Note on Commonwealth law
Note on children
This webpage is mainly about sentencing adults for breach of Victoria law under Sentencing Act 1991 as amended.
For sentencing of adults and children for breach of Commonwealth criminal law, including by Victoria courts, see Crimes Act (Cth); R v Pham  HCA 39, (2015) 256 CLR 550.
For sentencing children for breach of Victoria criminal law, see Children, Youth and Families Act. By s 3, a child means aged above 10 years and less than 18 years at the time of committing the alleged offence, and less than 19 years when a proceeding for the offence is commenced in the Court. (On criminal liability of children, see Notes 1). Children, Youth and Families Act has its own sentencing provisions: see especially ss.360-423. The sentencing options are listed by s 360 including for serious offending detention in a youth justice centre or, if under 15, youth residential centre. General deterrence is excluded from consideration in the sentencing and the punitive or retributive considerations which are appropriately applied to adults must be largely set to one side: s 362; Webster (a pseudonym) v R  VSCA 66; CNK v R  VSCA 228, (2011) 212 A Crim R 173; as possibly also for breach in Victoria of Commonwealth law, Crimes Act (Cth) s.20C.
Note and comment on sentencing legislation and common law
Sentencing Act 1991 followed upon 1988 report of Victorian Sentencing Committee ("The Starke Report", chairman being Sir John Starke, former Supreme Court justice). The provisions of the Act were mainly close to those previously in other Victoria legislation or established by court judgments alone (common law).
Numerous court judgments assist in interpreting and applying the legislation. At some points, there are principles established by common law alone.
The Sentencing Act and other sentencing legislation have been much amended, often linked to poorly reasoned "tough law and order" political posturing, with result that sentencing law now has very complex overlays and, increasingly, harsh inflexibilities that risk causing injustice.
> MAIN SENTENCING OPTIONS
Sentencing Act s.7. Other sections have more detailed provisions for each of the options including for some combinations.
Imprisonment. Subject of many rules and principles with which the remainder of this webpage mainly is concerned.
Community correction order (CCO): ss.36-48Q; guideline judgment: Boulton v R  VSCA 342, (2014) 46 VR 308 (and observations on features of imprisonment adverse to the public); Lennon v R  VSCA 85.
Fine: ss.49-69ZG. Ordinarily alleged infringements are dealt with by optional simplified process resulting in fines: Infringements Act; Fines Reform Act; Fines Victoria.
Release on adjournment on conditions: s.72.
Release on adjournment without conviction: s.75.
Unconditional dismissal: s.76.
Court secure treatment order (CSTO) for persons having mental illness: ss.94A-94I. Information from Victoria Department of Health and Human Services, here.
Residential treatment order (RTO) for intellectually disabled: s.80-83; Farr R  VSCA 351.
Detention in a youth justice centre or youth residential centre if young offender: ss.32-35. Young offender means an offender who at the time of being sentenced is under the age of 21 years: s.3.
Drug treatment order: ss.18X-s.18ZT.
Deferral of sentencing: s.83A.
> SENTENCING FACTS, SENTENCE RANGE SUBMISSIONS
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 is required to make more detailed findings of fact and provide Reasons for Sentence. Where a person has been convicted by jury of an offence, the judge determines the sentencing facts. Many will come from evidence at the trial but the judge must not form a view which conflicts with the verdicts of the jury. Other facts, especially those relating to the offender, will come from the sentencing hearing. Adverse findings have to be made to the criminal standard of beyond reasonable doubt: Cheung v R  HCA 67; (2001) 209 CLR 1; DPP v Vibro-Pile (Aust) Pty Ltd  VSCA 55, (2016) 49 VR 676; R v Stratton  VSCA 130, (2008) 20 VR 539.
Upon a plea of guilty, the Crown Prosecutor opens to the judge in concise form the alleged facts of the offence: DPP v Scott  VSCA 25, (2003) 6 VR 21. The judge determines the nature of the offence from the depositions having regard to the opening and any submissions or material advanced at the sentencing hearing. If the offender disputes a fact, it is for the prosecution to call evidence in substantiation: Formosa v R  VSCA 298; Ashton v R  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 co 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  VSCA 67; R v Harkness  VSCA 87; R v Cambareri  VSCA 39; R v Halden  VICSC 96, (1983) 9 A Crim R 30.
