CRIMINAL LAW - Appeal - Sentence - Possession of child pornography - Failure to comply with condition of Extended Supervision Order ('ESO') - Whether double punishment to impose individual sentence on offence of failure to comply with ESO as well as on child pornography offence - Serious Sex Offenders Monitoring Act 2005 (Vic), s 40(1) - Crimes Act 1958 (Vic) s 70(1) - Interpretation of Legislation Act 1984 (Vic) s 51(1).

1 This proceeding raises an important question about the rule against double punishment or, more accurately, about the rules against double prosecution, conviction and punishment. The question arises in the following circumstances.

2 Since May 2007, the appellant (L)[1] has been subject to an extended supervision order ('ESO'), made by a County Court judge under s 11 of the Serious Sex Offenders Monitoring Act 2005 (Vic) (the 'Monitoring Act').[2] It is a condition of the ESO that L not commit a 'relevant offence' while the order is in force.[3] Possession of child pornography[4] is a relevant offence.[5]

3 Failing without reasonable excuse to comply with a condition of an ESO is an indictable offence.[6] Any charge for such an offence is to be filed by the Secretary to the Department of Justice (the 'Secretary'), not by ordinary prosecuting authorities such as the police or the Director of Public Prosecutions ('DPP').[7]

4 In 2011, L pleaded guilty to two charges[8] of possessing child pornography ('CP offences') and two charges[9] of failing (by committing the CP offences) to comply with a condition of the ESO ('breach offences'). He fell to be sentenced as a serious sexual offender (within the meaning of Part 2A of the Sentencing Act 1991 (Vic)) on the two CP offences, by virtue of his prior criminal record.

5 On 5 July 2011 he was sentenced by her Honour Judge Pullen as set out in the following table:

6 L was granted leave to appeal against sentence, on limited grounds, and now seeks leave to appeal against conviction on the breach offences. The sole proposed ground of appeal against conviction raises the same issue as the principal ground of appeal against sentence. It is that the conduct which in each case gave rise to the CP offence - being in possession of child pornography - was the very conduct which gave rise to the corresponding breach offence. L contends that, when he was convicted and sentenced for the breach offence, he was impermissibly 'punished twice for the same act'.

7 The submission relies both on the common law prohibition against double punishment and on s 51(1) of the Interpretation of Legislation Act 1984 (Vic) ('ILA'), which provides as follows:

Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.

8 In my opinion, for reasons which follow, there was no abuse of process, and no double punishment, in L being prosecuted for and convicted of both the CP offences and the breach offences. The offences were different in important respects and it was appropriate to proceed to conviction on charges which, together, reflected the full criminality of L's conduct.

9 Nor, in my view, did the sentences imposed on L infringe the rule against double punishment. L does not dispute that, in sentencing him on the CP offences, the sentencing judge was entitled to treat as an aggravating feature of those offences the fact that he had committed them while subject to the ESO.[11] Having done so, her Honour was also entitled to impose sentence for the corresponding breach offences - but only for the separate criminality constituted by L's disobedience of a Court order.

10 Had the sentences on the breach counts also punished L (to any extent) for the criminality involved in his acts of possessing child pornography, the rule against double punishment would have been infringed. But there is nothing in the sentences imposed to suggest that this occurred, and the sentencing reasons explicitly addressed the need to avoid double punishment.[12]

11 I deal first with the application for leave to appeal against conviction, and the position at common law. (For reasons of clarity, the following discussion refers to a single CP offence and the corresponding breach offence.)

12 The common law position regarding double jeopardy and double punishment was clearly enunciated by the High Court in Pearce v The Queen.[13] The majority (McHugh, Hayne and Callinan JJ) laid down three distinct propositions which, for ease of reference, I shall call 'Rule 1', 'Rule 2' and 'Rule 3' respectively. They are as follows:

Rule 1 A plea in bar (autrefois convict or autrefois acquit) is available only in relation to an offence the elements of which are the same as, or are included in, the elements of an offence for which an accused has been tried to conviction or acquittal.[14]

Rule 2 Where no plea in bar is available in relation to the second offence, prosecution of that offence may nevertheless be stayed as an abuse of process if it would be vexatious or oppressive or unfair.[15]

Rule 3 As a matter of sentencing, persons found guilty of two offences must not be punished twice for an act which is common to the two offences.[16]

13 As this Court noted in R v Nor,[17] Rules 1 and 2 go to conviction 'in the sense that, if conviction has been secured in breach of either of the two aspects of double jeopardy it will ordinarily be set aside.'[18] Rule 3, on the other hand, goes to sentence. Since, however, the recording of a conviction is itself a punishment, Rule 3 will sometimes require the quashing of a conviction.[19]

