Sentencing law Victoria

Sentencing law Victoria
Australia

Don Just barrister Melbourne

crim law & process notes 1

notes 2

this page sentencing notes

ohs notes

Sentencing Act s.7 provides for imprisonment, combined custody and treatment order, detention in a mental health service (a hospital security order), intensive correction order, imprisonment that is suspended wholly or partly, in the case of a young offender detention in a youth justice centre or youth residential centre, community-based order, fine, release on adjournment on conditions, discharge or dismissal. Other sections of the Sentencing Act have more detailed provisions for each of the options. For children and young persons, see instead Children, Youth and Families Act.

Sentence indication: At any time after the indictment is filed, the court may indicate that, if the accused pleads guilty to the charge on the indictment at that time or another charge, the court would or would not (as the case may be) be likely to impose on the accused a sentence of imprisonment that commences immediately. See further Criminal Procedure Act ss.207-209. For offences within summary jurisdiction: ss.60-61.

A finding or plea of guilty to an offence gives only the formal outline of the facts upon which sentence is to be based. A sentencing Judge or Magistrate is required to make more detailed findings of fact.

A sentencer must not form a view which conflicts with the verdicts of the jury: Cheung v R [2001] HCA 67; (2001) 209 CLR 1; R v Stratton [2008] VSCA 130; R v Sulemanov [2007] VSCA 288.

Upon a plea of guilty, the Crown Prosecutor puts to the judge in concise form the alleged facts of the offence: DPP v Scott [2003] VSCA 25, (2003) 6 VR 21. The judge broadly determines the nature of the offence from the depositions. If the accused disputes the facts is, there is a hearing of the issue raised, though this is uncommon. It is not the practice to distinguish rigidly between material in the depositions which is sworn, and materials which do not represent evidence which has been given on oath. Records of interview made by fellow offenders of the accused, subject to the right of the accused to raise an issue, may be used; they regarded as being in the same area as unsworn witness statements. R v Reed [2007] VSCA 67; R v Harkness [2001] VSCA 87; R v Cambareri [2001] VSCA 39; R v Halden (1983) 9 A Crim R 30.

Where upon a plea of guilty it has been agreed a count is representative, the sentence may have regard to the full circumstantial context: R v LJF [2009] VSCA 134; R v CJK [2009] VSCA 58; R v GLH [2008] VSCA 88; R v SBL [1998] VSCA 144, [1999] VR 706. A count under Crimes Act s.47A is not representative: DPP v DZ [2009] VSCA 301.

Facts taken into account in sentencing upon a count may have regard to proved surrounding circumstances to give the background or context in which a charged offence was committed provided that the sentence imposed does not take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: R v De Simoni [1981] HCA 31, (1981) 147 CLR 382; DPP v Mirik [2007] VSCA 150; R v Parfitt [2006] VSCA 91; R v Birnie [2002] VSCA 155, (2002) 5 VR 426; R v Newman and Turnbull [1997] 1 VR 146. Where the circumstances of aggravation would have warranted a conviction for a less serious offence "it is a matter of fairness and degree whether they may properly be taken into account as part of the circumstances surrounding the offence charged": R v Nobile [2006] VSCA 211 (per Nettle JA). Full regard may be had to a single act notwithstanding that there was additional mental element that would support an additional count: R v Ngo [2007] VSCA 240; R v Jennings [1998] VICSC 334. There is not to be additional punishment for an act or omission already subject of punishment: Interpretation of Legislation Act s.51; R v Vu [2009] VSCA 231; R v Sari [2008] VSCA 137; R v Audino [2007] VSCA 318; R v Orgill [2007] VSCA 236. Regardless of any such provision, it is good sentencing practice: Pearce v R [1998] HCA 57, (1998) 194 CLR 610 ("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"); R v Ly [2004] VSCA 45. Section 51 does not prevent separate punishments in respect of separate victims: R v WWS [2009] VSCA 125; R v Bekhazi [2001] VSCA 178. Separate punishment for offences part of a single criminal enterprise (e.g. burglary and associated theft) is not necessarily breach of s.51: R v Henderson [1998] VSCA 83, [1999] 1 VR 830. Nor is punishment for both conspiracy and a substantive offence being overt act of it: R v El-Kotob [2002] VSCA 109, (2002) 4 VR 546. Punishment for both possession and trafficking of drugs in some circumstances would be impermissibly double: R v Doherty [2009] VSCA 93; R v Georgiou [2009] VSCA 57; R v Ahmed [2007] VSCA 270, (2007) 17 VR 454; R v Tan [2005] VSCA 54; R v Langdon [2004] VSCA 205 distinguished R v Chhom Nhor [2005] VSCA 46. It would in some circumstances be likewise with the commission of a series of acts in combination which constitute the crimes of burglary and robbery (or aggravated burglary and armed robbery): R v Jennings [1998] VICSC 334.