It is the duty of the prosecutor to assist the sentencing judge and, for that purpose, to draw the judge’s attention to relevant statistics and comparable cases: Jurj v R  VSCA 57.
The prosecution is not required, and should not be permitted, to make a statement of what are the bounds of the available range of sentences to a sentencing judge: Barbaro v R  HCA 2, (2014) 253 CLR 58; Mehmet v R  VSCA 211. Defence counsel may make a submission as to range, and if does so, it is necessary the Crown respond and, in particular, tell the judge whether in the Crown’s submission it would be open to impose a sentence within that range; or, if not, draw to the judge’s attention the comparable and other cases, current sentencing practices and other relevant considerations which in the Crown submission support that conclusion: Matthews v R  VSCA 291. Where the sentencing judge indicates the form of proposed sentencing order and the prosecutor considers that such a penalty would be manifestly inadequate, the prosecutor discharges his or her duty to the court by so submitting: DPP (Cth) v Masange  VSCA 204.
There may be plea agreements between prosecution and defence but a sentencing judge is not bound to accept agreed facts; before departing from agreed facts, a judge should give notice: GAS v R  HCA 22, (2004) 217 CLR 198; Campisi v R  VSCA 183; R v Lowe  VSCA 268.
It is common practice that counsel for the offender on a sentencing hearing advances facts not the subject of evidence; where those facts are not challenged by the prosecutor, the sentencing judge may, but is not obliged to accept them: Vozlic v R  VSCA 113, (2013) 39 VR 327. It may be inappropriate for the judge without warning not to accept what is said by counsel about the circumstances of a prior conviction: R v Franco  VSCA 302. It is also common that counsel for the offender on a sentencing hearing calls evidence or tenders documentary material, especially on facts relating to the offender. For matters favourable to the offender proof must be by the offender on the balance of probabilities. 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 it to the attention of the judge and, if necessary, call evidence; similarly, it is for the offender who seeks to bring a matter to the attention of the judge to do so and, if necessary, call evidence: R v Olbrich  HCA 54, (1999) 199 CLR 270; R v Teng  VSCA 148, (2009) 22 VR 706, R v Storey  VICSC 75,  1 VR 359. This applies also to such matters as likelihood of reoffending or prospects of rehabilitation if disputed: R v Cass  VSCA 77; R v Pickard  VSCA 50.
Facts taken into account in sentencing upon a charge 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  HCA 31, (1981) 147 CLR 382; Kao v R  VSCA 84; Osborne v R  VSCA 160; Pun v R  VSCA 219; Pollard v R  VSCA 156; R v Newman and Turnbull  VICSC 177,  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: DPP v Gonzalez  VSCA 175; R v Nobile  VSCA 211. Post offence conduct sufficiently proximate to the offending to be properly regarded as part of the relevant circumstances may at least illuminate moral culpability for the offence: DPP v Weston  VSCA 243. Full regard may be had to a single act notwithstanding that there was additional mental element that would support an additional charge: R v Ngo  VSCA 240; R v Jennings  VICSC 334.
Where upon a plea of guilty it has been agreed a charge is representative, any leniency that might otherwise result from the offence being an isolated event is excluded and the court must look at the conduct represented in order to judge the offending in its full context: DPP v Walsh (a pseudonym)  VSCA 172. A charge under Crimes Act s.47A is not representative: DPP v DZ  VSCA 301.
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: SD v R  VSCA 133; R v Ulla  VSCA 130, (2004) 148 A Crim R 395 (sentencing remarks on past occasions concerning accused); R v Wise  VSCA 169, (2000) 2 VR 287.
> SENTENCING PURPOSES, PRINCIPLE OF PROPORTIONALITY
Sentencing Act s5 (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.