14 L did not seek to invoke Rule 1. He accepted that the breach offence included elements that were different from the elements of the CP offence. Hence no plea in bar would have been available. L sought instead to invoke Rule 2. Particular reliance was placed on the decision of this Court in R v Sessions.[20] (The decision in Sessions was handed down a year before the decision in Pearce.[21])

15 In Sessions, the applicant (who pleaded guilty) had been convicted and sentenced to imprisonment on one count of rape and one count of recklessly causing serious injury (RCSI). The offences arose from an incident in which the applicant had pushed his finger violently into the victim's vagina. The applicant contended that no conviction should have been recorded on the RCSI count. As appears from the reasons for judgment,[22] the applicant disavowed any reliance on autrefois convict (Rule 1), submitting instead that 'what occurred was to be dealt with as an abuse of process' (Rule 2).

16 Referring to the decision in Rogers v The Queen,[23] Hayne JA accepted that the abuse of process argument was available 'beyond the confines of the autrefois pleas', and concluded that it should be upheld:

[W]here, as here, the act for which the applicant was to be sentenced on [the rape] count was the same act as he was to be sentenced for on [the RCSI] count 2 and there was no fact or matter that should be taken to account in sentencing on one count that would not be taken to account in sentencing on the other count it was, in my view, oppressive and unfair to punish him twice. The conviction on [the RCSI] count should be quashed.[24]

(As discussed below,[25] his Honour's conclusion was also based on the rule against double punishment, Rule 3.)

1"> 17 In the present case, counsel for L contended that the prosecution for the breach offence was likewise oppressive and unfair. This was said to be so because the act for which L was to be sentenced on the CP count - the act of possessing child pornography - was 'the same act as he was to be sentenced for' on the breach count; and because the judge in sentencing him on the CP count had been able to take into account, as a matter of aggravation, the fact that the CP offence had been committed while L was subject to the ESO, and in breach of it.

18 In my opinion, this submission must be rejected, for the reasons given by the majority in Pearce[26] for rejecting the like submission in that case. There, the accused had been convicted of two offences, namely:

(a) maliciously inflicting grievous bodily harm with intent to do grievous bodily harm; and

(b) breaking and entering a dwelling house and inflicting grievous bodily harm while in the house.

In the view of the High Court majority, there was no abuse of process in the laying of the two separate charges:

[B]ecause the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose.[27] To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni,[28] would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately.[29]

19 In the present case, in my view, the CP offence and the breach offence are likewise 'different in important respects'. As counsel for L properly conceded in argument, the offence of failing to comply with an order of the Court (ESOs being, of course, Court orders) is different in character from the offence of possessing child pornography. The breach offence involves separate and distinct criminality from the substantive offence which constituted the breach of the order. To hold that L should not have been charged with, or convicted of, the breach offence would be (in the language of Pearce) to 'preclude the laying of charges that, together, reflect the whole criminality of the accused'.

20 This Court recently came to the same conclusion in Loader v The Queen,[30] a decision which the present appellant sought to challenge as 'plainly wrong'. There, as here, the appellant had committed offences which put him in breach of an ESO. He appealed against his convictions for the breach offences on the ground that those convictions amounted to double punishment for the conduct which gave rise to the substantive offences. Although reliance was placed on s 51(1) ILA, the Court disposed of the argument by applying the common law as enunciated in Pearce[31] - specifically, Rule 2.

21 Nettle JA (with whom Warren CJ and Ashley JA agreed) said:[32]

In my view, the argument is misplaced. The short answer to it is that the offences alleged in [the breach counts] included elements in addition to the elements of the [indecent assault] offences. There is no injustice in charging or convicting an offender of more than one offence committed in the course of the one episode of criminal behaviour if each offence is comprised of or includes different elements. As the Court said in Pearce v The Queen:

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

[T]here is only a partial overlap between the [indecent assault offences] and [the breach offences].

Certainly, to the extent of the overlap, the sentences imposed on the [breach offences] must be moderated in accordance with Pearce. But the offences of failing to comply with the conditions of the orders involved the added criminality of failing to comply with orders of the Court. That warrants additional punishment.[33]

22 The Court thus disposed of the conviction appeal by applying the common law test for abuse of process - Rule 2 - while pointing out that Rule 3 must be complied with in the sentencing process. I respectfully agree with the analysis, and the conclusion. Whether s 51(1) required any different result will be considered below.