Where an offender is charged with a serious offence that also involves conduct that is of substantially lesser criminality but which, technically, amounts to a separate offence and the latter is taken into account for the purpose of determining the sentence on the serious offence, any sentence that is then passed in respect of the related conduct must reflect that fact: R v Ta [2006] VSCA 79.

There may be plea agreements between prosecution and defence but a sentencing judge is not bound to accept agreed facts or agreed submission of law as to relative levels of sentence for multiple offenders; before departing from agreed facts, a judge should give notice: GAS v R [2004] HCA 22, (2004) 217 CLR 198; R v Lowe [2009] VSCA 268.

It is inappropriate for a sentencing judge to aggravate a sentence by reference to facts of which the judge has knowledge (and which are not a matter of notoriety) without first giving an opportunity to meet and counter such facts: R v Ulla [2004] VSCA 130, (2004) 148 A Crim R 395 (sentencing remarks on past occasions concerning accused); R v Wise [2000] VSCA 169, (2000) 2 VR 287. At least in the circumstances of R v Franco [2006] VSCA 302, it was inappropriate for the judge without giving warning not to accept what was said by counsel about the circumstances of a prior conviction. A pre-sentence report must be shown to the parties: R v Austin [2002] VSCA 138. It is inappropriate for a sentencing judge to have regard to speculative matters: R v Parker [2009] VSCA 19.

There is no joinder of general issue between prosecution and offender in sentencing proceedings. Nonetheless, if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it is for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it; similarly, it is for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it; for facts adverse to the offender proof must be by the prosecution beyond reasonable doubt and for matters favourable to the offender proof must be by the offender on the balance of probabilities: R v Olbrich [1999] HCA 54, (1999) 199 CLR 270; R v Teng [2009] VSCA 148; R v Storey [1998] 1 VR 359. This applies also to such disputed matters such as likelihood of reoffending or prospects of rehabilitation: R v Cass [2005] VSCA 77; R v Pickard [1998] VSCA 50.

It is a sentencing principle of fairness that a prosecuting authority, whilst possessing an unchallengeable right to frame its presentment in whatever manner it thinks fit, cannot thereby preclude the sentencing tribunal from mitigating the penalty if it concludes that the charges alleged exposed the prisoner to a more punitive regime of sentencing than that to which he ought reasonably have been exposed by the preference of charges more appropriate to the crimes alleged: R v McEachran [2006] VSCA 290; R v Vellinos [2001] VSCA 131; R v Liang [1995] VICSC 178, (1995) 82 A Crim R 39.

Federal offences: Crimes Act (Cth) s.16A; Weininger v R [2003] HCA 14, (2003) 212 CLR 629.

It is normal practice for defence submissions as to the appropriate kind of sentence.

The DPP, in name of which prosecution occurs in the higher courts (formerly the Crown), is under a duty to assist the court to avoid appellable error: R v Tait & Bartley [1979] 46 FLR 386. Properly-formulated and neutrally-expressed submissions by the DPP as to matters of sentencing are to be encouraged; they should include, where appropriate, submissions as to the applicable range outside which a sentence would constitute sentencing error: R v MacNeil-Brown [2008] VSCA 190; R v S [2006] VSCA 134.

The Sentencing Act s.5 (1) provides:
The only purposes for which sentences may be imposed are--
(a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or
(b) to deter the offender or other persons from committing offences of the same or a similar character; or
(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or
(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or
(e) to protect the community from the offender; or
(f) a combination of two or more of those purposes.

For Commonwealth offences: Crimes Act 1914 s.16A(2)

Deterrence includes (i) general deterrence and (ii) specific deterrence (or "particular deterrence") of the offender: AB v R [1999] HCA 46, (1999) 198 CLR 111; Veen v R (No 2) [1988] HCA 14, (1988) 164 CLR 465; R v Williscroft [1975] VR 292. Specific deterrence is a purpose if the judge is satisfied that the offender constitutes a risk of reoffending: R v Pickard [1998] VSCA 50. The principle of general deterrence is to be used to convey a message only to members of the community generally, not for instance to a specific ethnic community: R v Truong [2005] VSCA 147.

A notion of mercy also has a place: R v Xeba [2009] VSCA 205; R v NAD [2008] VSCA 192; R v Miceli [1997] VICSC 22, [1998] 4 VR 588; Cobiac v Liddy (1969) 119 CLR 257. By Miceli, mercy (i) has a tendency to mitigate; (ii) is a judicial capacity in special circumstances to avoid the rigidity of inexorable law and is of the very essence of justice; (iii) belongs within judicial sympathy excited by the circumstances of the case, almost depending upon judicial intuition; (iv) may be aroused by compelling extenuating motive, advanced age, severe ill health or other cause; (v) requires a well-balanced judgment avoiding being "weakly merciful"; (vi) probably operates against "just deserts" (the punishment purpose).