Prior to this enactment in 1991, these purposes - and perhaps slightly more - had common law support, most notably in R v Williscroft  VicRp 27,  VR 292 where the majority was impressed with Barry, J.V.W The Courts and Criminal Punishment (three published lectures 1969).
The para (a) purpose of just punishment is usually taken as meaning purpose of "retribution" or "just deserts": e.g. Boulton v R  VSCA 342, (2014) 46 VR 308. A frequent synonym in the courts is "condign punishment". It concerns the infliction of suffering on an offender especially by imprisonment or community corrections order. It is about the judgment of the sentencer as to what in all of the circumstances is just punishment rather than for instance what is so in the judgment of a victim or a victim's associates. It is invariably accepted implicitly that as the majority stated in R v Williscroft  VicRp 27,  VR 292 "Retribution in the modern sense cannot be equated with the concept on which the lex talionis rested". (Lex talionis is the "eye for an eye" concept i.e. punishment corresponding in kind and degree to the wrong). Invariably, the associated thinking is secular. It is the view of Victorian Sentencing Manual 7.2.2 that "in this context retribution can be taken to mean a sense of recompense for, or requital according to the merits or deserts for evil done as opposed to outright vengeance". It seems it would be what Wood (below) calls the "simplest form of retributivism [which] sees retribution as a basic, unanalysable, intuitively obvious, moral principle". Often the idea is supplemented by invocation of the supposed retribution expected by the community: e.g. Boulton v R above; DPP v Daing  VSCA 58; DPP v Dalgliesh (a pseudonym)  VSCA 148 (found assistance from Sentencing Advisory Council 2012 report Community Attitudes to Offence Seriousness; case later overruled for other reason). The purpose, on literal understanding, ignores socio-economic disadvantage and its causative contribution to crime: cf Edney, Richard Just Deserts in Post-Colonial Society: Problems in the Punishment of Indigenous Offenders  SCULawRw 4. Application of the purpose is at risk to individual sentencer eccentricity. The purpose has moral character which typically contemporary law denies place to or submerges. The purpose persists despite in 1974 it being the opinion of Starke J (dissenting) in R v Williscroft, above, that retribution had "disappeared, or practically disappeared, from our criminal law". The idea of retribution is key in the principle of proportionality later developed by the High Court, see below. Sometimes, just punishment is attributed value in the vindication and rehabilitation of the victim: e.g. Talbot (a pseudonym) v R  VSCA 218.
The para (b) purpose of deterring the offender or other persons elevates into law the supposed empirical truth that harshness in a sentence has utility by tending to prevent the future commission of crime. It comprises specific or particular deterrence ("deter the offender") and general deterrence ("deter...other persons"): Veen v R (No 2)  HCA 14, (1988) 164 CLR 465; R v Williscroft  VicRp 27,  VR 292. A Sentencing Advisory Council 2011 paper Does imprisonment deter was raised but not acted upon in Brayshaw v R  VSCA 233. (The paper denigrated the empirical truth of specific or particular deterrence. It called general deterrence as meant by para (b) one kind of "marginal general deterrence" and denigrated its empirical truth. It allowed empirical truth to the kind of marginal general deterrence comprised in the certainty of apprehension should it be so, also to "absolute general deterrence" which is the claim crime is reduced or prevented by the existence of the criminal justice system as a whole rather than through the threat or imposition of a particular criminal sanction.)
The para (c) purpose concerning rehabilitation draws upon a sentencing concept of specialised meaning. The consistent understanding is that it concerns the prospects of the offender recovering or reforming away from future engagement in criminal behaviour. Unlike the other sentencing purposes its positive assessment tends against harshness of sentence. It is recognised that features of the restrictive prison environment have the consequence that the opportunities, and incentives, for rehabilitation are very limited: Boulton v R  VSCA 342, (2014) 46 VR 308 and see as to contemporary reality Victorian Ombudsman 2015 Investigation into the rehabilitation and reintegration of prisoners in Victoria. For recent examples of sentence with strong rehabilitation purpose: El Achkar v R  VSCA 209; Gul v R  VSCA 82.