23 There is nothing novel about the proposition that, in circumstances such as these, a breach offence involves separate and distinct criminality from that involved in the contravention of the substantive criminal law which constitutes the breach. The Supreme Court of South Australia came to the same conclusion in analogous circumstances - first in Maple v Kerrison[34] and, more recently, in D A T v Police.[35]

24 In Maple,[36] the South Australian Full Court was concerned with s 20 of the Crimes Act 1914 (Cth), which provided as follows:

20(1) If the Court thinks fit to do so, it may release any person convicted of an offence against the law of the Commonwealth without passing any sentence upon him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the Court that he will be of good behaviour for such period as the Court thinks fit to order and will during that period comply with such conditions as the Court thinks fit to impose, or may order his release on similar terms after he has served any portion of his sentence.

(2) If any person who has been released in pursuance of this section fails to comply with the conditions upon which he was released, he shall be guilty of an offence.

Penalty: Imprisonment for the period provided by law in respect of the offence of which he was previously convicted.

25 The Full Court had to decide whether, at common law, a person could be convicted and sentenced for an offence against s 20(2) (the breach offence) after having been convicted and sentenced for an offence against the substantive criminal law (the substantive offence), that being the conduct relied on to establish the breach. Both King and Zelling JJ concluded that there was no obstacle to conviction and sentence for the breach offence. (Bray CJ dissented on this point.[37])

26 In the view of Zelling J, it was 'obvious' that the breach offence was not 'the same offence' as the substantive offence.[38] For his part, King J said:

The gist of the charge under s 20(2) is the non-compliance with a condition of the security given by the defendant to the court. The essence of the wrongdoing is the non-compliance with that condition. The fact that the conduct in which the non-compliance consists is itself a criminal offence does not make the gist of the two offences the same. The offence against s 20(2) is different in character from the criminal offence in which the non-compliance consists, not only because the legal elements are different ... but because the nature of the wrongdoing constituting the offences is essentially different. Section 20(2) does not seek to punish the conduct amounting to the non-compliance, but the failure to observe a condition of the security given to the Court.[39]

27 In D A T,[40] the appellant was, by order of the Court, subject to 'an obligation of the kind that might otherwise have been imposed under a bond'.[41] One of the conditions of that 'obligation' was to be of good behaviour for its duration. During the period of the obligation, the appellant committed two offences against the substantive criminal law. The question for the Court was whether, having been convicted of those substantive offences, he could also be convicted of the breach offence, that is, the offence of failing to comply with the obligation imposed on him.

28 Doyle CJ concluded that the conviction for the breach offence was valid. After citing the respective statements of Zelling and King JJ in Maple, his Honour said:

My view is that the reasoning of Zelling J and King J in Maple is that there is no common law bar to a prosecution for an offence of failing to comply with a condition or obligation to be of good behaviour, the proof of that offence being proof of a crime which is, to put it compendiously, part of the ordinary criminal law. It is no answer to a charge for an offence of breaching a condition or obligation to be of good behaviour that proof of that offence involves proof of facts which would be necessary and sufficient to procure a conviction for the offence under the ordinary criminal law. The reason for the conclusion is that the offence of breaching a condition or obligation to be of good behaviour is an offence different and distinct from a crime under the ordinary criminal law, and there is no common law principle against a person being convicted of different offences arising out of the same facts.[42]

29 So too in the present case, and in Loader.[43] The offence of breaching a condition of an ESO is 'an offence different and distinct from a crime under the ordinary criminal law' - in this case, possession of child pornography. The analogy sought to be drawn with Sessions[44] cannot be maintained. In the present case, it would not have been open to the sentencing judge dealing with the CP offence to take into account 'every matter that would be dealt with in sentencing for the breach offence'. That is so for the reasons given respectively by King J in Maple[45] - that the nature of the wrongdoing is essentially different - and by Nettle JA in Loader - that failure to comply with an order of the Court 'warrants additional punishment'.[46]

30 L does not dispute that it was open to the sentencing judge in the present case to treat the existence of the ESO as an aggravating feature of the CP offence. The fact that L was subject to an ESO bore directly upon the gravity of the CP offence itself and, in particular, on the need for the sentence to ensure specific deterrence and protection of the community.[47] It was also relevant to the assessment of CP's prospects of rehabilitation.

31 There is, in my view, a direct analogy with the case where an offender commits an offence while on parole or on bail. Those circumstances are conventionally treated by the sentencing court as aggravating the seriousness of the substantive offence.[48] It is clear from her Honour's sentencing reasons that this is the approach she took. Dealing with the CP offences, her Honour said:

Of relevance ... were the circumstances in which your offending occurred. That is that you were at the time of your offending subject to an Extended Supervision Order, and with a troubling criminal record.[49]

32 What could not be taken into account in sentencing for the CP offence was the distinct criminality involved in breaching the ESO, that is, failing to comply with an order of the Court made under the Monitoring Act. That separate element was not relevant to the CP offences. To have taken that matter into account in sentencing for the CP offence would have contravened the principle set down in R v Newman.[50] That difficulty did not arise in Sessions.[51]

33 To the extent that the application for leave to appeal against conviction relied on Rule 2 (abuse of process), it must be refused. I turn now to consider the applicability of s 51(1) ILA.

