or summonsed
to appear in court
Summary (less serious) offences
prosecuted by police
Indictable (serious) offences
forwarded to OPP for prosecution
Pre-trial stage (Magistrates’ Court)*
Filing hearing and committal mention
May include bail application
Contested committal
Witnesses may be required to
give evidence
Straight hand-up brief
(bypass committal hearing)
Committed to stand trial
Plea guilty
Trial stage
(County or Supreme Court)
Plea not guilty
Reserved plea
DPP will review
and may take to trial
Possible
trial
End of case
Pre-trial hearing
Directions hearings
Possible bail applications
Trial
Witnesses are required to give evidence
Guilty
Discharged
Not guilty
Hung jury
Decision to proceed
with retrial
DPP will review
and may take to retrial
End of case
Plea stage
(County or Supreme Court)
Plea hearing
Victim impact statement
Compensation
Sentence stage
(County or Supreme Court)
Sentence hearing
Post sentence consider victims register
Appeal stage
(Court of Appeal or High Court)
Appeals against conviction
and/or sentence
Possible bail application
Sentence
appeal
dismissed
Sentence appeal
allowed and
offender is
resentenced
Applications may be made for:
Disposal orders
Forfeiture orders
Pecuniary penalty orders
End of case
Conviction
appeal
dismissed
Conviction
appeal
allowed
End of case
Possible retrial
* Victims and witnesses are supported throughout the prosecution process
THE PROSECUTION PROCESS
The DPP and the OPP act on
behalf of the community to prepare
and present court cases against
people accused of serious crimes.
The Director of Public Prosecutions
(DPP), Jeremy Rapke QC, is
responsible for prosecuting serious
crime in Victoria’s County and Supreme
Courts and in the High Court.
The Office of Public Prosecutions
(OPP), headed by the Solicitor for
Public Prosecutions (SPP), Craig
Hyland, prosecutes cases on behalf
of the DPP.
Both the DPP and the SPP have
an obligation under the Public
Prosecutions Act 1994, when
conducting prosecutions, to give
consideration to justice and fairness;
be effective, economic and efficient;
and to give consideration to the
concerns of victims of crime.
DIRECTOR OF PUBLIC
PROSECUTIONS (DPP)
The DPP is an independent
statutory officer, appointed by
the Governor in Council, who
prosecutes a range of offences.
These offences include murder,
major sex offences, large-scale drug
trafficking, complex ‘white collar’
crime, and corruption involving
police or lawyers.
When deciding whether or not
to prosecute a serious crime,
the DPP takes into account:
š
š
š
š
if there is sufficient evidence
and a reasonable prospect of
conviction
the interests of the victim,
the suspected offender and
the wider community
if it is in the public interest
special considerations such as
the offender being young or
mentally impaired.
SOLICITOR FOR PUBLIC
PROSECUTIONS (SPP)
The OPP’s budget and staff are
managed by the SPP who is
appointed by the Governor in Council.
The SPP’s role is focussed on
leading and driving change in the
OPP, and contributing to change
across the criminal justice system.
The SPP has responsibility for
briefing Crown Prosecutors, private
barristers or in-house Solicitor
Advocates to appear in court on
behalf of the DPP.
In the performance of these
functions, the SPP ensures
appropriate consideration is given
to the concerns of victims of crime.
OFFICE OF PUBLIC
PROSECUTIONS (OPP)
The OPP is an independent
statutory authority and is Victoria’s
largest criminal legal practice.
At 30 June 2010, the OPP
employed 292 staff including 189
solicitors, legal executives, legal
support and corporate services staff.
They work from the head office in
Melbourne’s court precinct and a
regional office in Geelong.
In the past year the OPP completed
400 criminal trials in the County and
Supreme Courts. On average the OPP
prosecutes cases in 45 courts each
court sitting day, prepares around
35,000 briefs and attends around
34,000 hearings a year. The OPP
deals with about 9,000 defendants
each year (a case can have more
than one defendant) for prosecution,
appeal and asset confiscation
matters.
Cases prepared by OPP staff are
presented in court on behalf of the
DPP by either Crown Prosecutors,
barristers from the Victorian Bar, or
the OPP’s Solicitor Advocates.
Most prosecutions conducted by
the OPP result from Victoria Police
investigations, with the remainder
arising from investigations by other
agencies such as WorkSafe, VicRoads,
the Environment Protection Authority,
government departments, the Office
of Police Integrity (OPI) and the
Office of the Chief Examiner (OCE).
OPP staff also carry out other
responsibilities including:
š
š
š
š
š
š
conducting committals in the
Magistrates’ Court
assisting in Coronial inquests
conducting appeals in the County
Court and Court of Appeal,
including DPP appeals against
sentences which reveal such manifest
inadequacy or inconsistency
in sentencing standards as to
constitute error in principle
supporting victims and witnesses
applying for the confiscation of
assets used in the commission
of a crime or purchased with the
proceeds of crime
bringing breaches of custodial
orders back before the courts.
CROWN PROSECUTORS
In 2009/10, Victoria had 25
Crown Prosecutors. Appointed by
the Governor in Council, they represent
the DPP in criminal cases, provide
advice on prosecuting cases, and
decide whether an accused person
should be presented for trial.
The Crown Prosecutors have expertise
in criminal law prosecutions and work
solely on behalf of the DPP, effectively
acting as the OPP’s ‘in-house counsel’.
They are responsible to the DPP for
the due exercise of their functions.
The daily operations of the Crown
Prosecutors’ Chambers, which
is located in the same building
as the OPP’s Melbourne staff,
are managed by the Chief Crown
Prosecutor, Gavin Silbert SC.
OUR VALUES:
ACT WITH INTEGRITY, STRIVE FOR EXCELLENCE,
RESPECT OTHERS, WORK TOGETHER, ACT FAIRLY.
THREE
REPORT OF THE
DIRECTOR OF PUBLIC
PROSECUTIONS
‘THIS YEAR HAS
WITNESSED
UNPRECEDENTED
DEMAND ON ALL
WHO WORK
IN CRIMINAL
JUSTICE’
DIRECTOR OF PUBLIC
PROSECUTIONS,
JEREMY W RAPKE QC
I regret to say that crime has survived the global financial crisis.
The staff of the Office of Public Prosecutions (OPP) and I
have had another busy year attending to the myriad of decisions
and court appearances that inevitably accompany the arrest and
charging of persons with criminal offences. It is timely to reflect on the
interdependence of all in the criminal justice system. Increased police
activity or more successful policing inevitably results in more litigation.
More litigation requires more judges and magistrates, more courts, more
prosecutors and more demand for correctional services.
It must be appreciated that additional demands on the criminal justice system have
both a financial and human cost. The former is calculable and can usually be met by
an appropriate allocation of funds. The latter, however, whilst observable and deeply
troubling is more difficult to address. This year has witnessed unprecedented demand on
all who work in criminal justice. The Crown Prosecutors who represent me in court and
the staff of the OPP who prepare cases for presentation in court have worked long hours
in sub-standard working conditions on modest salaries to see that justice is done and to
contribute to the fight against crime.
It is claimed that Victoria is now Australia’s fastest growing state and Melbourne its fastest
growing city. It is predicted that within the next 25 years Melbourne will be this nation’s
largest city. Whilst it would not be safe to assume a direct correlation between population
size and crime rates, we know enough about crime in modern society to conclude that
as Victoria’s population increases it is highly likely that criminal activity will increase and,
along with it, demands on the state’s prosecution services. We will meet that demand, as
we always have, but we will need to be properly resourced to do so. I have no doubt that
the Government appreciates this and will accommodate our needs. However, failure to do
so will have a significant effect on my ability to service the courts and on the well-being of
my staff.
The Annual Report of the OPP contains much data which records and analyses its work
during the year. That information demonstrates just how successful, efficient and effective
the Office has been in 2009 and 2010. I commend all who have made such an important
contribution to the maintenance of law and order in the community and to the promotion of
harmony in society.
My commitment, and that of the OPP, to the maintenance of human rights and support
for Victoria’s human rights legislative framework led to me bringing to Victoria for a series
of seminars Australasia’s foremost authority on the interaction of human rights law and
the criminal law – John Pike, General Counsel of Crown Law, New Zealand. Mr Pike has
appeared in and argued 1,500 cases in New Zealand’s Court of Appeal, including 400
cases on the Bill of Rights Act. He has appeared 18 times in the Privy Council. In addition
to conducting seminars for the Crown Prosecutors and the OPP, Mr Pike participated in
a seminar for the Department of Justice (DOJ) and was interviewed by the ABC’s Law
Report whilst in Melbourne.
This year saw the commencement of operation of the Evidence Act 2008 and the Criminal
Procedure Act 2009. The legislation is complex and demanding, but a comprehensive
DPP
training program ensured we
were well equipped to meet the
challenges posed by the new
legislative regimes.
There was much public discussion
during the year about the forensic
use of DNA. This was occasioned
by the wrongful conviction of
Farah Jama for rape on the basis
of a contaminated DNA sample,
and the suspension of the use of
DNA evidence in criminal cases
and the subsequent review of
DNA statistical models by the
Chief Commissioner of Police.
Although the events were unrelated,
they jointly led to discussion
and consideration of the use
of DNA as an investigative and
prosecutorial tool. They also led to
me undertaking a review of cases
in the past five years in which DNA
evidence had been led and may
have been an important factor in
the conviction of the accused. That
review is continuing with some
cases being referred to the Victoria
Police Forensic Science Department
for analysis and comment. I also
amended Director’s Policy 2
(dealing with the exercise of the
general prosecutorial discretion)
so as to require all cases that
relied wholly or substantially on
DNA evidence to be referred to
me personally for assessment
before approval for prosecution
could be given.
Late last year, I introduced a
new policy of giving reasons for
discretionary decisions that I
make. The policy, which can be
viewed on the OPP’s website, was
developed in furtherance of my
commitment to greater transparency
and accountability in all facets of
prosecution work. It is the most
far-reaching policy of its kind in
the common law world and
represents a break from the
traditional view, which is still
practised in many prosecution
agencies, that the relaying of the
substance of a particular decision
is sufficient and that there is no
particular right vested in the
community at large to be provided
with the actual reasons for a
particular decision. This year,
I have given detailed reasons for
decisions in 13 cases. I expect
that number to rise as knowledge
of the policy becomes more
widespread.
Double jeopardy in prosecution
appeals was abolished by the
Criminal Procedure Act 2009.
This was a welcome move and will
assist in ensuring greater fairness
and consistency in sentencing in
Victoria. The removal of double
jeopardy coincided with the
Court of Appeal remarking on the
inadequacy of current sentencing
practices for a number of offences
including rape, intentionally and
recklessly causing serious injury,
cultivating a commercial quantity
of cannabis and aggravated
burglary. The Court also evinced
an interest in the role of community
expectations in sentencing. In light
of these developments and recent
observations of the Chief Justice
on my role in assisting the courts
to set appropriate sentencing
standards, I have embarked on a
careful review of current sentencing
practices for a variety of offences.
If that review reveals that current
practices do not adequately reflect
either the maximum penalties for
the offences, the prevalence of the
offences or community expectations
about sentences, I shall ensure that
in appropriate cases submissions
are made to courts at first instance
about the inadequacy of current
sentencing practices and, if
necessary, subsequently to the
Court of Appeal.
The Proceeds of Crime Directorate
continues to make a huge
contribution to the fight against
crime by assiduously restraining
and confiscating the proceeds
of crime and property used in or
tainted by criminal activity. The
Directorate has also helped victims
to obtain compensation, thus
assisting me in my commitment to
ensure that victims of crime receive
compassionate and fair treatment
by the criminal justice system. The
Victims’ Strategy and Services
Directorate assisted a record
number of victims and witnesses
this year, thus further entrenching
its reputation as one of the finest
and most professional victims’
advice services in the state. I have
met with representatives of various
non-government organisations and
community legal groups concerned
with assisting victims of domestic
violence with the view to developing
standards and protocols for dealing
with domestic violence cases. This
is an important development in the
work that we do to assist all victims
of crime recognising, as it does, the
special complexities and sensitivities
that are inherent in domestic
violence prosecutions.
This year had its fair share of
high profile or notorious criminal
cases and events linked to
criminals. The plethora of media
stories, television dramas and
documentaries, radio commentary
and internet sites dealing with
crime attests to the public
fascination with crime, crime
figures, and law and order
issues generally. Public interest
in these matters is natural and
understandable; so too is the
media’s desire to accommodate
that interest. However, there have
been some instances this year
where the nature of the coverage
of the events has caused me
to become concerned that the
investigation of some crimes, the
trials or court hearings of some
persons accused of crime, or the
safety of some persons caught up
in the justice system may have been
compromised by publicity. There
is a natural tension between the
media’s desire to publish and the
need to avoid interference with the
administration of justice. The Chief
Justice has spoken of the ‘balance
to be achieved between public
interest in knowing about the case
and the public interest in an accused
person having a fair trial’. I am not
sure we have that balance right at
the moment. It is a complex issue
which warrants further discussion
and consideration by the media and
participants in the criminal justice
system. I intend to facilitate such
discussions in the coming year.
General deterrence has long been
accepted as an important factor in
FIVE
DPP APPEALS
sentencing. General deterrent
theory posits that criminal
conduct can be controlled by the
threat of punishment. The courts
acknowledge the part they play
in educating the community that
there are consequences in the
criminal justice system for criminal
behaviour. But, of course, courts
and judges are by the nature of the
functions they perform constrained
in what they can do and say to
achieve this. In my view, Directors
of Public Prosecutions have a
concomitant responsibility to educate
the community about such matters.
It has long been recognised that one
of the primary purposes of the criminal
justice system is to keep the peace
– the idea of peace embracing the
freedom of ordinary citizens to walk
the streets and to go about their daily
affairs without fear of physical violence
as well as having their property respected
(per Gleeson CJ in R v Rance NSWCCA
8.8.94). I believe that I, along with the
courts, can and should make a contribution
to the maintenance of peace and harmony
in society by ensuring that the message
of the courts about the consequences
of crime receives appropriate attention.
During the coming year I shall be examining
ways in which I can contribute to this. It is
an important project which will demand a
sophisticated multi-faceted approach.
In furtherance of my commitment to make
Victoria’s prosecution services as open,
transparent and publicly accountable as
possible a major revamp of our internet
website is currently underway. I hope
that when completed, the site will be an
important research tool and a valuable
source of information about the work we do
and how we do it. The current site already
contains more information about public
prosecutions and the criminal justice system
than has previously been publicly available.
I thank all the staff of the OPP for their
support during the year and I congratulate
them on completing a very successful and
fulfilling year in public prosecutions.
Jeremy W Rapke QC
Director of Public Prosecutions
DPP
The DPP can appeal against sentences imposed in the
County and Supreme Courts where the DPP considers a
different sentence should have been imposed and it is in
the public interest.
An account of one case appealed by the DPP in 2009/10
is given below, and details of all judgments in Crown
Appeals during the year are set out in Appendix 3.
A CASE STUDY
In November 2005, 18-year-old Edmond Malikovski and
about a dozen other members of two gangs embarked on a
two-day spree of violence against innocent and unsuspecting
members of the public. During the rampage they stole
mobile phones and money, and chased some victims into
houses where they were cornered, bashed and kicked.
About six people were bashed, some were threatened with
death if they told police, a bottle was smashed over one
victim’s head, and others were threatened with broken
bottles. Significant injuries were sustained by the male
and female victims including loss of consciousness,
lacerations, bruising, swelling to various parts of the
body, chipped teeth and headaches – and great fear.
The attacks were planned and coordinated, with some
gang members using walkie talkie radios to alert each
other when a potential victim was spotted.
Five days after this crime spree, Malikovski was arrested
and interviewed by police. Although he admitted being
present while some of the attacks took place, he
denied assaulting or robbing anyone. He was released
and told he would be charged on summons.
Malikovski then fled to Austria in March 2006,
evading justice for two years. While he was
overseas, charges were filed against him and
many of his co-offenders. A warrant for Malikovski’s
arrest was issued on 18 September 2007 and
was executed on 13 March 2008 when he was
returned to Australia.
Malikovski’s committal on the charges was originally
listed for a filing hearing in September 2008,
however it was not until 5 February 2009 that
the committal was finalised and he was committed
to the County Court for a plea hearing, having
indicated he would plead guilty.
At the plea hearing in the County Court on 18
June 2009, Malikovski pleaded guilty to three
counts of affray (each charge having a maximum
penalty of five years’ imprisonment), four counts
of robbery (15 years’ imprisonment on each
count), five counts of intentionally causing injury
(10 years’ imprisonment on each count) and
two counts of recklessly causing serious injury
(15 years’ imprisonment on each count).
During the plea hearing the judge
indicated she did not want the
prosecutor to put a sentencing range
to her, it having been indicated that
the prosecution contended that
Malikovski should be sentenced to a
term of immediate imprisonment.
On 7 August 2009, the judge
imposed a total effective sentence
on Malikovski, who was 22-yearsold with no prior convictions, of
16 months’ imprisonment, wholly
suspended for 18 months. He
was also placed on a 12-month
Community Based Order (CBO)
requiring him to do 180 hours
of unpaid community work. The
judge indicated that had Malikovski
not pleaded guilty she would have
sentenced him to prison for two years
with 12 months to serve and the
remainder suspended for two years.
So Malikovski walked free from
court. By now, nearly four years
had passed since the crimes were
committed. Two years were lost
when Malikovski went overseas and
the remainder of time was due to
the completion of the investigation,
which involved a large number of
offenders and victims, and delay in
getting dates for court hearings.
On 3 September 2009, I served
a Notice of Appeal against what I
regarded as a manifestly inadequate
sentence. Aware that much time
had passed since the offences had
occurred and that Malikovski had,
in effect, been set free, I twice
requested – in September 2009
and February 2010 – the Court of
Appeal to set an early date to hear
the appeal.
fact there had been delay in the case
and it had been ‘almost a year since
the respondent was sentenced’.
One of the appeal judges made
the additional point that Malikovski
had ‘made positive steps toward
rehabilitation’. (The day after the
appeal, Malikovski was charged with
nine breaches of the CBO.)
The Court went on to criticise the
DPP for having brought the appeal
in the first place. While hoping that
Malikovski ‘realises that he has
been the beneficiary of a merciful
sentence’ in respect of conduct
which the court described as being
despicable, cowardly, brutal and
illustrating ‘the worst cowardice
of group violence’, one judge
described the bringing of the appeal
as inappropriate. He said it raised
no issue of principle.
In my view, just punishment is a
matter of principle. Crown appeals
are specifically regarded as being
appropriate when the sentence
imposed is so disproportionate to
the seriousness of the crime as to
shock the public conscience and
undermine public confidence in the
ability of the courts to play their
part in deterring the commission of
crime. I believed this to be such a
case. One Melbourne newspaper
reported the case under the headline:
‘Victims bashed, robbed. Violent
predator walks away’ and said that
‘crime victim advocates and police
are angry that Malikovski and others
involved in the attacks were not
jailed for the predatory bashings’2.
The appeal was eventually heard
on 12 May 2010 and it was
unanimously rejected1. In doing
so the Court of Appeal judges
found that some of the individual
sentences were ‘inadequate’ and
that the overall sentence was ‘very
merciful’. The sentencing judge
was found to have failed to have
given appropriate weight to general
deterrence and denunciation. Each
of the judges made reference to the
So a court imposes what in my
opinion was an inadequate sentence
on a person who has hidden for two
years after being investigated by
police for behaving in a despicable
and cowardly manner. Despite my
best efforts, it is nearly a year before
the appeal is heard. The appeal
is then dismissed on the ground,
among others, of delay and I am
criticised for instituting the appeal.
Under the law at that time both
prerequisites for bringing a Crown
appeal were met – that the DPP
consider a different sentence should
1 DPP v Malikovski [2010] VSCA 130
2 Herald Sun 10/8/09
have been passed and be satisfied
that an appeal should be brought in
the public interest.
The judges in the Court of Appeal
were rightly concerned with the
rehabilitation of Malikovski. They
referred to the ‘vital community
interest in maximising the prospects
of rehabilitation of an individual who
has been convicted of a serious
crime’. However, as the Sentencing
Act makes clear, rehabilitation is
only one of five purposes for which
sentence may be imposed. The
others are to punish the offender,
to deter the offender and others
from committing similar offences,
to manifest the denunciation by
the court of the offender’s conduct
and to protect the community from
the offender. It is arguable that the
Court of Appeal’s decision in this
case placed undue emphasis on
rehabilitation at the expense of the
other four purposes of sentencing.
There was also no regard given to
the ‘social rehabilitation’ of victims
through the sentencing process. As
has been observed in other cases, a
victim’s social and personal recovery
from the consequences of crime
can be impeded or facilitated by the
response of the courts.3
In an earlier case, the President of
the Court of Appeal said that by
reason of his statutory functions
the DPP is, with the Court of
Appeal, the ‘custodian of sentencing
standards in this State’4. I will
continue to fulfil this vital function
on behalf of the people of Victoria.
I look forward to working with the
Court of Appeal and, indeed, with
all courts in this state to ensure that
sentencing standards which reflect
the expectations and needs of the
community are set and maintained.
Jeremy W Rapke QC
Director of Public Prosecutions
3 DPP v DJK [2003] VSCA 109 at [18]
4 DPP v Avci (2008) 21 VR 310, 318
SEVEN
REPORT OF THE CHIEF
CROWN PROSECUTOR
‘THE YEAR HAS SEEN A
NUMBER OF IMPORTANT
TRIALS IN BOTH
SUPREME AND
COUNTY COURTS’
CHIEF CROWN
PROSECUTOR,
GAVIN SILBERT SC
The workload of Prosecutors’ Chambers continued to
increase over the past year. The Crown Prosecutors provided
a record 6,445 advisings, including more than 2,000 in
relation to plea offers – the most ever in one year and more than
60 per cent higher than the previous year. The Crown Prosecutors
also completed more than 2,800 presentments and appeared in
court more days than in any previous year – 2,709 days in total.
Of the 25 permanent Crown Prosecutors in 2009/10, seven were dedicated
to the Court of Appeal, four were co-located with the Specialist Sexual Offences
Unit (SSOU), one was located in Geelong and the remaining 13 were charged with
running trials and committals. The Crown Prosecutors handled 70 per cent of trials
prosecuted by the OPP in the Supreme Court and more than 95 per cent of all appeals
to the Court of Appeal.
The year has seen a number of important trials in both Supreme and County Courts.
The Queen v Rich, involving the murder of an Armaguard driver in the course of an armed
robbery, ran for almost six months in the Supreme Court. The Queen v Mustica and Ors
involving large-scale drug trafficking and The Queen v Smith involving a defrauding of the
Victorian University of Technology both took place in the County Court.
The Queen v Dupas was argued in the High Court, and the Victorian Court of Appeal
undertook its first detailed examination of the Charter of Human Rights and Responsibilities
Act 2006 in The Queen v Momcilovic which is now the subject of a special leave
application to the High Court.
The introduction of a system of interlocutory appeals by the Criminal Procedure Act
2009 allows for a review of a trial judge’s rulings at short notice by the Court of Appeal
so that major defects which would eventually result in the quashing of a conviction and
an order for a re-trial can be corrected immediately with minimal disruption to the trial.
Since the introduction of the Act on 1 January 2010 there have been 14 interlocutory
appeals determined by the Court of Appeal. A Crown Prosecutor appeared in 12 of these
interlocutory appeals, usually with the trial prosecutor as junior.
The provision of sentencing ranges, known as McNeil-Brown ranges, to solicitors and
counsel for submission to the courts has now become a major part of Prosecutors’
Chambers’ function. Sentencing ranges are being provided as a matter of course in the
County Court.
Additionally, following orders of the Court of Appeal quashing verdicts and ordering
re-trials the cases of The Queen v Fitchett and The Queen v Farquharson, both cases of
filicide, were each re-tried in the Supreme Court and each again resulted in guilty verdicts.
During the period under consideration, Crown Prosecutor Chris Beale was seconded to
undertake a full-time course of instruction and education to the Crown Prosecutors and to
the solicitors employed within the Office of Public Prosecutions on the Evidence Act 2008
and the Criminal Procedure Act 2009, both of which came into operation on 1 January
2010. To that end, Chris conducted an ongoing series of lectures and prepared materials
CCP
2709
2460
2428
2218
to prepare us for the introduction of
the legislation. Indeed, such was the
expertise developed by Chris, that
his services were in demand and
he delivered lectures to the County
Court judges on two occasions,
the Criminal Bar Association, the
Homicide Squad of Victoria Police,
Leo Cussen Institute and to the
police prosecutors.
The ongoing legal education
of the prosecutors was further
enhanced by a seminar conducted
by John Pike, General Counsel
with the New Zealand Crown Law
Department, and a recognised
authority on human rights legislation,
who presented a seminar on the
impact of the Charter of Rights
and Responsibilities on criminal
prosecutions.
02/03
03/04
04/05
05/06
06/07
07/08
08/09
09/10
CROWN PROSECUTOR COURT DAYS
100%
59.6
54.5
52.5
50.8
43.9
01/02
During the year we farewelled
Michael Tinney SC and Gabriele
Cannon who were both appointed
to the County Court, and we were
joined by Diana Piekusis as a Crown
Prosecutor and Brett Sonnet as an
Associate Crown Prosecutor.
2280
1904
1826
01/02
2216
2106
48.4
41.9
02/03
03/04
04/05
05/06
06/07
07/08
46.5
08/09
50.0
09/10
CROWN PROSECUTOR COURT TIME AS A % OF TIME AVAILABLE
I acknowledge and thank the Crown
Prosecutors for their hard work over
the course of the year.
6152
6445
5498
Gavin Silbert SC
Chief Crown Prosecutor
4454
3599
3651
03/04
04/05
4204
2654
1325
01/02
02/03
05/06
06/07
07/08
08/09
09/10
CROWN PROSECUTOR ADVISINGS
NINE
MESSAGE FROM THE
SOLICITOR FOR PUBLIC
PROSECUTIONS
‘OUR VISION: TO MAKE
A DIFFERENCE IN THE
JUSTICE SYSTEM AND
WIDER COMMUNITY’
SOLICITOR FOR PUBLIC
PROSECUTIONS,
CRAIG HYLAND
The modernisation of the Office of Public Prosecutions (OPP)
is continuing apace to enable us to meet the considerable scale
of prosecution work undertaken on a daily basis.
Each court sitting day, OPP solicitors across Victoria are involved in up to
45 major court cases, including serious and often traumatic issues relating to
crimes such as homicide, organised crime, multi-million dollar drug trafficking
rings, and sexual assault.
The OPP is not only at the centre of such major criminal cases featured in the
daily news, but is involved in many other serious criminal cases in the Magistrates’,
County and Supreme Courts across Melbourne and Victoria.
It is a testimony to the dedication and skills of the OPP staff that these criminal
prosecutions are conducted in an ‘effective, economic and efficient manner’ in
accordance with our obligations under the Public Prosecutions Act 1994. Their efforts
have contributed to 85 per cent of prosecutions over the past year being resolved as a
guilty outcome, either as a result of a plea or a verdict at trial.
While at the forefront of major criminal prosecutions in Victoria, OPP staff also have
significant ‘behind the scenes’ roles in the criminal justice system. Our Witness Assistance
Service is supporting unprecedented numbers of victims and witnesses, and is struggling
to cope with increasing demand; our Proceeds of Crime specialists continue to make
significant inroads into the forfeiture of criminals’ assets into the public purse; and our
expertise in criminal law is often sought and provided on important legislative reforms.
The OPP provides an important link in Victoria’s criminal justice system, in addressing
systemic issues such as court delays, and participating in legal forums, committees and
reviews aimed at sharing our knowledge and ideas on system-wide improvement.
Within the OPP, we are nearing the end of the current three-year restructure of our
legal practice, with some tangible benefits. As with everything we do, the structural and
administrative improvements have been centred around the five core values – to act with
integrity, work together, strive for excellence, respect others and act fairly.
The formation and launch of two new Directorates, with the launch of a third Directorate
imminent, has been integral to the success of our reform program which has consumed
considerable energy and hard work over the past 12 months.
The new Appeals Directorate, to launch on 1 July 2010, will enable the OPP to provide
a more strategic and co-ordinated response to appellate issues arising within the Victorian
courts system. It will also take a proactive educative approach to developments in the law
and sentencing trends.
The Regional Prosecutions Directorate, formed in December, has allowed us to emulate the
efficiencies achieved in our Melbourne practice throughout the state. As well as achieving
consistency of approach and standards in regional Victorian prosecutions, a focus on early
resolution will be more prominent in regional Victoria through the appointment of three
early resolution advocates.
OPP
The Advocacy and Briefings
Directorate, formed in March, brings
together two sections of the OPP,
recognising that in-house Solicitor
Advocates are now a fundamental
part of our legal practice. By
recruiting more Solicitor Advocates
we are now in a position to assign
cases on the basis of the ability
and availability of advocates from
three sources – our own Solicitor
Advocates; Crown Prosecutors;
and the Victorian Bar. Each of these
groups will continue to play a vital
role in criminal prosecutions.
The growing number of OPP and
external applicants recruited to
positions of Solicitor Advocates
provides broader career
opportunities within the OPP and
significantly broadens the pool of
expertise from which we can draw.
The importance of these roles
is reflected in the high calibre of
candidates who applied for these
positions in the first half of 2010.