The para (d) purpose to manifest the denunciation by the court, though often applied, has the least practical impact on sentence. The thinking has been associated with nineteenth century judge and scholar James Fitzjames Stephen. In Ryan v R  HCA 21, (2001) 206 CLR 267 (case considering NSW law) Kirby J said as follows (including quote from a judge of Scotland). "A fundamental purpose of the criminal law, and of the sentencing of convicted offenders, is to denounce publicly the unlawful conduct of an offender. This objective requires that a sentence should also communicate society's condemnation of the particular offender's conduct. The sentence represents 'a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law'." Since the purpose is stated independently of the para (a) purpose, it seems that it can at least sometimes be applied without that link. Perhaps it is meant to have some moral point of its own. Perhaps it is also meant to be in part an abstracted deterrence purpose though any empirical truth as such would be difficult to measure.
The para (e) purpose of protecting the community concerns confinement of liberty, usually imprisonment, having the utility of preventing an offender at significant risk of re-offending ("recidivism") from being so for the period. It is what writers on sentencing, though seldom courts, call "incapacitation". It is not limited to protection from violence; the community is equally entitled to be protected for instance from the depredations of property: R v Flood  VICSC 155. For some categories of offender defined by the Sentencing Act as serious, the court must regard the protection of the community as the principal purpose, see further below. In different manner, the rehabilitation purpose includes a protection of the community purpose: on this "interplay" DPP v Barnes  VSCA 293. In different manner, deterrence purposes also have protection of the community purpose.
The principle of proportionality is that a sentence is not to exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances; that is to say by reference to Sentencing Act s.5, it is not by reason of other sentencing purposes to exceed that required by the purpose of just punishment: cf Boulton v R  VSCA 342, (2014) 46 VR 308. For example, a sentence must not be increased beyond that which is proportionate to the crime in order to protect society from the risk of recidivism by the offender: Veen v R (No 2)  HCA 14, (1988) 164 CLR 465 where the majority was expressly influenced by an article of British moral philosopher C.S. Lewis On Punishment: A Reply  ResJud 74, especially "All I plead for is the prior condition of ill desert; loss of liberty justified on retributive grounds before we begin considering the other factors". It followed his The Humanitarian Theory of Punishment  ResJud 30 and he was against (at some points) Morris, Norval; Buckle, Donald The Humanitarian Theory of Punishment: A Reply to C S Lewis  ResJud 31 and J.J.C. Smart The Humanitarian Theory of Punishment  ResJud 51. All articles were published at University of Melbourne. The Sentencing Act recognises the principle of proportionality by negating its necessary application to some categories of offender defined as serious, see further below. It also recognises it in connection with community correction orders: s.48A. On relating the principle of proportionality to the non-parole period principles, see below. See Fox, Richard G The Meaning of Proportionality in Sentencing  MelbULawRw 1.
Mercy may justify the imposition of a sentence which may bear less heavily upon an offender than if he or she were to receive just deserts: DPP v Snow (a pseudonym)  VSCA 67; DPP v Milson  VSCA 55; Akoka v R  VSCA 214; Simmons (a pseudonym) v R  VSCA 339; Markovic v R  VSCA 105; (2010) 30 VR 589; R v Xeba  VSCA 205; R v Miceli  VICSC 22,  4 VR 588. 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 just punishment purpose). See Fox, Richard G When Justice Sheds a Tear: The Place of Mercy in Sentencing  MonashULawRw 1.
David Wood, for instance, has written about on-going philosophical and empirical debates concerning purpose and justification: Punishment: Consequentialism  UMelbLRS 2, Punishment: Nonconsequentialism  UMelbLRS 3, and Punishment: The Future  UMelbLRS 4.
> SOME SENTENCING CONSIDERATIONS WHICH A COURT MUST HAVE REGARD TO
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
(ab) the standard sentence 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
(daaa) whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated; 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.
Maximum penalties under para (a) will almost always require careful attention, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they provide, taken and balanced with all of the other relevant factors, a yardstick; but their degree of relevance may vary depending upon their legislative history: Nicholls v R  VSCA 300; Markarian v R  HCA 25, (2005) 228 CLR 357. Maximum penalty means the statutory maximum even at the Magistrates' Court where there is a jurisdictional limit: Dankovic v R  VSCA 255; Hansford v His Honour Judge Neesham  VicRp 51,  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-113D; R v Duncan  VSCA 137, (2007) 172 A Crim R 111.