34 As noted earlier, s 51(1) ILA provides as follows:

Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.

35 The scope and effect of s 51(1) have been considered by this Court on two principal occasions. The first was in R v Bekhazi,[52] where the provision was relied on in support of an appeal against sentence by an offender who had been convicted and sentenced on:

(a) one count of culpable driving causing death; and

(b) one count of recklessly engaging in conduct that placed others in danger of death.

The appellant's submission was that, in imposing sentence on the reckless endangerment count, the judge had punished him 'more than once for the same act or omission', contrary to s 51(1).[53]

36 The Court rejected the argument, holding that the acts or omissions constituting the reckless endangerment offence were not the 'same acts or omissions' as those which constituted the culpable driving offence. Winneke P (with whom Charles and Vincent JJA agreed) said:

It is clear that the 'acts or omissions' referred to in s 51 are not to be equated with the elements or ingredients of the offences which they comprise. Rather, they are the constituent acts or omissions which must be established to prove the relevant offence. It is not sufficient to establish the [culpable driving] offence or the [reckless endangerment] offence to merely prove a course of driving which can be described either as 'grossly negligent' or 'reckless'. In my view, the constituent 'acts or omissions', essential for the proof of the respective offences, will necessarily include the consequences (namely death or danger of death) which the sections contemplate must flow to the victims of the offences created.[54]

37 Winneke P went on, however, to note the applicability of Rule 3, citing the relevant passage from Pearce.[55] Although s 51(1) was not a complete bar to punishment on the count of reckless endangerment, this did not mean

that the 'commonality' of the circumstances from which each offence derived could be ignored by the trial judge in determining how each of the offences was to be 'justly punished'.[56]

38 The second case was R v Langdon.[57] There the Court was considering appeals against both conviction and sentence. Relevantly, following pleas of guilty, each appellant had been convicted of one count of trafficking in amphetamine and one count of possession of amphetamine. The Court (Gillard AJA, with whom Batt and Eames JJA agreed) refused leave to appeal against conviction. Applying the principles enunciated in Pearce,[58] Gillard AJA held - in effect - that neither Rule 1 nor Rule 2 was applicable. Specifically:

(a) no plea in bar was available because each of the offences required proof of an element which the other did not;[59] and

(b) there was no abuse of process in the charging of different counts arising out of the same set of facts because 'the offences were different, and different in important respects'.[60]

39 The appeals against sentence succeeded, however. Of particular significance is the Court's conclusion that s 51(1) ILA was a statutory embodiment of Rule 3 in Pearce. The relevant passage from the judgment of Gillard AJA is as follows:[61]

In R v Hoar four judges of the High Court stated that there was:

... a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act.

It is a rule of law in this State by reason of s 51(1) of the Interpretation of Legislation Act.

In Pearce McHugh, Hayne and Callinan JJ said:

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

40 Approaching the question of sentence 'as a matter of common sense', Gillard AJA concluded that there had been double punishment. His Honour said:

In my view, there is a strong connection between the possession and the trafficking in the present case. Having in possession a trafficable quantity of amphetamines is part and parcel of the trafficking which in this case concerned manufacture and distribution by the same persons who had possession. The [appellants] were in possession because they were both the manufacturers and the distributors. Possession was central to their enterprise. In the particular circumstances of this case it is my view that the act of possession was common to both the trafficking and possession counts and accordingly there has been double punishment for the criminal act common to both counts.[62]

41 His Honour concluded that the conduct the subject of the possession count was wholly subsumed within the trafficking count and that, in order to avoid double punishment, the conviction for possession should be quashed. Gillard AJA said:

Applying the common sense approach, in my view the trafficable quantity possessed was realistically the balance of the stock used for trafficking and accordingly there was nothing left in count 9 to be the subject of any punishment. Count 9 concerns the offence of possession of a drug of dependence. The possession was part and parcel of the trafficking. Accordingly, in my view the proper approach in this case is to impose no sentence in respect to count 9. To impose a sentence would be to contravene s 51 of the Interpretation of Legislation Act. Given that there is no additional criminal act to punish it is my opinion that the only course open is to quash the conviction. See R v Sessions. It follows that the sentence must also be quashed.[63]

42 The reference here to Sessions is important. It picks up the point made by Hayne JA in that case, and expressly endorsed by Eames AJA, that the recording of a conviction is itself part of an offender's punishment. Hayne JA said:

Whether convictions should have been recorded on both counts is affected, in this case, by a number of considerations.