Internal promotional opportunities
have continued to expand
throughout the OPP following the
appointment of new Directorate
Managers, Deputy Directorate
Managers and Legal Prosecution
Specialists; and the development of
a new career path for legal support
staff. For those entering their career
in law we offered traineeships and
seasonal clerkships. Positions in
these programs were highly sought
after, and the opportunities provided
immeasurable.
are valued and help create a
workforce perceived to be highly
skilled and committed to delivering
good quality service. There was,
however, room for improvement
with staff dissatisfied with their
work environment, and some staff
dissatisfied with the selection,
promotion and performance
management processes. A range of
measures were introduced this year
to address these concerns.
OPP solicitors now have more
support available to them with the
recruitment of extra legal support
staff; and the appointment of a legal
support co-ordinator to ensure
support staff are deployed where
needed most.
Technologically, we have introduced
a number of initiatives to improve
staff support. State-of-the-art, digital
audio-visual equipment has been
installed that is the envy of other
prosecution agencies. Investment
in this technology will significantly
enhance the quality of evidence
presented in courts, and do so in a
more timely and efficient manner.
In the year ahead, a new practice
management system will be
introduced following extensive
planning and research. This will
significantly improve the storage
and accessibility of vital files and
lessen the administrative burden
on legal staff.
Corporate modernisation means
that as we near the end of the
current office restructure we have
increasingly turned our efforts
towards bringing our daily work
practices into the 21st century
to support our staff. Planning and
development has been very much
informed by the first survey of all
OPP staff which was finalised early
in the financial year, with some very
positive results.
The OPP’s corporate policies
are being reviewed and updated
to ensure they comply with the
standards expected of a modern
legal practice. Our recruitment
processes are more open and
transparent, with all ongoing
positions in the OPP now advertised
externally. The OPP leadership
team and key staff have received
training in selection techniques and
workplace behaviour to improve
daily interaction and move towards a
values-based workplace.
The survey results revealed that
OPP staff value the integrity of
their colleagues and feel supported,
respected and well managed. The
OPP’s flexible working conditions
We have conducted an external
communication audit to identify
where improvements can be made
and enhance the way we interact
with our justice colleagues. We want
to ensure that we always work in a
unified way and effective manner.
Improved communication is also at
the centre of plans to redevelop our
website to provide more information
to the general public; and also to
update our intranet to improve
access to knowledge that is integral
to the daily working lives of OPP
staff.
The consistent message conveyed
to me is the camaraderie shared by
OPP staff, and their dedicated and
professional approach to their work.
On behalf of the OPP I thank the
Crown Prosecutors for so ably
prosecuting over the past year. I also
thank the OPP Executive, Stuart
Ward, Legal Practice Manager, and
Michael Hoyle, General Manager
Corporate Services, for their
tireless work in assisting with the
reformation of the OPP. Of course
the achievements of the past year
would not have occurred without the
hard work of the leadership team,
and all staff, legal and corporate, at
the OPP. To them I am indebted. We
have together met the challenges
of another year with economy,
efficiency and effectiveness as our
statutory mandate would want.
Our staff, and the knowledge and
expertise they cultivate in criminal
prosecutions, are central to the OPP
becoming a leader in prosecution
services in Australia. We will
continue to work towards providing
the environment, structures and
support needed for them to conduct
their jobs to the best of their
abilities, and work to our vision ‘to
make a difference in the justice
system and wider community’.
Craig Hyland
Solicitor for Public Prosecutions
ELEVEN
OPP OFFICE STRUCTURE
Solicitor
for Public
Prosecutions
Craig Hyland
Policy & Advice
Directorate Manager Bruce Gardner
Corporate Services
General Manager Michael Hoyle
Finance
Manager Annette Cruz
Projects & Performance
Sam Jones
Catherine Nicols
Human Resources
Manager Sam Kenny
Library
Manager Adriaan Bendeler
Information Technology Services
Manager Zeljko Matijevic
Audio-Visual
Manager Rod Hume
Facilities
Manager Andrew Sutherland
Registry
Manager Carl Barbaro
OPP
Office of the Solicitor
Legal Practice
Legal Practice Manager Stuart Ward
OPP LEGAL PRACTICE STRUCTURE
Corruption
Acting Legal Prosecution Specialist
Lana Custovic
Complex Crime
Directorate Manager Vaille Anscombe
Drugs
Legal Prosecution Specialist
Lucia Palgan
Organised Crime
Legal Prosecution Specialist
Vicky Prapas
Commercial Crime/Fraud
Legal Prosecution Specialist
Joan VanStaveren
Early Resolution
Legal Prosecution Specialist
John Dickie
Principal Prosecutions
Directorate Manager Stephen Bird
External Agencies & General Crime
Legal Prosecution Specialist
Anna Loughnan / Nonie McGregor
Homicide & Coronial Inquests
Legal Prosecution Specialist
Richard Lewis
Mental Impairment & General Crime
Legal Prosecution Specialist
Julie Carpenter / Louise Wilkinson
Specialist Sex Offences
Directorate Manager Steve Ballek
Sex Offences
Legal Prosecution Specialist
Gary Ching
Advocacy & Briefings
Directorate Manager Rod Gray
Advocacy
Legal Prosecution Specialist
Helen Fatouros
Proceeds of Crime
Directorate Manager David Gray
Proceeds of Crime
Legal Prosecution Specialist
Damian Martin
Victims Strategy & Services
Directorate Manager Charlene Micallef
Witness Assistance Service
Victim Specialist
Anne O’Brien
Regional Prosecutions
Directorate Manager Suzette Dootjes
Appeals
Directorate Manager Irene McGregor
THIRTEEN
GOAL ONE
Deliver quality
prosecution
services
DELIVER QUALITY
PROSECUTION SERVICES
The OPP met the challenges of another
demanding year by directing resources
where most needed and continuing
to implement reforms including new
management and work practices.
GOAL TWO
Achieve just
outcomes
efficiently
The formation of the Regional Prosecutions
Directorate and the Advocacy and Briefings
Directorate, the introduction of a new legal
support model, and extensive preparations
to form an Appeals Directorate from 1
July 2010, were major developments,
signalling the completion of three years’
work towards a new legal practice.
Efforts also focussed on modernising the
daily operation of the OPP in support of
solicitors working across 11 specialist
areas of criminal practice.
GOAL THREE
Enhance
responsiveness
of the prosecution
service to victims
of crime
Initiatives for the year included
directing resources to developing
sentencing expertise, and extending
a leading-edge, in-house advocacy
program.
These reforms lay the foundation
for the OPP to develop as a
contemporary and professional
participant in Victoria’s criminal
justice system.
ADVOCACY DEVELOPMENT
Influence policy
and law reform
Recognising the vital role external
barristers have in criminal
prosecutions, the OPP added
about 70 barristers to the OPP’s
list of barristers it briefs, including
an extra 26 female barristers. In
2009/10, 38 per cent of briefs
went to female barristers.
GOAL FIVE
The OPP also expanded the
number of its in-house Solicitor
Advocates from seven to 12.
A high calibre of candidates,
including interstate and private
practitioners, applied for these
highly sought-after roles.
GOAL FOUR
Deliver strong
governance and
professional capability
OPP
While Crown Prosecutors
and private barristers
from the Victorian Bar will
continue to play a vital
1
role in prosecutions across the State, further
developing Solicitor Advocates within the
OPP will:
C
ensure effective and efficient use
of OPP resources
C
increase the pool of highly skilled
prosecutors available
C
provide engaging and challenging work
for OPP solicitors
C
attract and retain the best advocates
to the OPP
C
facilitate early resolution.
The OPP also developed an Advocacy
Competency Framework setting out the expertise
and standards expected of all Solicitor Advocates.
This is a first for an Australian prosecution service
and has attracted considerable interest from
interstate counterparts.
The five key competencies defined in the
Competency Framework to assist with meeting
and maintaining advocacy standards are
interaction, knowledge of the law/analysis,
preparation, advocacy skills and adherence to
DPP policy/instruction.
A comprehensive, ongoing training and
assessment program was developed to ensure
consistently high advocacy standards across the
OPP’s legal practice.
Advanced advocacy training was provided by the
Australian Advocacy Institute. In addition, the
OPP developed its own theory and workshopbased sessions. ‘Moot courts’ were held in the
Magistrates’ Court involving Solicitor Advocates
and OPP solicitors, County Court Judges, Crown
Prosecutors and representatives from Victoria
Legal Aid and private firms.
SENTENCING
The OPP developed measures to help identify
sentencing trends. A Sentencing Analyst was
appointed to collect and analyse sentencing
data; provide advice on sentence appeals and
assist all OPP solicitors generally on sentencing
issues. The Sentencing Analyst also worked
closely with the Sentencing Advisory Council
to assist with detailed data for its research on
sentencing appeals.
The merging of the OPP’s Higher
Court Appeals and County Court
Appeals into a Directorate from 1
July 2010 will create an appellate
speciality within the OPP and
will assist in the development and
promulgation of sentencing ranges
and trends.
CAREER DEVELOPMENT
To further excellence in
the prosecution of crime,
a number of career development
opportunities were created
throughout the year.
C
Leadership opportunities
included management positions
for newly-formed Directorates;
new Deputy Directorate
Manager positions to provide
leadership and mentoring to
staff; new full-time LPS roles
in early resolution and
advocacy; and a new Legal
Support Co-ordinator to
monitor work allocated to
legal support staff.
C
The calibre of OPP solicitors
was recognised with an
appointment to the Magistracy
and the first-ever appointment
as an Associate Crown
Prosecutor.
C
As part of the OPP’s aim to
attract highly skilled lawyers,
a formal traineeship program
that attracted high-calibre
candidates was completed.
All four trainees were appointed
as OPP solicitors.
C
A Seasonal Clerkship
program was launched to
expose law students to career
opportunities at the OPP.
Eight final-year law students
were selected from a strong
field of candidates to spend
two weeks at the OPP, being
mentored and obtaining
practical experience.
TECHNOLOGICAL SUPPORT
The OPP led the way in
audio-visual evidence in Australian
prosecutions following extra State
Government funding for advanced,
new digital audio-visual equipment
and software.
‘MY GOAL FOR THE OPP IS FOR IT TO
ENHANCE ITS STANDING AS A LEADER OF
PROSECUTION SERVICES IN AUSTRALIA’
SOLICITOR FOR PUBLIC PROSECUTIONS,
CRAIG HYLAND (NOVEMBER 2009)
The new technology provides
increased quality, efficiency
and support to prosecutors and
courts in relation to audio-visual
evidence, ensuring the best possible
prosecution evidence is presented
in courts in an efficient and timely
manner. A forensics package
enables the quality of evidence
to be enhanced.
In other initiatives to improve the
sharing and access of knowledge,
extensive work has been undertaken
towards the introduction of a new
practice management system and
the development of a new OPP
intranet and website has begun.
FIFTEEN
GOAL ONE
Deliver quality
prosecution
services
GOAL TWO
Achieve just
outcomes
efficiently
SPECIALISATION
To respond to the complex nature of
prosecution work, all OPP solicitors are
allocated a primary speciality practice area,
led by an LPS, whose role is to provide
training, support and expert advice.
OPP solicitors specialise in the prosecution
of homicide, organised crime, serious drug
offences, general crime, commercial fraud,
corruption, sex offences, mental impairment
cases and workplace deaths or serious injury.
Other specialist roles involve advocacy, early
resolution, supporting victims and litigating
for proceeds of crime.
GUILTY OUTCOMES
GOAL THREE
Enhance
responsiveness
of the prosecution
service to victims
of crime
During the year, many cases dealt with by
the OPP resolved by way of a plea of
guilty. The completion of these matters as
pleas provided savings in the time and
resources of the criminal justice system.
Overall, 85 per cent of prosecutions
by the OPP resulted in guilty outcomes
during 2009/10, either as a plea or
a guilty verdict by a jury.
The OPP’s corruption specialists prosecuted
police officers on a wide range of matters ranging
from rape, attempts to pervert the course of justice,
Road Safety Act offences and matters arising
from investigations by the Victoria Police Ethical
Standards Department and the OPI. Many of these
cases were successfully resolved before trial.
A potentially lengthy trial was avoided in a case
conducted by drug specialists in which 15
people pleaded guilty to the trafficking of ecstasy,
steroids and other drugs. Two of the accused
pleaded guilty to trafficking a large commercial
quantity of ecstasy and were sentenced to eight
years and nine months’ imprisonment, with a
minimum of five years, and seven years and 10
months with a minimum of five years and six months.
Many cases conducted by the commercial fraud
specialists were finalised as pleas of guilty.
The OPP worked closely with Victoria Police to
prosecute numerous complex ‘white collar’ crimes
involving identity fraud, share manipulation, secret
commissions and false loan applications. These
cases involved multiple volumes of evidentiary
material and numerous witnesses from interstate
and overseas.
100%
88.1
86.3
82.3
84.5
85.3
08/09
09/10
GOAL FOUR
Influence policy
and law reform
GOAL FIVE
Deliver strong
governance and
professional capability
05/06
06/07
07/08
GUILTY OUTCOMES (GUILTY PLEAS AND TRIAL CONVICTIONS)
OPP
Sex offence specialists in
Melbourne and Geelong played
a pivotal role in ensuring sexual
assault cases were resolved early or
progressed as quickly as possible.
Victims avoided the trauma of
giving evidence after a Victorian
music teacher pleaded guilty to 39
offences including procuring a child
for the purposes of producing child
pornography, rape and committing
an indecent act in the presence of a
child under 16. He was sentenced
to 25 years and seven months’
imprisonment, with a minimum of
22 years.
While most of the OPP’s
prosecutions resulted from Victoria
Police investigations, external
agency specialists successfully
prosecuted or achieved guilty
pleas in matters on behalf of other
agencies. In a WorkSafe prosecution
involving the death of an employee
who died while cleaning a roller in
a commercial laundry machine, the
company pleaded guilty to failing to
provide a safe workplace and failing
to provide proper supervision and
training to employees, and was fined
$750,000. The company director,
who pleaded guilty to failure by an
officer of the body corporate to take
reasonable care where the body
corporate contravenes a provision of
the Occupational Health and Safety
Act, was fined $65,000.
TRIALS
During the year, successful
outcomes also resulted from lengthy
and complex trials.
Homicide specialists
prosecuted a mother who admitted
to drugging and smothering her
two sons, aged 11 and nine.
In the retrial, the mother admitted
to the killings but pleaded not
guilty to murder on the grounds
of mental impairment. She was
found guilty and is yet to be
sentenced. Another high-profile
matter resolved through trial was
the prosecution of a man who
was sentenced to life imprisonment
without parole for pursuing a
33-year-old mother-of-two into her
neighbour’s house and then shooting
her at point-blank range.
OPP prosecutions at trial followed
investigations by specialist Victoria
Police taskforces, including the
death of a criminal who was shot
‘ASSET CONFISCATION
IS A POWERFUL
TOOL TO FIGHT
ILLEGAL ACTIVITIES
IN THIS STATE AND
PROVE THAT CRIME
DOES NOT PAY’
PREMIER OF VICTORIA, THE HON.
JOHN BRUMBY (FEBRUARY 2010)
outside a Coles supermarket in Port
Melbourne in 2002. The OPP’s
organised crime specialists
worked closely with the Purana
Taskforce investigation, resulting
in a conviction for murder and 20
years’ imprisonment with a minimum
of 14 years. They also worked with
the Petra Taskforce after it reopened
an investigation into the murder of a
couple in their home in 1986 while
their children slept nearby. The
offender was convicted of murder
and sentenced to two concurrent
life sentences with a minimum of
32 years’ imprisonment.
compensate victims. This year, the
largest victims’ compensation payout
ever in Victoria worth $15 million
was achieved. The offender was
convicted of obtaining property
by deception to the value of $15.6
million, leading to a confiscation
order for that amount and the
forfeiture of property in Australia
and New Zealand worth almost
$5 million.
VICTIMS
All of the OPP’s legal specialists
have regard for victims of crime, and
ensure they are respected and have
a voice during criminal proceedings.
Victims specialists worked closely
with OPP solicitors across the
specialist areas to support victims.
A key role of the OPP’s mental
impairment specialists was to keep
victims informed of court applications
to vary or review custodial and
non-custodial Supervision Orders
given to people found either unfit to
be tried or not guilty due to mental
impairment. They closely monitored
a review of the custodial supervision
order of a man who was found
not guilty of murder by reason of
insanity and has been in custody
since 1970. His application to
be moved from prison to a secure
psychiatric or residential facility
was rejected.
PROCEEDS OF CRIME
The OPP played an integral role
in the forfeiture of criminal assets
and proceeds of crime to the State
Government’s Consolidated Fund.
The OPP’s proceeds of crime
specialists litigated to confiscate
assets used in the commission of
a crime, or purchased with the
proceeds of a crime, and some
of this money has been used to
SEVENTEEN
GOAL ONE
ACHIEVE JUST OUTCOMES
EFFICIENTLY
Deliver quality
prosecution
services
Building on efficiencies achieved through
recent reforms, the OPP continued to
introduce measures aimed at conducting
prosecutions in an ‘effective, economic
and efficient’ manner.
GOAL TWO
Achieve just
outcomes
efficiently
Through structural realignment, streamlined
business processes, improved briefing
practices and the incorporation of business
analysis and project and performance
methodology into decision-making, the OPP
was well placed to replicate efficiencies in
prosecutions across regional Victoria.
The OPP contributed to efficiency across
the criminal justice system with a focus
on early resolution of cases and fostering
cross-agency discussions on achieving
improvements.
GOAL THREE
Enhance
responsiveness
of the prosecution
service to victims
of crime
REGIONAL VICTORIA
The OPP expanded its successful
Melbourne-based practices to regional
Victoria, where 20 per cent of cases
are heard, through the formation of a
Regional Prosecutions Directorate.
This was part of a strategy to enhance
efficiency, consistency of approach,
and standards across the State.
As part of the new approach in
regional Victoria, the OPP:
GOAL FOUR
Influence policy
and law reform
appointed a Regional Prosecutions
Directorate Manager and a
Deputy Directorate Manager to
oversee all operational issues and
prosecution processes
C
introduced assessment of each
case by the Directorate Manager
to ensure appropriate allocation
and utilisation of OPP staff and
experience to the best capacity
C
GOAL FIVE
Deliver strong
governance and
professional capability
appointed three dedicated
early resolution advocates
C
introduced a co-ordinated,
flexible approach to staffing,
allowing movement between
regions as needed
C
allocated cases earlier to
a single solicitor enabling
early links with victims,
informants and defendants
C
OPP
2
C
appointed Melbourne-based preparation
solicitors to work on more serious cases
until they are listed for hearing
C
improved IT services in Morwell, Bendigo
and Geelong courts through secure, wired
internet links.
The success of regional service delivery is
evidenced by the OPP’s Geelong office which
has an SSOU and also prosecutes general crime
across south-western Victoria. Established just
over a year ago, the co-location of a Crown
Prosecutor in Geelong, working with OPP
solicitors has led to increased efficiencies in the
preparation of cases.
The Geelong office also enhanced the OPP’s
relationships with regional courts and Victoria
Police, opening up improved communication
channels and building community trust in the
justice system.
EARLY RESOLUTION
The OPP’s commitment to pursuing early
resolution of cases made a significant
contribution to efficiencies in the criminal
justice system.
Every effort is made by all OPP solicitors
throughout the prosecution process to
proactively consider the potential to
appropriately resolve a matter as a plea
of guilty as early as possible.
The OPP’s early resolution approach achieved a
high level of success. In 2009/2010, guilty plea
outcomes were achieved in 72 per cent of cases
(up from 69 per cent the previous year). Of the
cases that resolved before trial as guilty pleas,
87 per cent were settled at or before committal.
In recognition of the importance of early
resolution, a full-time LPS was appointed to
direct early resolution across the OPP. The LPS
is responsible for developing improved practices,
reviewing processes and developing training.
To further foster a culture of early resolution and
encourage mentoring opportunities, the early
resolution advocates were physically relocated
among staff in the Principal Prosecutions
Directorate; ensuring early resolution will be a
key part of the induction of junior solicitors.
The OPP started collecting more detailed data
to identify early resolution trends and to inform
improvements where possible.
Post Directions
Hearing to Trial 5.7
At Directions Hearing 1.2
Post Committal to
Directions Hearing 6.5
CONTRIBUTING
TO THE CRIMINAL
JUSTICE SYSTEM
100
94.3
93.1
The OPP’s independence
is a central tenet to achieving
fair and just outcomes
in prosecutions. The OPP
recognises, however, that it is vital
to liaise with other participants
in the criminal justice system if
improvements are to be achieved.
86.6
At Committal 14.5
Post Committal
Mention to Committal 2.5
Executive members and staff
took part in a number of forums,
committees and reviews aimed at
sharing knowledge and ideas on
improvements to the criminal justice
system. Staff across the office
provided training to colleagues in
the criminal justice system.
72.1
TOTAL %
69.6
At Committal Mention 46.1
23.5
Filing Hearing to
Committal Mention 21.5
Summary Mention
2
2
09/10 GUILTY PLEAS PRE-TRIAL
STAGE OF RESOLUTION
The OPP further developed
collaborative relationships with the
DOJ, Victoria Police, Victoria Legal
Aid, the OPI, the OCE, Corrections
Victoria, the courts, victim assistance
groups, and solicitors and barristers.
Improved working relationships
were formalised through
Memoranda of Understanding
signed with Victoria Police to
clarify costs and investigative
expenses, and with WorkSafe and
the DOJ’s Victims Support Agency
(VSA) setting out the processes
and respective responsibilities of
each organisation.
As part of a proactive and
collaborative approach to systemic
issues, the OPP participated in
an initiative to conduct precommittal conferencing in drugs
cases that involve large amounts
of seized items. The conferencing,
which was formalised this year,
brings together the OPP, Victoria
Police and the Victoria Police
Forensic Services Department
(VPFSD) to examine drug analysis
needs, reducing the need to analyse
each item seized in a clandestine
drug laboratory.
‘THERE IS A REAL
SENSE OF ENTHUSIASM
AND OPTIMISM ABOUT
WHAT WE ARE DOING
TO DISCHARGE OUR
PROSECUTORIAL
RESPONSIBILITIES IN
REGIONAL CENTRES
TO THE HIGHEST OF
STANDARDS’
OPP LEGAL PRACTICE MANAGER,
STUART WARD (DECEMBER 2009)
A communications audit was
undertaken with stakeholders
to determine how well the
OPP communicates with other
participants in the criminal justice
system, and where improvements
could be made.
The OPP continued to build links
with interstate prosecutors by
organising and hosting a forum
involving senior executives from all
states and territories on the latest
developments and challenges facing
prosecutions. In another interstate
initiative, a Deputy Senior Crown
Prosecutor of the NSW Office of
the Director of Public Prosecutions,
Christopher Maxwell QC, gave two
presentations and led a roundtable discussion at the OPP on the
Evidence Act 2008.
NINETEEN
GOAL ONE
ENHANCE RESPONSIVENESS OF
THE PROSECUTION SERVICE
TO VICTIMS OF CRIME
Deliver quality
prosecution
services
GOAL TWO
Achieve just
outcomes
efficiently
GOAL THREE
Enhance
responsiveness
of the prosecution
service to victims
of crime
The OPP’s Witness Assistance Service
(WAS), which is part of the Victims Strategy
and Services Directorate (VSSD), has
social workers dedicated to the increasingly
demanding role of assisting victims and
witnesses of serious crimes, and their
families. Assistance can include attending
meetings and court hearings with
victims, providing updates on the
progress of cases, explaining victims’
rights and entitlements, and referral
to other support services.
The number of victim and witness
consultations by WAS increased to
6,166 from 4,672 in the previous
year (up 32 per cent). This reflected
an increased number of referrals to
the service.
The increase in demand resulted from
a number of factors including:
the automatic referral of every
victim involved with the SSOU
C
a higher profile for victim
and witness care following
the VSSD being linked into
the OPP legal structure
C
C
3
an increasing awareness among the criminal
justice system of respective obligations under
the Victims’ Charter.
During the year, the OPP diverted resources to
employ extra social workers in WAS. Further
resources are, however, required to meet demand.
POSITIVE FEEDBACK
An online survey by the VSSD of Crown
Prosecutors and OPP solicitors about the
involvement of WAS in the criminal justice
system revealed the service had reduced the
likelihood of witnesses resisting or refusing to
give evidence (96 per cent); improved the
quality of evidence given by witnesses (85
per cent); helped decrease the time taken by
witnesses to give evidence (84 per cent);
and contributed to an increase in the number
of cases being resolved (71 per cent).
As part of a service improvement process,
victims were asked to provide feedback on
their experiences with WAS. Initial results
revealed the vast majority of respondents said
WAS helped them feel less distressed and/or
more confident about going through the court
process; supported them to give evidence to
the best of their ability; and treated them with
courtesy, respect and dignity.
GOAL FOUR
Influence policy
and law reform
6166
A record number of victims and
witnesses were consulted reflecting
increased demand for services
4672
3347
GOAL FIVE
Deliver strong
governance and
professional capability
2242
1565
05/06
06/07
07/08
08/09
09/10
NUMBER OF VICTIM AND WITNESS CONSULTATIONS
OPP
OPP
‘THE SUPPORT OFFERED
BY THE WITNESS
ASSISTANCE PROGRAM
ENABLED ME TO COPE
WITH THE STRESS OF
TESTIFYING IN COURT…
IT IS A WONDERFUL
SERVICE AND I AM
GLAD IT EXISTS’
VICTIM’S FEEDBACK
(NOVEMBER 2009)
SHARING EXPERTISE
The OPP has an important contribution
to make in sharing its expertise with
other agencies involved in helping
victims and witnesses of crime.
The OPP contributed to two VSA
strategies aimed at best supporting
victims of crime who have a
disability or are from culturally and
linguistically diverse backgrounds.
Research has shown that victims
from these two groups are more
likely to be victims of crime.
OPP representatives participated
in a reference group to redevelop
Victim Impact Statement forms and
also contributed to, and took part in,
the development of a VSA website
video to help victims and witnesses
understand the court process.
Training provided by WAS
staff increased over the past
year and included:
C
a one-day workshop for the
Australian Association of Social
Workers on supporting victims of
indictable sexual assault through
the court process
C
sessions at Victims Assistance
and Counselling Program centres
in Melbourne, Ballarat, Bendigo
and Wangaratta to help ensure a
consistent level of assistance to
victims across the State
C
sessions at induction days for
Court Network volunteers.
A CASE STUDY
The Witness Assistance
Service supports victims and
witnesses of crime throughout
the prosecution process.
WAS assisted seven victims
who were the subject of gross
indecency by a teacher at a deaf
school in the 1970s, and who
went to trial in the County Court
in June 2010.
WAS appointed a social worker
to assist the victims following a
referral by the police informant in
December 2008.
The victims, who experienced
varying levels of hearing
impairment, were each contacted
by WAS and individual precommittal conferences were
arranged involving the OPP
solicitor, police informant, WAS
social worker and an Auslan
interpreter.
At the conferences, which took
about two hours each, the
court process and committal
hearing were explained and the
victims had the opportunity to
ask questions. The victims were
then given a tour of the remote
witness facility at the OPP,
and the opportunity to tour the
Magistrates’ Court.
During the committal in May
2009 and then later at the trial,
the WAS social worker met with
the victims before and after they
gave evidence, with the aim of
making them as comfortable as
possible. Most of the victims
elected to give evidence via
video link from the OPP’s offices
which minimised contact with
the accused. The OPP’s remote
witness facility was large enough
to accommodate each victim
and two interpreters; had a large
screen to assist victims who lip
read and provided a specialist
microphone and camera zoom
function to enable the court to
hear and see both the victim and
the interpreters.
After the committal, meetings
were held to debrief the victims
on the outcome and to explain
why the accused was committed
to stand trial on some charges
and not others.
The WAS social worker also
referred a number of the victims
to counsellors and provided
advice in relation to funding
for this.
A few months before the trial, the
WAS social worker and OPP
solicitor began to hold individual
meetings with the victims to help
allay anxiety and to explain the
trial process. They also took them
on familiarisation tours of the
County Court.
In July 2010, after a fiveweek trial a jury found the
accused guilty of nine counts
of committing an act of gross
indecency with a child under
16. He was sentenced to a term
of imprisonment of five months
which was wholly suspended for
a period of one year. One factor
in mitigation taken into account
by the sentencing judge was the
fact that the accused had recently
been diagnosed with mouth and
throat cancer and required
urgent treatment.
The WAS social worker
supported the victims at
the sentencing hearing, and
afterwards she and the legal team
met with the victims to answer
questions about the outcome.
The social worker later wrote to
the victims outlining the different
forms of compensation available
and the process for applying.
The accused has subsequently
lodged an appeal against
conviction.
TWENTY-ONE
GOAL ONE
Deliver quality
prosecution
services
INFLUENCE POLICY
AND LAW REFORM
As a major participant in Victoria’s
criminal justice system, the OPP
contributed its expertise to law reform.
GOAL TWO
Achieve just
outcomes
efficiently
Through its Policy and Advice Directorate,
the OPP this year provided advice to
government, participated in law reform
consultations, and contributed to the
implementation of new legislation.
The OPP responded to a number of
developments within the criminal justice
system including human rights, DNA and
sentencing.
The OPP worked closely with Victoria Police,
the DOJ, the courts, the legal profession
and community groups to identify and
respond to significant law reform issues.
GOAL THREE
Enhance
responsiveness
of the prosecution
service to victims
of crime
GOAL FOUR
Influence policy
and law reform
GOAL FIVE
Deliver strong
governance and
professional capability
OPP
EVIDENCE AND PROCEDURE REFORMS
Extensive training and preparatory work
by the OPP ensured a smooth transition
for prosecutors to the introduction
of the Evidence Act 2008 and the
Criminal Procedure Act 2009 which
came into effect on 1 January 2010.