Sentencing Act section 5 (2) provides:
In sentencing an offender a court must have regard to--
(a) the maximum penalty prescribed for the offence; and
(b) current sentencing practices; and
(c) the nature and gravity of the offence; and
(d) the offender's culpability and degree of responsibility for the offence; and
(daa) the impact of the offence on any victim of the offence; and
(da) the personal circumstances of any victim of the offence; and
(db) any injury, loss or damage resulting directly from the offence; and
(e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and
(f) the offender's previous character; and
(g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.

For children and young persons see instead Children,Youth and Families Act s.362.

Proportionality

A sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender: Veen v R [1979] HCA 7, (1979) 143 CLR 458; Veen v R (No 2) [1988] HCA 14, (1988) 164 CLR 465; DPP v Bright [2006] VSCA 147, (2006) 163 A Crim R 538; R v Meyers [2001] VSCA 237.

Totality

The principle of totality requires a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is just and appropriate: RHMcL v R [2000] HCA 46, (2000) 203 CLR 45; Mill v R [1988] HCA 70, (1988) 166 CLR 59; R v Piacentino [2007] VSCA 49, (2007) 15 VR 501; R v Flavall [2006] VSCA 32. The avoidance of crushing sentence, whilst not a sentencing necessity, is a relevant consideration: R v Nikodjevic [2004] VSCA 222; R v Cumberbatch [2004] VSCA 37. With multiple offences it has relevance to the principle of totality: R v Cunliffe [2000] VSCA 146; R v Goodall [2000] VSCA 106.

The principle of totality also applies where there is sentence imposed on another occasion, relating to the same offending or period of offending. This may be interstate: Mill v R [1988] HCA 70, (1988) 166 CLR 59; R v Quinn [2005] VSCA 100; R v WMR [2005] VSCA 59. It may be by another Victorian court, as in R v Latina [2007] VSCA 78. It is essential that the Crown on the sentencing hearing ensure that the judge have available to him or her the sentencing remarks from the earlier occasion or occasions: Latina (per Maxwell P).

The principle of totality is given effect where possible by allowing concurrency or ordering cumulation to tailor sentence: Sentencing Act s.16; R v Flavall [2006] VSCA 32. In such a case, it is not to be given effect by imposing sentences on one or more of the offences that fail to register the seriousness of that offence: R v MKG [2006] VSCA 131; R v McCorriston [2000] VSCA 200. However sometimes it will be impossible to give effect to the principle of totality except by imposing sentences on one or more of the offences that fail to register the seriousness of that offence, for instance where time has already been served for the offence which does not meet the definition of pre-sentence detention under Sentencing Act s.18.

Concurrency is not inevitably the correct way to deal with two or more offences arising in the course of a single transaction: R v Kursunlu [2001] VSCA 240; R v O’Rourke [1997] 1 VR 246; R v Musson [1997] 1 VR 656. Effect must be given though to Interpretation of Legislation Act s.51 which states:
(1) 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.
(2) In the sub-section (1) "law" means--
(a) an Act or a provision of an Act;
(b) a subordinate instrument or a provision of a subordinate instrument; or
(c) common law.

Total cumulation is not the normal rule at common law even between different episodes: R v Fuller-Cust [2002] VSCA 168, (2002) 6 VR 496.

Parity

The principle of parity requires that when two or more co-offenders are to be sentenced, any significant disparity in their sentences should be capable of a rational explanation. In the absence of such an explanation a more lenient sentence imposed on one of them will be likely to engender a justifiable sense of grievance in the other or others. It is inappropriate ever to say that the principle of parity should not apply as between co-offenders. The concept is always to be borne steadily in mind when co-offenders are to be sentenced, whether together or separately, or by one judge or more than one. Postiglione v R [1997] HCA 26, (1997) 189 CLR 295; Lowe v R [1984] HCA 46, (1984) 154 CLR 606; R v Hildebrandt [2008] VSCA 142; R v Pham [2006] VSCA 68. In making comparison with a Children's Court sentence, some - not great - regard is to be had and it may be that some moderation in sentence results: R v Evans [2003] VSCA 223.

The courts have held that the sentencing discretion is to be exercised by instinctive synthesis rather than as a purely logical exercise with quantified effect to each of the various considerations: Markarian v R [2005] HCA 25; AB v R [1999] HCA 46, (1999) 198 CLR 111; R v Sahari [2007] VSCA 235; R v Williscroft [1975] VR 292; R v Storey [1998] 1 VR 359. "... sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions": Veen v R (No 2) [1988 HCA 14, ](1988) 164 CLR 465. The corollary is reservation as to the value of judicially expressed guidelines. To the extent these can assist the production of consistency, they may be of use. However, the search for sentencing consistency should not be permitted to usurp the discretion of the sentencing judge: R v Ngui [2000] VSCA 78.