First, if the basic principle is that a single act or omission should not give rise to multiple punishments, convictions should not be recorded on both counts. (For present purposes it matters not whether that principle is founded in the common law or in the provisions of s 51 of the Interpretation of Legislation Act.) The Sentencing Act makes plain in s 7 and elsewhere that recording a conviction after plea or verdict of guilty is part of the punishment meted out to an offender. It is not right to say ... that conviction for more than one offence is not double punishment and will present no difficulty for the offender if those who may later have to consider the prior criminal history of that offender are properly instructed in the significance that is to be attached to the fact of multiple convictions based upon a single act. The fact of conviction is treated by the Sentencing Act as an element of the offender's punishment.[64]

43 In further reference to double punishment, his Honour said:

But in this case, precisely the same physical acts are relied on and, had the applicant pleaded not guilty, the evidence at his trial would have been identical whether he had been charged with either or both of the offences concerned.

In that sense, the applicant was to be punished twice for the one act. As the High Court recognised in R v Hoar,[65] it is well established that there is a practice, if not a rule of law, 'that a person should not be twice punished for what is substantially the same act'.[66]

44 As noted earlier,[67] the decision in Sessions thus rested on Rule 3 (double punishment) as well as on Rule 2 (abuse of process). What is of particular importance for present purposes is Hayne JA's view[68] that the rule against double punishment could be viewed as derived either from the common law or from s 51(1). As we have seen, the same view was subsequently expressed by a unanimous court in Langdon,[69] where Gillard AJA described the rule against double punishment as being a rule of law in Victoria 'by reason of s 51(1)'. Subsequently, in Nor,[70] Chernov JA (with whom Winneke P and Cummins AJA agreed) said that 'the thrust' of the rule against double punishment as stated in Pearce was 'reflected in s 51(1)'.

45 Subsequent decisions of this Court in which Sessions has been applied illustrate the operation of the rule against double punishment (Rule 3). In Bradley v The Queen,[71] for example, the applicant had been convicted of one count of reckless conduct endangering life and one count of intentionally causing injury in respect of the same victim.[72] Both counts were founded on the conduct of the applicant in pulling out a gun and firing shots in the direction of the victim, who was injured. The Crown conceded that the conduct which supported one count was the same as the conduct which supported the other count and that the applicant should therefore not have been convicted on both counts.[73] There was but a single physical act - the firing of the gun - and everything which was relevant to sentencing on the second count could be taken into count in sentencing on the first.

46 The same was true of R v Orgill[74] and R v Sari,[75] on which the present appellant relied. In each case it was the double punishment principle which was applied.[76] In Sari, the conduct constituting the count of criminal damage was part of the conduct relied on for the broader charge of riot. Because the recording of a conviction is itself part of the punishment, the double punishment rule required the quashing of the conviction.[77]

47 As noted earlier, L contends that this Court should not follow Loader.[78] That submission relied heavily on the decision of the High Court in Devine v The Queen,[79] to which the Court in Loader was not referred.

48 The position in Devine was as follows. Following his conviction for a sexual offence, the offender was released on a recognisance, pursuant to s 20(1) of the Crimes Act 1914 (Cth), on condition that he be of good behaviour for 3 years. As noted earlier, subsection 20(2) provided as follows:

If any person who has been released in pursuance of this section fails to comply with the conditions upon which he was released, he shall be guilty of an offence.

Penalty: imprisonment for the period provided by law in respect of the offence of which he was previously convicted.

49 Before the 3 years had expired, the offender was convicted of driving a motor vehicle whilst disqualified, and was sentenced to 3 months' imprisonment with hard labour. He was then proceeded against under s 20(2) for breach of the condition of good behaviour, on the basis of the driving conviction, and sentenced to 3 years' imprisonment with hard labour. On his appeal against sentence, the High Court unanimously ruled that the latter conviction should be quashed.

50 According to the records of the sentencing court, the offender had been sentenced for 'breach of recognisance'. In his report to the Court, however, the sentencing judge explained that his intention had been to sentence the offender for the original crime. But, as Windeyer J pointed out, the offender having been released under s 20 without sentence, there was no power subsequently to impose sentence for that offence.