The most significant legislative
changes to the criminal justice system
in Victoria for more than 50 years, the
reforms introduced new procedures
such as interlocutory appeals and
significant evidentiary changes,
impacting on almost all aspects
of the OPP’s day-to-day practice.
In preparation, the OPP
developed training for all solicitors
and Crown Prosecutors throughout
the year, and provided training
material to other prosecuting,
investigative and government
agencies. Training sessions
were filmed and linked to the
OPP’s legal database, to
enable easy access for all staff.
Extensive liaison was also
carried out with stakeholders
including the DOJ, the
courts, Victoria Police and
the Commonwealth Director
of Public Prosecutions in
preparation for the reforms.
4
NEW CONTINUED DETENTION SCHEME
A new scheme of continued detention for high-risk
sex offenders beyond the term of their sentence
came into effect on 1 January 2010, under
the Sex Offenders (Detention and Supervision)
Act 2009. The new legislation provides for
supervision of high-risk offenders who can be
safely supervised in the community.
The DPP, who is the applicant for all detention
orders, is represented on the Detention and
Supervision Order Review Board which assesses
eligible sex offenders approaching the end of their
sentence. The board makes recommendations
to the DOJ on whether a supervision order
application should be made or whether a matter
be referred to the DPP for consideration of a
detention order application.
In response to these reforms, the OPP appointed
a Principal Solicitor and part-time legal support
officer to prepare and conduct all detention order
applications on behalf of the DPP, and to develop
Director’s policies as required.
SENTENCING
The DPP introduced new procedures to
challenge inadequate current sentencing
practices. Director’s Policy 9 (which can be
viewed at www.opp.vic.gov.au) details the role
of the Crown upon plea and sentence. The
amendments to this policy require a sentencing
range be offered to the courts in all matters and
require sentencing range submissions to articulate
the considerations on which they are based.
DNA
The OPP diverted resources to respond
to developments in DNA over the past year,
including:
C
commencing an OPP review of completed
cases over the previous five years to determine
whether any cases had been affected by a
change in the way the VPFSD calculates and
reports on low-level DNA in certain cases
C
analysing and monitoring pending cases
involving DNA evidence
‘THE CRIMINAL
PROCEDURE ACT
2009 COMMENCED
ON 1 JANUARY,
MARKING THE
MOST SIGNIFICANT
REFORM TO CRIMINAL
PROCEDURE IN
VICTORIAN HISTORY
AND SIGNIFICANT
CHANGE FOR THOSE
WORKING IN THE
CRIMINAL JUSTICE
SYSTEM’
DEPUTY PREMIER AND ATTORNEYGENERAL OF VICTORIA, THE HON.
ROB HULLS (MARCH 2010)
C
C
co-operating and assisting with
an inquiry by former Supreme
Court judge and former Justice
of the Court of Appeal, the Hon.
Frank Vincent QC, into the case of
Farah Jama who was wrongfully
convicted of rape predominantly
on the basis of DNA evidence
working with the VPFSD to ensure
the smooth introduction of a new
nationally-agreed method of DNA
analysis and use of DNA evidence,
following a Victoria Police-led review
by a panel of international experts.
HUMAN RIGHTS CHARTER
The OPP sought a number of
adjournments of drug trials pending
a decision on a major Human Rights
Charter challenge to the Victorian
courts’ interpretation of s5 of the
Drugs Poisons and Controlled
Substances Act 1981 in relation to
possession of drugs of dependence.
In R v Momcilovic, the defendant
argued the courts’ interpretation
of the section involved a breach
of her right under the Charter to
the presumption of innocence. The
Court of Appeal found that while
s5 does infringe the right to the
presumption of innocence, it cannot
sensibly be ‘re-interpreted’ in such a
way as to render it compatible with
that right.
The OPP also dealt with a number
of other matters in which Human
Rights Charter issues were raised,
many of which involved intervention
by the Attorney-General and the
Victorian Human Rights and Equal
Opportunity Commission. OPP staff
and Crown Prosecutors attended
a variety of seminars and events to
keep informed of developments on
human rights.
CONTRIBUTING EXPERTISE
TO LAW REFORM
A broad range of issues relating
to criminal law were considered
and opinions given by OPP policy
experts. As well as considering jury
directions, bail, judicial misconduct,
jury service eligibility and firearms,
OPP policy staff also took part in
the following:
Victims’ Compensation Review:
The DOJ is reviewing the system of
compensating victims of crime. OPP
staff attended meetings and a public
forum, and made extensive written
submissions on this matter.
Victims’ Court Experience:
The OPP was involved in
consultations on new legislation
aimed at improving the court
experience for victims of crime,
including enabling them to read
their victim impact statements to
the court. The legislation is expected
to come into effect in 2011.
the Hon. Geoffrey Eames, to review
criminal and civil law in Victoria as
it relates to hatred and prejudice.
A report is due in late 2010.
Crimes Act Offences Review:
Part of the Criminal Law Justice
Statement Project, the OPP is
closely involved in this review
through the Offences Advisory
Group. The group is checking the
drafting, elements, jurisdiction and
penalty levels of all major indictable
offences currently in the Crimes
Act 1958. The group has advised
on a range of offences including
sabotage, property damage, kidnap
and assault, as well as general ‘fault
elements’ such as recklessness.
EXTRADITION AND
MUTUAL ASSISTANCE
The OPP provided Victoria Police
and the Federal Government with
support and assistance in seeking
the apprehension and surrender
of fugitives in foreign jurisdictions.
This year a high-profile suspect
was successfully returned from
Thailand. The OPP also assisted
Victoria Police to formulate requests
for mutual assistance from foreign
nations. Often the assistance sought
involved the obtaining of important
evidence.
SUPPRESSION ORDERS
In the past year, there was a marked
increase in the number of apparent
suppression order breaches that
required the consideration of the
DPP. In some cases referral to
investigative authorities was deemed
appropriate.
Hate Crimes Review: The OPP is
represented on a committee, headed
by retired Supreme Court Justice,
TWENTY-THREE
GOAL ONE
Deliver quality
prosecution
services
GOAL TWO
Achieve just
outcomes
efficiently
GOAL THREE
Enhance
responsiveness
of the prosecution
service to victims
of crime
GOAL FOUR
Influence policy
and law reform
GOAL FIVE
Deliver strong
governance and
professional capability
OPP
DELIVER STRONG GOVERNANCE
AND PROFESSIONAL CAPABILITY
Corporate Services comprises eight
business units that work collaboratively
across the OPP to form a responsive
infrastructure: Human Resources (HR),
Information Technology Services (IT),
Finance, Facilities, Library, Registry,
Audio-Visual (AV) and Projects and
Performance (P&P).
Over the year, the OPP continued
to expand and enhance the services
provided by its corporate units to
support the work of the legal practice.
A range of corporate modernisation
initiatives were commenced to ensure
the OPP has the professional capability
to meet future challenges.
STRUCTURAL CHANGES
IN THE LEGAL PRACTICE
Collaboration between the Legal
Practice and Corporate Services
led to the successful launch of the
Regional Prosecutions and Advocacy
and Briefings Directorates. P&P
project managed the restructures,
coordinating legal practice input
and management oversight, as well
as contributions from HR, IT and
Facilities. The project template was
used for the planning of the new
Appeals Directorate to be launched
on 1 July 2010.
A new Legal Support Structure
to provide career development
opportunities for administration
staff and targeted support
for solicitors was introduced
following the combined efforts
of the Legal Practice and HR.
A DIGITAL ROADMAP
The OPP started a number
of projects to provide staff
with the best tools to
undertake their jobs
effectively and efficiently.
5
Research was undertaken, and tenders called for
and assessed, to replace the OPP’s current
practice management system with a more efficient,
workflow-based practice management system.
This project will move into the planning, design,
development and testing phases in the next financial
year in conjunction with the successful tenderer.
A new, powerful digital AV system was
implemented to provide improved evidence quality
and increase efficiencies through the preparation
of high resolution media.
The OPP reviewed its intranet and website and
developed a digital strategy to create a modern,
navigable, content managed online resource
to maximise the currency and accessibility of
information, and to enable more effective internal
and external communications.
The OPP’s IT infrastructure was audited and
assessed against best-practice system benchmarks
and available technology, resulting in an IT strategy
to be implemented in the next financial year.
GOVERNANCE AND ACCOUNTABILITY
Work began to strengthen the OPP’s corporate
governance and accountability framework through
a review of corporate policies and procedures.
The OPP furthered its business planning
approach, which was informed by the 2008/09
staff survey results. A business ‘plan on a page’
was created articulating priorities, strategies, and
the OPP’s goals, vision and values. This plan was
published to staff to assist them align corporate
priorities with their individual objectives.
Overall expenditure reporting was enhanced
to improve transparency, and the creation and
distribution of reports for certain expenditure,
such as mobile phones, was automated.
A strong focus on risk management resulted in an
update of all procedures to align with government
risk management standards, and the delivery of
relevant training to key staff.
The Finance Unit processed more than 12,000
invoices and achieved a compliance rating of
more than 90 per cent in relation to the Victorian
Government’s Fair Payment Policy.
PEOPLE MANAGEMENT
The HR Unit developed a strategic
business plan to ensure its work
aligned with the OPP Business
Plan. Key achievements against this
plan were the:
C
development of a common brand
and regular HR communication
product including weekly staff
movement and recruitment bulletins,
monthly statistical reports for
managers, and quarterly health
and well-being newsletters
C
creation of the HR Guide for
Managers to address common
questions
C
implementation of a new electronic
leave management system.
In recognition of the importance of
attracting high-calibre candidates to
the OPP and to improve efficiencies
in recruitment, a dedicated Recruitment
Officer was appointed, a new electronic
recruitment system was implemented,
and recruitment and selection training
sessions were provided to staff.
INVESTING IN STAFF
The OPP values the diversity of its staff
and recognises that their knowledge,
enthusiasm and dedication are critical
to its success. The OPP is committed
to attracting, retaining and motivating
skilled staff and in 2009/10 has:
C
promoted flexible and familyfriendly working conditions
C
enhanced career and professional
development prospects through
the new legal support structure
and the advocacy program
C
participated in team-based activities
including dragon boat racing,
cycling, running, walking and
quizzes to promote well-being,
team work and improved morale.
A training calendar was published to
inform staff about the extensive learning
and development opportunities on
offer. A regular series
of Continuing Legal
Education events was
held, covering topics such
as internal OPP policies and
legal procedure and process.
Training was also provided
on the OPP case management
system, project management, and
Microsoft Office applications.
Targeted training and development
activities included:
C
advocacy training, in tandem with
the Australian Advocacy Institute,
to develop and promote advocacy
skills, competence and excellence
C
workshops on appropriate
workplace behaviour, to ensure
employee conduct is in line with
the OPP’s values
C
performance management training,
emphasising the importance of
continuous improvement and
ensuring individual objectives
align with organisational goals.
To promote staff well-being, the OPP
provided worker health checks, offered
flu vaccinations, enhanced first-aid
arrangements, and continued to
provide the Employee Assistance
Service and access to confidential
professional counselling.
‘AN ENORMOUS AMOUNT
OF UNSEEN EFFORT HAS
GONE INTO BEHIND THE
SCENES, DAY-TO-DAY
WORK AND FOUNDATIONAL
WORK FOR THE FUTURE’
OPP GENERAL MANAGER,
CORPORATE SERVICES,
MICHAEL HOYLE (DECEMBER 2009)
regional courts to improve network
reliability and security of information
C
continuing the provision of a mobile
editing unit to regional courts to
expedite production of digital evidence
C
increasing the number of
management reports to monitor
performance across the OPP
C
assisting the VSSD with policy
development and the design of
service delivery surveys
C
creating a DNA database to
ensure cases involving DNA
evidence follow new VPFSD
and internal OPP policies
C
creating a dynamic register of all
portable and attractive asset items
C
interacting with other agencies and
departments to ensure a coordinated
response in areas such as
financial management, planning
and business case development
C
installing a new, environmentally
friendly motion-sensing lighting
system, and introducing a new
waste management process to
improve environmental performance.
CORPORATE MODERNISATION
OPP Corporate Services undertook
a number of activities to improve
performance, increase efficiency,
strengthen communications or
standardise processes, including:
C
introducing a new LPS advice
process to ensure good
governance and record keeping
C
installing security barriers to
improve staff safety and security
C
upgrading the quality and accessibility
of remote witness facilities
C
improving facilities at the Melbourne
County Court Prosecutors’ Room,
and enhancing IT services in
TWENTY-FIVE
DPP AND OPP REPRESENTATION ON
COMMITTEES AND ADVISORY GROUPS
During 2009/10 the DPP and OPP were represented on a range of standing committees and advisory groups,
and participated in a number of groups overseeing new developments in the criminal justice system.
Committee
Purpose
Chair
Bail Steering Committee
Implement the Victoria Law Reform Commission’s (VLRC) recommendations
on the Bail Act 1977
DOJ
Confiscation Scheme Executive
Management Committee
Oversee management of the Confiscation Scheme
DOJ
County Court Criminal Users Group
Discuss and resolve issues relating to the County Court’s criminal jurisdiction
County Court
County Koori Court Reference Group
Oversee the development and implementation of the County Koori Court
County Court
Criminal Justice Enhancement Program
Steering Committee
Oversee information and knowledge management initiatives within
the criminal justice system
DOJ
Criminal Justice System Steering Committee
Identify and address issues relating to the operation of the Victorian criminal
justice system
DOJ
Criminal Law Justice Statement Advisory
Committee
Implement the Victorian Attorney-General’s Justice Statement
DOJ
Criminal Law Justice Statement Offences
Review Group
Oversee the review of all criminal offences in Victoria
DOJ
Dangerous Exhibits Working Group
Develop cross-jurisdictional protocols on the management of dangerous exhibits
Supreme Court
Expediting Evidentiary Procedure and
Analysis Steering Committee
Develop an interagency approach to managing indictable drug cases
Victoria Police
Forensic Services Advisory Board
Consultation and advice to VPFSD on strategic direction
Victoria Police
Hate Crime Review Working Group
Review the effectiveness of the law’s response to hate crime
DOJ
Implementation
Coordination Group
Oversee the implementation of the Evidence Act 2008 and the Crimes
Procedure Act 2009
DOJ
Judicial College of Victoria Multi-Disciplinary
Steering Committee
Develop a sexual assault training package and education framework
Judicial College
of Victoria
Jury Directions Advisory Group
Implement the VLRC’s recommendations on jury directions in criminal trials
DOJ
Justice Mental Health Partnership Group
Advise on the Justice Mental Health Strategy
DOJ
Magistrates’ Court Criminal Court
Users Group
Discuss and resolve issues relating to the
Magistrates’ Court criminal jurisdiction
Melbourne
Magistrates’
Court
Mutual Assistance Act Liaison Officers Group
Respond to requests for mutual assistance from other countries
Commonwealth
Attorney-General
OPP/Victoria Police Consultative Forum
Discuss issues of mutual concern
Victoria Police and
OPP alternately
OPP/VPFSD Liaison Meeting
Discuss issues of mutual concern regarding the VPFSD’s
role in prosecuting in the higher courts
VPFSD and
OPP alternately
Sexual Assault Steering Committee
Oversee and coordinate reforms to the criminal justice
system to address sexual assault
DOJ
Therapeutic Treatment Board
Evaluate and advise on services available for children in need of therapeutic
treatment (aged 10 years and under 15 years old) and advise on the
appropriateness of the application for a therapeutic treatment order
DHS
Systemic Review of Family Violence Deaths
Reference Group
Advise and inform on systemic issues in family violence deaths
Coroners Court
Victim Compensation Review Working Group
Review all aspects of compensation for victims of crime
DOJ
Victims’ Charter Executive Steering Committee
Oversee the implementation of the Victims’ Charter
DOJ
Victorian Sentencing Manual
Editorial Committee
Oversee updates to the online Victorian Sentencing Manual
Judicial College
of Victoria
OPP
SUMMARY OF FINANCIAL PERFORMANCE
For the financial year ended
30 June 2010 the OPP recorded
a net result from transactions of
$0.147 million, comprising revenue
of $50.532 million and expenditure
of $50.385 million. The increase in
revenue from 2008/09 was mainly
attributable to additional funding
received under an ERC initiative to
achieve a reduction in court delays.
Funding of $0.158 million was also
received from the Legal Services
Board to implement an interactive
legal education program.
The Victorian Government considers
the net result from transactions
to be the appropriate measure of
financial management that can be
directly attributed to government
policy. This measure excludes the
effects of revaluations (holding gains
or losses) arising from changes in
market prices and other changes
in the volume of assets shown
under ‘other economic flows’ on
the Comprehensive Operating
100%
Total assets increased to $17.221
in 2009/10. This was mainly due
to the recognition of contributed
capital of $7.053 million from the
Department of Justice to address
the negative equity position of the
Office. A further factor contributing
to the increase in total assets was
the completion of the Audio Visual
Digitisation Project ($0.514 million).
Statement, which are outside the
control of the OPP.
A summary of the Office of Public
Prosecution’s financial performance
in 2009/10 is set out below. Full
financial details are outlined in the
Financial Statements.
Total liabilities increased to
$12.783 million due to an
increase in provisions for employee
entitlements, payables and a
finance lease liability associated
with the motor vehicle fleet.
100%
88
63
22
5
12
6
Core
Funding
Tied
Funding
Employee
Related
Expenses
Professional
Services
Property,
Rent and
Maintenance
Five-Year Financial Summary
Office
Expenses
2
1
1
Other
Operating
Expenses
Depreciation
and
Amortisation
Witness
Expenses
($ ‘000)
2009/10
2008/09
2007/08
2006/07
2005/06
Revenue from Government
50,374
48,468
46,754
40,138
34,841
Total income from transactions
50,532
48,626
46,754
40,138
34,841
Total expenses from transactions
50,385
48,462
46,603
40,128
34,807
Net result from transactions
147
164
151
10
34
Net result for the period
145
27
37
10
34
Net cash flows from operating activities
53
619
367
272
323
Total assets
17,221
8,753
7,230
6,361
3,546
Total liabilities
12,783
11,619
10,737
10,053
7,349
TWENTY-SEVEN
COMMITTEE FOR PUBLIC
PROSECUTIONS ANNUAL REPORT
The Committee for Public Prosecutions was established by s42 of the
Public Prosecutions Act 1994.
It was empowered to issue guidelines on a number of specific prosecution
issues, and to provide advice on the criminal prosecution system generally.
During the past year, the Committee consisted of the Director of Public
Prosecutions Jeremy Rapke QC, Solicitor for Public Prosecutions Craig
Hyland, Chief Crown Prosecutor Gavin Silbert SC and Governor in Council
appointee Colleen Pearce.
The Committee did not meet during 2009/10 and has nothing to report.
JEREMY W RAPKE QC
Director of Public Prosecutions
CRAIG HYLAND
Solicitor for Public Prosecutions
GAVIN SILBERT SC
Chief Crown Prosecutor
COLLEEN PEARCE
Governor in Council Appointee
Cover
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ACCOUNTABLE OFFICERS DECLARATION
FINANCIAL STATEMENTS CONTENTS
Accountable Officers Declaration
29
Attestation on Compliance
30
Accountable Officer’s and Chief Finance and Accounting Officers Declaration
31
Auditor-General’s Report
32
Comprehensive Operating Statement for the Financial Year ended 30 June 2010
34
Balance Sheet as at 30 June 2010
35
Statement of Changes in Equity for the Financial Year ended 30 June 2010
36
Cash Flow Statement for the Financial Year ended 30 June 2010
37
Notes to the Financial Statements for the Financial Year ended 30 June 2010
38
29
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ATTESTATION ON COMPLIANCE
30
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ACCOUNTABLE OFFICER’S AND CHIEF FINANCE
AND ACCOUNTING OFFICERS DECLARATION
31
OPP100101-2 Financials.indd 31
10/09/10 11:43 AM
32
OPP100101-2 Financials.indd 32
10/09/10 11:43 AM
33
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COMPREHENSIVE OPERATING STATEMENT FOR THE
FINANCIAL YEAR ENDED 30 JUNE 2010
($ thousand)
Notes
2010
2009
Government grant
3(a)
50,374
48,468
Other grant
3(b)
158
158
50,532
48,626
Continuing operations
Income from transactions
Total income from transactions
Expenses from transactions
Employee expenses
4(a)
(31,930)
(29,966)
Depreciation and amortisation
4(b)
(691)
(601)
Interest expense
4(c)
(49)
(54)
Other operating expenses
4(d)
(17,715)
(17,841)
(50,385)
(48,462)
147
164
Total expenses from transactions
Net result from transactions (net operating balance)
Other economic flows included in net result
Net gains/(loss) on sale of non-financial assets
5(a)
–
–
Impairment of receivables
5(b)
–
–
Net gain/(loss) arising from revaluation of long service leave liability
5(c)
(2)
(137)
Total other economic flows included in net result
(2)
(137)
Net result from continuing operations
145
27
Comprehensive result
145
27
The comprehensive operating statement should be read in conjunction with the accompanying notes
34
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BALANCE SHEET AS AT 30 JUNE 2010
($ thousand)
Notes
2010
2009
16
73
73
6
12,953
4,832
13,026
4,905
3,947
3,836
225
–
23
12
4,195
3,848
17,221
8,753
Assets
Financial assets
Cash and cash equivalents
Receivables
Total financial assets
Non-financial assets
Property, plant & equipment
7
Prepayments
Assets held for sale
Total non-financial assets
Total assets
Liabilities
Payables
8
3,607
3,190
Borrowings
9
709
708
Provisions
10
8,467
7,721
Total liabilities
12,783
11,619
Net assets
4,438
(2,866)
(5,680)
(5,825)
240
240
Contributed capital
9,878
2,719
Net worth
4,438
(2,866)
Equity
Accumulated surplus / (deficit)
Reserves
Commitments for expenditure
13
Contingent liabilities and contingent assets
14
The balance sheet should be read in conjunction with the accompanying notes
35
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STATEMENT OF CHANGES IN EQUITY FOR THE
FINANCIAL YEAR ENDED 30 JUNE 2010
($ thousand)
Changes due to
2010
Notes
Accumulated surplus/(deficit)
Contribution by owners
Physical asset revaluation reserve
Total equity at end of the financial year
Equity at
1 July 2009
Total
comprehensive
result
Transactions
with owner in
its capacity as
owner
Equity at
30 June 2010
(5,825)
145
–
(5,680)
2,719
–
7,159
9,878
240
–
–
240
(2,866)
145
7,159
4,438
Changes due to
2009
Accumulated surplus/(deficit)
Contribution by owners
Physical asset revaluation reserve
Total equity at end of the financial year
Notes
Equity at
1 July 2008
Total
comprehensive
result
Transactions
with owners in
their capacity
as owners
Equity at
30 June 2009
(5,852)
27
–
(5,825)
2,105
–
614
2,719
240
–
–
240
(3,507)
27
614
(2,866)
The statement of changes in equity should be read in conjunction with the accompanying notes
36
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CASH FLOW STATEMENT FOR THE FINANCIAL YEAR
ENDED 30 JUNE 2010
($ thousand)
Notes
2010
2009
Receipts from Government
48,873
47,821
Total receipts
48,873
47,821
(48,772)
(47,148)
(48)
(54)
(48,820)
(47,202)
53
619
Payments for property, plant and equipment
(572)
(1,150)
Net cash flows from / (used in) investing activities
(572)
(1,150)
697
614
(178)
(83)
519
531
0
0
73
73
73
73
Cash flows from operating activities
Receipts
Payments
Payments to suppliers and employees
Interest and other costs of finance paid
Total payments
Net cash flows from / (used in) operating activities
16
Cash flows from investing activities
Cash flows from financing activities
Owner contributions by State Government
Repayment of finance lease
Net cash flows from / (used in) financing activities
Net increase / (decrease) in cash and cash equivalents
Cash and cash equivalents at beginning of financial year
Cash and cash equivalents at end of financial year
16
The cash flow statement should be read in conjunction with the accompanying notes
37
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NOTES TO THE FINANCIAL STATEMENTS FOR THE
FINANCIAL YEAR ENDED 30 JUNE 2010
NOTE 1. SUMMARY OF ACCOUNTING POLICIES
(A) Statement of compliance
These financial statements have been prepared in accordance with the Financial Management Act 1994 and
applicable Australian Accounting Standards, including interpretations (AASs). AASs include Australian equivalents to
International Financial Reporting Standards.
Where applicable, those paragraphs of the AASs applicable to not-for-profit entities have been applied.
(B) Basis of accounting preparation and measurement
The accrual basis of accounting has been applied in the preparation of these financial statements whereby assets,
liabilities, equity, income and expenses are recognised in the reporting period to which they relate, regardless of when
cash is received or paid.
These financial statements are presented in Australian dollars, the functional and presentation currency of the OPP.
In the application of AASs, management is required to make judgments, estimates and assumptions about carrying
values of assets and liabilities that are not readily apparent from other sources. The estimates and associated
assumptions are based on historical experience and various other factors that are believed to be reasonable under the
circumstance, the results of which form the basis of making judgments. Actual results may differ from these estimates.
The estimates and underlying assumptions are reviewed on an ongoing basis. Revisions to accounting estimates are
recognised in the period in which the estimate is revised if the revision affects only that period or in the period of the
revision, and future periods if the revision affects both current and future periods. Judgements made by management
in the application of AASs that have significant effects on the financial statements and estimates, with a risk of material
adjustments in the subsequent reporting period, are disclosed throughout the notes to the financial statements.
The report has been prepared in accordance with the historical cost convention except for:
■
non-current physical assets which, subsequent to acquisition, are measured at a revalued amount being their fair
value at the date of the revaluation less any subsequent accumulated depreciation and subsequent impairment
losses. Revaluations are made with sufficient regularity to ensure that the carrying amounts do not materially differ
from their fair value; and
■
the fair value of an asset other than land is generally based on its depreciated replacement value.
Historical cost is based on the fair values of the consideration given in exchange for assets.
Accounting policies are selected and applied in a manner which ensures that the resulting financial information satisfies
the concepts of relevance and reliability, thereby ensuring that the substance of the underlying transactions or other
events is reported.
The accounting policies set out below have been applied in preparing the financial statements for the year ended 30
June 2010 and the comparative information presented for the year ended 30 June 2009.
(C) Reporting entity
The financial statements cover the Office of Public Prosecutions (OPP) as an individual reporting entity. All funds
through which the OPP controls resources to carry on its functions have been included in this financial report. The
Office of Public Prosecutions is the independent statutory authority responsible for preparing and conducting criminal
prosecutions in Victoria on behalf of the Director of Public Prosecutions (DPP).
Objectives and funding
The OPP’s objectives are to conduct an effective, economical and efficient prosecution service as an integral part of
the criminal justice system. The service provided by OPP must meet community expectations of fairness, impartiality
and independence in the application of criminal law.
The OPP is predominantly funded by grants from the Department of Justice.
As there is only one output group within the OPP, controlled income and expenses and controlled assets and liabilities
are included in the financial statements (comprehensive operating statement and balance sheet).
38
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(D) Scope and presentation of financial statements
Comprehensive operating statement
Income and expenses in the comprehensive operating statement are classified according to whether or not they arise
from ‘transactions’ or ‘other economic flows’. This classification is consistent with the whole of government reporting
format and is allowed under AASB 101 Presentation of financial statements.
Transactions’ and ‘other economic flows’ are defined by the Australian system of government finance statistics:
concepts, sources and methods 2005 Cat. No. 5514.0 published by the Australian Bureau of Statistics.
Transactions’ are those economic flows that are considered to arise as a result of policy decisions, usually interactions
between two entities by mutual agreement. Transactions also include flows within an entity, such as depreciation
where the owner is simultaneously acting as the owner of the depreciating asset and as the consumer of the service
provided by the asset. Taxation is regarded as mutually agreed interactions between the Government and taxpayers.
Transactions can be in kind (e.g. assets provided/given free of charge or for nominal consideration) or where the final
consideration is cash.
Other economic flows’ are changes arising from market re-measurements. They include gains and losses from
disposals, revaluations and impairments of non-current physical and intangible assets; actuarial gains and losses
arising from defined benefit superannuation plans; fair value changes of financial instruments and agricultural assets;
and depleting of natural assets (non-produced) from their use or removal.
The net result is equivalent to profit or loss derived in accordance with AASs.
Balance sheet
Asset and liabilities are presented in liquidity order with assets aggregated into, financial assets and non-financial
assets.
Current and non-current assets and liabilities (those expected to be recovered or settled beyond 12 months) are
disclosed in the notes, where relevant.
Statement of changes in equity
The statement of changes in equity presents reconciliations of each non-owner and owner equity opening balance at
the beginning of the reporting period to the closing balance at the end of the reporting period. It also shows separately
changes due to amounts recognised in the comprehensive result and amounts recognised in other comprehensive
income related to other non-owner changes in equity.
Cash flow statement
Cash flow are classified according to whether or not they arise from operating activities, investing activities, or
financing activities. This classification is consistent with requirements under AASB 107 Statement of cash flows.
(E) Income from transactions
Income is recognised to the extent that it is probable that the economic benefits will flow to the entity and the income
can be reliably measured.
Grant income
Grant income becomes controlled and is recognised by the OPP when it is appropriated from the Department of
Justice.
Where applicable, amounts disclosed as income are net of returns, allowances, duties and taxes.
Grants and other income transfers
Grants from third parties (other than contribution by owners) are recognised as income in the reporting period in which
the OPP gains control over the underlying assets.
