R v McLeod – Effect of forfeiture on sentencing of offender
On 6 September 2007, the Court of Appeal (Maxwell P, Redlich JA and Habersberger AJA) handed down its decision in R v McLeod [2007] VSCA 183.
The question determined in the appeal was stated by the Court as follows:
[W]here a person is convicted and sentenced for an offence, and there is subsequent forfeiture of property of that person by reason of the conviction, can the forfeiture be relied on in an appeal against sentence as a basis for reopening the sentencing discretion?
The Court unanimously answered the question in the affirmative.
In that case, the sentencing judge did not take into account the risk of forfeiture of property in sentencing the offender. The Court held that the sentencing judge was not obliged to take the risk of forfeiture into account because there was insufficient evidence before him to enable him to make an assessment of the likelihood of forfeiture or its likely effect.
The Court of Appeal stated that an offender who relies on forfeiture (whether it has occurred or is anticipated) as a mitigating circumstance will ordinarily bear the onus of establishing that it should be so regarded.
Despite the fact that no sentencing error was found to exist, the sentencing discretion of the Court of Appeal was enlivened because the subsequent forfeiture of property constituted “fresh evidence”. As a result, the Court of Appeal re-sentenced the offender and reduced the period of imprisonment.
The case of R v McLeod contains a detailed exposition on the law of sentencing, as it relates to forfeiture of property and pecuniary penalty orders under the Confiscation Act 1997.