51 Windeyer J then proceeded on what he described as 'the alternative assumption', namely, that sentence had been imposed for the breach offence created by s 20(2). On that assumption, his Honour concluded that the breach sentence must be quashed.[80] This conclusion rested on s 30(2) of the Acts Interpretation Act 1901 (Cth), as in force at that time, which provided as follows:

Where an act or omission constitutes an offence under both -

(a) an Act and a State Act; or

(b) an Act and an Ordinance of a Territory of the Commonwealth,

and the offender has been punished for that offence under the State Act or the Ordinance, as the case may be, he shall not be liable to be punished for the offence under the Act.

52 The relevant part of the judgment of Windeyer J was very short, as follows:

[S]hould the offender be punished for a breach of his obligation of good behaviour, being the breach of the traffic law when he had already served three months in prison for that offence? Can an offender who has been punished once for an offence be punished again under s 20(2) on a charge of failure to comply with the conditions upon which he was released? That it seems is prohibited by [s 30(2)] of the _Acts Interpretation Act 1901 (_Cth).[81]

53 Owen J likewise held that s 30(2) was applicable. In his Honour's view, the offender had already been punished for 'the unlawful act' which constituted the traffic offence under the relevant Territory Ordinance, and could therefore not be punished for the breach offence under s 20(2) since it 'consisted of' the same unlawful act. In a brief joint judgment, Kitto and Taylor JJ said that they agreed with Windeyer and Owen JJ that the conviction for the breach offence should be quashed and the sentence set aside, but did not say whether they adopted the reasoning on which that conclusion was based.[82] McTiernan ACJ said nothing about this point and would have allowed the appeal for other reasons.

54 The argument advanced on behalf of L in the present appeal involves the following steps:

• s 51(1) ILA is, in substance, identical to (the former) s 30(2) of the Acts Interpretation Act 1901 (Cth), as considered in Devine;
• the offence of breaching a condition of an ESO is of the same character as the offence of breaching a condition of a recognisance (Crimes Act 1914 s 20(2));
• a majority of the High Court in Devine held that:

(a) where a person has been convicted of a substantive criminal offence; and

(b) the commission of that offence is relied on to establish the breach offence,

the statute precludes a conviction for the breach offence; and

• accordingly, the decision in Loader[83] - and each previous decision of this Court dealing relevantly with s 51(1) - was made per incuriam,[84] and hence should not be followed.

55 The effect of Devine was considered by the South Australian Full Court in Maple. As noted earlier, the Court was there concerned with a breach offence contrary to s 20(2) of the Crimes Act 1914 (Cth). In addition to considering the position at common law, the Court had to consider the effect of s 30(2) of the Acts Interpretation Act 1901 (Cth). By majority (Bray CJ and Zelling J), the Court followed Devine in holding that, if an offender had already been convicted and punished for a breach of State law, the effect of s 30(2) was to preclude conviction and sentence for breach of s 20(2) of the Crimes Act 1914 (Cth). (Bray CJ, though not Zelling J, considered that the reasoning in Devine would also preclude conviction and sentence for breach of s 20(2) where the relevant prior offence was an offence against Commonwealth law.)

56 As senior counsel for the Secretary pointed out on this appeal, however, none of the judgments in Maple contains a clear endorsement of the decision in Devine. Bray CJ pointed out that only Windeyer and Owen JJ had expressed a view on the s 30(2) question. 'It is true that the Court on that occasion was constituted by five judges but the other three expressed no opinion on the point'.[85] Moreover, his Honour said, the result 'may appear strange'. For his part, Zelling J said:

As the Chief Justice says, it seems probable from the judgments of Windeyer J and Owen J in Devine v The Queen that if a breach of recognisance is something which results from a conviction for a breach of State law, that breach cannot after conviction be penalised under s 20(2) of the Crimes Act. That, however, is not this case, because the actual question contained in the case stated envisages a possible breach of Commonwealth law after a release under s 20(1) and not a breach of a law of a State.[86]

57 King J dissented on this point. In his Honour's view, Devine[87] did not establish that s 30(2) of the Acts Interpretation Act 1901 (Cth) precluded conviction and sentence for an offence against s 20(2) of the Crimes Act 1914 (Cth), even where the substantive offence relied upon was a State or Territory offence. He said:

There is no binding authority on the point. There are, however, the obiter dicta of Windeyer J and Owen J in Devine v The Queen, which are quoted by the Chief Justice. These dicta of eminent Judges of the High Court possess great persuasive weight. This aspect of the case has given me great concern, for, despite the very great weight to be attached to the dicta of those two learned Judges of the High Court and despite the fact that in this I differ from both my brethren on this Bench, I cannot bring myself to the view that the act or omission constituting the offence against State law 'constitutes' the offence against s 20(2).