For standard sentence under para (ab) see further s.5A, s.5B. Standard sentences have been enacted only for a few major offences. In sentencing for such offences; a court is to assess offence seriousness in the conventional way taking into account both objective gravity and moral culpability; the obligations to take the standard sentence into account and the obligation to have regard to the maximum sentence are legislative guideposts: Lugo (a pseudonym) v R  VSCA 75; Brown v R  VSCA 286.
Current sentencing practices under para (b) includes a general overview of cases where sentences have been imposed for offences of a similar character: Stanger v R  VSCA 25; Lieu v R  VSCA 277; Hasan v R  VSCA 352, (2010) 31 VR 28. It is best to avoid categorising cases as falling within a particular range and, instead, for sentencing judges to have regard to relevantly comparable, and current, cases as yardsticks: DPP v Weybury  VSCA 120. Current sentencing practices are not determinative and do not cap and collar the appropriate sentencing range, for example with old offences, there may be a former and different statutory setting to be taken into account: Bromley v R  VSCA 329. If current sentencing practices for a type of offence are found manifestly inadequate and needing uplift, the court is to impose a sentence that is just in all the circumstances unconstrained by the current sentencing practices; current sentencing practices are only one factor and not the controlling factor in arriving at an appropriate sentence: DPP v Dalgliesh (a pseudonym)  HCA 41, (2017) 262 CLR 428 where High Court found, as had Court of Appeal (Vic), current sentencing practices in Victoria for incest manifestly inadequate and needing uplift; see further DPP v Dalgliesh (a pseudonym)  VSCA 360. Some other Court of Appeal (Vic) cases that have found current sentencing practices for a type of offence manifestly inadequate and needing uplift are: Harrison v R  VSCA 349, (2015) 49 VR 619 (negligently causing serious injury); Nguyen v R  VSCA 198 (cultivation of commercial quantity of narcotic plant as mid-range offending); Gregory (a pseudonym) v R  VSCA 151 (trafficking in drug of dependence in commercial quantity as upper range offending). Current sentencing practices means sentencing practices at the time of sentence; equal justice may nonetheless require judge to have regard to sentencing practices at the time of the offending: Carter (a pseudonym) v R  VSCA 88; Bradley v R  VSCA 69; Stalio v R  VSCA 120, (2012) 46 VR 426. Statistics are published by Sentencing Advisory Council here.
Para (c) refers to matters such as the nature and effect of the actions of the offender and the objective circumstances of the offence: DPP v Herrmann  VSCA 160.
For para (d) moral culpability and degree of rfesponsibility, see DPP v Herrmann  VSCA 160. The court is to make a moral judgment on behalf of the community about the degree of blameworthiness to be attached to the offender for the offending conduct. Determining how harshly a particular offender is to be judged - and punished - often requires a close examination of the personal circumstances and background of the offender and an exploration of factors which may explain the offending conduct. To the extent that offending conduct can be seen to reflect the operation of factors which are beyond the offender’s control, the harshness of the moral judgment is likely to be moderated.
Victim impact under paras (daa), (da) and (db), see further ss 95A-95E; Berichon v R  VSCA 319; Jackson v R  VSCA 14; R v Swift  VSCA 52, (2007) 15 VR 497; DPP v Scott  VSCA 25, (2003) 6 VR 21. Relevance can extend also to positive expression of support for the accused and more lenient sentence, or to forgiveness. In particular, a favourable or supportive victim impact statement may bear on the questions
whether there has in fact been an adverse impact on the victim and on the offender's prospects of rehabilitation: Mok v R  VSCA 38; R v Hester  VSCA 298; R v Skura  VSCA 53, (2005) 152 A Crim R 164.