Fair value of assets and services received free of charge or for nominal consideration
Contributions of resources received free of charge or for nominal consideration are recognised at their fair value when
the OPP obtains control over them, irrespective of whether restrictions or conditions are imposed over the use of the
contributions, unless received from another government department or agency as a consequence of a restructuring
of administrative arrangements. In the latter case, such a transfer will be recognised at carrying value. Contributions
in the form of services are only recognised when a fair value can be reliably determined and the services would have
been purchased if not donated.
39
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(F) Expenses from transactions
Expenses are recognised when the right to receive payment is established.
Employee expenses
Employee expenses include superannuation expenses which are reported differently depending upon whether
employees are members of defined contribution or defined benefit plans described below:
Superannuation – defined contribution plans
In relation to defined contribution (i.e. accumulation) superannuation plans, the associated expenses is simply the
employer contributions that are paid or payable in respect of employees who are members of these plans during the
reporting period.
Superannuation – State superannuation defined benefit plans
The amount recognised in the comprehensive operating statement in relation to employer contributions for members of
defined benefit superannuation plans is simply the employer contribution that are paid or payable to these plans during
the reporting period. The level of these contributions will vary depending upon the relevant rules of each plan, and is
based upon actuarial advice.
The Department of Treasury and Finance (DTF) in their Annual Financial Statements, recognise on behalf of the State
as the sponsoring employer, the net defined benefit cost related to the members of these plans. Refer to DTF’s Annual
Financial Statements for more detailed disclosures in relation to these plans.
Depreciation and amortisation
Property, plant and equipment and other non-current physical assets (excluding items under operating leases and asset
held-for-sale) that have a limited useful life are depreciated. Depreciation is generally calculated on a straight-line
basis, at rates that allocate the asset’s value, less any estimated residual value, over its estimated useful life.
Leasehold improvements are depreciated over the period of the lease or estimated useful life, whichever is the shorter,
using the straight-line method. The estimated useful lives, residual values and depreciation method are reviewed at the
end of each annual reporting period.
The following are typical estimated useful lives for the different asset classes for both current and prior years:
Asset class
Useful life
Leasehold improvements
5 – 15 years
Plant and equipment
5 – 10 years
Motor vehicles under lease
5 years
Construction-in-progress CIP
0 years
Interest expense
Interest expenses are recognised as expenses in the period in which they are incurred, and include interest on finance
lease charges.
Other operating expenses
Supplies and services
Supplies and services expenses are recognised as an expense in the reporting period in which they are incurred.
Bad and doubtful debts
Bad and doubtful debts are assessed on a regular basis. Those bad debts considered as written off by mutual consent
are classified as a transaction expense. Those written off unilaterally and the allowance for doubtful receivables, are
classified as other economic flows (refer to Note 1 (H) Financial assets – Impairment of financial assets).
40
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(G) Other economic flows included in net result
Other economic flows measure the change in volume or value of assets or liabilities that do not result from
transactions. These include:
Disposal of non-financial assets
Any gain or loss on the sale of non-financial assets is recognised at the date that control of the asset is passed to the
buyer and is determined after deducting from the proceeds the carrying value of the assets at the time.
Impairment of non-financial assets
Non-financial assets are assessed annually for indications of impairment. If there is an indication of impairment, the
assets concerned are tested as to whether their carrying value exceeds their possible recoverable amount. Where an
asset’s carrying value exceeds its recoverable amount, the difference is written off as an other economic flow, except to
the extent that the written-down can be debited to an asset revaluation surplus amount applicable to that class of asset.
It is deemed that, in the event of the loss of an asset, the future economic benefits arising from the use of the asset
will be replaced unless a specific decision to the contrary has been made. The recoverable amount for most assets
is measured at the higher of depreciated replacement cost and fair value less costs to sell. Recoverable amount for
assets held primarily to generate net cash inflows is measured at the higher of the present value of future cash flows
expected to be obtained from the asset and fair value less costs to sell.
Other gains/(losses) from other economic flows
Other gains/(losses) from other economic flows include the gains or losses from:
■
transfer of amounts from the reserves and/or accumulated surplus to net result due to disposal or derecognition or
reclassification; and
■
the revaluation of the present value of the long service leave liability due to changes in the bond interest rates.
(H) Financial assets
Cash and deposits
Cash and cash equivalents comprise cash on hand and cash at bank.
Receivables
Receivables consist predominantly of amounts owing from the Department of Justice and debtors in relation of costs
recoup. Receivables that are contractual are classified as financial instruments. Amounts owing from the Department of
Justice are not classified as financial instruments.
Receivables are recognised initially at fair value less an allowance for impairment.
A provision for doubtful receivables is made when there is objective evidence that the debts may not be collected and
bad debts are written off when identified (refer to Note 1 (H) Impairment of financial assets).
Impairment of financial assets
The OPP assesses at the end of each reporting period whether there is objective evidence that a financial asset or
group of financial assets is impaired. All financial assets, except those measured at fair value through profit or loss, are
subject to annual review for impairment.
Bad and doubtful debts for financial assets are assessed on a regular basis. Those bad debts considered as written
off by mutual consent are classified as a transaction expense. The bad debts not written off by mutual consent and
allowance for doubtful receivables are classified as ‘other economic flows’.
In assessing impairment of statutory (non-contractual) financial assets which are not financial instruments, the
Department applies professional judgement in assessing materiality and using estimates, averages and computational
shortcuts in accordance with AASB 136 Impairment of assets.
(I) Non-Financial Assets
Non-financial assets classified as held for sale
Non-financial assets classified as held for sale are measured at the lower of carrying amount and fair value less costs
to sell, and are not subject to depreciation.
Non-financial assets, disposal groups and related liabilities are treated as current and classified as held-for-sale if
their carrying amount will be recovered through a sale transaction rather than through continuing use. This condition
is regarded as met only when the sale is highly probable and the asset’s sale is expected to be completed within 12
months from the date of classification.
41
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Property, plant and equipment
All non-current physical assets are measured initially at cost and subsequently revalued at fair value less accumulated
depreciation and impairment.
Non-current physical assets such as Crown land is measured at fair value with regard to the property’s highest
and best use after due consideration is made for any legal or constructive restrictions imposed on the land, public
announcements or commitments made in relation to the intended use of the land. Theoretical opportunities that may be
available in relation to the asset are not taken into account until it is virtually certain that the restrictions will no longer
apply.
The fair value of cultural assets are measured at the replacement cost of the asset less, where applicable, accumulated
depreciation calculated on the basis of such cost to reflect the already consumed or expired future economic benefits
of the asset and any accumulated impairment.
The fair value of plant and equipment, and vehicles is normally determined by reference to the asset’s depreciated
replacement cost. Existing depreciated historical cost is generally a reasonable proxy for depreciated replacement cost
because of the short lives of the assets concerned.
Leasehold improvements
The cost of leasehold improvements is capitalised as an asset and depreciated over the remaining term of the lease or
the estimated useful life of the improvements, whichever is the shorter.
Restrictive nature of cultural and heritage assets, Crown land and infrastructures
During the reporting period, the OPP may hold cultural assets, heritage assets, Crown land and infrastructures, which
are deemed worthy of preservation because of the social rather than financial benefits they provide the community.
Consequently, there are certain limitations and restrictions imposed on their use and/or disposal.
Non-current physical assets in construction
The cost of non-current physical assets constructed by the OPP includes the cost of all materials used in construction,
direct labour on the project, and an appropriate proportion of variable and fixed overheads.
Revaluations of non-current physical assets
Non-current physical assets are measured at fair value in accordance with FRD 130D issued by the Minister for
Finance. A full revaluation normally occurs every five years, based on the asset’s government purpose classification,
but may occur more frequently if fair value assessments indicate material changes in values. Independent valuers are
used to conduct these scheduled revaluations and any interim revaluations are determined in accordance with the
requirements of the FRDs.
Revaluation increases or decreases arise from differences between an asset’s carrying value and fair value.
Net revaluation increases (where the carrying amount of a class of assets is increased as a result of a revaluation) are
recognised in other comprehensive income and accumulated in equity under the revaluation surplus, except that the
net revaluation increase shall be recognised in the net result to the extent that it reverses a net revaluation decrease
in respect of the same class of property, plant and equipment previously recognised as an expense (other economic
flows) in the net result.
Net revaluation decreases are recognised immediately as expenses (other economic flows) in the net result, except
that the net revaluation decrease shall be recognised in other comprehensive income to the extent that a credit balance
exists in the revaluation surplus in respect of the same class of property, plant and equipment. The net revaluation
decrease recognised in other comprehensive income reduces the amount accumulated in equity under revaluation
surplus.
Revaluation increases and decreases relating to individual assets within a class of property, plant and equipment are
offset against one another within that class but are not offset in respect of assets in different classes. Any revaluation
surplus is not normally transferred to accumulated funds on de-recognition of the relevant asset.
Other non-financial assets
Prepayments
Other non-financial assets include prepayments which represent payments in advance of receipt of goods or services
or that part of expenditure made in one accounting period covering a term extending beyond that period.
42
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(J) Liabilities
Payables
Payables consist predominantly of accounts payable and other sundry liabilities. Accounts payable represent liabilities
for goods and services provided to the OPP prior to the end of the financial year that are unpaid, and arise when the
OPP becomes obliged to make future payments in respect of the purchase of those goods and services.
Other liabilities included in payables mainly consist of accrued employee benefits and fringe benefits tax payable.
Payables are initially recognised at fair value, being the cost of the goods and services, and subsequently measured at
amortised cost.
Interest bearing liabilities
Interest bearing liabilities are recorded initially at fair value, being the cost of the interest bearing liabilities, net of
transaction costs.
Subsequent to initial recognition, interest bearing liabilities are measured at amortised cost with any difference
between the initial recognised amount and the redemption value being recognised in profit and loss over the period of
the interest bearing liability using the effective interest rate method.
Provisions
Provisions are recognised when the OPP has a present obligation, the future sacrifice of economic benefits is
probable, and the amount of the provision can be measured reliably.
The amount recognised as a provision is the best estimate of the consideration required to settle the present obligation
at the end of the reporting period, taking into account the risks and uncertainties surrounding the obligation. Where a
provision is measured using the cashflows estimated to settle the present obligation, its carrying amount is the present
value of those cashflows.
Employee benefits
Provision is made for benefits accruing to employees in respect of wages and salaries, annual leave and long service
leave for services rendered to the reporting date.
(i) Wages and salaries, annual leave and sick leave
Liabilities for wages and salaries, including non-monetary benefits, annual leave and accumulating sick leave which are
expected to be settled within 12 months of the reporting period, are recognised in the provision for employee benefits.
These liabilities are classified as current liabilities and measured at their nominal values.
Those liabilities that are not expected to be settled within 12 months are recognised in the provision for employee
benefits as current liabilities, measured at present value of the amounts expected to be paid when the liabilities are
settled using the remuneration rate expected to apply at the time of settlement.
(ii) Long service leave
Liability for long service leave (LSL) is recognised in the provision for employee benefits.
Current liability – unconditional LSL is disclosed in the notes to the financial statements as current liability even where
the OPP does not expect to settle the liability within 12 months because it will not have the unconditional right to defer
the settlement of the entitlement should an employee take leave within 12 months.
The components of this current LSL liability are measured at :
– nominal value – component that the OPP expects to settle within 12 months; and
– present value – component that the OPP does not expect to settle within 12 months.
Non-current liability – conditional LSL is disclosed as a non-current liability. There is an unconditional right to
defer the settlement of the entitlement until the employee has completed the requisite years of service.
This non-current LSL liability is measured at present value. Ant gain or loss following revaluation of the present
value of non-current LSL liability is recognised as a transaction, except to the extent that a gain or loss arises due
to changes in bond interest rates for which it is then recognised as an other economic flow (refer to Note 1 (G)
Other economic flows include in net result).
Employee benefits on-costs
Employee benefits on-costs such as payroll tax, workers compensation, superannuation are recognised separately from
provision for employee benefits.
43
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(K) Leases
A lease is a right to use an asset for an agreed period of time in exchange for payment.
Leases are classified at their inception as either operating or finance leases based on the economic substance of the
agreement so as to reflect the risks and rewards incidental to ownership. Leases of property, plant and equipment
are classified as finance infrastructure leases whenever the terms of the lease transfer substantially all the risks and
rewards of ownership from the lessor to the lessee. All other leases are classified as operating leases.
Finance leases
OPP as lessee
At the commencement of the lease term, finance leases are initially recognised as assets and liabilities at amounts
equal to the fair value of the lease property or, if lower, the present value of the minimum lease payment, each
determined at the inception of the lease. The lease asset is depreciated over the shorter of the estimated useful life of
the asset or the term of the lease.
Minimum finance lease payments are apportioned between reduction of the outstanding lease liability, and
periodic finance expense which is calculated using the interest rate implicit in the lease and charged directly to the
comprehensive operating statement. Contingent rentals associated with finance leases are recognised as an expense in
the period in which they are incurred.
Operating leases
OPP as lessee
Operating lease payments are recognised as an expense in the comprehensive operating statement on a straight-line
basis over the lease term, except where another systematic basis is more representative of the time pattern in benefits
derived from the use of the leased asset. The leased asset is not recognised in the balance sheet.
(L) Equity
Contribution by owners
Additions to net assets that have been designated as contributions by owners are recognised as contributed capital.
Other transfers that are in the nature of contributions or distributions have also been designated as contributions by
owners.
Transfers of net assets arising from administrative restructurings are treated as distributions to or contributions by
owners.
(M) Commitments
Commitments are disclosed at their nominal value and inclusive of the goods and services (GST) payable.
(N) Contingent assets and contingent liabilities
Contingent assets and contingent liabilities are not recognised in the balance sheet, but are disclosed by way of a note
and, if quantifiable, are measured at nominal value. Contingent assets and liabilities are presented inclusive of GST
receivable or payable respectively.
(O) Accounting for the Goods and Services Tax (GST)
Income, expenses and assets are recognised net of the amount of associated GST, unless the GST incurred is not
recoverable from the taxation authority. The Department of Justice manages the GST transactions on behalf of the
OPP, the GST components of the OPP’s receipts and / or payments are recognised in the Department’s financial
statements.
(P) Events after reporting date
Assets, liabilities, income or expenses arise from past transactions or other past events. Where the transactions results
from an agreement between the OPP and other parties, the transactions are only recognised when the agreement is
irrevocable at or before the end of the reporting period. Adjustments are made to amounts recognised in the financial
statements for events which occur after the reporting date and before the date the financial statements are authorised
for issue, where those events provide information about conditions which existed at the reporting period. Note
disclosure is made about events between the reporting period and the date the financial statements are authorised
for issue where the events relate to conditions which arose after the reporting period and which may have a material
impact on the results of subsequent reporting periods.
44
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(Q) Rounding of amounts
Amounts in the financial statements have been rounded to the nearest thousand dollars, unless otherwise stated.
Figures in the financial statements may not equate due to rounding.
(R) AASs issued that are not yet effective
Certain new AASs have been published that are not mandatory for the 30 June 2010 reporting period. DTF assesses
the impact of these new standards and advises departments and other entities of their applicability and early adoption
where applicable.
As at 30 June 2010, the following standards and interpretation (applicable to the OPP) had been issued but were not
mandatory for financial year ended 30 June 2010. The OPP has not early adopted these standards.
Standard/
Interpretation
Summary
Applicable for annual
reporting periods
beginning on
Impact on the OPP
financial statements
AASB 9 Financial
instruments
This standard simplifies
requirements for the classification
and measurement of financial
assets resulting from Phase 1 of the
IASB’s project to replace IAS 39
Financial instruments: recognition
and measurement (AASB 139
Financial Instruments: recognition and
measurement).
Beginning
1 January 2013
Detail of impact is still being
assessed.
AASB 124 Related party
disclosures (Dec 2009)
Government related entities have
been granted partial exemption with
certain disclosure requirements.
Beginning
1 January 2011
Preliminary assessment
suggests that impact is
insignificant. However, the
OPP is still assessing the
detailed impact and whether to
early adopt.
AASB 2009-5 Further
amendments to
Australian Accounting
Standards arising from
the annual improvements
project [AASB 5, 8, 101,
107, 117, 118, 136 and
139]
Some amendments will result in
accounting changes for presentation,
recognition or measurement
purposes, while other amendments
will relate to terminology and editorial
changes.
Beginning
1 January 2010
Terminology and editorial
changes. Impact minor.
AASB 2009-8
Amendments to
Australian Accounting
Standards – group
cash-settled share-based
payment transactions
[AASB 2]
The amendments clarify the scope of
AASB 2.
Beginning
1 January 2010
No impact. AASB 2 does
not apply to government
departments or entities;
consequently this standard
does not apply.
AASB 2009-9
Amendments to
Australian Accounting
Standards – additional
exemptions for first-time
adopters [AASB 1]
Applies to entities adopting Australian
Accounting Standards for the first
time, to ensure entities will not face
undue cost or effort in the transition
process in particular situations.
Beginning
1 January 2010
No impact. Relates only to first
time adopters of Australian
Accounting Standards.
AASB 2009-10
Amendments to
Australian Accounting
Standards –
classification of rights
issues [AASB 132]
The Standard makes amendments to
AASB 132, stating that rights issues
must now be classed as equity rather
than derivative liabilities.
Beginning
1 February 2010
No impact. OPP does not
issue rights, warrants and
options, consequently the
amendment does not impact
on the statements.
45
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Standard/
Interpretation
Summary
Applicable for annual
reporting periods
beginning on
Impact on the OPP
financial statements
AASB 2009-11
Amendments to
Australian Accounting
Standards arising from
AASB 9 [AASB 1, 3, 4,
5, 7, 101, 102, 108, 112,
118, 121, 127, 128, 131,
132, 136, 139, 1023 and
1038 and Interpretations
10 and 12]
This gives effect to consequential
changes arising from the issuance of
AASB 9.
Beginning
1 January 2013
Detail of impact is still being
assessed.
AASB 2009-12
Amendments to
Australian Accounting
Standards [AASB 5, 8,
108, 110, 112, 119, 133,
137, 139, 1023 and 1031
and Interpretations 2, 4,
16, 1039 and 1052]
This standard amends AASB 8
to require an entity to exercise
judgement in assessing whether a
government and entities known to be
under the control of that government
are considered a single customer
for purposes of certain operating
segment disclosures. This standard
also makes numerous editorial
amendments to other AASs.
Beginning
1 January 2011
The amendments only apply to
those entities to whom AASB
8 applies, which are for-profit
entities except for-profit
government departments.
AASB 2009-13
Amendments to
Australian Accounting
Standards arising
from interpretation 19
[AASB 1]
Consequential amendment to
AASB 1 arising from publication of
Interpretation 19.
Beginning
1 July 2010
OPP does not extinguish
financial liabilities with
equity instruments, therefore
requirements of Interpretation
19 and related amendments
have no impact.
AASB 2009-14
Amendments to
Australian Interpretation
– Prepayments
of a minimum
funding requirement
[AASB Interpretation 14]
Amendment to Interpretation
14 arising from the issuance of
prepayments of a minimum funding
requirement.
Beginning
1 January 2011
Expected to have no significant
impact.
AASB 2010-1
Amendments to
Australian Accounting
Standards – Limited
Exemption from
Comparative AASB 7
Disclosures for Firsttime Adopters [AASB 1
& AASB 7]
This amendment provides limited
exemptions from the requirements of
adhering to AASB 1 and AASB 7 that
arise from AASB 2009-2.
Beginning
1 July 2010
These exemptions are unlikely
to have an impact on the OPP
because it is not a first time
adoption.
Erratum General
Terminology changes
Editorial amendments to a range of
Australian Accounting Standards and
Interpretations.
Beginning
1 January 2010
Terminology and editorial
changes. Impact minor.
Interpretation 19
Extinguishing Financial
Liabilities with Equity
Instruments
Guidance to assist entity in
accounting for transactions that
involves extinguishing a liability
fully or partially by issuing equity
instruments to the creditor.
Beginning
1 July 2010
The impact of this
interpretation only affects
entities that issue equity
instruments.
46
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Standard/
Interpretation
Summary
Applicable for annual
reporting periods
beginning on
Impact on the OPP
financial statements
AASB 1053 Application
of Different Tiers of
Australian Accounting
Standards
This Standard establishes a
differential financial reporting
framework consisting of two tiers of
reporting requirements for preparing
general purpose financial statements.
Beginning
1 July 2013
The impact of this Standard
may affect disclosures in the
financial reports of certain
types of entities [public
sector entities (except
whole of government and
general government sector)]
where reduced disclosure
requirements may apply. The
Standard does not affect the
operating result or financial
position.
AASB 2010-2
Amendments to
Australian Accounting
Standards arising from
Reduced Disclosure
Requirements
This Standard makes amendments
to many Australian Accounting
Standards, including Interpretations,
to introduce reduced disclosure
requirements to the pronouncements
for application by certain types of
entities.
Beginning
1 July 2013
Does not affect financial
measurement or recognition,
so is not expected to have any
impact on financial result or
position. May reduce some
note disclosures in financial
statements.
47
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NOTE 2. OUTPUT OF THE OFFICE
Description of output
The number of briefs prepared for hearings and the attendance at hearings on behalf of the Director of Public
Prosecutions.
Objectives
An effective, economical and efficient prosecution service which is an integral part of the criminal justice system.
NOTE 3. INCOME FROM TRANSACTIONS
($ thousand)
2010
2009
50,374
48,468
158
158
Total grants
50,532
48,626
Total income
50,532
48,626
(a) Government grant
Grants
(b) Other grant
Legal Services Board
48
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NOTE 4. EXPENSES FROM TRANSACTIONS
($ thousand)
2010
2009
24,249
22,767
647
653
1,326
1,239
279
214
Annual leave and long services leave
3,228
2,863
Other on-costs (fringe benefits tax, payroll tax and workcover levy)
2,201
2,230
31,930
29,966
Depreciation of plant and equipment
43
42
Depreciation of computers and communication equipment
158
148
Amortisation of building leasehold improvements
313
231
Amortisation of motor vehicles
177
180
Total depreciation and amortisation
691
601
Interest on finance leases
49
54
Total interest expense
49
54
11,379
11,573
Property maintenance
426
395
Information technology
625
889
Printing, stationery & library
876
966
Postage, communication & office expenses
785
640
Interpreters
362
241
Other – travel, personal exp claims, motor vehicles
731
821
Audit services
20
18
15,204
15,543
2,511
2,298
17,715
17,841
(a) Employee expenses
Salary and wages
Superannuation:
– Defined contribution superannuation plans
– VicSuper
– Private funds
Total employee expenses
(b) Depreciation and amortisation
(c) Interest expense
(d) Other operating expenses
Supplies and services:
Professional services and witness payments
Total supplies and services
Operating lease rental expenses:
Rent
Total other operating expenses
49
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NOTE 5. OTHER ECONOMIC FLOWS INCLUDED IN NET RESULT
($ thousand)
2010
2009
Net gain/(loss) on disposal of non-current assets
–
–
(a) Net gain/(loss) on non-financial assets
–
–
Impairment of receivables
–
–
(b) Net gain/(loss) on financial instruments and statutory
–
–
Net gain/(loss) arising from revaluation of long service leave liability
(2)
(137)
(c) Other gains/(losses) from other economic flows
(2)
(137)
2010
2009
123
285
(37)
(37)
Amounts owing from the Department of Justice
12,020
3,752
Total current receivables
12,106
4,000
Amounts owing from the Department of Justice
847
832
Total non-current receivables
847
832
12,953
4,832
NOTE 6. RECEIVABLES
($ thousand)
Current receivables
Contractual
Debtors
Provision for doubtful receivables
Statutory
Non-current receivables
Statutory
Total receivables
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NOTE 7. PROPERTY, PLANT AND EQUIPMENT
Classification by ‘Purpose Groups’ – Carrying amounts
($ thousand)
Public Safety and Environment
2010
2009
740
740
740
740
2,815
2,340
(1,590)
(1,276)
1,225
1,064
Total land and leasehold improvements
1,965
1,804
Plant and equipment at fair value
1,064
1,017
Less: accumulated depreciation
(643)
(442)
421
575
929
937
(251)
(250)
678
687
883
770
–
–
883
770
Total plant and equipment
1,982
2,032
Net carrying amount of property, plant and equipment
3,947
3,836
Nature-based classification
Land at fair value
Buildings:
Leasehold improvements at fair value
Less: accumulated amortisation
Motor vehicles at fair value
Less: accumulated amortisation
Assets in the course of construction at cost
Less: accumulated depreciation
The following useful lives of assets are used in the calculation of depreciation:
Leasehold improvements
5 – 15 years
Plant and equipment
5 – 10 years
Motor vehicles under lease
5 years
Construction-in-progress CIP
0 years
51
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Aggregated depreciation recognised as an expense during the year
($ thousand)
2010
2009
Leasehold improvements at fair value
313
231
Plant and equipment at fair value
201
190
Motor vehicles at fair value
177
180
691
601
Freehold land carried at fair value
An independent valuation of OPP’s land was carried out in June 2006, to determine the fair value of land. The
valuation which conforms to Australian Valuations Standards, was determined by reference to the amounts for which
assets could be exchanged between knowledgeable willing parties in an arm’s length transaction. The valuation was
based on independent assessments. In the current year OPP has reviewed the fair value of the assets and it has been
determined that no material changes have occurred since the last revaluation.
NOTE 7.1 PROPERTY, PLANT AND EQUIPMENT
Classification by ‘Public safety and environment’ purpose group –
Movements in carrying amounts
($ thousand)
Leasehold improvements at
fair value
Land at fair value
Plant, equipment at fair value
2010
2009
2010
2009
2010
2009
740
740
1,064
1,232
575
519
Additions
–
–
75
63
86
392
Disposals
–
–
–
–
–
(160)
Transfer to assets
classified as held-for-sale
–
–
–
–
–
–
Revaluation of PPE
–
–
–
–
–
–
Depreciation
–
–
(313)
(231)
(201)
(190)
Impairment of assets
–
–
–
–
–
–
Reclassification transfer
–
–
399
–
(39)
14
740
740
1,225
1,064
421
575
Opening balance
Closing balance
52
OPP100101-2 Financials.indd 52
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($ thousand)
Assets under construction at
cost
Motor vehicles at fair value
Cultural assets at fair value
Total
2010
2009
2010
2009
2010
2009
2010
2009
770
–
687
662
–
14
3,836
3,167
473
770
385
480
–
–
1,019
1,705
–
–
(196)
(263)
–
–
(196)
(423)
–
–
(23)
(12)
–
–
(23)
(12)
–
–
–
–
–
–
–
–
–
–
(175)
(180)
–
–
(689)
(601)
–
–
–
–
–
–
–
–
(360)
–
–
–
–
(14)
–
–
883
770
678
687
–
–
3,947
3,836
53
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NOTE 8. PAYABLES AND ACCRUALS
($ thousand)
2010
2009
941
973
2,631
2,172
3,572
3,145
35
45
3,607
3,190
Current payables
Contractual
Accrued employee benefits
Account payables and accruals
Statutory
FBT payable
Total current payables
The payables and accruals amounts are exclusive of GST. The Department of Justice pays GST on behalf of this Office.
The average credit period is 30 days. No interest is charged from the date of the invoice.
(a) Maturity analysis of contractual payables
Please refer to Note 15(c) for the maturity analysis of contractual payables
(b) Nature and extent of risk arising from contractual payables
Please refer to Note 15(b) for the nature and extent of risks arising from contractual payables
54
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NOTE 9. BORROWINGS
($ thousand)
2010
2009
(i) Finance lease liabilities (Note 12)
328
307
Total current borrowings
328
307
(i) Finance lease liabilities (Note 12)
381
401
Total non-current borrowings
381
401
709
708
Current borrowings
Non-current borrowings
Total borrowings
(i) Lease liabilities are effectively secured as the rights to the leased assets revert to the lessor in the event of default.
Assets pledged as security
The carrying amounts of non-current assets pledged as security are:
Finance lease
($ thousand)
2010
2009
Plant and equipment under finance lease (Note 7)
678
687
Total non-current assets pledged as security
678
687
(a) Maturity analysis of borrowings
Please refer to Note 15(c) for the ageing analysis of interest bearing liabilities.
(b) Nature and extent of risk arising from interest bearing liabilities
Please refer to Note 15(d) for the nature and extent of risks arising from interest bearing liabilities.
(c) Defaults and breaches
During the current and prior year, there were no defaults and breaches of any of the loans.
55
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NOTE 10. PROVISIONS
($ thousand)
2010
2009
(ii) Unconditional and expected to settle within 12 months
5,147
4,664
(iii) Unconditional and expected to settle after 12 months
1,285
1,141
6,432
5,805
(ii) Unconditional and expected to settle within 12 months
959
880
(iii) Unconditional and expected to settle after 12 months
229
204
1,188
1,084
7,620
6,889
735
721
112
111
847
832
8,467
7,721
2010
2009
Annual leave entitlements
2,014
1,782
Long service leave entitlements
4,418
4,023
735
721
Total employee benefits
7,167
6,526
Current on-costs
1,188
1,084
112
111
Total on-costs
1,300
1,195
Total employee benefits and related on-costs
8,467
7,721
Current provisions
(i) Employee benefits (Note 10(a)) – annual leave
Provisions related to employee benefit on-costs (Note 10(a):
Total current provisions
Non-current provisions
(i) Employee benefits (Note 10(a))
Provisions related to employee benefits on-costs
Total non current provisions
Total provisions
(a) Employee benefits and related on-costs (i)
($ thousand)
Current employee benefits:
Non current employee benefits:
Long service leave entitlements
Non-current on-costs
(i) Provisions for employee benefits consist of amounts for annual leave and long service leave accrued by employees, not including on-costs.