The offence against s 20(2) is non-compliance with the condition. This involves not the unlawful act or omission, which amounts to the non-compliance, standing alone, but that act or omission in combination with other essential facts, namely, the existence of a current security entered into by the defendant containing a condition to be of good behaviour. The offence against s 20(2) is not the breach of the State law but the non-compliance with the good behaviour condition. The act or omission constituting the offence against State law is merely the manner in which the non-compliance has occurred. The relevant meant of the word 'constitute' given in the Shorter Oxford Dictionary (1972) is 'To frame, form; to make up, compose'. Webster (1924) expresses the meaning more pertinently as 'To form; to make up, as being the constitutive element or elements'. It seems to me that to constitute an offence, the act or omission must comprise all the elements of the offence other than any required mental element. Apart from any mental element, it must be all that is required to found a conviction for the offence.[88]

58 It seems, therefore, that all members of the South Australian Full Court in Maple regarded the views of Windeyer and Owen JJ as having been unsupported by any other member of the Court and, hence, as having no binding authority.

59 Devine was not cited to the Court in Loader, nor in any of the previous Victorian appeals concerned with s 51(1). It is a tribute to the industry of counsel for the present appellant that the decision has now been raised for consideration. I am not persuaded, however, that anything said in Devine requires a different conclusion. There are several reasons for this.

60 First, the judgments in Devine simply did not address the critical issue. In their brief reasons dealing with the effect of s 30(2) of the Acts Interpretation Act 1901 (Cth), neither Windeyer J nor Owen J addressed what has come to be recognised as the proposition of central importance in this context, namely, that the offence of failing to comply with a condition of a court order involves criminality separate and distinct from that involved in the criminal conduct giving rise to the non-compliance. It is hardly surprising that the point was not addressed, since it would appear from the report of the decision in Devine that the sole ground of appeal against sentence was 'that it was excessive'. There is no suggestion in the report that any argument was addressed to the applicability of s 30(2), let alone to issues of the kind considered by King J in his dissenting judgment in Maple.[89]

61 Secondly, the consistent approach of this Court to the interpretation of s 51(1) ILA - in its successive decisions in Sessions,[90] Bekhazi[91] and Langdon[92] - has been underpinned by the detailed exploration of double jeopardy principles undertaken in Sessions itself and, subsequently, by the High Court in Pearce.[93] The reasoning in Devine contains no reference to those principles. In that important sense, the decision in Devine has been overtaken, and rendered effectively irrelevant to s 51(1), by the subsequent jurisprudence.

62 Strictly speaking, these considerations make it unnecessary for me to decide whether the statements in Devine would otherwise have had to be treated as having binding force. Were it necessary to decide the question, I would favour the view of the South Australian Full Court - that the judgments of Windeyer J and Owen J stand alone (the joint judgment of Kitto and Taylor JJ having expressed concurrence only in the result), and accordingly do not have the force of binding authority. I note that in D A T,[94] after giving close consideration to the judgments in Maple which in turn had analysed Devine, Doyle CJ felt able to say that it was

no answer to a charge for an offence of breaching a condition or obligation to be of good behaviour that proof of that offence involves proof of facts which would be necessary and sufficient to procure a conviction for the offence under the ordinary criminal law.[95]

63 If I am wrong in concluding that Devine can be disregarded, I would in any event hold that the present case was distinguishable. Unlike s 30(2) of the Acts Interpretation Act 1901 (Cth), s 51(1) ILA is expressed to apply 'unless the contrary intention expressly appears'. In my view, the provisions of the Monitoring Act do convey an express contrary intention.

64 The language of the Monitoring Act is clear and unambiguous. Under s 15(3)(a), it is a condition of every ESO that the offender 'not commit a relevant offence'. Under s 40(1), it is an offence to 'fail without reasonable excuse to comply with any condition' of an ESO. Prosecutions are to be brought by the Secretary, not by the usual prosecuting authorities.

65 Parliament plainly contemplated that, where the s 15(3)(a) condition was breached, two distinct offences would have been committed. That is, the breach offence was intended to be separate and distinct from the 'relevant offence', and to attract its own punishment. Realistically, if the appellant's submissions were to be accepted, it is hard to envisage any circumstances in which non-compliance with the s 15(3)(a) condition, as such, could ever be criminally punished.[96] That would fly in the face of the obvious intent of s 40(1).

66 For these reasons, the appellant's reliance on s 51(1) ILA in support of his proposed conviction appeal is misplaced. The application for leave to appeal should be refused.

67 As stated earlier, s 51(1) ILA is to be viewed as the statutory embodiment of Rule 3, the rule against double punishment. That rule remains relevant to L's sentence appeal, to which I now turn.