Plea of guilty under para (e): ; Maybus v R  VSCA 125; Phillips v R  VSCA 140, (2012) 37 VR 594. Effect of any sentence discount for guilty plea to be specified: Sentencing Act s.6AAA; Mokbel v R  VSCA 34, (2011) 211 A Crim R 37; R v O'Blein  VSCA 159. May also be mitigation for sparing witnesses stress of trial: R v RND  VSCA 192. The strength of the Crown case does not affect the discount for the utilitarian value of a plea of guilty 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  VSCA 33; R v Pajic  VSCA 53, (2009) 23 VR 527. A rejected offer to plead guilty to a lesser offence than that upon which the Crown has proceeded may also be considered to have a utilitarian value when the offender has ultimately been convicted of that lesser offence: Zarghami v R  VSCA 74.
Factors to be considered in determining offender's character under para (f): see Sentencing Act s.6. On meaning of previous convctions etc see below. Further on good character: Ryan v R  HCA 21, (2001) 206 CLR 267; Wakim v R  VSCA 301; SD v R  VSCA 133, (2013) 39 VR 642. Court not to have regard to previous good character or lack of previous findings of guilt or convictions in certain circumstances concerning commission of a child sexual offence: Sentencing Act s.5AA.
> PRINCIPLES OF PARSIMONY, TOTALITY, PARITY
The principle of parsimony is that a court must not impose a sentence that is more severe than that necessary to achieve the sentencing purpose: Sentencing Act s.5 subsections (3)-(7); Borg v R  VSCA 191; Greatorex v R  VSCA 136; McGrath v R  VSCA 176; Boulton v R  VSCA 342, (2014) 46 VR 308.
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  HCA 46, (2000) 203 CLR 45; Mill v R  HCA 70, (1988) 166 CLR 59; Donnelly v R  VSCA 151; Berry v R  VSCA 291; DPP v Oksuz  VSCA 316, (2015) 47 VR 731; Charles v R  VSCA 399, (2011) 34 VR 41. The avoidance of crushing sentence is a relevant consideration: Bufton v R  VSCA 228; Ellis v R  VSCA 320.
The principle of totality also applies where on a subsequent occasion, there is sentence imposed relating to offending or period of offending which has previously been sentenced in part as in Sayer v R  VSCA 177. This applies also to sentence interstate: Mill v R  HCA 70, (1988) 166 CLR 59; Morgan v R  VSCA 33.
The approach of imposing appropriate individual sentences and then ordering cumulation or concurrency is far preferable to moderating individual sentences; such moderation may still be required if orders for cumulation or concurrency are incapable of yielding a proportionate total effective sentence: DPP v West (a pseudonym)  VSCA 20.
The principle of parity requires that when two or more co-offenders are to be sentenced, any significant disparity in their sentences 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. Green v R  HCA 49; (2011) 244 CLR 462; Lowe v R  HCA 46, (1984) 154 CLR 606; Salazar v R  VSCA 15; Levy v R  VSCA 44.
It is not an error for a judge to decline to impose a sentence for reasons of parity which, viewed alone, would be manifestly inadequate: Topal v R  VSCA 289.
The non-parole period also is to be taken into account for applying parity: Mai v R  VSCA 1.
In making comparison with a Children's Court sentence, it may be that some moderation in sentence results: R v Poutai  VSCA 382.
> INSTINCTIVE SYNTHESIS
The courts have held that the sentencing discretion is to be exercised by instinctive synthesis rather than for example 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  HCA 25, (2005) 228 CLR 357; Veen v R (No 2)  HCA 14, (1988) 164 CLR 465; Kumas v R  VSCA 287; DPP v Walters (a pseudonym)  VSCA 303; R v Williscroft  VicRp 27,1975] VR 292.
It is a not a breach of the required instinctive synthesis 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 within a series of bands, each of which has attached to it a pre-determined sentencing range: Trajkovski v R  VSCA 170, (2011) 32 VR 587.
Instinctive synthesis has its opponents: e.g. Bagaric, Mirko Sentencing: From Vagueness to Arbitrariness: The Need to Abolish the Stain That is the Instinctive Synthesis  UNSWLawJl 4.