(ii) The amounts disclosed are nominal amounts.
(iii) The amounts disclosed are discounted to present value.
56
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(b) Movement in provisions
($ thousand)
On-costs
2010
Opening balance
1,195
Additional provisions recognised
695
Reductions arising from payments/other sacrifices of future economic benefits
(590)
Closing balance
1,300
Current
1,188
Non-current
112
1,300
NOTE 11. SUPERANNUATION
Employees of the Office are entitled to receive superannuation benefits and the Office contributes to both defined
benefit and defined contribution plans. The defined benefit plan(s) provides benefits based on years of service and final
average salary.
The Office does not recognise any defined benefit liability in respect of the plan(s) because the entity has no legal
or constructive obligation to pay future benefits relating to its employees; its only obligation is to pay superannuation
contributions as they fall due. The Department of Treasury and Finance recognises and discloses the State’s defined
benefit liabilities in its financial statements.
However, superannuation contributions paid or payable for the reporting period are included as part of employee
benefits in the comprehensive operating statement of the Office.
The name and details of the major employee superannuation funds and contributions made by the Office are as follows:
($ thousand)
Fund
Paid contribution for the year
Contribution outstanding at year end
2010
2009
2010
2009
647
653
–
–
1,326
1,239
–
–
Other
279
214
–
–
Total
2,252
2,106
–
–
Defined benefit plans:
State Superannuation Fund –
revised and new
Defined contribution plans:
VicSuper
Notes:
(i) The bases for determining the level of contributions is determined by the various actuaries of the superannuation plans.
(ii) The abov e amounts were measured as at 30 June of each year, or in the case of employer contribution plan they relate to the years ended 30 June.
57
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NOTE 12. LEASES
Disclosures for lessees – finance leases
Leasing arrangements
Finance leases relate to motor vehicles with lease terms of three years. The Office has options to purchase the motor
vehicles for a nominal amount at the conclusion of the lease agreements.
($ thousand)
Minimum future lease payments
Present value of minimum future
lease payments
2010
2009
2010
2009
Not longer than one year
367
348
328
307
Longer than one year and not longer than five
years
404
427
381
401
–
–
–
–
771
775
709
708
Less future finance charges
(62)
(67)
–
–
Present value of minimum lease payments
709
708
709
708
Current borrowings lease liabilities (Note 9)
328
307
Non-current borrowings lease liabilities (Note 9)
381
401
709
708
Finance lease liabilities payable
Longer than five years
Minimum future lease payments
Included in the financial statements as:
Note:
(i) Minimum future leases payments include the aggregate of all lease payments and any guaranteed residual.
Disclosures for lessees – operating leases
Leasing arrangements
Operating leases relate to accommodation with lease terms of between three to five years, with an option to extend for
a further five years. All operating lease contracts contain market review clauses in the event that the Office exercises its
option to renew. The Office does not have an option to purchase the leased asset at the expiry of the lease period.
($ thousand)
2010
2009
Not longer than one year
574
2,688
Longer than one year and not longer than five years
599
1,128
–
82
1,173
3,898
Non-cancellable operating lease payables
Longer than five years
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NOTE 13. COMMITMENTS FOR EXPENDITURE
Capital expenditure commitments
There are no outstanding capital expenditure commitments as at 30 June 2010 (2009 – nil).
NOTE 14. CONTINGENT LIABILITIES AND CONTINGENT ASSETS
There are no contingent liabilities or contingent assets at balance date not provided for in the balance sheet at 30 June
2010 (2009– nil).
NOTE 15. FINANCIAL INSTRUMENTS
(a) Financial risk management objectives and policies
The Office’s principal financial instruments comprise of:
■
cash assets
■
receivables
■
payables
■
finance lease payables.
Details of the significant accounting policies and methods adopted, including the criteria for recognition, the basis of
measurement, and the basis on which income and expenses are recognised, with respect to each class of financial
assets, financial liability and equity instruments are disclosed in Note 1 to the financial statements.
Categorisation of financial instruments
($ thousand)
2010
2009
Cash and deposits
73
73
(i) Receivables
86
248
159
321
3,572
3,145
709
708
4,281
3,853
Contractual financial assets
Total contractual financial assets
Contractual financial liabilities
(i) Payables
Finance lease liabilities
Total contractual financial liabilities
Notes:
(i) The total amount disclosed here exclude statutory amounts (e.g. amounts owing from the Department of Justice and GST input tax credit
recoverable, and taxes payable)
(b) Credit risk
Credit risk arises from the contractual financial assets of the Office, which comprise cash and deposits, and
receivables. The Office’s exposure to credit risk arises from the potential default of counter party on their contractual
obligations resulting in financial loss to the Office. Credit risk is measured at fair value and is monitored on a regular
basis.
Credit risk associated with Office’s contractual financial assets is minimal because the main debtors are Victorian
Government agencies.
Provision of impairment for financial assets is calculated based on past experience, and current and expected changes
in client credit ratings.
The Office’s maximum exposure to credit risk at balance date in relation to each class of recognised contractual
financial asset is the carrying amount of these assets as indicated in the financial statements.
59
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NOTE 15. FINANCIAL INSTRUMENTS (CONTINUED)
Ageing analysis of contractual financial assets
($ thousand)
Carrying
amount
Not past
due and not
impaired
123
Past due but not impaired
Less than
1 month
1 – 3 months
3 months
– 1 year
1 – 5 years
Impaired
financial
assets
46
20
19
1
–
37
123
46
–
19
1
–
37
285
205
–
1
41
1
37
285
205
–
1
41
1
37
2010
Receivables:(i)
Other
receivables
2009
Receivables:(i)
Other
receivables
Note:
(i) The total amount disclosed here exclude statutory amounts (e.g. amounts owing from the Department of Justice and GST input tax credit
recoverable, and taxes payable)
(c) Liquidity risk
Liquidity risk is the risk that the Office is unable to meet its financial obligations as and when they fall due. The Office
operates under the Government fair payments policy of settling financial obligations within 30 days and in the event of
a dispute, make payments within 30 days from the date of resolution.
Maximum exposure to liquidity risk is the carrying amounts of financial liabilities in the face of the balance sheet.
The Office ‘s exposure to liquidity risk is deemed insignificant based on prior periods’ data and current assessment of risk.
Maturity analysis of contractual financial liabilities (ii)
($ thousand)
Carrying
amount
Nominal
amount
3,572
Maturity dates (a)
Less than
1 month
1 – 3 months
3 months
– 1 year
1 – 5 years
–
3,572
–
–
–
709
771
52
70
245
404
4,281
771
3,624
70
245
404
3,145
–
3,145
–
–
–
708
775
58
36
254
427
3,853
775
3,203
36
254
427
2010
Payables: (i)
Other payables
Borrowings:
Finance lease liabilities
2009
Payables: (i)
Other payables
Borrowings:
Finance lease liabilities
60
Note:
(i) The carrying amounts disclosed exclude statutory amounts (e.g. GST payable).
(ii Maturity analysis is presented using the contractual undiscounted cash flows
OPP100101-2 Financials.indd 60
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(d) Market risk
The Office’s exposure to market risk is primarily through interest rate risk. The exposure to interest rate risk is
insignificant and arises primarily through the Office’s interest bearing financial instruments with relatively even
maturity profiles.
The carrying amounts of financial assets and financial liabilities that are exposed to interest rates are set out in the
Table below.
Interest rate risk exposure of financial instruments
($ thousand)
Weighted
average
effective interest
rate %
Carrying amount
Cash and deposits
–
Other receivables
Total financial assets
Interest rate exposure
Fixed
interest rate
Variable
interest rate
Non-interest
bearing
73
–
–
73
–
86
–
–
86
–
159
–
–
159
–
3,572
–
–
3,572
7.19%
709
709
–
–
4,281
709
–
3,572
2010
Financial assets
Financial liabilities
Other payables
Finance lease liabilities
Total financial liabilities
2009
Financial assets
Cash and deposits
–
73
–
–
73
Other receivables
–
248
–
–
248
Total financial assets
–
321
–
–
321
–
3,145
–
–
3,145
7.39%
708
708
–
–
3,853
708
–
3,145
Financial liabilities
Other payables
Finance lease liabilities
Total financial liabilities
(e) Fair value
The carrying amount of financial assets and financial liabilities of the Office approximates their fair value because of
the short term nature of the financial instruments and the expectation that they will be paid in full.
61
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NOTE 16. CASH FLOW INFORMATION
(a) Reconciliation of cash and cash equivalents
($ thousand)
2010
2009
Total cash and cash equivalents disclosed in the balance sheet
73
73
Balance as per cash flow statement
73
73
(b) Reconciliation of net result for the period to net cash flows from operating activities
($ thousand)
2010
2009
145
27
691
601
(1,659)
(888)
(225)
–
(Decrease)/increase in payables
355
120
(Decrease)/increase in provisions
746
759
53
619
Net results for the period
Non-cash movements:
Depreciation and amortisation of non-current assets
Movements in assets and liabilities:
(Increase)/decrease in receivables
(Increase)/decrease in prepayments
Net cash inflow from /(used in) operating activities
62
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NOTE 17. RESPONSIBLE PERSONS
In accordance with the Ministerial Directions issued by the Minister for Finance under the Financial Management Act
1994, the following disclosures are made regarding responsible persons for the reporting period.
Names
The persons who held the positions of Ministers and Accountable Officer in the Department and the Office are as
follows:
Attorney-General
The Hon. Rob Hulls, MP
333 days
Acting Attorney-General
The Hon. Tony Robinson, MP
11 days
The Hon. Bob Cameron, MP
5 days
The Hon. John Lenders, MLC
16 days
Secretary to the
Department of Justice
Ms Penny Armytage
327 days
Acting Secretary to the
Department of Justice
Ms Louise Glanville
14 days
Dr Claire Noone
24 days
Accountable Officer
Craig Hyland
349 days
Acting Accountable Officer
Stuart Ward
16 days
Remuneration
Remuneration received or receivable by the Accountable Officer in connection with the management of the Office
during the reporting period was in the range:
$250,000 – $260,000 ($200,000 – $210,000 in 2009)
Ministerial remuneration is disclosed in the annual report of the Department of Premier and Cabinet. Remuneration
received or receivable by the Secretary in connection with the management of the Department during the reporting
period is disclosed in the annual report of the Department of Justice.
Other Transactions
Other related transactions and loans requiring disclosure under the Directions of the Minister of Finance have been
considered and there are no matters to report.
63
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NOTE 18. REMUNERATION OF EXECUTIVES
The number of executive officers, other than the accountable officer, and their total remuneration during the reporting
period are shown in the first two columns in the table below in their relevant income bands. The base remuneration of
executive officers is shown in the third and fourth columns. Base remuneration is exclusive of bonus payments, longservice leave payments, redundancy payments and retirement benefits.
Total remuneration
Base remuneration
2010
2009
2010
2009
No.
No.
No.
No.
$160,000 – $169,999
0
1
0
1
$170,000 – $179,999
1
0
2
0
$180,000 – $189,999
0
0
0
0
$190,000 – $199,999
0
0
0
0
$200,000 – $209,999
0
0
0
0
$210,000 – $219,999
0
0
0
0
$220,000 – $229,999
0
0
0
0
$230,000 – $239,999
1
0
0
0
$240,000 – $249,999
0
0
0
0
$250,000 – $259,999
0
0
0
0
Total numbers
2
1
2
1
$407,520
$162,010
$347,607
$162,010
2010
2009
20
18
20
18
Income band
Total amount
NOTE 19. REMUNERATION OF AUDITORS
($ thousand)
Victorian Auditor General’s Office
Audit or review of the financial statements
64
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NOTE 20. GLOSSARY OF TERMS
Comprehensive result
Total comprehensive result is the change in equity for the period other than changes arising from transactions with
owners. It is the aggregate of net result and other non-owner changes in equity.
Commitments
Commitments include those operating, capital and other outsourcing commitments arising from non-cancellable
contractual or statutory sources.
Employee expenses
Employee expenses include all costs related to employment including wages and salaries, leave entitlements,
redundancy payments and superannuation contributions.
Financial asset
A financial asset is any asset that is:
(a) cash;
(b) an equity instrument of another entity;
(c) a contractual or statutory right:
■
to receive cash or another financial asset from another entity; or
■
to exchange financial assets or financial liabilities with another entity under conditions that are potentially
favourable to the entity ; or
(d) a contract that will or may be settled in the entity’s own equity instruments and is:
■
a non-derivative for which the entity is or may be obliged to receive a variable number of the entity’s own equity
instruments; or
■
a derivative that will or may be settled other than by the exchange of a fixed amount of cash or another financial
asset for a fixed number of the entity’s own equity instruments.
Financial statements
Depending on the context of the sentence where the term ‘financial statements’ is used, it may include only the main
financial statements (i.e. comprehensive operating statement, balance sheet, cash flow statements, and statement
of changes in equity); or it may also be used to replace the old term ‘financial report’ under the revised AASB 101
(September 2007), which means it may include the main financial statements and the notes.
Grants and other transfers
Transactions in which one unit provides goods, services, assets (or extinguishes a liability) or labour to another unit
without receiving approximately equal value in return. Grants can either be operating or capital in nature.
Grants can be paid as general purpose grants which refer to grants that are not subject to conditions regarding their
use. Alternatively, they may be paid as specific purpose grants which are paid for a particular purpose and/or have
conditions attached regarding their use.
Intangible assets
Intangible assets represent identifiable non-monetary assets without physical substance.
Interest expense
Costs incurred in connection with the borrowing of funds. Interest expenses include interest on bank overdrafts
and short-term and long-term borrowings, amortisation of discounts or premiums relating to borrowings, interest
component of finance leases repayments, and the increase in financial liabilities and non-employee provisions due to
the unwinding of discounts to reflect the passage of time.
Net result
Net result is a measure of financial performance of the operations for the period. It is the net result of items of income,
gains and expenses (including losses) recognised for the period, excluding those that are classified as other non-owner
changes in equity.
65
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Net result from transactions/net operating balance
Net result from transactions or net operating balance is a key fiscal aggregate and is income from transactions minus
expenses from transactions. It is a summary measure of the ongoing sustainability of operations. It excludes gains and
losses resulting from changes in price levels and other changes in the volume of assets. It is the component of the
change in net worth that is due to transactions and can be attributed directly to government policies.
Non-financial assets
Non-financial assets are all assets that are not ‘financial assets’.
Other economic flows
Other economic flows are changes in the volume or value of an asset or liability that do not result from transactions. It
includes gains and losses from disposals, revaluations and impairments of non-current physical and intangible assets;
actuarial gains and losses arising from defined benefit superannuation plans; fair value changes of financial instruments
and agricultural assets; and depletion of natural assets (non-produced) from their use or removal. In simple terms,
other economic flows are changes arising from market re-measurements.
Payables
Includes short and long term trade debt and accounts payable, grants and interest payable.
Receivables
Includes short and long term trade credit and accounts receivable, grants, taxes and interest receivable.
Supplies and services
Supplies and services generally represent cost of goods sold and the day-to-day running costs, including maintenance
costs, incurred in the normal operations of the Office.
Transactions
Transactions are those economic flows that are considered to arise as a result of policy decisions, usually an interaction
between two entities by mutual agreement. They also include flows within an entity such as depreciation where the
owner is simultaneously acting as the owner of the depreciating asset and as the consumer of the service provided by
the asset. Taxation is regarded as mutually agreed interactions between the government and taxpayers. Transactions
can be in kind (e.g. assets provided/given free of charge or for nominal consideration) or where the final consideration
is cash. In simple terms, transactions arise from the policy decisions of the government.
66
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APPENDICES CONTENTS
Appendix 1
Output and performance measures
68
Appendix 2
Legal functions of the DPP report
69
Appendix 3
Crown appeals under section 567A of the Crimes Act 1958
72
Appendix 4
OPP activity data
88
Appendix 5
Crown Prosecutor activity data
90
Appendix 6
Freedom of Information Report
91
Appendix 7
Whistleblowers Report
94
Appendix 8
The OPP workforce
95
Appendix 9
Occupational health and safety Report
97
Appendix 10
Environmental Report
98
Appendix 11
Disability Action Plan
102
Appendix 12
Supplementary information
103
Appendix 13
Statement of availability of other information
104
Appendix 14
Disclosure Index
105
67
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APPENDIX 1
OUTPUT AND PERFORMANCE MEASURES
Target
Actual
Variance
from target
11,250
9,960
-11.5%
72,500
69,465
-4.2%
5,000
6,166
+23.3%
Guilty outcomes (guilty pleas and trial convictions) as a percentage of case
completions
85.0
85.3
+0.4%
Proportion of trials listed which did not proceed to adjournment on application of the
crown
99.0
98.4
-0.6%
Budget Paper 3 Measures1 2009/10
Judicial officer sitting days2
Number of briefs prepared and hearings attended3
Number of victim and witness consultations4
Notes on measures:
1. These measures are reported by the Office of Public Prosecutions to the Department of Justice as part of the
Budget Paper 3 Output and Performance Measures reporting process.
2. The total number of Judicial Officer sitting days was 11.5 per cent below target. However, the 2009/10 actual is
above the historical average.
3. The total number of briefs prepared and hearings attended was 4.2 per cent below target, but increased from last
year.
4. The total number of victim and witness consultations is significantly above target in 2009/10 due to increased
demand for services, resulting from a number of factors including:
■
the automatic referral of every victim involved with the Specialist Sexual Offences Unit, and the pilot of
automatic referrals in Regional Prosecutions
■
a higher profile for victim and witness services within OPP
■
an increasing awareness of obligations under the Victims’ Charter.
68
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APPENDIX 2
LEGAL FUNCTIONS OF THE DPP REPORT
As well as formal prosecuting activities and appeals, the Director of Public Prosecutions (DPP) undertakes a number
of other legal functions. Details for these functions for 2009/10 are set out below.
Appeals to the Supreme Court on a Question of Law and Order 56 Judicial Reviews of
Magistrates’ Court decisions
These two forms of Appeal are conducted within the Civil Jurisdiction of the Supreme Court, accordingly OPP
solicitors with specialist knowledge of the civil procedures of the Supreme Court conduct or supervise the conduct of
the Crown or police cases in these matters.
Section 272 of the Criminal Procedure Act 2009, and its predecessor, Section 92 Magistrates’ Court Act 1989
(superseded on 1 January 2010), creates a right of appeal on a question of law against a “final order” of the
Magistrates’ Court in a criminal proceeding. These matters are determined as questions of law only. The usual
remedy is an order remitting the matter back to the Magistrates’ Court for determination according to law. Pursuant to
s272(2) the DPP is required to act on behalf of the police in any appeal to the Supreme Court on a question of law
which the police wish to bring. A high proportion of appeals to the Supreme Court on a question of law relate to drink
driving prosecutions.
The Judicial Review procedure provided by Order 56 of the Supreme Court Rules provides a means of reviewing the
orders or actions of a judicial officer usually on the basis of:
■
error as to jurisdiction
■
failure to exercise jurisdiction
■
denial of procedural fairness.
The DPP uses the Order 56 procedure to review decisions in the Magistrates’ Court and the County Court, where the
decision infringes jurisdiction and is not amenable to other forms of appeal. The Order 56 procedure is also used by
unsuccessful appellants to review a County Court Appeal pursuant to s83 of the Magistrates’ Court Act 1989, as this
is only avenue available for further appeal in respect of such proceedings. A high proportion of these reviews are of
County Court Appeals relating to drink driving prosecutions.
19 DPP initiated appeals on a question of law were formally requested by police in 2009/10. Of those requests,
11 appeals on a question of law were commenced by the DPP. In respect of three of these requests, the alternate
procedure of seeking review by the Supreme Court in the nature of certiorari pursuant to Order 56 of the Supreme
Court Rules was commenced by way of an originating motion.
The DPP acted for the police in five appeals on a question of law and two Order 56 Judicial Reviews of Magistrates’
Court decisions which were brought by aggrieved defendants.
Eight appeals on a question of law and four Order 56 Judicial Reviews of Magistrates’ decisions were heard and
completed in the Supreme Court. Four of these were allowed by way of consent orders namely, a further eight were
fully argued. Two appeals on a question of law by defendants were abandoned. Seven appeals on a question of law and
one Order 56 Judicial Review of a Magistrates’ decision were still pending at 30 June 2010.
Two s92 related appeals by defendants to the Court of Appeal were completed.
Two Applications for leave to Appeal to the Court of Appeal against the outcomes of two appeal on a question of law
matters were dismissed.
No High Court applications or appeals relating to appeal on a question of law matters were commenced or determined
in the 2009/10 financial year.
The DPP acted for respondent police informants in ten Order 56 Judicial Reviews of County Court Appeals which
had been commenced by Defendants. Within the 2009/10 financial year, three of these matters proceeded to final
hearing and Judgment.
The DPP initiated one Judicial Review of a County Court proceeding which was allowed by way of consent orders.
One appeal to the Court of Appeal against the outcome of an Order 56 Judicial Review was dismissed.
No High Court applications or appeals relating to Order 56 Judicial Reviews were commenced or determined in the
2009/10 financial year.
69
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Section 582 leave applications/Section 278 and 280 leave applications
Appeals against sentence by the person on whom the sentence was imposed usually have a preliminary stage involving
applications for leave to appeal against the sentence. These applications were, prior to 1 January 2010, made under
section 582 of the Crimes Act 1958, but since that date, such applications are made pursuant to sections 278 and
280 of the Criminal Procedure Act 2009. These applications are heard by a single judge of the Court of Appeal. The
DPP represents the Crown in applications for leave to appeal against sentence. Where an application is refused by a
single judge, the applicant can elect to have the matter heard by three judges. In 2009/10, 212 applications were
heard by single judges in the Court of Appeal: 111 were granted and 71 were refused. A further 30 were abandoned
at or before the hearing.
Entry of nolle prosequi or discontinuance to prosecutions
Nolle prosequi or discontinuance to prosecutions were entered in 138 cases, some of which involved more than one
accused and more than one count on the presentment.
Indemnities from prosecution, undertakings or letters of comfort
Director’s undertakings, indemnities or letters of comfort were issued to a total of 87 witnesses who gave evidence
against 28 accused in 87 matters.
Consents to prosecute
The DPP consented to prosecute eight matters, involving one or more accused, pursuant to s321 of the Crimes Act
1958. The DPP granted 27 consents to commence prosecutions pursuant to ss50 or 69 of the Crimes Act and 26
consents to commence prosecutions pursuant to s47A of the Crimes Act. No consents to prosecute were granted
pursuant to s195A(4) of the Crimes Act.
The DPP granted two consents granted under the Judicial Proceedings Reports Act 1958.
No consents to prosecute were granted under the Legal Profession Act 1958.
No consents to prosecute were granted pursuant to s90 of the Estate Agents Act 1980.
The DPP granted four consents to prosecute pursuant to s26(5) of the Magistrates’ Court Act 1989.
The DPP granted 10 consents to prosecute pursuant to s132 of the Occupational Health and Safety Act 2004.
The DPP granted three consents to prosecute pursuant to s24(4) of the Racial and Religious Tolerance Act 2001.
Vexatious Litigants/Take Overs
There were two matters in which the DPP took over and discontinued a prosecution instituted by a private informant
pursuant to s22(1)(b)(ii) of the Public Prosecutions Act 1994.
Reasons for discretionary decisions
Reasons for discretionary decisions were provided on 17 occasions pursuant to Director’s Policy 16.
Continued detention applications
The DPP lodged three applications for orders for continued detention under the Serious Sex Offenders (Detention and
Supervision) Act 2009. None of these applications have yet been finalised by the Supreme Court.
Direct presentments/indictments
The DPP directly presented/indicted an accused person on 26 occasions on one or more counts.
Interstate extraditions and transfers
Interstate extraditions were undertaken for the return to Victoria of 21 persons charged with various offences.
International extraditions
The DPP worked with the Commonwealth Government to extradite one accused from Thailand and one accused from
New Zealand.
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Assistance provided to the Coroner
The DPP assisted the Coroner in four hearings.
Contempt of court
16 prosecutions for contempt of court were commenced.
Conflict of interest
There were no matters referred to the Attorney-General pursuant to s29(1) of the Public Prosecutions Act 1994 as
the result of a possible conflict of interest.
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APPENDIX 3
CROWN APPEALS UNDER SECTION 567A OF THE CRIMES ACT 1958
In 2009/10, 33 appeals against sentence instituted by the DPP to the Court of Appeal pursuant to s567A of the
Crimes Act 1958 were completed. Of these appeals 15 were allowed and 18 were dismissed. This compares to 43
appeals completed in 2008/09, of which 27 were allowed and 16 were dismissed.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v WRJ [2009] VSCA
174 (3 August 2009)
TES in County Court:
3 years, 10 months,
NPP 1 year, 8 months
County Court
Sexual
penetration of
child under 16
DISMISSED, by
majority
EXTRACT: “Although the sentences imposed were low indeed, we are not in the end persuaded that they should be interfered with.
We reach this conclusion having regard to the highly exceptional mitigating circumstances and to the fact that any resentencing
would have to be reduced to take account of the exposure to double jeopardy which a Director’s appeal creates.” Maxwell P and
Vincent JA
“…I would accept the Director’s submission that the appropriate sentencing range for that count was three to four years’
imprisonment. His Honour cumulated only a third of the sentence of one year and six months’ imprisonment imposed in relation to
count 12. I consider that it would have been appropriate to cumulate at least half of that sentence, which as I have said was, in my
view, manifestly inadequate. Even when regard is had to the principle of double jeopardy, I consider that a higher sentence should
have been imposed and that the total effective sentence was also manifestly inadequate.” Neave, JA
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Kuru [2009] VSCA
206 (18 September 2009)
TES in County Court:
10 months, with all except 103
days suspended for 12 months.
103 days pre-sentence detention.
County Court
Intentionally
causing injury
DISMISSED
EXTRACT: “Her Honour faced the difficult task of balancing the undoubted seriousness of the offence against Mr Kuru’s mental and
physical difficulties and his efforts to rehabilitate himself. In considering the first ground of appeal I have had some regard to the
sentencing statistics on which counsel for the Director relied. As counsel submitted, the sentence imposed on that count was lower
than the median term of imprisonment imposed on offenders who received terms of imprisonment for that offence. However as my
brother Ashley JA pointed out in discussion with counsel, only about 28 percent of people sentenced for that offence received a
custodial sentence over the five year period covered by the statistics. I consider that there were powerful mitigating factors which
justified her Honour imposing a sentence of ten months’ imprisonment on the count of intentionally causing injury, and fourth (sic)
months’ imprisonment on the theft count, ordering that the sentences be served concurrently and suspending all but 103 days of
the total effective sentence. It follows that in my opinion the sentence imposed on the count of intentionally inflicting injury was not
manifestly inadequate.” Neave, JA, with whom Ashley, JA & King, AJA agreed.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Loughnane [2009]
VSCA 214 (18 September
2009)
TES in County Court:
3 years, 8 months; NPP 8
months.
County Court
Trafficking in
a commercial
quantity of
a drug of
dependence
DISMISSED
EXTRACT: “The total effective sentence of three years and eight months was lenient as it was. … I am, however not disposed to
intervene. The brevity of the non-parole period is remarkable and exceptionable but in this case is hardly a point of principle which
warrants appellant (sic) intervention. The considerations to be applied in setting a non-parole period have been considered by this
Court on numerous occasions and are well established. The only problem in this case, as I see it, is that the judge appears to have
erred in their application. It is also necessary to bear in mind the principle of double jeopardy which applies to Crown appeals
against sentence and the restrictions which it would impose on any amount by which the non-parole period could be increased.
Even if the appeal were otherwise compelling, the amount by which the non-parole period might appropriately be increased would
be so restricted that I should be inclined to refuse the appeal in the exercise of discretion. To that must be added that the applicant
has now served the whole of the non-parole period of eight months and been at liberty on parole for some 14 months, which is
itself a consideration militating against this Court’s intervention. Finally, as this Court has said so often before, regrettably all too
often to be ignored by the Crown – Crown appeals against sentence are regarded as having a ‘rare and exceptional’ character
which calls for restraint. There being very little of either quality evident in the institution of this appeal, in my view, it should be
dismissed.” Nettle, JA,
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“I would add that if it were relevant to so find, I also would have concluded that the non-parole period set was manifestly
inadequate bearing in mind that there must be a punitive element within the composition of the non-parole period. But as this Court
has said in DPP v Bright, something more than manifest inadequacy is required. No such additional feature is present. Coupled
with the further considerations that the appellant has now been at liberty for some 14 months and recognising that an allowance
would have to be made for double jeopardy, this case is not one in which the Court’s intervention can be justified.” Redlich, JA.