ABORIGINES & RACE GENERALLY
R v Fuller-Cust [2002] VSCA 168, (2002) 6 VR 496 per Eames J: "To ignore factors personal to the applicant, and his history, in which his Aboriginality was a factor, and to ignore his perception of the impact on his life of his Aboriginality, would be to sentence him as someone other than himself. Not only would that offend principles of individual sentencing which apply to all offenders but in this case it would fail to identify the reasons for his offending and, in turn, the issues which have to be addressed if rehabilitation efforts are to successfully be adopted so as to ensure that he does not re-offend and, in turn, to ensure the long-term safety of the public. To have regard to the fact of the applicant’s Aboriginality would not mean that any factor would necessarily emerge by virtue of his race which was relevant to sentencing, but it would mean that a proper concentration would be given to his antecedents which would render it more likely that any relevant factor for sentencing which did arise from his Aboriginality would be identified, and not be overlooked. Exactly the same approach should be adopted when considering the individual situation of any offender, so that any issue relevant to that offender’s situation which might arise by virtue of the offender’s race or history would not be overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored." Also DPP v Terrick [2009] VSCA 220; R v McCartney [2006] VSCA 35; DPP v Rose [2005] VSCA 275; Neal v R [1982] HCA 55, (1982) 149 CLR 305.
Koori Court: County Court Act s.4G; R v Morgan [2010] VSCA 15.

AGGREGATE SENTENCE
Sentencing Act s.9; R v Rodgers [2008] VSCA 52; R v Bardsley [2008] VSCA 174; R v Grossi [2008] VSCA 51; R v Wong [2007] VSCA 278; R v Lam [2007] VSCA 246; R v Galletta [2007] VSCA 177; DPP v Felton [2007] VSCA 6.

ALCOHOL INTOXICATION
may mitigate or aggravate an offence: R v McRae [2008] VSCA 74; R v Howell [2007] VSCA 119; (2007) 16 VR 349, R v Phillips [2000] VSCA 225; R v Groom [1998] VSCA 146, [1999] 2 VR 159; R v Redenbach (1991) 52 A Crim R 95. Where this condition was self-induced, it is not generally to be regarded as mitigating the offence. However where the condition was part of an addiction since addressed, or to be addressed, it may bear favourably for instance on prospects for rehabilitation.

BREACH OF TRUST
DPP v OJA [2007] VSCA 129; R v McLean [2000] VSCA 217, (2000) 2 VR 11; R v Reid [1999] VSCA 98, (1999) 2 VR 605.

COMBINED CUSTODY & TREATMENT
Sentencing Act s.18Q-18W. Breach - exceptional circumstances: Kent v Wilson [2000] VSC 98.

COMPENSATION FOR VICTIMS OF CRIME
For pain and suffering: Sentencing Act s.85A-85M; Kaplan v Lee-Archer [2007] VSCA 42 DPP v Energy Brix [2006] VSCA 116. For property: Sentencing Act s.86. No compensation order should be made where there are complex issues of assessment or contest: DPP v Gardner [2004] VSCA 119; R v Braham [1977] VR 104; R v Landolt (1992) 63 A Crim R 220.

CONTINUING CRIMINAL ENTERPRISE
Sentencing Act Part 2B. The increased maximum applies to all the CCE offences for sentence, including those which qualify the offender as a CCE one: R v Faneco [2009] VSCA 100; R v Rousetty [2008] VSCA 259; R v Arundell [2003] VSCA 69. Not for count where amount reached only by adding up in a rolled up or lumped count: R v Shannon [2005] VSCA 143; R v Ralphs [2004] VSCA 33.

DELAY
R v Thompson [2009] VSCA 13; R v Tezer [2007] VSCA 123; R v Merrett [2007] VSCA 1, (2007) 14 VR 39; R v Tiburcy [2006] VSCA 244; R v Carmody [2006] VSCA 139; R v Nikodjevic [2004] VSCA 222. Delay is relevant in so far as it relates to one or other of the purposes of sentencing such as prospects of rehabilitation shown or punitive effect. When undue, delay is mitigatory by reason of the natural anxiety it occasions. However ordinarily for offences involving the sexual abuse of a young person, general deterrence and denunciation remain at the forefront of the sentencing process no matter how long ago the offences may have been committed: DPP v Toomey [2006] VSCA 90.