68 As noted earlier, the principal submission for L was that there should have been no punishment - indeed, no conviction - on the breach count. This was said to be so because that count rested entirely on the fact of L's possession of child pornography and because the fact of the breach could be taken into account in sentencing on the CP count. Alternatively, it was said, there should have been no cumulation, or less cumulation, in respect of the CP and breach counts. Those submissions should be rejected, for the reasons given earlier.

69 The sentencing judge was entitled to impose punishment, including cumulation, on the breach count, reflecting the separate criminality involved in L's breaching of the court-imposed ESO. The rule against double punishment required, however, that no part of the sentence on the breach count should punish L a second time for the act of possessing child pornography.

70 There is, in my view, nothing to indicate that any such double punishment occurred. In her sentencing reasons, the judge addressed directly the issue of double punishment, it having been raised by defence counsel on the plea. Her Honour was careful to identify what it was which warranted separate punishment on the breach count. The sentence imposed - 6 months for each breach - is in no way disproportionate to that separate criminality, in my view.

71 Her Honour noted the submission advanced on behalf of the Secretary, that these were serious breaches of the ESO. In my view, that submission was well-founded. This was not merely a breach of a curfew, or some other administrative condition, but a contravention of a specific prohibition against the commission of further sexual offences. Moreover, as her Honour noted, L had made a signed declaration, acknowledging that he understood the conditions of the ESO and undertaking to comply with them.

72 Judge Pullen referred with approval to the following statements made by her Honour Judge Sexton in an earlier case, when sentencing a different offender for breaches of an ESO:

There is a need for both specific and general deterrence in my sentence of you for the breach. That is, you need to understand the consequences of what happens if you do not do what the authorities tell you while you are under the Extended Supervision Order. Further, other people in the same position, that is on an Extended Supervision Order, must also understand the importance of abiding by the conditions attached to an Extended Supervision Order.[97]

Judge Sexton had, in turn, adopted the following statement of Chief Judge Rozenes, also made when sentencing an offender for breach of an ESO:

The efficacy of this whole scheme depends on those orders being properly imposed and adequately maintained.[98]

73 Judge Pullen expressed agreement with the view of Judge Sexton that

it was difficult to see how these orders could be adequately maintained if those who breached them received no additional sanction for doing so over and above the sanction for the commission of the relevant offence.[99]

In my opinion your breach of the ESO by further offending, the circumstances of that offending, and taking into account matters personal to you warrants a term of imprisonment for not only the charges but also for the breaching offences.[100]

74 This conclusion is unimpeachable, in my view. The complaint of double punishment must be rejected. Ground 1 fails.

75 The final ground advanced[101] was that the sentence of 6 months' imprisonment imposed on the first CP count was manifestly excessive. L was refused leave to appeal on this ground, but has elected to renew his application for leave. According to the submission, this count related to the possession

of one image which showed a girl in a non-sexual pose. The image was the lowest level of child pornography. The objective criminality of possessing on a single day a solitary image of the lowest level of child pornography is necessarily the lowest conceivable level of offending against s 70 of the Crimes Act. In isolation, it would properly attract a disposition at the bottom of the sentencing hierarchy.

76 I am not persuaded by that submission. The image in question was an image, on a banned internet-capable mobile telephone, of a naked girl approximately seven years of age standing in a bathtub. The maximum penalty for the offence is 5 years' imprisonment. L was required to be sentenced as a serious sexual offender. As noted earlier, it was common ground that the fact that L committed this offence while subject to an ESO, and shortly after having participated in a review of the ESO, aggravated the seriousness of the offence.[102] Considerations of specific deterrence and protection of the community were made particularly relevant by those

circumstances. This was especially so given that the issue of L's recourse to pictures of children had been specifically raised with him during the ESO review; L's prior convictions were for serious child sex offences; and he remained 'a serious risk of sexual reoffending'.

77 In my view, it was well open to the judge to impose the sentence which she did in the circumstances. Leave to appeal was rightly refused on this ground.

78 The appeal against sentence must therefore be dismissed.

1. The time for filing the application to for leave to appeal against conviction is extended.

2. The application for leave to appeal against conviction is refused.

1. The renewed application for leave to appeal against sentence on the ground that the sentence was manifestly excessive is refused.
2. The appeal against sentence is dismissed.

[1] The abbreviation is used for ease of reference, not for anonymity.

[2] This Act has now been replaced by the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). The former Act continues to apply, however, to orders made while it was in force.

[3] Monitoring Act s 15(1) and 15(3)(a).

[4] Contrary to Crimes Act 1958 (Vic) s 70(1).

[5] Monitoring Act s 3(1) and Schedule, item 25.