Sentencing Act s.7
includes provisions for imprisonment, imprisonment that
is suspended wholly or partly, drug treatment order,
detention in a mental health service (a hospital security
order), community correction order, fine, release on
adjournment on conditions, discharge or dismissal and in
the case of a young offender detention in a youth justice
centre or youth residential centre. There is power to
make residential treatment order: Farr v R
[2010] VSCA 351. Other sections of the Sentencing Act have
more detailed provisions for each of the options. For
children and young persons, see also Children, Youth and Families Act; CNK v R
[2011] VSCA 228.
> Sentencing facts and
matters
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 trial judge should not decide, and should be
seen not to have decided, whether any or what discount is
to be allowed for a plea of guilty until after the plea
has been entered: Guariglia v R
[2010] VSCA 343.
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, (2008) 20 VR 539; R v Sulemanov[2007] VSCA 288.
Upon a plea of guilty, the Crown Prosecutor opens 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
and having regard to the opening. If the accused disputes
a fact, it is for the prosecution to call evidence in
substantiation of the fact: Ashton v R
[2010] VSCA 329. 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 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 LFJ
[2009] VSCA 134; R v CJK[2009]
VSCA 58, (2009) 22 VR 104;DPP v McMaster[2008] VSCA 102, (2008) 19 VR 191; R v GLH[2008]
VSCA 88 . 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; Pollard v R[2010] VSCA 156; 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, (2007) 180 A Crim R 371; 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, (2001) 3 VR 321. 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; Campisi v R[2010] VSCA 183;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, (2006) 15 VR 615;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.
>
Submissions as to appropriate sentence
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: Azzopardi v R
[2011] VSCA 372; R v MacNeil-Brown [2008] VSCA 190, (2008) 20 VR 677.
> Sentencing purposes and factors
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.
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: Markovic v R
[2010] VSCA 105; 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 healthor 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.
Current sentencing practices under para (c) includes a
general overview of sentences imposed for offences of a
similar character: Hasan v R
[2010] VSCA 352; Hudson v R
[2010] VSCA 332. Regard may also be had to sentencing
statistics though by themselves they do not establish a
sentencing practice: DPP v Maynard
[2009] VSCA 129.
>
Principles of proportionality, totality and parity
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 is
relevance to 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.
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: DPP v Moses[2009] VSCA 274; R v O’Rourke
[1997] 1 VR 246.
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. Green v R[2011]
HCA 49; Postiglione v R[1997] HCA 26, (1997) 189 CLR 295; Lowe v R[1984]
HCA 46, (1984) 154 CLR 606; Spiteri v R[2011] VSCA 33;O'Loughlan v R[2010] VSCA 175; R v Hildebrandt[2008] VSCA 142. 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 Poutai[2011] VSCA 382; R v Evans
[2003] VSCA 223.
> Instinctive synthesis
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
or as purely a placement within sentences in comparable
cases: Markarian v R[2005] HCA 25, (2005) 228 CLR 357; Hasan v R
[2010] VSCA 352; R v MacNeil-Brown[2008] VSCA 142, (2008) 20 VR 677;
R v Williscroft [1975] VR 292. "... 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.
It is a not a breach of the required instinctive
synethesis mechanism to categorise particular cases into
various grades of offending, for example, low level, mid
level, and high level but it is a breach to proceed to
fit a case it within a series of bands, each of which has
attached to it a pre-determined sentencing range: Trajovski v R
[2011] VSCA 170.
> Further notes
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.
ALCOHOL INTOXICATION may mitigate or aggravate an offence: Hasan v R
[2010] VSCA 352; R v McRae
[2008] VSCA 74; R v Howell[2007] VSCA 119; (2007) 16 VR 349;R
v Groom [1998] VSCA 146,
[1999] 2 VR 159. 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, (2007) 172 A Crim R 181;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 110, (2009) 22 VR 343; R v Rousetty[2008] VSCA 259; R v Arundell[2003] VSCA 69. A count does not qualify as a CCE
one where the qualifying amount is reached only by adding
up in a rolled up or lumped count unless such a count is
comprised of at least one transaction which reaches the
qualifying amount: Cay v R
[2010] VSCA 2010; R v Ralphs[2004] VSCA 33.
DELAY Pettiford v R[2011] VSCA 96; R v Thompson
[2009] VSCA 13; R v Merrett[2007] VSCA 1, (2007) 14 VR 39;R v Tiburcy
[2006] VSCA 244, (2006) 166 A Crim R 291; R v Carmody
[2006] VSCA 139, (2006) 163 A Crim R 212; 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.
DEPORTATION PROSPECT providing it is more than a completely
speculative possibility, is a proper matter for
consideration in sentencing; it may well mean that the
burden of imprisonment will be greater for that person;
it may well be viewed as a serious punishing consequence
of the offending: HAT v R[2011]
VSCA 427; DPP v Yildirim[2011] VSCA 219 Guden v R
[2010] VSCA 196. And it is not a reason for refusal to
fix a non-parole period: Nguyen v R
[2010] VSCA 244.