DRUGS
For approaches generally to the sentencing of drug users, see R v Tien [2007] VSCA 56; R v McKee & Brooks [2003] VSCA 16; R v Nolan [1998] VSCA 135; R v Bernath [1997] 1 VR 271. On relevance of drug addiction: R v Koumis [2008] VSCA 84, (2008) 18 VR 434; R v Audino [2007] VSCA 318. With drug induced psychosis, the critical factor in determining its significance for sentencing is the degree of foreknowledge on the part of the offender: R v Martin [2007] VSCA 291, (2007) 181 A Crim R 352. Where drug addiction has contributed to the commission of an offence, Sentencing Act ss.18Q-18W provides combined custody and treatment orders which may be used in sentencing. It enables the court to order a combination of a period of time in gaol followed by a period in the community undergoing drug treatment under supervision. However all other sentencing options, including imprisonment, remain open. On drug treatment orders and Drug Court see Sentencing Act ss.18X-18ZS. It is not relevant for the court to consider the harmfulness, as a general matter, of the drug in question: R v Perrier [2008] VSCA 97; R v Karafilowski [2007] VSCA 156; R v Reed [2007] VSCA 67; R v Duncan [2006] VSCA 239; R v D'Aloia [2006] VSCA 237; R v Yacoub [2006] VSCA 203; R v Pidoto [2006] VSCA 185, (2006) 14 VR 269. Generalisations which seek to differentiate between the evils of the illegal trade in one drug as compared with another are to be approached with caution, and it seems would need to be sustained by evidence or material of which judicial notice can be taken: Adams v R [2008] HCA 15.
The applicable maximum sentence for possession by Drugs, Poisons and Controlled Substances Act s.73(1) is less where the court is satisfied the offence was not committed for any purpose relating to trafficking. As to this provision see R v Doble [2007] VSCA 47; R v Wylie [1989] VR 21; R v Pantorno [1988] VR 195. There is comparable provision for cultivation s.72(1). There is provision for lenient sentence for small quantity first offenders: s.76.

FORFEITURE OF PROPERTY
The fact that the property acquire lawfully has been forfeited is relevant to sentencing, as is a risk so providing it amounts to a possibility which the judge is able on the evidence to quantify or estimate: Sentencing Act s 5(2A); R v Dang [2009] VSCA 183; R v Tezer [2007] VSCA 123; R v Tabone [2006] VSCA 238; R v Yacoub [2006] VSCA 203.

FUTURE EXECUTIVE POLICY OR ACTION
not relevant to sentence: Sentencing Act s.5(2AA)(a); R v Roadley (1990) 51 A Crim R 336; Shrestha v R [1991] HCA 26, (1991) 173 CLR 48; on deportation, R v Wu [2005] VSCA 18.

GAMBLING
R v Petrovic [1998] VSCA 95: "The fact that an offender was motivated to the commission of the crimes in question by an addiction to gambling will, no doubt, usually be a relevant, and may be an important, consideration for a judge sentencing the offender for these crimes. But as Tadgell, J.A. said in R v Cavallin (unreported, Court of Appeal, 24 July 1996) at 10 - 'It is... important that the public does not assume that a crime which is to some extent generated by a gambling addiction, even if it is pathological, will, on that account, necessarily be immune from punishment by imprisonment.' It is considerations such as these which have led this Court to say more than once that it will be a rare case indeed where an offender can properly call for mitigation of penalty on the ground that the crime was committed to feed a gambling addiction".
See also R v Grossi [2008] VSCA 51; R v Do [2007] VSCA 308; R v Berry [2007] VSCA 60; R v Luong [2005] VSCA 94; R v Atalla [2002] VSCA 141, (2002) 132 A Crim R 53.

GOOD CHARACTER
Sentencing Act s.5(2)(f); Ryan v R [2001] HCA 21, (2001) 206 CLR 267.

HOSPITAL ORDER
Sentencing Act s.93; R v Sirillas [2004] VSCA 56.

HARDSHIP TO FAMILY
Where the hardship upon a family is exceptional will it operate in mitigation; the hardship must be sufficiently extreme - going beyond the sort of hardship which inevitably results to a family when the breadwinner is incarcerated - that a sense of mercy or of affronted common sense imperatively demands that the sentencing judge should draw back: R v Ienco [2008] VSCA 17; R v Lane [2007] VSCA 222; (2007) A. Crim R. 471; R v Nagul [2007] VSCA 8.

HOME DETENTION
Sentencing Act sections 18ZT and following; R v Nehme [2005] VSCA 208.

IMPAIRED MENTAL FUNCTIONING
has various effects on sentence, depending upon its nature: R v Verdins [2007] VSCA 102, (2007) 16 VR 269; see also DPP v Patterson [2009] VSCA 222; R v McIntosh [2008] VSCA 242; R v Parton [2007] VSCA 268; R v Howell [2007] VSCA 119, (2007) 16 VR 349; R v Vardouniotis [2007] VSCA 62. The sentencing considerations identified in Verdins may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness. The formulation provided by Verdins is that that impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways. 1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. The moral culpability of the offence may be reduced where, without giving an exhaustive list, at the time of the offending the effect was of (a) impairing the offender’s ability to exercise appropriate judgment; (b) impairing the offender’s ability to make calm and rational choices, or to think clearly; (c) making the offender disinhibited; (d) impairing the offender’s ability to appreciate the wrongfulness of the conduct; (e) obscuring the intent to commit the offence; (f) contributing (causally) to the commission of the offence. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both. 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.

