One of the comments on last week’s post about the review of Victoria Legal Aid’s fee structure pointed out that it isn’t just the move to a whole of job system that will impact on potential VLA clients. Next year some people will be ineligible for aid who would have been eligible under the existing guidelines.
The VLA Review says at page 7,
In Victoria, under the current guidelines, there is a distinction between the eligibility criteria for pleas of guilty and pleas of not guilty. The review has concluded that there is no reasonable basis for this distinction, and recommends standardising the eligibility threshold to that which is currently in place for a plea of guilty (refer 4.1.4(a)). This would save $475,000 but would mean that people who face a low level community based order (“CBO”) or a fine, will no longer qualify for a grant of legal aid, and will be required to either, appear unrepresented, receive limited assistance from a duty lawyer, or pay for a private practitioner. This measure is expected to impact 4% or 950 summary crime cases which are currently eligible for legal aid. This equates to 1.2% of the current duty lawyer population of clients.
The table referred to in the paragraph above describes the current Summary Crime Penalty Threshold. For pleas of not guilty that threshold is an assessment by a legal practitioner of a likely penalty upon conviction of a fine in excess of 7.5 penalty units. (This doesn’t mean that an applicant will automatically receive aid if the likely penalty is above the threshold, but they are eligible to apply.) Under the new proposal, that threshold will rise from a likely penalty in excess of 7.5 penalty units to a likely penalty of more than 200 hours of unpaid community work.
This graph from the Sentencing Advisory Council shows roughly 4000 people currently performing CBOs:
The graph below from the SACs Community Sentences in Victoria: A Statistical Profile suggests the proportion of these people potentially impacted by a change in eligibility. (The research for the report was done in 2007. The number of offenders awarded CBOs has gone up by between 500 – 100 since then).
A couple of years ago, the number of people awarded more than 200 hours of community work accounted for just over 10% of those awarded CBOs. I doubt that has changed much.
Even though CBOs of up to 500 hours can be imposed, the stats suggest that a 200 hour CBO is at the heavier end of the scale. At that level of seriousness the work component takes a couple of years to complete and a sentence of some kind of imprisonment is starting to become a real possibility (especially if there is not much said in mitigation).
In R v Halligan  VSC 279 (discussed here back in June) the young offender was initially sentenced to 150 hours of community work for his involvement in a robbery, aggravated because of his presence at another robbery earlier the same evening where the victim had been beaten to death. In Matthews v The Queen  VSCA 177 the offender was awarded 50 hours of community work for a violent aggravated burglary where he broke into the home of a former partner and assaulted one of her friends. Of course, in both of these cases the accused would have received representation because the charges were dealt with in the higher courts. If they were dealt with in the summary stream, neither accused would be eligible for aid under the new arrangements.
Section 25(2)(d) of the Charter of Human Rights and Responsibilities Act 2006 provides a heavily qualified right to legal representation.
(2) A person charged with a criminal offence is entitled without
discrimination to the following minimum guarantees-
(d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and
Dietrich v R (1992) 177 CLR 292 confirmed that permanent stays may be imposed where a trial judge apprehends that a lack of legal representation may lead to a miscarriage of justice. The majority qualified this right by reference to a serious offence, without providing much guidance as to when an offence should be considered serious.
Mason CJ and McHugh J [at 1]:
This application for special leave to appeal seeks to raise the question whether the applicant’s trial in the County Court at Melbourne miscarried by virtue of the fact that he was unrepresented by counsel. In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.
Deane J [at 14] defined a non-serious offence as “where there is no real threat of deprivation of personal liberty” but declined to provide further clarification. It’s unclear how he would have regarded hundreds of hours of community work. A CBO is entered into voluntarily, but in the knowledge that if the invitation is not taken up other sentencing options will be considered.
It will be interesting to see whether there are many applications for stays and appeals based upon a lack of representation, as a result of these changes.