Lasry, AJA agreed that the appeal should be dismissed.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Terrick;
DPP v Marks;
DPP v Stewart
[2009] VSCA 220
(2 October 2009)
TERRICK
TES in County Court: 9 years;
NPP 7 years
TES in CoA: 11 years 6 months;
NPP 9 years
MARKS
TES in County Court: 9 years;
NPP 7 years
TES in CoA: 11 years 6 months;
NPP 9 years
STEWART
TES in County Court: 8 years;
NPP 6 years
TES in CoA: 11 years 6 months;
NPP 9 years
County Court
Terrick:
Intentionally
causing serious
injury
Marks:
Intentionally
causing serious
injury
Stewart: Affray,
Recklessly
causing serious
injury
ALLOWED re Terrick
ALLOWED re Marks
ALLOWED re Stewart
EXTRACT: “In our view, the sentences imposed were so manifestly inadequate as to reflect an error of principle. The objective
gravity of the offending conduct, considered in conjunction with their antecedents, placed these offences in the worst category of
these crimes. Yet the sentences imposed represented (in the case of Marks and Terrick) only 40 per cent of the relevant maximum
for intentionally inflicting serious injury and (in the case of Stewart) only 45 per cent for the offence of recklessly doing so. For
these reasons, we would allow the Director’s appeals against each of the sentences imposed.” Maxwell P, Redlich JA & Robson
AJA.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Patterson [2009]
VSCA 222 (2 October
2009)
TES in County Court:
3 years 4 months; NPP: 2 years
TES in CoA:
6 years, 9 months; NPP 4 years
County Court
Rape
ALLOWED
EXTRACT: “Cases of this kind present sentencing judges with a particularly difficult task. On the one hand, the offending is very
serious in nature, and there is a significant risk of re-offending, attributable in large measure to the offender’s intellectual and
personality shortcomings. Nor does KP receive the discount available to an offender who has pleaded guilty and has shown
remorse. On the other hand, as we have said, the mental impairment provides cogent reasons to mitigate sentence, both on
account of reduced moral culpability and because of difficulties likely to be experienced in prison. I n the end, however, this was
a case where the need for community protection had to be regarded as paramount. As we have noted, that was the unambiguous
effect of the legislative command in s 6D(a). (Although the statutory requirement applied only to one count, the sentence imposed
on that count had to satisfy that requirement). But, even if that provision had not applied, the sentencing court could not ignore
the very serious implications of what had occurred here – these offences representing a significant escalation in seriousness over
what had gone before – and of the evidence showing a significant risk of KP committing further offences of violence, whether
sexual or not. In our view, the sentence imposed on KP fell well outside the range reasonably open to the sentencing judge in
these circumstances. A substantially higher sentence was called for. Since his Honour did not explain how the various factors
were brought to bear on the sentencing decision, we are constrained to infer that the matters urged in mitigation were allowed
to overwhelm other considerations, leading to error of principle. We would allow the Director’s appeal and, allowing for double
jeopardy, would resentence KP…” Maxwell P, Redlich JA & Vickery AJA.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v TY [2009] VSCA
226 (2 October 2009)
TES in Supreme Court:
12 years; NPP 8 years
Supreme Court
Murder
DISMISSED
EXTRACT: “In order to succeed on this ground of manifest inadequacy the Crown must show that the sentence falls outside the
range reasonably open to the sentencing judge. The inadequacy of the sentence must be ‘clear and egregious, the sentence being
so disproportionate to the seriousness of the crime as to shock the public conscience’, or must involve a ‘gross departure from
what might in experience be regarded as the norm’. The principle of double jeopardy is relevant both when deciding whether a
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OPP100101-2 Appendices.indd 73
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Director’s appeal should be allowed and, if so, in re-sentencing TY. That principle is particularly relevant in the circumstances of
this case, where allowing the Crown appeal would result in TY being sentenced on three separate occasions for the same offence.
…
There is no doubt that this was a shocking offence. Christopher Williams was only 17 when his life was ended by TY’s action. His
grief-stricken family will be haunted by his violent death for the rest of their lives. In our opinion, however, the sentence imposed on
TY was not manifestly inadequate.” Maxwell P, Ashley & Neave JJA.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Edwards [2009]
VSCA 232 (9 October
2009)
TES in Supreme Court:
10 years; NPP 8 years
Supreme Court
Defensive
homicide
DISMISSED
EXTRACT: “Yet, allowing for all of this the sentence imposed was so disproportionate to the seriousness of the offence as to
shock the public conscience and be manifestly inadequate. It seems reasonable to suppose that the learned judge started from
a base that was too low having regard to the seriousness of the offence and the considerations expressed in R v AB (No 2).
Considerations of general and specific deterrence, denunciation, the need for a punishment that was just and appropriate in the
circumstances including considerations of the sanctity of human life and community protection, required a sentence of greater
magnitude. That leaves for consideration the appropriate dispensation of the appeal. Having regard to the considerations of double
jeopardy and the approach to re-sentencing that pertain to a Director’s appeal, and to the circumstances generally, in particular
that this is the first time this Court has considered a sentence for defensive homicide, it is just that the Court exercise its discretion
not to intervene and re-sentence the respondent. Accordingly it is not necessary to consider what sentence might appropriately
have been imposed by the learned judge or by this Court.” Hansen AJA, with whom Buchanan & Neave JJA agreed.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Najjar [2009] VSCA
246 (15 October 2009)
TES in County Court:
2 years 8 months; NPP 14
months
County Court
Theft
DISMISSED
EXTRACT: “The sentence could be described as a merciful one. Many judges may have imposed a lengthier term. The sentence
in this case should not be viewed as providing any guidance for future cases of a broadly similar nature. However, in all the
circumstances, I am not persuaded that the sentence was manifestly inadequate. In addition, had I entertained any doubt about
the matter, I would have exercised the residual discretion to dismiss the appeal. That is particularly so in circumstances where
the prosecutor in the court below declined the opportunity to put a range of sentences to the sentencing judge, despite the fact
that she was asked whether or not she had instructions on the matter. The plea in this case had taken place substantially after the
decision of this Court in Director of Public Prosecutions v MacNeil-Brown.” Coghlan AJA, with whom Ashley & Weinberg JJA
agreed.
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OPP100101-2 Appendices.indd 74
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Casename
Sentence
Originating
Court
Principal
Offence
Result
R v Irvine;
DPP v Dynamic Industries
Pty Ltd;
DPP v Irvine
[2009] VSCA 239 (23
October 2009)
TES in County Court:
$8000 fine
TES in CoA:
$8000 fine
County Court
Failure to take
reasonable
care for
safety of other
employees,
contrary to
s25(1)(a)
Occupational
Health and
Safety Act 1985
Failure to
provide and
maintain a
safe working
environment,
contrary to s21
Occupational
Health and
Safety Act 1985
ALLOWED re
Dynamic Industries
DISMISSED re Irvine
EXTRACT: “In my opinion the sentence imposed reflects the failure to give sufficient weight to general deterrence. The purpose
of the Act is to protect employees from injury or danger to health. Workplace safety requires employers to take the obligations
imposed by the Act very seriously. The community is entitled to expect that both small and large employers will comply with safety
requirements. General deterrence is therefore a significant sentencing factor when safety obligations are breached. The fine in this
case was only about 3 percent of the maximum penalty, and does not adequately reflect that sentencing factor.
…
In my opinion, the fine of $8,000 imposed on Dynamic underestimated the gravity of the offence, failed to give sufficient weight to
general deterrence and gave too much weight to the company’s financial situation and to its safety record.
…
Standing by itself, therefore, I would not have considered the failure to make submissions on range a sufficient reason for failing
to alter the sentence imposed on Dynamic. However, the delay of almost six years between the commission of this offence in
October 2003 and the hearing of this appeal is also relevant to the exercise of the Court’s re-sentencing discretion. Because of
this combination of factors I consider that the sentence which his Honour imposed on Dynamic should not be altered. For these
reasons I would allow the DPP’s appeal and sentence Dynamic to the same fine as that imposed by his Honour.” Neave, JA, with
whom Nettle, JA & Lasry, AJA agreed.
Casename
Sentence
Originating
Court
Principal
Offence
Result
R v De Montero;
DPP v De Montero
[2009] VSCA 255 (29
October 2009)
TES in County Court:
3 years, with 2 years suspended
for 3 years
County Court
Culpable
driving
DISMISSED
EXTRACT: “The Director has appealed against the adequacy of the sentence. Counsel for the Director candidly informed the Court
that he could submit little that would advance the merit of the appeal and all but abandoned it. He acknowledged that in light of
the recent decision of this Court in DPP v King and other like decisions, it could not be said that the sentencing judge had erred
in taking into account the serious injuries which the applicant sustained as a result of the accident. The approach taken by counsel
for the Director was entirely justified. This was not in our view an appeal which had any prospect of success. The sentencing judge
did not make any finding as to the speed at which the applicant was travelling immediately prior to the collision. But even if the
speed of the motorcycle had been as great as that contended for by the prosecution, the driving did not fall within the range of the
more serious examples of culpable driving which come before the court. The sentencing judge in a careful examination of all of the
factors relevant to sentence considered that there were compelling mitigatory circumstances which warranted the compassionate
course he followed. We agree.” Ashley, Redlich & Weinberg JJA.
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OPP100101-2 Appendices.indd 75
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Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Moore [2009] VSCA
264 (24 November 2009)
TES in County Court:
4 years 6 months; NPP 2 years
6 months
TES in CoA:
5 years 6 months; NPP 4 years
County Court
Aggravated
burglary
Rape
ALLOWED, by
majority
EXTRACT: “It remains, then, to consider the submission that the consideration of mercy had the consequence that the sentence
imposed was, although low, within the applicable range of discretion. As we have said, considerations of mercy need to be weighed
alongside all other sentencing factors in order to provoke the instinctive synthesis that discloses the relevant range. The fact that
an offence is a serious one does not, of course, deprive the Court of the capacity to exercise mercy in exercising its sentencing
discretion. In R v Kane the Full Court said that:
‘Cases frequently occur where a court is justified in adopting a course which may bear less heavily on the accused than if he
were to receive what is rather harshly expressed as being his just desserts. But mercy must be exercised upon considerations
which are supported by the evidence and which make an appeal not only to sympathy but also to well-balanced judgment. If a
court permits sympathy to preclude it from attaching due weight to the other recognised elements of punishment, it has failed
to discharge its duty.’
Mercy must be considered alongside all of the relevant circumstances. As was submitted by Counsel for the Director, there is no
doubt that this was a very serious offence. The attack was a violent one. The appellant invaded the victim’s home in the early hours
of the morning and raped her while she was in an advanced state of pregnancy. Not surprisingly the victim was terrified and the
rape has had lasting effects on her. The respondent’s impaired mental functioning could not substantially eliminate his responsibility
for the offending.
…
As is frequently said, the ground of manifest inadequacy does not admit of much argument. Giving full weight to the respondent’s
deprived background and other mitigatory circumstances, it cannot be said that the sentence was within range. In our opinion
the sentence of 4 years’ imprisonment fell outside the range of sentences that could be reasonably be imposed at the time the
respondent was sentenced, having regard to the gravity of the offending and the risk to the community posed by the offender. It
appears that his Honour, for reasons of compassion, gave too much weight to the offender’s deprived and tragic circumstances.
Further, his Honour’s emphasis on mercy led him to give insufficient weight to the gravity of the rape, the respondent’s poor
prospects of rehabilitation and the risk he posed to the community of him re-offending. If the Court were to re-sentence without
taking into account the principle of double jeopardy applicable on a Director’s appeal, and, to give maximum allowance to the
respondent’s personal circumstances (as the sentencing judge intended), we consider that the offence of rape would have
warranted a term of 6 years and 6 months’ imprisonment and a total effective sentence of 7 years and 6 months’ imprisonment
would have been appropriate.” Neave & Redlich JJA. Lasry AJA dissented.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Kao [2009] VSCA
273 (26 November 2009)
TES in County Court:
4 years; NPP 2 years 6 months
TES in CoA:
6 years; NPP 4 years
County Court
Intentionally
causing serious
injury
ALLOWED
EXTRACT: “In our opinion, the sentence imposed below failed to give proper weight to a number of critical sentencing
considerations. These included the need to protect the community, a paramount matter, and the need for any sentence to
achieve both general and specific deterrence. A sentence of four years’ imprisonment falls well short, in our view, of meeting
these objectives. Although her Honour referred to all of these factors in her sentencing remarks, we are constrained to the view
that both the sentence imposed, and the non-parole period, in no way reflected the gravity of this offence. In our opinion, the
sentence was manifestly inadequate, so much so that it plainly reflected error in principle. We also think that the sentence was so
disproportionate to the seriousness of the crime as to ‘shock the public conscience’. It follows that ground 1, has in our view, been
made out.
…
We should say that, in arriving at that revised sentence, we have had regard to the principle of double jeopardy.” Weinberg, JA &
Coghlan, AJA, with whom Buchanan, JA agreed
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OPP100101-2 Appendices.indd 76
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Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Wilkins [2009] VSCA
275 (26 November 2009)
TES in County Court:
18 months, wholly suspended for
2 years
County Court
Recklessly
causing serious
injury
DISMISSED
EXTRACT: “In my opinion, it has not been demonstrated that the sentencing judge erred in synthesising as he did the factors
pointing in different directions. While the severity of the consequences suffered by a victim of a criminal offence must be taken into
account, they ‘ought not to be permitted to swamp all other sentencing considerations’, to use the words of Eames JA in Director of
Public Prosecutions v Cook.
Counsel for both the Director and the respondent relied upon statistics and decided cases. In my opinion, the assistance which
statistics and the facts that other cases provide is limited. The decided cases, however, disclose that the imposition of a noncustodial sentence for an offence of intentionally or recklessly causing serious injury does not necessarily indicate sentencing error.
The cases exemplify the approach of the President in Director of Public Prosecutions v Tokava, where his Honour said:
‘A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of
a serious offence, if in the long term the community’s interest will be best served by that course. This Court should seek to
promote public understanding of the fact that, apart from the interest of the individual whom it is sought to rehabilitate, an
important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who
has been convicted of a serious crime.’
I am far from being persuaded that the disposition by the sentencing judge constituted the rare, exceptional circumstances to which
Crown appeals should be limited. In the circumstances of this case, the sentence was not so disproportionate to the seriousness
of the crime as to shock the public conscience. The weight to be given to unintended consequences in this case did not require the
imposition of a sentence of immediate imprisonment.”
Buchanan, JA, with whom Weinberg, JA & Coghlan, AJA agreed.
Casename
Sentence
Originating
Court
Principal
Offence
Result
R v Hettiarachchi;
DPP v Hettiarachchi
[2009] VSCA 270 (27
November 2009)
TES in Supreme Court:
27 years; NPP 22 years
Supreme Court
Murder
DISMISSED
EXTRACT: “In R v Clarke, this court affirmed that a Director’s appeal should only be brought in a rare and exceptional case, to
establish some point of principle, and that this court should only interfere where a sentence reveals such manifest inadequacy or
inconsistency in sentencing standards as to constitute error in principle, or to correct a sentence which is so disproportionate to
the nature of the offence as to shock the public conscience.
The Director’s argument on this appeal falls a long way short of demonstrating any such error.
…
As this Court has recently affirmed in R v Hogan, the making of orders as to cumulation or concurrency is a matter for the exercise
of a broad judicial discretion. There can be no inflexible rules as to how this is done: what is important is that whether or not
cumulation is imposed, and to what extent, must reflect the criminality of the offences, subject to due observance of the totality
principle. The Director has not demonstrated any error in principle in relation to sentence. The various elements of the judge’s
sentencing, including the period of cumulation, do not demonstrate any manifest inadequacy or inconsistency, and reflected all
relevant factors, including the seriousness of the offences and the age and vulnerability of the two victims.” Nettle & Weinberg, JJA
& Hollingworth AJA.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Moses [2009] VSCA
274 (27 November 2009)
TES in County Court:
6 years 8 months; NPP 5 years
TES in CoA:
9 years; NPP 6 years 3 months
County Court
Rape
ALLOWED
EXTRACT: “In our view, the sentences here imposed were manifestly inadequate and must be substantially increased. We referred
earlier to the need for salutary sentences to deter and punish offending of this kind, to vindicate the community’s abhorrence of the
crime of rape and to advance public safety. Here the offender fell to be sentenced for five separate rapes, committed at intervals
over almost an hour, and also for imprisoning his victim in the periods between the successive rapes, which he did in order to
continue his attacks on her. The sentencing judge drew no distinction between the different rapes. While sentencing judges should
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OPP100101-2 Appendices.indd 77
10/09/10 11:42 AM
be allowed great latitude in tailoring an appropriate total effective sentence, particular care is required where there are numerous
offences. As Callaway JA (with whom Winneke P and Buchanan JA specifically agreed) pointed out in R v McCorriston, there is a
risk that the sentence will fail to register the seriousness of one or more of the offences. In the present case, some of the offences
plainly warranted greater individual sentences. Moreover, the total effective sentence of six years and eight months, for all of the
rapes and for the false imprisonment, was only just above 25 per cent of the maximum fixed by Parliament for a single rape. So
viewed, the sentence is, in our view, so disproportionate to the seriousness of the crime as to shock the public conscience. We
would direct a measure of partial cumulation. The sentences fixed and the orders for cumulation must also be reduced to provide
for the conventional discount for double jeopardy.” Maxwell P, Redlich JA & Vickery AJA
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v B D J [2009] VSCA
298 (1 December 2009)
TES in County Court:
6 years 6 months; NPP 4 years
4 months
TES in CoA:
8 years 6 months; NPP 5 years
6 months
County Court
Incest
ALLOWED
EXTRACT: “The restraints which apply to Director’s appeals against sentence have been frequently stated. In order to succeed
on this appeal the Director must establish that the individual sentences or the total effective sentence reveal such a manifest
inadequacy, or inconsistency in sentencing standards, as to constitute error in principle, or that the sentence is so disproportionate
to the seriousness of the crime as to shock the public conscience. Having regard to the double jeopardy principle which applies
to Director’s appeals, and to the respondent’s guilty plea, we do not consider that the individual sentences imposed on counts 3
to 6 were manifestly inadequate. In reaching that view we have had regard to the authorities relied upon by the respondent and a
number of more recent sentences imposed for the offence of incest. We have also taken account of the respondent’s guilty plea
and the double jeopardy principle which applies to Director’s appeals. In our opinion, however, the individual sentences imposed
on counts 1 and 2 and the total effective sentence imposed on the respondent did not adequately reflect the gravity of the
offending, or its effect on the victim.
…
We also consider that the total effective sentence did not give sufficient weight to specific and general deterrence and
denunciation.
…
In our view the total effective sentence is manifestly inadequate despite the mitigating factors on which the respondent is entitled to
rely, including his plea of guilty, his absence of prior convictions, his family circumstances and his willingness to undergo treatment
for his behaviour.” Neave & Bongiorno, JJA & Byrne, AJA.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Pennisi [2009]
VSCA 322 (1 December
2009)
TES in Supreme Court:
10 years; NPP 7 years
Supreme Court
Manslaughter
DISMISSED
EXTRACT: “Having regard to the sentence imposed in this case, the sentencing judge treated Pennisi leniently.
However, although ten years is at the bottom of the range of sentences which the Chief Crown Prosecutor argued
would be appropriate in this case, it is still within that range. Charles JA, in R v Clarke, in setting out the criteria which
should govern Crown appeals, said that before this Court should increase a sentence on such an appeal, it must be
satisfied that the sentence imposed is so disproportionate as to show that an error in principle has occurred, or that the
sentence is so lenient as to shock the public conscience. Although the sentence in this case is lenient, applying these
criteria, and bearing in mind that any increase would have to be subject to a consideration of the principle of double
jeopardy, we are not prepared to disturb the trial judge’s sentence in this case.” Neave & Bongiorno, JJA & Byrne,
AJA.
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OPP100101-2 Appendices.indd 78
10/09/10 11:42 AM
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v D Z [2009] VSCA
301 (18 December 2009)
TES in County Court:
12 years; NPP 9 years
TES in CoA:
14 years; NPP 11 years
County Court
Maintaining
a sexual
relationship
with a child
under 16
ALLOWED
EXTRACT: “Counsel for the Director submitted that his Honour had erred in describing the offence of maintaining a sexual
relationship created by s 47A of the Crimes Act 1958 as equivalent in effect to a representative count of a sexual offence, which
‘enables that offence to be seen in its full circumstantial context’. The Director’s submission was clearly correct.
…
Because ground 2 is made out it is unnecessary to consider ground 1 and the offender must be re-sentenced. It will be apparent
from our reasons below that we also consider that the sentence imposed on the respondent was manifestly inadequate.
…
In our opinion the gravity of the offending in this case and the principles of general and specific deterrence require the imposition
of very substantial sentences on the individual counts.
…
The respondent will be re-sentenced following a successful Director’s appeal. He is accordingly, entitled to have the fact that he
has already been sentenced for these crimes taken into account in his favour on the double jeopardy principle. He will be required
to undergo a significantly increased sentence both as to his total sentence and the non-parole period. The increase would have
been even higher but for that principle. If it were not for his guilty plea and the double jeopardy principle, we would have sentenced
him to a total effective sentence of 16 years’ imprisonment.” Neave & Bongiorno, JJA & Byrne, AJA.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Brown [2009] VSCA
314 (21 December 2009)
TES in County Court:
2 years 9 months, 2 years
suspended for 2 years
TES in CoA:
5 years 6 months; NPP 2 years
9 months
County Court
Rape
ALLOWED
EXTRACT: “The principles governing appeals by the Director of Public Prosecutions are well known. They are conveniently set
out in DPP v Bright. An appeal should not be brought unless the inadequacy in the sentence is clear and egregious, to the extent
that the sentence is so disproportionate to the seriousness of the crime as to shock the public conscience and undermine public
confidence in the ability of the courts to play their part in deterring criminal activity. Even then, the court has an overarching
discretion not to interfere. Because of the element of double jeopardy, restraint in re-sentencing is required; and if, in the particular
circumstances of an individual case, the result of that restraint were to be a mere tinkering with the original sentence, then
intervention will be inappropriate. The issue of proportionality is important in this case. Redlich JA expressed it in the following
words:
‘Crown appeals inevitably excite an examination of whether there is reasonable proportionality between the sentence and the
gravity of the crime. The objective gravity of the offence must be assessed otherwise other relevant sentencing considerations,
and in particular subjective factors, may be given undue weight in arriving at the sentence, rendering it unlikely that the
sentence will be commensurate with the seriousness of the crime.’
Although her Honour addressed all the relevant factors, we have concluded that the sentences were so disproportionate to the
seriousness of the crimes as to shock the public conscience. They did not reflect the objective gravity of the offences. As was said
by Hedigan AJA in R v Ware:
‘A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is
degenerate.’
In this case, the respondent engaged in the persistent sexual abuse of a young male less than half his age, over a period of about
12 months. His single motive was the gratification of his deviant sexual desires. He was indifferent to the effect of his conduct on
those in his charge and to whom he owed a duty of trust.
…
In our opinion, a total effective sentence of two years and nine months’ imprisonment, two years of which are wholly suspended,
is manifestly inadequate in the sense described above. It fell significantly short of what was required to achieve proportionality
between the sentence and the gravity of the crime. Notwithstanding the early guilty plea, the respondent’s remorse and prospects
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OPP100101-2 Appendices.indd 79
10/09/10 11:42 AM
of rehabilitation, his debilitating skin condition and the other mitigating circumstances, we have concluded that the appeal must
succeed.
…
The sentences have been reduced to take account of double jeopardy. We have moderated the statutory requirement to cumulate
the sentences on counts 3–5.
…
The sentences have been reduced to take account of double jeopardy. We have moderated the statutory requirement to cumulate
the sentences on counts 3–5.
…
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), we state that if it had not been for the respondent’s plea of guilty, we
would have imposed the following sentence: Total Effective Sentence: 7y 6m Non-Parole Period: 3 y 9m” Maxwell P, Harper JA &
Williams AJA.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Martin [2009] VSCA
316 (21 December 2009)
TES in County Court:
12 months, wholly suspended for
2 years
County Court
Recklessly
causing serious
injury
DISMISSED
EXTRACT: “Ultimately, despite the seriousness of the offences and their effects on the victims and the other matters raised by the
Director, we were not persuaded that he had established that the judge erred in principle by imposing an inadequate sentence or
one inconsistent with sentencing practices or that the sentence was ‘so disproportionate to the seriousness of the crimes as to
shock the public conscience’. We considered the sentence to be within ‘the range’ set by the limits within which reasonable minds
might differ on the appropriate sentence, as described by the Court in R v Macneil-Brown, albeit right at the bottom end of that
range. Given our decision that the sentence was not manifestly inadequate, there was no need to consider whether the Court
would, nevertheless, have intervened in the exercise of its discretion. We note, however, that we would have been disinclined
to impose a sentence of immediate imprisonment upon the respondent, bearing in mind the operation of the principle of double
jeopardy when a respondent has been serving a sentence in the community and the respondent’s particular efforts to rehabilitate
himself.” Maxwell P, Harper JA & Williams AJA.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v T D J;
DPP v M S
[2009] VSCA 317 (23
December 2009)
TDJ
TES in County Court:
5 years 7 months; NPP 4 years
6 months
TES in CoA:
8 years 6 months; NPP 6 years
MS
TES in County Court:
1 year 8 months; NPP 1 year
TES in CoA:
4 years; NPP 2 years 8 months
County Court
Incest
ALLOWED by
majority re TDJ
ALLOWED by
majority re MS
EXTRACT: “In our view, the sentences imposed in this case were so manifestly inadequate as to reflect error of principle.
Significantly higher sentences were called for, to reflect the objective gravity of the offending and to meet the need for general and
(in the case of TDJ) specific deterrence, and for community protection, and to express the Court’s denunciation of the conduct.
…
But for the pleas of guilty, the respondents would have been sentenced as follows:
TDJ Total effective sentence: 9y 6m Non-parole period: 6y 8m
MS Total effective sentence: 4y 6m Non-parole period: 3y.” Maxwell P, & Neave JA. Ashley, JA, dissented
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OPP100101-2 Appendices.indd 80
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Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Nguyen [2010] VSCA
31 (26 February 2010)
TES in Supreme Court:
25 years; NPP 20 years
Supreme Court
Murder
DISMISSED
EXTRACT: “As this Court affirmed in R v Clarke, a Director’s appeal should only be brought in a rare and exceptional case, to
establish some point of principle. One circumstance which may give rise to the bringing of a Director’s appeal is where a sentence
reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle. In dealing with such
appeals it is important to bear in mind that sentencing is an exercise of broad judicial discretion and on appeal this Court is not
entitled to simply substitute its opinion for that of the sentencing judge. As Charles JA observed in Clarke:
‘A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter
anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence
inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into
material error of law or fact.’
It should also be noted that when, in dealing with a Director’s appeal, the court decides to resentence an offender, it ordinarily
gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is
somewhat less than the sentence it considers should have been imposed at first instance.
…
In this case the sentencing judge directed that six years of the sentence imposed on count 2 be served cumulatively upon the
sentence imposed on count 1, resulting in a total effective sentence of 25 years. His Honour then fixed a non-parole
period of 20 years. The making of orders as to cumulation or concurrency are matters for the exercise of a broad judicial
discretion. As this Court recently affirmed in the Hettiarachchi appeal:
‘There can be no inflexible rules as to how this is done; what is important is that whether or not cumulation is imposed, and to what
extent, must reflect the criminality of the offences, subject to due observance of the totality principle.’
I am not persuaded that the amount of cumulation between counts 1 and 2 was manifestly inadequate. The total effective sentence
was within range, albeit at the low end of the range. As noted earlier, on appeal the court is not entitled to simply substitute its
opinion for that of the sentencing judge. It may only interfere if it is satisfied that there is, relevantly in the circumstance of this
case, manifest inadequacy. I am not persuaded that the sentences imposed in this case were manifestly inadequate, nor am I
persuaded that the sentencing judge fell into error such as to warrant correction on appeal. It follows that the appeal must be
dismissed.” Ross AJA, with whom Maxwell P & Bongiorno JA agreed.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Lednar [2010] VSCA
46 (11 March 2010)
TES in County Court:
4 years 6 months; NPP 2 years
9 months
County Court
Armed robbery
DISMISSED
EXTRACT: “The offences were indeed serious. The robberies were planned, at least to the extent that the respondent armed
himself with a knife and stole a car to assist in his escape. The respondent chose vulnerable victims. As counsel for the Director
submitted, general deterrence and protection of the community were very important factors in sentencing for these offences.
Specific deterrence was also important, particularly in the light of the respondent’s striking record of prior convictions and the
fact that the offences were committed whilst the respondent was on parole. In his careful sentencing remarks, the sentencing
judge addressed each of the matters now relied upon by counsel for the Director to demonstrate the inadequacy of the sentence.
Although a sentence of four and a half years’ imprisonment in the circumstances of these offences and this respondent, might be
described as lenient, I think that nevertheless the sentence does not ‘manifest inadequacy or inconsistency in sentencing standards
as to constitute error in principle’. Crown appeals are to be regarded as rare and exceptional and call for restraint. It is accepted
that manifest inadequacy does not ensure the success of a Crown appeal. Something more is required. The inadequacy of the
sentence must be ‘clear and egregious’, the sentence being so disproportionate to the seriousness of the crime as to shock the
public conscience, and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of
crime’. In the present case I am of the opinion that the sentence imposed upon the respondent was not so lenient as to constitute
error in principle.”
Buchanan JA, with whom & Bongiorno JA & Habersberger AJA agreed.
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Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Albert [2010] VSCA
75 (13 April 2010)
TES in County Court:
31 months; NPP 16 months
County Court
Negligently
causing serious
injury
DISMISSED
EXTRACT: “…manifest inadequacy alone will not be sufficient to warrant appellate intervention. As the court said in DPP v Bright:
‘A number of the principles which govern appeals by the Director of Public Prosecutions are set out in The Queen v Clarke
[1996] 2 VR 520 at 522 and DPP v Johnston [2004] VSCA 150; (2004) 10 VR 85 at 96-97. One is that an appeal
should not be brought unless the sentence reveals such ‘manifest inadequacy or inconsistency in sentencing standards as
to constitute error in principle’. An examination of authorities suggests, as was conceded by the Director in argument, that
manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that
prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be
‘clear and egregious’, the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience
and ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’. When resentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown appeal,
arising from the respondent’s exposure to sentencing on a second occasion for the same crime. Because of the element of
double jeopardy, Crown appeals are regarded as having a ‘rare and exceptional’ character which calls for restraint, even where
manifest inadequacy may be present, the court having an overarching discretion not to interfere. Double jeopardy is a factor
which must be considered in both the Court’s determination of whether this Court should exercise its discretion to allow the
Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to
be imposed must allow for double jeopardy. ‘
This remains the law, although legislative intervention will in the future remove considerations of double jeopardy in sentencing.