Personality disorder in isolation from impaired mental functioning is not necessarily subject to the same principles; if such personality disorder is to be regarded as ameliorating the need for general deterrence, then the symptoms and consequences of such disorder must be clearly explained and related to the offending conduct so as to explain how that disorder bore upon the moral culpability of the appellant in committing the offences: R v Lewis [2007] VSCA 24; R v Pyke [2006] VSCA 265; R v Chambers [2005] VSCA 34.

Whether "learned helplessness" (or "battered woman") syndrome attracts the Verdins principles was by R v Elias [2007] VSCA 125 left a matter for elucidation in the future.

INDEFINITE SENTENCE
Sentencing Act sections 18A-18P: Buckley v R [2006] HCA 7; R v Davies [2005] VSCA 90; R v Moffatt [1998] 2 VR 229.

INFORMING & CO-OPERATION WITH LAW ENFORCEMENT AUTHORITIES
entitles mitigation; is in recognition of the value of doing so; particular cases may also raise other sentencing considerations going in mitigation such as remorse or rehabilitation; or resulting custody being especially burdensome or dangerous: York v R [2005] HCA 60; R v Kohunui [2009] VSCA 31; R v Koumis [2008] VSCA 84, (2008) 18 VR 434; R v Sahari [2007] VSCA 235. Assistance may be in unrelated offence: R v ZMN [2002] VSCA 140. A substantial discount may be given notwithstanding that the assistance given did not objectively turn out in fact to be effective: R v Freeman [2001] VSCA 37; R v Evans [2000] VSCA 93. Extends also to non-parole period: R v Duncan [1998] 3 VR 208. Mitigation for undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence is to be announced by court: Sentencing Act s.5(2AB); R v Kuzuku [2000] VSCA 110; R v Sadler [2003] VSCA 206 and as to DPP appeal upon failure to fulfil undertaking, see Crimes Act s.567A (1A); DPP v S (No 2) [2009] VSCA 127; DPP v Kolalich [2006] VSCA 110; DPP v Fernandez [2003] VSCA 14; DPP v Stevens [2004] VSCA 34. See also R v Crossley [2008] VSCA 134; R v Johnston [2008] VSCA 133. For Commonwealth cases, see R v Ngui [2000] VSCA 78; DPP v Haunga [2001] VSCA 73.

LICENCE DISQUALIFICATION
R v Wooton [2002] VSCA 165; R v Birnie [2002] VSCA 155, (2002) 5 VR 426; R v Lefebure [2000] VSCA 79, (2000) 112 A Crim R 41.

LOSS OF CAREER
DPP v Ellis [2005] VSCA 105, (2005) 153 A Crim R 340; Ryan v R [2001] HCA 21, (2001) 206 CLR 267

MAXIMUM SENTENCE
Sentencing Act s.5 (2) (a). This means the statutory maximum even at the Magistrates' Court where there is a jurisdictional limit: Hansford v His Honour Judge Neesham [1995] 2 VR 233. At Magistrates' Court, the maximum on one offence is 2 years (unless higher maximum is provided for a specific summary offence) but up to total of 5 years if more than one offence committed at same time: Sentencing Act s.113, 113A, 113B; R v Duncan [2007] VSCA 137. Example of error vitiating discretion: R v Butler [2005] VSCA 293.

PAROLE, OFFENDING ON PAROLE, OFFENDING ON BAIL
Non-parole period: Bugmy v R [1990] HCA 18, (1990) 169 CLR 525; R v Detenamo [2007] VSCA 160; DPP v Josefski [2005] VSCA 265; R v Mangione [2006] VSCA 34; DPP v Taylor [2005] VSCA 222; R v VZ [1998] VSCA 32, [1998] 7 VR 693; R v Yates [1998] VICSC 230; R v Watts [1998] VICSC 231, [1998] 4 VR 244; Inge v R (1999) 199 CLR 295. For a comparatively long or no non-parole period, stated reasons generally are expected: R v Bertrand [2008] VSCA 182; R v Mangione [2006] VSCA 34; R v Krasnov [1995] VICSC 198, (1995) 82 A Crim R 92. No mechanistic or formulaic approach could be taken to the fixing of a non parole period: R v Alparslan [2007] VSCA 3.
Fixing of new non-parole period in respect of multiple sentences: Sentencing Act s.14; R v Morgan [2008] VSCA 258; R v Robertson [2006] VSCA 71; R v Bortoli [2006] VSCA 62.
A term of imprisonment for an offence committed whilst on parole must, unless there are exceptional circumstances, be cumulative on any imprisonment to be served on cancellation of parole: Sentencing Act s.16(3B). The principle of totality is not displaced: DPP v Rongonui [2007] VSCA 274; R v Piacentino [2007] VSCA 49, (2007) 15 VR 501; R v Hunter [2006] VSCA 129. However consideration of that principle must take into account that where an offender commits a crime whilst released into the community on parole, in the ordinary course of events he will be required to serve the balance of the sentence earlier imposed: R v Alashkar [2007] VSCA 182, (2007) 17 VR 65.
Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term: Sentencing Act s.16(3C). The principle of totality still applies: R v Sebborn [2008] VSCA 200; R v Garcia [2007] VSCA 194; R v Harvey [2007] VSCA 127: cf with s.16(3B) and, though they concerned different provisions, DPP v Ellis [2005] VSCA 105, (2005) 153 A Crim R 340; R v Jongsma [2004] VSCA 218, (2004) 150 A Crim R 386.