DRUGS For approaches generally to the sentencing of
drug users, see R v Tien
[2007] VSCA 56; R v McKee & Brooks [2003] VSCA 16, (2003) 138 A Crim R 88; 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. 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, (2008) 234 CLR 143. For illustrations of
current sentencing practice for trafficking offences: R v Bala
[2010] VSCA 78.
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.
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, (2008) 183 A Crim R 15, R v Do [2007]
VSCA 308; R v Berry
[2007] VSCA 60; R v Atalla[2002] VSCA 141, (2002) 132 A Crim R 53.
HARDSHIP TO FAMILY Reliance on family hardship is properly to be
understood as a request for mercy; the court should
usually disregard the impact which the sentence will have
upon the members of a prisoner’s family unless
exceptional circumstances have been demonstrated: Markovic v R[2010] VSCA 105.
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 Verdinsmay 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.
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 Criminal Procedure Act
ss.260-262; DPP v Briggs[2010] VSCA 82; 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. The assistance which the
offender can give is to be evaluated and taken into
account but not whether an undertaking to give assistance
will be fulfilled: R v Johns
[2010] VSCA 63. For Commonwealth cases, see R v Ngui
[2000] VSCA 78; DPP v Haunga
[2001] VSCA 73.
LICENCE DISQUALIFICATION Charles v R
[2011] VSCA 399; 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, (2007) 172 A Crim R 111. Example of
error vitiating discretion: R v Butler
[2005] VSCA 293.
OFFENDER A VICTIM OF CHILD SEXUAL ABUSE GEM v R
[2010] VSCA 168; Bourne v R
[2011] VSCA 159
PAROLE, OFFENDING ON PAROLE, OFFENDING ON BAIL Non-parole period: Bugmy v R[1990]
HCA 18, (1990) 169 CLR 525; Romero v R[2011] VSCA 45; R v Detenamo[2007] VSCA 160; DPP v Josefski[2005] VSCA 265;R v Mangione
[2006] VSCA 34; R v VZ [1998]
VSCA 32, [1998] 7 VR 693; R v Watts
[1998] VICSC 231, [1998] 4 VR 244; Inge v R[1999]
HCA 55, (1999) 199 CLR 295. For a comparatively long or
no non-parole period, stated reasons generally are
expected: R v Bertrand[2008] VSCA 182, (2008) 20 VR 222;R v Krasnov
[1995] VICSC 198, (1995) 82 A Crim R 92.
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 Johnson
[2011] VSCA 288; DPP v Dickson
[2011] VSCA 222; DPP v Rongonui[2007] VSCA 274, (2007) 17 VR 571;R v Piacentino
[2007] VSCA 49, (2007) 15 VR 501. 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 OF GUILTY Sentencing Act s.5
(2)(e); R v Guthrie[2006] VSCA 192. Effect of any sentence discount for
guilty plea to be specified: Sentencing Act s.6AAA;
Mokbel v R
[2011] VSCA 34; R v O'Blein
[2009] VSCA 159. May also be mitigation for sparing
witnesses stress of trial: R v RND
[2002] VSCA 192. The strength of the Crown case does not
affect the discount for the utilitarian value of a plea
of guilty by virtue of s.5(2)(e) but it may cast doubt on
the extent of an offender’s remorse, genuine
contrition, acceptance of responsibility and willingness
to facilitate the course of justice: Spiteri v R
[2011] VSCA 33; R v Pajic
[2009] VSCA 53, (2009) 23 VR 527.
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: Karpinski v R[2011] VSCA 94; Warwick v R
[2010] VSCA 166; R v Harvey[2007] VSCA 127; R v McMahon[2006] VSCA 240; R v Wade[2005]
VSCA 276; R v Chimirri[2003] VSCA 45; R v Renzella [1997] 2 VR
88. 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 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 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 exampleto
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; Davy v R[2011]
VSCA 98;Lunt v R
[2011] VSCA 56.
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] HCA 21, (2001) 206 CLR 267; DPC v R
[2011] VSCA 395; 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 an indictment are those after
the offender has acquired the serious status: Cardona v R[2011] VSCA 58;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.
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 AND DEFERRED SENTENCE Suspended is conditioned on desirability in the
circumstances but is not to be impossed for a serious
offence or a significant offence: Sentencing Act s.27.
Breach: Sentencing Act s.31; R v Ioannou
[2007] VSCA 277, (2007) 17 VR 277; R v Steggall[2005] VSCA 278, (2005) 157 A Crim R 402; R v Bice
[2000] VSCA 226, (2000) 2 VR 64.
Deferred sentence is available in Magistrates' Court: Sentencing Act s.83A.
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. Relevance can extend
also to positive expression of support for the accused
and more lenient sentence: Mok v R
[2011] VSCA 38; 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: Azzopardi v R
[2011] VSCA 372; 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 ofConvention
on the Rights of the Child: DPP v Ty
(Bell J) [2007] VSC 489. Youth Justice Centre provisions:
Sentencing Act
ss.32-35. Offending as youth but sentence as adult after
long delay: Miller v R[2011] VSCA 143;R v Boland[2007] VSCA 242, (2007) 17 VR 143.