Section 28 of the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 inserted s 289(2) into
the Criminal Procedure Act 2009. It provides that ‘[i]n considering whether an appeal should be allowed, the Court of Appeal
must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is
allowed.’ But, by virtue of cl 10(4) of Schedule 4 of the Criminal Procedure Act 2009, this provision ‘applies to an appeal where
the sentence is imposed on or after the commencement day’ (which was 1 January 2010). Were that provision applicable in
the circumstances of this case, I would allow the appeal and re-sentence the respondent to a term of imprisonment which more
appropriately reflected his criminality. In the light of the necessity to allow for double jeopardy, however, and in the light of the fact
that manifest inadequacy alone is insufficient, it seems to me that this Court has no power to interfere with the sentence imposed
upon the respondent, too low as it nevertheless is. Given the applicable sentencing practices, as illustrated by Brown, Fackovic
and Healey, no sentence greater than three and a half years’ imprisonment would have been open to the County Court; but the
principle of double jeopardy closes that option to this Court, while anything much less would be mere tinkering. In the particular
circumstances which here prevail, the appeal must therefore be dismissed.” Harper, JA, with whom Habersberger, AJA, agreed.
Buchanan, JA agreed that the appeal should be dismissed.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Briggs [2010] VSCA
82 (19 April 2010)
TES in County Court:
5 years; NPP 3 years, on 3
separate presentments, with
discount given for an undertaking
to give evidence against a cooffender
TES in CoA:
7 years; NPP 4 years, on 3
separate presentments
County Court
Armed robbery
DPP APPEAL
regarding breach of
undertaking to give
evidence against a cooffender ALLOWED
EXTRACT: “Counsel for the Director referred to the decision of this Court in Director of Public Prosecutions v Mann. In that case,
Warren CJ, with whom Maxwell P and Buchanan JA agreed, stated that the following applicable principles could be extracted from
the authorities:
1. A more severe sentence will be imposed once the conditions of breach of undertaking, appeal and determination of
a different sentence are established, unless exceptional circumstances arise.
2. In re-sentencing a respondent, the constraints of the principles of double jeopardy do not arise.
3. The sentence cannot exceed that which the judge at first instance specified would have been imposed but for the
undertaking.
4. Threats made in prison do not alter the fact that a respondent has failed to pay the price of the reduced sentence
given at first instance.
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To this could be added two further propositions articulated by the Chief Justice. First, her Honour said:
The Court does not exercise a fresh sentencing discretion. As Buchanan, J.A. observed in argument, the Court does not start with
a clean sheet of paper, rather with a sheet of paper with some writing on it: what the judge said below.
Secondly, her Honour stated:
When an individual agrees to the bargain with the community based on co-operation, he or she embraces risks at large, save in an
exceptional case where the fulfilment of the risk may not have been reasonably anticipated. Here, the respondent took the risk, as
clearly articulated by the sentencing judge, and it eventuated. Such fulfilment is not a matter of mitigation at all. It simply puts the
individual back where he would have been if the undertaking had not been proffered in the first place.
…
The re-sentencing of the respondent is not tabula rasa as the sentence cannot exceed that which the judge at first instance would
have imposed but for the undertaking. The purpose of s 567A(1A) and (4A) is not punitive but to enable the sentence to be
adjusted to the extent considered appropriate.” Habersberger, AJA, with whom Redlich & Harper, JJA agreed.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Malikovski [2010]
VSCA 130
(12 May 2010)
TES in County Court:
16 months, wholly suspended for
18 months, with a 12 month CBO
County Court
Recklessly
causing serious
injury
DISMISSED
EXTRACT: “In my view, some of the individual sentences were inadequate and the total effective sentence was very merciful. There
is much to be said for the view, urged by the Crown, that the respondent’s role in what was in effect a spate of unprovoked attacks
on innocent people warranted an immediate custodial sentence. Despite the applicant’s youth and other considerations urged in
mitigation of penalty, the nature and gravity of this offending and respondent’s moral culpability meant that general deterrence and
denunciation should have been pre-eminent sentencing considerations.
That said, however, there are at least two difficulties in the way of appellate intervention. The first is that the sentence imposed on
the respondent accords closely with the sentences that were imposed on his co-offenders, …
…
And the Crown did not appeal against either of those other sentences. Consequently, I consider that any substantial alteration
in the sentence imposed on the respondent may well result in a degree of disparity sufficient to engender a justifiable sense of
grievance, or at least give the appearance that justice has not been done.
…
The second difficulty is that it is now getting on towards five years since the offences were committed and almost a year since the
respondent was sentenced.
…
“Although it is possible for a sentence of imprisonment imposed which is not otherwise exceptionable to be rendered manifestly
inadequate by an order wholly to suspend it, such cases are likely to be rare and I am not persuaded that this is such a case.
…
With respect, I see no error in that part of her Honour’s reasoning. In principle, it accords precisely with the relevant authorities.
Ground 3: Individual sentences and orders for cumulation
There is I think more substance in the complaint made under Ground 3, that the judge erred in the manner in which she structured
the sentence by failing to heed to the precepts essayed in DPP v Grabovac. As was there explained, when the principle of totality
is engaged, it is usually preferable to impose individual sentences commensurate with the nature and gravity of the offence and to
regulate the total effective sentence by appropriate orders for cumulation, rather than to impose reduced individual sentences.
In my view, the way in which the judge went about the exercise in this case resulted in some individual sentences that were
inadequate. More precisely, I consider that the individual sentences of three and four months’ imprisonment which her Honour
imposed on the counts of affray, intentionally causing injury and recklessly causing serious injury plainly failed to reflect the
objective seriousness of each of those offences and the need for denunciation and general deterrence of offending of that kind.
Given the nature and gravity of the offences, I should have thought that the appropriate individual sentence to be imposed on
each of the counts of affray would have been in the order of 12 months’ imprisonment; the appropriate individual sentence to be
imposed on the counts of intentionally causing injury would have been somewhere in the order of 12 to 18 months’ imprisonment;
and the appropriate individual sentence to be imposed on the count recklessly causing serious injury would have been in the order
of two years’ imprisonment.
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I am, however, not persuaded that the inadequacy of the individual sentences imposed on those counts is sufficient to mandate
appellate intervention. For even if the respondent were re-sentenced on those counts to what I consider would be appropriate
individual sentences, the principles of totality and parity would so limit the cumulation of individual sentences as to yield a total
effective sentence of something less than three years’ imprisonment. And as I see it, particularly in light of the application of the
principle of double jeopardy, the difference between that and the total effective sentence of 16 months which was imposed,
when taken in conjunction with the community-based order of 12 months, is not enough to warrant appellate intervention in the
circumstances of this case.
Finally, and not insignificantly, it is necessary to remember the delay of close to five years which I mentioned earlier in these
reasons, and that because of the delay of almost 12 months since sentencing, the respondent is now close to completion of the
community-based order which was made against him. As far as we know, he has thus far complied with its conditions. If so, and
given his age, it would be a harsh thing indeed now to order him into custody.” Nettle, JA, with whom Maxwell, P & Neave, JA,
agreed. Maxwell, P, added
“The ground of manifest inadequacy cannot succeed unless the appeal court is persuaded that no reasonable judge could have
imposed this sentence on this offender for these offences in these circumstances.
It needs to be repeated – and repeated clearly – that the Court of Appeal is not the sentencing court. The task of imposing
sentence is committed by the Parliament to sentencing judges. As we have sought to make clear time and again, there is no scope
for intervention either on a prisoner’s appeal or on a Director’s appeal unless the sentence can be demonstrated to be obviously
wrong, that is, so clearly outside what could be regarded as the sentencing range applicable to the case that this Court must step
in and exercise the discretion afresh. I am not persuaded that this case approaches the point at which such intervention is called
for.
…
In what continues to be a highly punitive debate about sentencing, it seems to me that this Court needs to promote public
understanding of the fact that, quite apart from the interest of the individual whom it is sought to rehabilitate, there is a vital
community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime. The
prospect of an offender being rehabilitated represents the best hope for the community that the person will never again engage in
violent behaviour.
…
Once it is recognised that a sentencing exercise of this kind requires the balancing of conflicting considerations – general
deterrence and denunciation on the one hand, and rehabilitation on the other – the debate about whether the balance was rightly
struck is really a debate about whether it was the right sentence. But there is of course no right sentence; there is a range within
which the sentencing discretion can lawfully be exercised.
When a sentencing judge has carefully and conscientiously addressed all the relevant matters and has undertaken the necessary
task of weighing up the competing factors, this Court will be reluctant to intervene. A sentence appeal is not, and cannot be
allowed to become, a rehearing on the merits. The risk with the ground of manifest inadequacy, as with the ground of manifest
excess, is that it tends to lead in exactly that direction.”
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Telford [2010] VSCA
118 (28 May 2010)
TES in County Court:
30 months, wholly suspended for
2 years
County Court
Recklessly
causing serious
injury
DISMISSED
EXTRACT: “We accept the submission of the Director that ordinarily where a concealed weapon is used to inflict serious injury, an
immediate and substantial term of imprisonment must be expected.
…
Conclusion
The present offending is of a such objective gravity that ordinarily, it would require an immediate custodial term of imprisonment.
An uncommon combination of circumstances, however, prevailed in the appeal. Counsel for the respondent was able to point
to a powerful constellation of factors that militated against the imposition of a term of immediate imprisonment. These include
the fact that the respondent would be deprived of his liberty which he had enjoyed for a period of almost 16 months since the
date of the original sentencing. It is considered a very serious step to imprison a person who has been dealt with and released
into the community by a trial judge. Additionally, the respondent has suffered serious injuries in the intervening period with the
consequence that prison will bear more onerously on him. The respondent has, furthermore, been subject to a ‘significant period
of uncertainty’ in the nearly four years since the date of the offending. Finally, the Court must have regard to the element of double
jeopardy that is present on a Director’s appeal against sentence. These factors, in combination, lead the Court to decline to
exercise its discretion to intervene in this case.” Neave & Redlich JJA, & Lasry AJA
84
OPP100101-2 Appendices.indd 84
10/09/10 11:42 AM
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Fleiner [2010] VSCA
143 (18 June 2010)
TES in County Court:
6 years; NPP 4 years
TES in CoA:
8 years; NPP 5 years
County Court
Trafficking in
a commercial
quantity of
a drug of
dependence
ALLOWED
EXTRACT: “The Director also argued that this Court should not apply the law as expounded in DPP v Bright. Redlich JA, in a
judgment in which Chernov and Vincent JJA agreed, there said (in a passage in which I have supplied the emphasis):
‘A number of the principles which govern appeals by the Director of Public Prosecutions are set out in R v Clarke and DPP v
Johnston. One is that an appeal should not be brought unless the sentence reveals such ‘manifest inadequacy or inconsistency
in sentencing standards as to constitute error in principle’. An examination of authorities suggests, as was conceded by the
Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more
is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy
of the sentence must be ‘clear and egregious’, the sentence being so disproportionate to the seriousness of the crime as to
shock the public conscience and ‘undermine public confidence in the ability of the courts to play their part in deterring the
commission of crimes’. When re-sentencing the offender the appellate court must pay careful heed to the factor of double
jeopardy, inherent in a Crown appeal, arising from the respondent’s exposure to sentencing on a second occasion for the same
crime. Because of the element of double jeopardy, Crown appeals are regarded as having a ‘rare and exceptional’ character
which calls for restraint, even where manifest inadequacy may be present, the court having an overarching discretion not to
interfere. Double jeopardy is a factor which must be considered in both the Court’s determination of whether this Court should
exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be
imposed. Any different sentence to be imposed must allow for double jeopardy.’
The Director submitted that an examination of the authorities does not suggest that something more than manifest inadequacy
alone is required to warrant appellate intervention. A requirement for ‘something more’ was for the first time imposed in Bright’s
case, but in doing so this Court went beyond the law as it previously stood. Such an extension, the Director contended, was
wrong. The error can be seen in part in the lack of clarity about what the expression ‘something more’ means. Although in Bright
the Director succeeded, the seeker after clarification will not find the ‘something more’ explained in Bright itself – a circumstance
sufficient on its own to demonstrate (so the Director contends) that there was in that case an incorrect application of principle.
This, the Director submits, should now be corrected.
In my opinion, Redlich JA in his judgment in Bright intended no more than to emphasise that manifest inadequacy will not be shown
unless it can be concluded – at the least – that, in arriving at the sentence in question, the sentencing judge committed such a
serious error as to amount to an error in principle. An obvious example would arise were the sentencing judge to believe that the
maximum penalty was much lower than it was in fact. Such an error might also be exposed in a number of other ways: for example,
were the sentence to reveal such an idiosyncratic view of the offending and its criminality that the public conscious would be
shocked were a correction not effected; or (which is much the same thing) were the objective gravity of the offence not assessed
so as to result in a reasonable degree of proportionality between the sentence and the gravity of the crime; or were the sentence
for some other reason to be impossible to reconcile with the principle that, ‘so far as the subject matter permits ... there ... be
uniformity in sentencing.’
There may be additional occasions for bringing a Crown appeal, as R v Clarke demonstrates. Thus it may be ‘necessary for a
court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted
persons’, or ‘to enable the courts to establish and maintain adequate standards of punishment for crime’. In these cases it might
not be particularly helpful to describe the sentence under appeal as ‘manifestly inadequate’, because it might be consonant with
a factor – for example, current sentencing practices – to which, by s 5 of the Sentencing Act, the sentencing judge must have
regard; but, at the same time, open to a successful appeal because not consonant with other such factors – for example, the
maximum penalty prescribed for the offence.
In my opinion, considered in the light of these precepts, the sentence imposed upon the respondent on Count 1 revealed ‘such
manifest inadequacy as to constitute error in principle’ in two respects: the sentencing judge failed to give adequate consideration
both to the protection of the community and to the respondent’s previous character.” Harper, JA, with whom Nettle, JA & Hansen,
AJA agreed.
Casename
Sentence
Originating
Court
Principal
Offence
Result
DPP v Higgs [2010] VSCA
154 (25 June 2010)
TES in County Court:
3 years, wholly suspended for 3
years
County Court
Recklessly
causing injury
DISMISSED
EXTRACT: “The principles upon which a Crown appeal falls to be determined were summarised in DPP v Bright in these terms:
‘A number of the principles which govern appeals by the Director of Public Prosecutions are set out in R v Clarke and R v
Johnston. One is that an appeal should not be brought unless the sentence reveals such manifest inadequacy or inconsistency
85
OPP100101-2 Appendices.indd 85
10/09/10 11:42 AM
in sentencing standards as to constitute error in principle. An examination of authorities suggests, as was conceded by the
Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more
is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy
of the sentence must be ‘clear and egregious’, the sentence being so disproportionate to the seriousness of the crime as to
shock the public conscience and ‘undermine public confidence in the ability of the courts to play their part in deterring the
commission of crimes’. When re-sentencing the offender the appellate court must pay careful heed to the factor of double
jeopardy, inherent in a Crown appeal, arising from the respondent’s exposure to sentencing on a second occasion for the same
crime. Because of the element of double jeopardy, Crown appeals are regarded as having a ‘rare and exceptional’ character
which calls for restraint, even where manifest inadequacy may be present, the Court having an overarching discretion not to
interfere. Double jeopardy is a factor which must be considered in both the Court’s determination of whether this Court should
exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be
imposed. Any different sentence to be imposed must allow for double jeopardy.’
Two questions here arise. First, was the full suspension of the three year sentence so manifestly inadequate as to demonstrate
error in principle? If so, given that the respondent has been at liberty does the public interest require that he now serve an
immediate period in custody?
It is always to be remembered that there is a great public benefit in the rehabilitation of youthful offenders. But, as has often been
stated, rehabilitation may have to be subjugated to other factors relevant to the instinctive synthesis where the offence is of a
particular order of seriousness. There must always be a reasonable proportionality between the sentence and the gravity of the
crime. Ormiston JA stated in Thompson that it will not ordinarily be appropriate to extend mercy to young offenders in cases of
intentionally causing serious injury because to do so will not give effect to the required principles of sentencing which are reflected
in the Sentencing Act and in the common law. The following similar observations were made in DPP v Simpas:
‘But that said, as this court has observed before, youths who roam the streets at night, charged with alcohol and participating
in serious acts of criminal violence will not be excused on the basis of youth or immaturity. The nature and prevalence of
that kind of conduct is such that society properly regards it as intolerable and, in those circumstances, the court is bound to
do what it can to make clear that such offending will not be tolerated. To that extent, the ameliorating effects of youth and
rehabilitation must yield to the needs of deterrence.’
Although we are here dealing with two counts of recklessly cause serious injury (not the more serious charge of intentionally doing
so), the seriousness of those assaults in company and the further count of aggravated burglary bring similar considerations into
focus. The respondent was armed with a weapon which he used upon the defenceless victims. Both were entirely innocent. They
admitted of no provocation. There was a clear element of premeditation in the respondent’s conduct having arrived in the company
of others. It was persistent and involved repeated kicking and hitting, even after the victims were taken to the ground. The assault
also occurred in company. As this Court said in DPP v Terrick:
‘An assault in company is more frightening and — almost always — more lethal than an assault by one, not least because the
action of each tends to encourage the others. It is also more cowardly, because of the overwhelming physical superiority of the
attackers.’
A sentence which did not require the offender to serve a period of immediate custody was, in my view, manifestly inadequate.
The learned sentencing judge, in weighting particular subjective factors, produced a sentence that was not, in my respectful view,
commensurate with the seriousness of the crime. But as the above quoted passage from Bright states, something more than
manifest inadequacy must be shown to warrant intervention. In determining whether an appeal by the Director is justified, we
should be guided, as the joint judgment of the High Court in Everett v The Queen directs, by the observations of Barwick CJ in
Griffiths v The Queen that such appeals should be brought ‘only to establish some matter of principle’ and to afford an opportunity
to the appellate court to lay down principles for the governance and guidance of sentencing courts. Barwick CJ considered ‘error
in point of principle’ could include a ‘[g]ross departure from what might in experience be regarded as the norm’. Everett further
explained the reference to ‘matter of principle’ as ‘encompassing what is necessary to avoid the kind of manifest inadequacy or
inconsistency in sentencing standard which Barwick CJ saw as constituting “error in principle”.’
Accordingly, this court will only interfere on a Director’s appeal where it is necessary to fulfil the function of putting right errors of
sentencing principle or to maintain appropriate sentencing standards.
The Court has recently handed down its decision in DPP v Fleiner. It was evidently submitted by the Crown in that case that the
Court should not apply the law as expounded in Bright. That submission was rightly rejected. The analysis in Bright has been
applied in a very large number of Director’s appeals. It is consistent with the High Court authority referred to above. Moreover,
both in Bright and in numerous subsequent appeals, the Director’s counsel conceded the very proposition that was impugned in
Fleiner.
The proposition enunciated in Bright, and applied consistently since, is quite clear. Something more than manifest inadequacy
must be present if this Court is to intervene on a Director’s appeal. As many of the appeals applying Bright have emphasised, the
mere fact that a sentence falls outside the range of sentences reasonably open and is therefore manifestly inadequate does not
necessarily reveal error in principle. Assuming there to be no other basis upon which error of principle can be demonstrated, the
Court must be persuaded that the inadequacy is so egregiously disproportionate to the seriousness of the crime as to betoken such
error.
Here the Director’s submission was not that a sentence of more than three years should have been imposed, but that the
respondent should have been required to immediately serve a part of that sentence in custody. The sentencing judge, in her careful
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OPP100101-2 Appendices.indd 86
10/09/10 11:42 AM
reasons, recognised both the objective gravity of these offences and the compelling evidence of the respondent’s rehabilitation. I
can discern nothing in her Honour’s approach that demonstrated error in principle that would warrant appellate intervention. When
pressed, senior counsel did not submit that the inadequacy of the sentence necessarily established error in principle. That again
was a concession rightly made. It could not be said that the sentence imposed was a gross departure from the norm, or egregiously
disproportionate to the seriousness of the crime. In any event, in the exercise of this court’s overriding discretion, taking into
account the principle of double jeopardy, I would have declined to intervene.
Additionally, there was a powerful consideration that militated against now imposing a custodial term which would have the
consequence that the respondent would be deprived of the liberty which he had enjoyed. As an immediate custodial sentence
did not commend itself to the sentencing judge, it would require a very strong case before this court should intervene. It is
considered a very serious step to deny a person their freedom when they have been dealt with and released into the community by
a sentencing judge, particularly where it may put at risk the rehabilitation which has been achieved. For such reasons I would in any
event have declined to impose a different sentence.” Redlich, JA, with whom Maxwell, P & Mandie, JA agreed.
87
OPP100101-2 Appendices.indd 87
10/09/10 11:42 AM
APPENDIX 4
OPP ACTIVITY DATA
Briefs prepared and hearings attended
Briefs prepared and
hearings attended
2001/02
2002/03
2003/04
2004/05
2005/06
2006/07
2007/08
2008/09
2009/10
52,800
56,525
64,767
66,413
67,570
69,183
72,633
68,265
69,465
Judge sitting days serviced by OPP staff
Supreme Court
County Court
Circuit County and
Supreme Courts
Total*
2001/02
2002/03
2003/04
2004/05
2005/06
2006/07
2007/08
2008/09
2009/10
558
752
817
809
1,225
1,123
1,008
1,073
1,000
3,486
3,777
4,640
4,558
5,038
4,929
5,894
6,179
5,966
–
–
–
–
–
1,336
1,698
1,616
1,657
4,044
4,529
5,457
5,367
6,263
7,388
8,600
8,868
8,623
* Note that the total prior to 2006/07 does not include circuit
Case outcomes as a percentage of total case completions
2001/02
2002/03
2003/04
2004/05
2005/06
2006/07
2007/08
2008/09
2009/10
Guilty Pleas Pre-Trial
68.0
68.1
60.5
57.0
55.9
64.1
58.8
58.3
60.4
Guilty Pleas Listed as
Trial
5.3
5.7
9.8
10.0
9.3
9.4
11.0
10.8
11.4
Total Guilty Pleas
73.3
73.8
70.3
67.0
65.2
73.5
69.8
69.0
71.8
Trial Convictions
14.0
12.9
16.1
15.0
17.1
14.6
16.5
15.5
13.5
8.0
8.4
11.3
12.0
12.2
11.0
12.3
12.5
12.3
22.0
21.3
27.4
27.0
29.3
25.6
28.8
28.1
25.9
4.7
4.9
2.3
6.0
5.5
0.9
1.4
2.9
2.3
87.3
86.7
86.4
82.0
82.3
88.1
86.3
84.5
85.3
Trial Acquittals
Total Trials
Other Case
Completions
Total Guilty (pleas
and convictions)
Note that some categories may not sum due to rounding
Trials completed
2001/02
2002/03
2003/04
2004/05
2005/06
2006/07
2007/08
2008/09
2009/10
216
212
340
355
341
302
340
310
278
30
49
49
32
43
42
41
43
30
Circuit County and
Supreme Courts
108
100
135
124
118
101
118
102
91
Total
354
361
524
511
502
445
499
455
399
Melbourne County
Court
Melbourne Supreme
Court
88
OPP100101-2 Appendices.indd 88
10/09/10 11:42 AM
Plea Hearings Conducted
Melbourne
County Court
Melbourne
Supreme Court
Circuit County
and Supreme Courts
Total
2001/02
2002/03
2003/04
2004/05
2005/06
2006/07
2007/08
2008/09
2009/10
916
965
1,089
1,005
828
966
866
838
1,202
37
25
43
48
63
62
29
69
58
226
256
212
197
218
216
255
166
186
1,179
1,246
1,344
1,250
1,109
1,244
1,150
1,073
1,446
Victim and Witness Referrals
Number of referrals
2001/02
2002/03
2003/04
2004/05
2005/06
2006/07
2007/08
2008/09
2009/10
1,078
1,001
1,212
1,358
1,159
1,097
1,441
1,856
2,972
County Court Appeals Completed
Number of appeals
2001/02
2002/03
2003/04
2004/05
2005/06
2006/07
2007/08
2008/09
2009/10
1,840
2,222
2,205
2,248
2,129
2,264
2,118
2,289
2,014
Appeals to Court of Appeal, Supreme Court and High Court Completed
Court of Appeal /
Supreme Court
High Court
Total
2001/02
2002/03
2003/04
2004/05
2005/06
2006/07
2007/08
2008/09
2009/10
252
281
279
296
302
290
291
286
272
2
7
6
10
11
9
8
5
7
254
288
285
306
313
299
299
291
279
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APPENDIX 5
CROWN PROSECUTOR ACTIVITY DATA
2001/02
2002/03
2003/04
2004/05
2005/06
2006/07
2007/08
2008/09
2009/10
Number of Crown
Prosecutors (FTE)*
17.9
18.2
18.2
17.5
17.7
18.8
22.5
24.7
Days in Court Total
1,826
2,218
2,428
2,106
1,904
2,216
2,280
2,460
Days in Court per
Crown Prosecutor
102
122
133
120
108
118
101
100
Court Appearance %
43.9%
52.5%
59.6%
54.5%
50.8%
48.4%
41.9%
46.5%
50.0%
Presentments Total
1,238
1,803
2,643
2,634
2,371
2,472
3,095
2,437
2,879
Presentments per
Crown Prosecutor
69
99
145
150
134
131
137
99
Total plea offer
advisings
68
170
134
418
636
718
1,241
1,281
4
9
7
24
36
38
55
52
Total nolle prosequi
advisings
19
23
14
96
170
96
122
113
Nolle prosequi
advisings per
Crown Prosecutor
1
1
1
5
10
5
5
5
1,238
2,461
3,451
3,137
3,648
3,390
4,135
4,758
69
135
190
179
206
180
184
193
1,325
2,654
3,599
3,651
4,454
4,204
5,498
6,152
74
146
198
208
252
223
244
249
Plea offer advisings
per Crown Prosecutor
General advice Total
General advice per
Crown Prosecutor
All advice Total
All advice per Crown
Prosecutor
25.7
2,709
105
112
2,077
81
492
19
3,876
151
6,445
251
* Note that for this data set Crown Prosecutor FTE is calculated across the financial year
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APPENDIX 6
FREEDOM OF INFORMATION REPORT
Compliance with the Freedom of Information Act 1982
The Office of Public Prosecutions is subject to the Freedom of Information Act 1982 (the Act).
Particulars of the functions and organisation of the OPP are set out elsewhere in this Annual Report. The OPP’s
website (www.opp.vic.gov.au) provides additional information that might also be of assistance in this regard.
Further information can be obtained from the Act, the various regulations made under that Act and by visiting www.foi.
vic.gov.au.
Exemption of the Director of Public Prosecutions
The Freedom of Information Regulations 2009 exempt the Director of Public Prosecutions from the application of
the Act. The Regulations Review Subcommittee approved the exemption on 7 October 2009. These Regulations will
sunset 7 April 2019.
Freedom of Information requests during 2009/10
The Office of Public Prosecutions received 29 requests under the Act from 1 July 2009 to 30 June 2010. Of
these requests, 24 were considered valid under the Act. The results of these requests were as follows (note some
requests may fall into more than one category):
Requests transferred to Victoria Police
3
Requests transferred from other Agencies
3
Request relating to documents not held
1
Access granted in full
3
Access granted in part
10
Access denied
7
Further particulars sought in relation to request
3
Access not finalised at end of reporting period
4
Requests outstanding from 08/09 period
3
Request withdrawn
1
Categories of documents held by the OPP
The Office maintains electronic and paper based files. The computerised case management system, PRISM, provides
a complete file registration and file management system. Files are initially recorded when they are allocated a file
number. All details of the accused, addresses, sureties and witnesses are entered. Further information is added as
the matter progresses. Files contain court documents and records of all communications and work undertaken in the
particular matter.
The Policy and Advice Directorate maintains an electronic database that records all matters handled by this section.
The Human Resources section maintains an alphabetical index of all persons employed in the Office, which also
includes a brief work history of each employee.
The Requisitions Book maintains a record of each order as it is raised, its allocated number and details of the order,
such as cost.
The Accounts Register (Non-Professional Assistance Register) is a register of recurring expenditure (e.g.
photocopying machine rental). An entry is raised each time an invoice is received or goods supplied to the Office.
The Professional Assistance Register is an alphabetical ledger of all barristers briefed by the OPP, specialists,
psychiatrists, court reporting, accountants and other professional assistance and contains details of claims made for
payment after appearances at court or provision of advice.
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The Fixed Assets Register is a register of all assets owned by the Office, including a description, cost and location of
each item.
Administrative files contain material relevant to general office issues and contain reports, correspondence and file
notes for subjects such as Freedom of Information legislation and transfer of files to the Public Records Office.
Access to documents
The Act aims to make the maximum amount of information available to Victorians, promptly and inexpensively. To
facilitate this aim, applications must be as specific and as precise as possible to enable quick identification and
searching for the relevant documents.
Access to information held by the OPP may only be obtained through written request to the Office’s Freedom of
Information Officer. Delegated officers handle the processing and determination of the application. The Solicitor for
Public Prosecutions handles any request for internal review.