PLEA GUILTY
Sentencing Act s.5 (2)(e); R v Guthrie [2006] VSCA 192; R v Gillick [2001] VSCA 201, (2001) 125 A Crim R 395. May also be mitigation for sparing witnesses stress of trial: R v RND [2002] VSCA 192. Effect of any sentence discount for guilty plea to be specified: Sentencing Act s.6AAA; R v O'Blein [2009] VSCA 159.

PRE-SENTENCE DETENTION
Sentencing Act s.18. Time held in custody before trial etc solely by reason of the matter or matters for which sentence is being imposed is to be declared by the court and reckoned as a period already served. By amendment made in 1997, it also extends to time held in custody before trial etc which is doubly warranted ie so by reason of the matter or matters for which sentence is being imposed and also time held in custody before some other trial etc, provided it has not already been deducted: R v Stares [2002] VSCA 70, (2002) 4 VR 314. The section includes power to "order otherwise".
There is a separate common law obligation to take into account time held in custody between offence and sentence being time held in custody before trial solely by reason of a matter or matters other than those for which sentence is being imposed which is not to be deducted under s.18 and for which there has not been conviction (often called "dead time"); the extent is discretionary: R v Harvey [2007] VSCA 127; R v McMahon [2006] VSCA 240; R v Wade [2005] VSCA 276; R v Giakoumogianakis [2005] VSCA 156; R v Chimirri [2003] VSCA 45. It is not by a declaration, but by an appropriate reduction in head sentence and non-parole period: R v Stares [2002] VSCA 70, (2002) 4 VR 314. Time spent in custody prior to being sentenced following the revocation of parole on other matters also is to be taken into account: R v Hunter [2006] VSCA 129; R v Smith [2006] VSCA 23. Mere possibilities of action by Parole Board however are not to be taken into account, for that would be impermissible speculation about action as precluded by Sentencing Act s.5(2AA): R v Piacentino [2007] VSCA 49, (2007) 15 VR 501 overruling R v Orphanides [2002] VSCA 86, (2002) 130 A Crim R 403. A mere possibility of revocation at time of sentence which has become actual by time of an application to Court of Appeal may be taken into account by Court of Appeal: R v Riem [2007] VSCA 283; R v Scholes [2007] VSCA 303. In Hunter, the position of Board was ascertained from its letter provided to the court by OPP. It seems that time spent in custody prior to being sentenced following the refusal of parole on other matters also is to be taken into account providing it is established that the action of the Parole Board was due to the pending matters: account R v Tognolini, Court of Appeal, unreported, 10 October 1996 (where court declined to take into such time because in the circumstances it was mere speculation whether, had it not been for the pending matters, the Parole Board might have released the applicant).

PREVIOUS & SUBSEQUENT CONVICTIONS
Defined by Crimes Act s.376(4) and Sentencing Act s.115. Previous convictions also include previous findings of guilt. To be a previous conviction, the offence must have occurred and the court result have been reached: Farrington v Thomson [1959] VR 286. For the general relevance of previous convictions, see R v Wilson [1956] VLR 199. In Veen v R (No 2) [1988] HCA 465, (1988) 164 CLR 465 at 477, the language of the High Court was not couched expressly in Victorian terminology and the case precedes the Sentencing Act. It is though accepted authority as to the purposes for which past criminal record is relevant to sentence: eg R v Ponton [2001] VSCA 36. According to Veen, the antecedent criminal history is relevant to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in commission of the offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.
Convictions subsequent to an offence for sentence are relevant for example where made so by statute: eg Sentencing Act ss.5 (2), 6 (a), 11(1), 32(2); DPP v Rongonui [2007] VSCA 274. Of these s. 6 (a) "previous findings of guilt or convictions of the offender" concerning character is by Alexandros v Birchell [2000] VSC 306 (Smith J) of general importance: it should not be read as applying only to convictions recorded prior to the commission of the offence in respect of which the offender is being sentenced. They are also relevant where there is already in place a sentence to which the instant sentence should or must relate. They are also relevant where made so by the conduct of the plea in mitigation, for example to diminish leniency, to shed light on the risk of recidivism, or the claims of rehabilitation, and to rebut any suggestions that the offence before the court is an isolated one: Alexandros v Birchell; R v Kane [1974] VR 759. Where relevant, subsequent convictions or other adverse facts ordinarily had not been initially alleged by the prosecution but brought to the attention of the court by defence legal representation pursuant to ethical obligation not knowingly to mislead the court: R v Rumpf [1988] VR 466.