An applicant may request photocopies of documents and/or inspect specific documents at the Office by arrangement,
or by other access arrangements that may be appropriate to the application. Applicants should provide a telephone
number as a point of contact for the Freedom of Information Officer to clarify or discuss matters relating to the request.
The OPP can refuse to release all or part of a document if it contains information that is exempt under the Act. The Act
outlines general categories of information that are exempt, including information relating to the personal affairs of third
parties, information provided in confidence, information which if released might endanger the lives or physical safety of
individuals, Cabinet documents, commercial-in-confidence information and internal working documents, the release of
which would be contrary to the public interest.
Where the OPP decides to deny access to all or part of a document, it will advise the applicant of the decision and the
reasons for the decision in an ‘Access Decision’ letter. If the applicant wishes to challenge a decision of the OPP, he or
she may appeal to the Victorian Civil and Administrative Tribunal (VCAT) or to the Ombudsman if making a complaint
about the way the request has been handled or informed that no documents exist. In the 2009/10 period two matters
were referred to the Tribunal by Applicants. One matter related to a decision to deny access and another matter
related to a ‘deemed refusal’. The Tribunal upheld the decision to deny access to the Applicant (a prisoner); the latter
application for review was withdrawn by the Applicant (a Member of Parliament).
Charges under the Act
The Act specifies that access to information be provided at the lowest reasonable cost. Charges are:
■
Application fee – a request must be accompanied by payment of $23.40 (effective 1 July 2009)
■
Search fee – $20 per hour or part thereof
■
Supervision fee – $10 per hour (where a document is inspected by an applicant at the Office)
■
Photocopy fee – $0.20 per A4 page
■
Deposits – a deposit of $25 may be requested before the Office will grant access if the calculated charge does not
exceed $100. If the calculated charge exceeds $100, a deposit of 50 per cent of the calculated charge may be
requested.
Some charges may be waived in certain circumstances: for example, where the applicant is impecunious or the
information was accessed in the public interest. On 1 July 2010, by notice in the Government Gazette (G10) dated
11 March 2010, the application fee was increased to $23.90 (2 monetary units).
Amendment of personal records
After a document containing information relating to the personal affairs of a person has been released to that
person, or in the case of a deceased person, that person’s next of kin, the applicant can request the correction of any
information held on the file where it is considered that this information is inaccurate, incomplete or gives a misleading
impression. In the 2009/10 period no requests to amend a personal record were received.
Requests for amendments must be made in writing and must specify:
■
an address for service of notices
■
particulars of why the person making the request believes the information to be incomplete, incorrect, out-of-date
or misleading
■
the amendments he or she wishes to be made.
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Where the Office accedes to the request, the record may be either altered or amended by annotation. Where the Office
refuses to make the amendment, it must notify the applicant in writing of the decision, advising of:
(a) the findings on any material questions of fact, the material on which those findings were based and the reasons
for the decision
(b) the name and designation of the person making the decision;
(c) the applicant’s rights of review to the Victorian Civil and Administrative Tribunal in respect of the decision.
If the Tribunal affirms the Office’s decision, the applicant may insist that a notation be made to the record specifying
why he or she claims the information it contains is incomplete or otherwise inaccurate. The notation then becomes part
of the document and may be disclosed pursuant to the Act.
Nominated Officer/Contact Officer
Requests for access to documents in the Office of Public Prosecutions under the Freedom of Information Act 1982
may be directed to:
Freedom of Information Officer
Office of Public Prosecutions
9th Floor, 565 Lonsdale Street
MELBOURNE VIC 3000
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APPENDIX 7
WHISTLEBLOWERS REPORT
The Office of Public Prosecutions is committed to the aims and objectives of the Whistleblowers Protection Act 2001
(the Act). It does not tolerate improper conduct by its employees and officers or the taking of reprisals against those
who come forward to disclose such conduct.
The OPP recognises the value of transparency and accountability in its administrative and management practices and
supports the making of disclosures that reveal corrupt conduct, conduct involving a substantial mismanagement of
public resources or conduct involving a substantial risk to public health and safety or the environment.
The OPP will take all necessary steps to protect people who make such disclosures from any detrimental action in
reprisal for making the disclosure. It will also afford natural justice to the person who is the subject of the disclosure.
Compliance with the Whistleblowers Protection Act 2001
During 2009/10:
■
The OPP received no disclosures
■
The OPP did not refer any disclosures to the Ombudsman for determination as to whether they are public interest
disclosures
■
The Ombudsman did not refer any disclosed matters to the OPP
■
The OPP did not refer any disclosed matters to the Ombudsman to investigate
■
The Ombudsman did not take over any investigation of disclosed matters from the OPP
■
The OPP made no request under s74 of the Act to the Ombudsman to investigate disclosed matters
■
The OPP did not decline to investigate a disclosed matter
■
There were no disclosed matters that were substantiated on investigation. There was no action required to be
undertaken arising from an investigation, since there were no investigations
■
The Ombudsman did not make any recommendation under the Act that relates to the OPP.
Reporting and investigation procedures
Written guidelines outlining procedures for reporting disclosure of improper conduct or detrimental action by the OPP
or its employees are available for public perusal by contacting the Protected Disclosure Coordinator.
Responsible officers
Disclosure of improper conduct or detrimental action by the OPP or its employees may be made to:
Protected Disclosure Coordinator
Name: Craig Hyland
Position: Solicitor for Public Prosecutions
Contact number: (03) 9603 7541
Protected Disclosure Officer
Name: Michael Hoyle
Position: General Manager Corporate Services
Contact number: (03) 9603 7541
Alternatively, disclosures of improper conduct or detrimental action by the OPP or its employees may also be made
directly to the Ombudsman.
The Ombudsman Victoria
Level 9, 459 Collins Street (North Tower)
MELBOURNE VIC 3000
Telephone: (03) 9613 6222
Toll Free: 1800 806 314
Email: [email protected]
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APPENDIX 8
THE OPP WORKFORCE
As an office holder with the functions of an Agency Head under the Public Administration Act 2004 (the Act), the
Solicitor for Public Prosecutions reports in compliance with the directions issued by the Commissioner of the State
Services Authority pursuant to s45(1)(d) of the Act. The Office of Public Prosecutions forms part of the Justice
portfolio and generally applies the same employment processes as those applying within the Department of Justice. In
relation to the specific reporting requirements set out in the Commissioner’s Directions, the position is as follows:
Aggregate workforce data as at 30 June 2010
Employment Role
Male
Female
Total
Change
from June
2009
19.0
7.0
26.0
-1.0
OPP Executive
3.0
0.0
3.0
–
Legal Practice
82.2
143.0
225.2
+7.2
Corporate Services
24.4
21.1
45.5
–
128.6
171.1
299.7
+6.2
DPP and Crown Prosecutors
Total
Notes on aggregate workforce data:
1. Includes only staff on the payroll as at 30 June 2010.
2. Staffing figures have been expressed as Full Time Equivalent.
3. Staffing figures include Executive Officers and Governor in Council appointees (DPP, SPP and Crown
Prosecutors).
4. Staffing figures include Legal Trainees.
5. The OPP Executive comprises the SPP, Legal Practice Manager and the General Manager Corporate Services.
Workforce classification breakdown (Headcount)
Classification
Total
VPS Grade 1
2
VPS Grade 2
42
VPS Grade 3
38
VPS Grade 4
54
VPS Grade 5
76
VPS Grade 6
76
Senior Technical Specialist/ VPS Grade 7
1
Executive Officer
2
Statutory Appointees
Total
27
318
Notes on breakdown data:
1. Includes only staff on the payroll as at 30 June 2010.
2. Staffing figures include Executive Officers and Governor in Council appointees (DPP, SPP and Crown
Prosecutors).
3. Staffing figures include Legal Trainees.
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Selecting on merit
All decisions relating to employment including recruitment, remuneration and access to promotions and training and
development opportunities, are based strictly on merit.
In 2009/10, four appointments were made without general advertisement. Three of these appointments were made
in circumstances where fixed-term vacancies became ongoing, and the incumbents had previously been selected on
merit for the temporary vacancy. The other appointment was made due to the incumbent satisfactorily performing
a specialist role that was formally reclassified to recognise a significant shift in work value. The Solicitor for Public
Prosecutions considered that it was unlikely that advertising the vacancy would attract a more suitable candidate.
Reviewing personal grievances
The OPP received and reviewed four Personal Grievance Applications during 2009/10, two of which were related to
promotional opportunities and two of which were general grievance applications.
Managing and valuing diversity
The OPP is committed to maintaining a workplace free of harassment, discrimination and bullying in accordance with
the principles documented in the Victorian Government’s merit and equity standards. This commitment is reflected
in Our Values, particularly those of Respecting Others, Acting Fairly and Acting with Integrity. All of our people
management systems and procedures have been designed to ensure that these standards are consistently met.
Flexible work arrangements encourage employees to balance their work and personal commitments with the support
of paid carer’s leave, paid parental leave, working from home arrangements and part time employment. As at 30 June
2010, 67 employees utilised flexible working arrangements.
Upholding public sector conduct
The Code of Conduct issued by the Commissioner of the State Services Authority under s45(1)(d) of the Public
Administration Act 2004 has been made available on the OPP intranet. All new appointees to the OPP are
provided with a formal induction program, and this program includes the provision of information relating to the
Code of Conduct and other aspects of employment. Training was conducted during 2009/10 to develop a better
understanding of Workplace Culture and to reinforce appropriate Workplace Behaviour.
Employee relations
All employees have access to union membership, and with the exception of Executive Officers, their employment
terms and conditions are governed by the Victorian Public Service (VPS) Agreement. The VPS Agreement documents
hours of work, rates of pay, as well as leave entitlements and disciplinary and grievance procedures. Executive Officer
employment terms and conditions are governed by the Government Sector Executive Remuneration Panel.
There were no industrial disputes during 2009/10.
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APPENDIX 9
OCCUPATIONAL HEALTH AND SAFETY REPORT
In accordance with the Occupational Health and Safety Act 2004 and the Office of Public Prosecutions Human
Resource Management Policies and Guidelines, the OPP is committed to providing a working environment for all staff
members and visitors that is safe and without risk to health.
The OPP’s current OH&S Committee was established in 2008, following implementation of the new organisational
structure, which includes both employee and managerial representation. The OH&S Committee meets on a quarterly
basis and is responsible for:
■
acting as an advocate for staff safety
■
assisting management in identifying hazards, reviewing incidents, assessing risks and developing practical controls
■
improving cooperation in instigating, developing and carrying out measures designed to ensure the occupational
health and safety of staff
■
formulating, reviewing and disseminating the standards, rules and procedures relating to occupational health and
safety that must be carried out or complied within the OPP workplace.
During 2009/10, the OPP:
■
Continued to offer an Employee Assistance Program that assists staff by providing short term professional
counselling and consulting for employees and members of their immediate family who face problems of a personal,
family or employment nature
■
Continued to provide financial assistance to staff who require spectacles for their use of computers
■
Continued to provide an Influenza Vaccination Program
■
Continued with regular site safety audits
■
Continued to provide a ‘Manual Handling’ training course for staff engaged in lifting or carrying heavy files
■
Continued to provide workstation assessments for staff
■
Continued to regularly review all office:
■
■
policies and procedures relating to OH&S key performance indicators
■
reporting registers of injuries and causes of accidents
■
WorkCover claims
■
rehabilitation and early return-to-work practices
Offered free Worker Health Checks to staff.
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APPENDIX 10
ENVIRONMENTAL REPORT
Commitment to sustainable practices
The Office of Public Prosecutions is committed to reducing energy consumption, using environmentally sustainable
products and developing environmentally sustainable strategies. The OPP has in place a program to reduce the
environmental impact of its operations by implementing initiatives that have an environmental payback. Key initiatives
that have been undertaken by the OPP during the last financial year include:
■
Working with the Department of Treasury and Finance to improve the environmental performance of 565 Lonsdale
Street through two major projects:
■
reducing water consumption by finalising the installation of dual flush toilets, waterless urinals and low flow taps
and showers and
■
reducing electricity consumption with the installation of energy efficient lighting throughout the building
■
Increasing the quantity of Green Power purchased from 14.8 per cent in 2008/9 to 18.5 per cent in 2009/10
■
Replacing five fleet vehicles with a performance rating of three stars (under the Commonwealth Government’s
Green Vehicle Guide) with four and five-star rated vehicles, including two hybrid cars
■
Continued investment in multi-function devices to allow duplex printing
■
Purchasing dishwashers and fridges with minimum four-star water and energy performance
■
Undertaking waste audits and implementing a waste management strategy to allow the separation of waste into
several streams for more recycling
■
Ongoing training of Facilities Management staff under the Department of Sustainability and Environment’s
ResourceSmart Government program.
Environmental Report for 2009/10
This environmental report covers two OPP office locations1, where over 97 per cent of office-based staff members
are located. This information has been prepared in accordance with the Financial Reporting Directions issued by the
Minister for Finance (FRD24).
ENERGY
2009/10
Green
Power
Electricity
Natural Gas
Green
Power
Indicator
Electricity
Total energy usage segmented
by primary source (MJ)1
5,439,090
975,097
990,849
5,703,956
1,247,637
989,843
Greenhouse gas emissions
associated with energy use
(t CO2-e)2
1,634
54
0
2,076
65
0
Percentage of electricity
purchased as Green Power
18.5%
14.8%
Units of energy used per FTE
(MJ/FTE)3
17,848
19,434
902
1,133
Units of energy used per unit of
office area (MJ/m2)
Natural Gas
2008/09
Notes on energy data:
1. Data was provided by Brookfield Multiplex (on behalf of the Department of Treasury and Finance, owner of
565 Lonsdale Street) and Knight Frank (building agent for 575 Bourke Street) and includes tenancy light and
power use at both OPP CBD offices. To improve environmental reporting, the energy usage figures now include
a proportion of base building energy costs based of the ratio of the OPP tenancy area to the building’s total net
lettable area.
2. The greenhouse gas emissions have been calculated using the Australian Greenhouse Office (AGO) Factors and
Methods Workbook.
3. The OPP’s FTE as at 30 June 2010 is used for environmental reporting.
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WASTE
2009/10
Indicator1
Landfill
Recycled
2008/09
Compost
Landfill
Recycled
Compost
Total units of waste disposed of
by destination (kg/year)1
12,606
60,592
596
21,339
39,281
1,577
Units of waste disposed of per
FTE by destinations (kg/FTE)2
42
202
2
73
134
5
Recycling rate (per cent of
total waste)
Greenhouse gas emissions
associated with waste disposal
(t CO2-e)
83%
66%
13
39
Notes on waste data:
1. An estimate for the OPP waste was extracted from data for 565 Lonsdale Street provided by Brookfield Multiplex
staff (on behalf of the Department of Treasury and Finance). The increase in recycling in 2009/10 was due to an
accelerated review and disposal of redundant files as part of improved records management procedures and the
effect of running of several highly complex trials requiring production of numerous court documents.
2. The OPP’s FTE as at 30 June 2010 is used for environmental reporting.
Actions taken to reduce waste consumption:
In conjunction with the Department of Treasury and Finance’s property manager, a new waste management system was
implemented in 2009/10 which has result in less waste and greater diversion from landfill.
PAPER
Indicator
2009/10
2008/09
17,176
9,124
57
31.1
Percentage of 75-100% recycled content copy paper purchased (%)
0.0%
0.5%
Percentage of 50-75% recycled content copy paper purchased (%)
2.0%
96.4%
98.0%
3.1%
Total units of copy paper used (reams)
Units of copy paper used per FTE
(reams/FTE)1
Percentage of 0-50% recycled content copy paper purchased (%)
Notes on paper consumption:
1. The OPP’s FTE as at 30 June 2010 is used for environmental reporting.
Actions taken to reduce paper consumption:
Paper usage has increased significantly due to the running of several highly complex trials requiring production of
numerous court documents. The variation in usage of paper with a lower recycled content is due to fluctuations in the
world-wide availability of recycled paper for reprocessing. The paper used by the OPP is mandated by the Victorian
Government Purchasing Board under the Whole of Victorian Government stationery panel arrangement.
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WATER
Indicator
Total units of metered water consumed by usage types (kilolitres)1
2009/10
2008/09
2,362,939
3,511,249
7,884
11,963
337
501
Units of metered water consumed in offices per FTE (kilolitres/FTE)
Units of metered water consumed in offices per unit of office area (kilolitres/m2))
Notes on water consumption data:
1. Data was provided by Brookfield Multiplex (on behalf of the Department of Treasury and Finance, owner of 565
Lonsdale Street) and Knight Frank (building agent for 575 Bourke Street) and apportioned from total building
water consumption based of the ratio of the OPP tenancy area to the building’s total net lettable area.
Actions taken to reduce water consumption:
■
The OPP has worked with the Department of Treasury and Finance to upgrade all toilets to dual flush, convert all
urinals from flushing to waterless, install flow restrictors to taps and replace all shower heads with low-flow fittings.
■
As part of the ongoing upgrade of its building facilities, the OPP has purchased new dishwashers with minimum
four-star water and 5 star energy performance.
TRANSPORT
2009/10
2008/09
Total
Total
2,195,213
2,098,616
639,131
575,371
163
152
0.25
0.26
Vehicles1
Total energy consumption by vehicles (MJ)
Total vehicle travel associated with entity operations (km)
Total greenhouse gas emissions from vehicle fleet (t CO2-e)
Greenhouse gas emissions from vehicle fleet per 1,000km traveled (t CO2-e)
2009/10
Total traveled by airplane2, 3
2008/09
Distance
traveled (km)
Total
greenhouse gas
emissions
(t CO2-e)
Distance
traveled (km)
Total
greenhouse gas
emissions
(t CO2-e)
1,156,184
364
903,435
296
2009/10
2008/09
81%
81%
Percentage of CBD employees regularly (>75 per cent of work attendance days) using
public transport, cycling, walking, or car pooling to and from work or working from
home, by locality type4
Notes on transportation data:
1. All vehicle data supplied by the Department of Treasury & Finance’s VicFleet unit.
2. Due to a change in Victorian Government travel service provider, data for the whole year is not available and the
figure for 2009/10 is an estimate only.
3. Over 90 per cent of all air travel relates to the movement of witnesses for trial preparation or giving evidence at
court.
4. Derived from a survey of OPP employees based in 565 Lonsdale Street, Melbourne.
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Actions taken to reduce vehicle emissions:
■
Five fleet vehicles with a performance rating of three stars (under the Commonwealth Government’s Green Vehicle
Guide) were replaced with four and five-star rated vehicles, including two hybrid cars.
■
New lockers have been installed and shower facilities upgraded to encourage riding or running to work.
■
Public transport tickets are purchased for staff travel to and from external meetings.
■
To offset the emissions of its passenger vehicle fleet, the Victorian Government invests in a range of carbon sink
projects. This program is the responsibility of the Department of Sustainability and Environment. Offsetting is done
in arrears and is based on actual fuel usage data.
GREENHOUSE GAS EMISSIONS
Indicator
2009/10
2008/09
1,689
2,140
Total greenhouse gas emissions associated with vehicle fleet (t CO2-e)
163
152
Total greenhouse gas emissions associated with air travel (t CO2-e)
494
296
13
28
Total greenhouse gas emissions associated with energy use (t
CO2-e)1
Total greenhouse gas emissions associated with waste production (t CO2-e)
Greenhouse gas emissions offsets purchased (t CO2-e)2
Notes on greenhouse gas emission data:
1. To improve environmental reporting, the energy usage figures now include a proportion of base building energy
costs based of the ratio of the OPP tenancy area to the building’s total net lettable area.
2. To offset the emissions of its passenger vehicle fleet, the Victorian Government invests in a range of carbon sink
projects. This program is the responsibility of the Department of Sustainability and Environment.
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APPENDIX 11
DISABILITY ACTION PLAN
The Office of Public Prosecutions falls under the jurisdiction of the Disability Act 2006 (the Act). Pursuant to s38 of
the Act, the OPP has a requirement to develop a Disability Action Plan. The purpose of the Disability Action Plan is to
facilitate the:
■
reduction of barriers to persons with a disability accessing goods, services and facilities
■
reduction of barriers to persons with a disability obtaining and maintaining employment
■
promotion of inclusion and participation in the community of persons with a disability
■
achievement of tangible changes in attitudes and practices which discriminate against persons with a disability.
The OPP has developed a Disability Action Plan (2009 – 2011) which is constrained by current OPP
accommodation. Many of the measures stipulated in the plan have already been implemented at the OPP, with
others in the process of implementation. The OPP is therefore confident that its Disability Action Plan will deliver a
response that is comprehensive, effective and efficient in ensuring that the OPP’s services, employment practices and
interactions with the community maximise participation and employment of people with a disability. The OPP Disability
Action Plan is located on the OPP website.
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APPENDIX 12
SUPPLEMENTARY INFORMATION
Audit Committee – Function, Role and Duties of the Audit Committee
The members of the Audit Committee are listed below.
Independent Members
Vacant – Chairperson (In March 2010, the chair of the Audit Committee, Mr R. Elvins passed away)
H. Burjorjee – Non-Executive Member
Executive Members
M. Hoyle – General Manager Corporate Services
R. Gray – Directorate Manager Advocacy and Briefing
The role and responsibilities of the Audit Committee and its members are set out in the Audit Committee Charter.
The Audit Committee provides advice to the Solicitor for Public Prosecutions to assist in the effective discharge of
responsibilities prescribed in the Financial Management Act 1994 and Audit Act 1994 and other relevant legislation.
The main responsibilities of the Audit Committee are to:
■
review and report independently to the Solicitor and Minister on the annual report and all other financial information
published by the Office
■
assist the Solicitor in reviewing the effectiveness of the internal control environment covering:
■
effectiveness and efficiency of operations
■
reliability of financial reporting
■
compliance with applicable laws and regulations
■
determine the scope of the internal audit coverage and ensure that its resources are adequate and used effectively,
including coordination with the external auditors
■
oversee the effective operation of the risk management framework.
Consultancies Disclosure Statement
Summary of consultancies engaged in 2009/10:
A. Details of consultancies over $100,000
There were no individual consultancies in 2009/10 where the cost of the engagement was $100,000 or over.
B. Details of consultancies under $100,000
In 2009/10, seven consultants were engaged at a total cost of $274,630 (excluding GST). Total fees paid or
payable to individual consultants were less than $100,000 each.
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APPENDIX 13
STATEMENT OF AVAILABILITY OF OTHER INFORMATION
In compliance with the requirements of the Ministerial Directions of the Minister for Finance, details in respect of the
information items listed below have been retained by the Office of Public Prosecutions and are available to the relevant
Ministers, Members of Parliament and the public (subject to Freedom of Information requirements, if applicable).
However, in adopting best practice disclosure policies and to ensure that the Office of Public Prosecutions discharges
its accountability obligations, where relevant, details about some of the following items have been disclosed within this
Report of Operations:
■
A statement that declarations of private interests have been duly completed by all relevant officers of the OPP
■
Details of shares held by senior officers as nominee or held beneficially in a statutory authority or subsidiary
■
Details of publications produced by the OPP about its activities and where they can be obtained
■
Details of changes in prices, fees, charges, rates and levies charged by the OPP for its services, including services
that are administered
■
Details of any major external reviews carried out in respect of the operation of the OPP
■
Details of any other research and development activities undertaken by the OPP that are not otherwise covered in
this Report of Operations or in a document which contains the financial report and Report of Operations
■
Details of overseas visits undertaken including a summary of the objectives and outcomes of each visit
■
Details of major promotional, public relations and marketing activities undertaken by the OPP to develop
community awareness of the services provided by the office
■
Details of assessments and measures undertaken to improve the occupational health and safety of employees, not
otherwise detailed in the Report of Operations
■
A general statement on industrial relations within the OPP and details of time lost through industrial accidents and
disputes, which is not otherwise detailed in the Report of Operations
■
A list of major committees sponsored by the OPP, the purposes of each committee and the extent to which the
purposes have been achieved.
This information is available from:
Projects and Performance Unit
Office of Public Prosecutions
565 Lonsdale Street
Melbourne VIC 3000
Telephone: (03) 9603 7629
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APPENDIX 14
DISCLOSURE INDEX
The Annual Report of the Office of Public Prosecutions is prepared in accordance with all relevant Victorian legislation.
This index has been prepared to facilitate identification of the OPP’s compliance with statutory disclosure requirements.
Legislation
Requirement
Page reference
Ministerial Directions
Report of operations – FRD Guidance
Charter and Purpose
FRD 22B
Manner of establishment and the relevant Ministers
FRD 22B
Objectives, functions, powers and duties
FRD 22B
Nature and range of services provided
63
3, 14-17
14-17, 20-21
Management and structure
FRD 22B
Organisational structure
12-13
Financial and other information
FRD 10
Disclosure index
105
FRD 15B
Executive officer disclosures
FRD 22B, SD 4.2 (k)
Operational and budgetary objectives and performance against
objectives
27, 68
FRD 22B
Employment and conduct principles
95-96
FRD 22B
Occupational health and safety policy
97
FRD 22B
Summary of the financial results for the year
27
FRD 22B
Significant changes in financial position during the year
27
FRD 22B
Major changes or factors affecting performance
14-25
FRD 22B
Subsequent events
14-25
FRD 22B
Application and operation of Freedom of Information Act 1982
91-93
FRD 22B
Application and operation of the Whistleblowers Protection Act 2001
FRD 22B
Details of consultancies over $100,000
103
FRD 22B
Details of consultancies under $100,000
103
FRD 22B
Statement of availability of other information
104
FRD 24C
Reporting of office-based environmental impacts
98-101
FRD 29
Workforce data disclosures
95-96
SD 4.5.5
Risk management compliance attestation
SD 4.2(j)
Sign-off requirements
64
94
30
32-33
Financial Statements
Financial statement required under Part 7 of the FMA
SD 4.2(a)
Statement of changes in equity
36
SD 4.2(b)
Operating statement
34
SD 4.2(b)
Balance sheet
35
SD 4.2(b)
Cash flow statement
37
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Legislation
Requirement
Page reference
Other requirements under Standing Directions 4.2
SD 4.2(a)
Compliance with Australian accounting standards and other
authoritative pronouncements
38-47
SD 4.2(a)
Statement of compliance
30
SD 4.2(d)
Rounding of amounts
45
SD 4.2(c)
Accountable officer’s declaration
29
Other disclosures as required by FRDs in notes to the financial statements
FRD 21A
Responsible person and executive officer disclosures
64
FRD 103D
Non-current physical assets
FRD 106
Impairment of assets
41
FRD 110
Cash flow statements
37, 62
FRD 112A
Defined benefit superannuation obligations
40, 57
41, 51-53
Legislation
Freedom of Information Act 1982
Whistleblowers Protection Act 2001
Financial Management Act 1994
91-93
94
34-66
FRD is a Financial Reporting Direction issued by the Minister for Finance pursuant to section 8 of the Financial Management Act 1994 and
Regulation 16 of the Financial Management Act 2004. Compliance with FRDs is mandatory.
SD is a Standing Direction under the Financial Management Act 2004. Compliance with SDs is mandatory.
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GLOSSARY
Accused
A person charged with a crime is called an accused in the Supreme and County Courts
Barrister
A lawyer who appears at court, acting for either the prosecution or defence
Committal
A hearing conducted in a Magistrates’ Court to determine whether there is enough
evidence for a trial before a judge and jury
Conviction
A person is convicted when they are found guilty by a jury or plead guilty before a judge
or magistrate
County Court
A judge presides over this court. It hears indictable offences and a jury decides the case
Crown Prosecutor
A prosecutor who works solely for the Director of Public Prosecutions
Defendant
A person charged with a crime is called a defendant in the Magistrates’ Court
DOJ
Department of Justice
Double Jeopardy
The principle that a person may not be tried or sentenced twice for the same offence
DPP
Director of Public Prosecutions
ERA
Early Resolution Advocate
High Court of Australia
The highest court in the Australian judicial system
Indictable offences
Crimes where the defendant has the right to a trial where guilt or
innocence is determined by a jury
Judgment
The final order or set of orders made by a judge after a court hearing
Jury
Twelve people chosen to decide whether an accused is guilty or not guilty in a
County or Supreme Court trial
LPS
Legal Prosecution Specialist
Magistrates’ Court
The court that hears less serious cases (summary offences) and does not use a jury
Nolle prosequi
An announcement by the prosecution in a criminal case discontinuing proceedings
OCE
Office of the Chief Examiner
OPI
Office of Police Integrity
OPP
Office of Public Prosecutions
Plea
A statement by an accused person as to whether they are guilty or not guilty
Prosecutor
A Crown Prosecutor, barrister or Solicitor Advocate who acts for the DPP to
call witnesses and present evidence in court to prove a case
QC
Queens Counsel
SC
Senior Counsel
Solicitor
A lawyer who prepares a case for court
Solicitor Advocate
An OPP solicitor who appears in court on behalf of the DPP
SPP
Solicitor for Public Prosecutions
SSOU
Specialist Sex Offences Unit
Supreme Court
The superior court in Victoria that hears the most serious cases
Trial
A hearing in the County or Supreme Court before a judge and jury
Victim Impact Statement
A statement made by a victim of crime to the court when an offender is being sentenced
VPFSD
Victoria Police Forensic Services Department
VSA
Victims Support Agency, DOJ
VSSD
Victims Strategy and Services Directorate
WAS
Witness Assistance Service
Witness
A person who appears in a court to tell what they know about a crime or other event
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OFFICE OF PUBLIC PROSECUTIONS
565 LONSDALE STREET, MELBOURNE VIC 3000
Phone No: (03) 9603 7666
www.opp.vic.gov.au
Fax No: (03) 9603 7430