REMORSE
a matter of mitigation: Cameron v R [2002] HCA 6, (2002) 209 CLR 339; R v Raimondi [1999] VSCA 101. Regret for a resultant predicament must be distinguished from genuine remorse for the crime: R v Virgona [1999] VSCA 213.

RESENTENCE
The "ceiling principle". Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than at the original trial: RHMcL v R [2000] HCA 46, (2000) 203 CLR 45; DPP v Short [2006] VSCA 120; R v DLM [1999] VSCA 6; R v Chen [1993] 2 VR 139.

REVEALING OWN OFFENDING
which otherwise may not have been detected: Ryan v R [2001] HCA21, (2001) 206 CLR 267; R v DTR [2005] VSCA 291; R v Doran [2005] VSCA 271.

SERIOUS SEXUAL OFFENDERS, SERIOUS VIOLENT OFFENDERS, SERIOUS DRUG OFFENDERS, SERIOUS ARSON OFFENDERS
Sentencing Act part 2A.
The relevant offences on a presentment are those after the offender has acquired the serious status: R v Fuller-Cust [2002] VSCA 168, (2002) 6 VR 496.
On s.6D disproportionate sentence: R v LD [2009] VSCA 311; R v Tutchell [2006] VSCA 294; R v Prowse [2005] VSCA 287; R v Barnes [2003] VSCA 156.
Where by s.6E full cumulation prima facie applies, the principle of totality also applies and ordinarily is given effect by the prima facie rule at least implicitly being "otherwise directed" typically by orders for partial cumulation: DPP v Ellis [2005] VSCA 105, (2005) 153 A Crim R 340; R v Jongsma [2004] VSCA 218, (2004) 150 A Crim R 386; R v Mantini [1997] VICSC 30, [1998] 3 VR 340.

SEXUAL OFFENCE REGISTRATION
Sex Offences Registration Act; R v Cheetham [2006] VSCA 126; R v Chan [2006] VSCA 125. See also Working with Children Act. Consequences arising from these Acts not be regarded by sentencing court: Sentencing Act s.5(2BC).

SPECIAL HARDSHIP OF IMPRISONMENT DUE TO ILL HEALTH OR NEED FOR PROTECTION
mitigates punishment when it appears that imprisonment will be a greater burden on the offender by reason of age, state of health or when there is a serious risk that imprisonment will have a gravely adverse effect on the offender's health: R v Iles [2009] VSCA 197; R v Orbach [2007] VSCA 166; R v Van Boxtel [2005] VSCA 175, (2005) 11 VR 258; R v Boyes [2004] VSCA 97; R v Eliasen (1991) 53 A Crim R 391. Protection: R v SH [2006] VSCA 83; R v Rostom [1995] VICSC 213, [1996] 2 VR 97.

SUSPENDED SENTENCE
is conditioned on desirability in the circumstances, and for a serious offence, exceptional circumstances: Sentencing Act s.27. The discretion to impose a suspended sentence is not confined by considerations relating to rehabilitation: Dinsdale v R [2000] HCA 54, (2000) 202 CLR. 321; DPP v Buhagiar [1998] VICSC 295; R v Groom [1998] VSCA 146, [1999] 2 VR 159. Breach: Sentencing Act s.31; R v Ioannou [2007] VSCA 277; R v Steggall [2005] VSCA 278, (2005) 157 A Crim R 402; R v Bice [2000] VSCA 226, (2000) 2 VR. 64.

VICTIM IMPACT
Sentencing Act ss. 5 (2) (daa), (da) and (db), 95A-95E; R v Swift [2007] VSCA 52, (2007) 15 VR 497; R v Wilhelm [2005] VSCA 192; DPP v Scott [2003] VSCA 25, (2003) 6 VR 21. Statements: R v Dowling [1998] 1 VR 123. Relevance can extend also to positive expression of support for the accused and more lenient sentence: R v Skura [2004] VSCA 53, (2005) 152 A Crim R 164.

YOUTHFULNESS
often provides a significant reduction to sentence but depends upon kind of offence: R v Wyley [2009] VSCA 17; DPP v Lawrence [2004] VSCA 154, (2004) 10 VR 125; R v PJB [2007] VSCA 242; R v Mills [1998] VICSC 241, [1998] 4 VR 235. Relevance of Convention on the Rights of the Child: DPP v Ty (Bell J) [2007] VSC 489. Youth Justice Centre provisions: Sentencing Act ss.32-35.

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page author
Don Just barrister
of Victorian Bar
Melbourne, Victoria, Australia