> HEAD SENTENCE, NON-PAROLE PERIOD, ADMINISTRATION AND GRANT OF PAROLE
Means the period fixed by the sentencing court as the outside limit to that to be served for an offence or, if there are multiple offences, the total outside limit.
Ordinarily a prisoner must be released upon service of the head sentence if not already released on parole. Exceptions concern offenders who have served custodial sentences for serious sexual offences or serious violence offences who present an unacceptable risk of harm to the community being subject to ongoing detention (or supervision): Serious Offenders Act 2018; Post Sentence Authority.
If a court sentences an offender to be imprisoned in respect of an offence for (a) the term of his or her natural life; or (b) a term of 2 years or more - the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate
. If a court sentences an offender to be imprisoned in respect of an offence for a term of less than 2 years but not less than one year, the court may, as part of the sentence, fix a period during which the offender is not eligible to be released on parole: Sentencing Act s.11.
Increasingly provisions are being enacted for minimum non-parole periods. The legislation does not employ the term mandatory. They are not mandatory in the strictest sense because some very limited judicial discretion is left. Two concern gross violence: Crimes Act s. 15A, s. 15B; Sentencing Act s.10 (1); DPP v Hudgson  VSCA 254. Other exceptions concern some manslaughter circumstances, aggravated home invasion, aggravated car jacking and more: Sentencing Act ss.9B-10AE; Esmaili v R  VSCA 63. Some concern Crimes Act ss.16 and 17 where the victim is an emergency worker on duty or a custodial officer on duty:
Sentencing Act s.10AA. The exceptions apply unless special reasons require otherwise which is subject of complex definition: s.10A. One is that there are substantial and compelling circumstances that are exceptional and rare and that justify otherwise, as to which see further s.10 (2B); Farmer v R  VSCA 140.
In the majority of cases the non-parole period is between 60 per cent and 75 per cent of the head sentence: McLean v R  VSCA 209; Kumova v R  VSCA 212, (2012) 37 VR 538. For higher head sentences the ratio will often be higher: Romero v R  VSCA 45. It must be at least 6 months less than the term of the sentence: s.11(3).
The non-parole period is the minimum term which justice requires be served, having regard to all of the circumstances of the offence. All factors are taken into account, first in determining the head sentence and then in fixing the non-parole period. The factors may be differently weighted at each stage of the exercise because there are different purposes behind each function. In fixing the proportion of the head sentence to be given to the non-parole period there are sentencing principles in operation which, together with the individual circumstances of the case will determine the proportion which the non-parole period must bear to the head sentence. First, like the head sentence, the non-parole period must also reflect the objective gravity of the offence so that the non-parole period should constitute the minimum period of imprisonment that justice requires the prisoner to serve. Secondly, punishment is mitigated in favour of the prisoner’s rehabilitation. The benefit of the minimum term is for the purpose of the offender’s rehabilitation. Thirdly, in fixing the non-parole period, the interests of the community, which imprisonment is designed to serve, must be taken into account: Kumova v R  VSCA 212, (2012) 37 VR 538; Bugmy v R  HCA 18, (1990) 169 CLR 525.
"It must steadily be borne in mind that the court in fixing a non-parole period is not attempting to decide when (and where a life sentence has been imposed) or whether the prisoner is to be released; it is doing no more than empowering the Parole Board to make that decision after the expiration of the non-parole period. If upon all the evidence available to it at the time, the board forms the view that the protection of the community demands the continued incarceration of a prisoner, then it would not grant release on parole": Bayley v R  VSCA 295.
For a comparatively long or no non-parole period, stated reasons generally are expected: R v Bertrand  VSCA 182, (2008) 20 VR 222; R v Krasnov  VICSC 198, (1995) 82 A Crim R 92. Examples of life sentence without non-parole period: Cardamone v R  VSCA 190; Hunter v R  VSCA 385,  40 VR 660.
Relating the non-parole period principles to the principle of proportionality (see above) is a logical challenge. By the principle of proportionality, the head sentence is either fixed at the outer limit permitted by just punishment (extreme case) or less (typical case). Whichever, any non-parole period necessarily will be less than that just punishment. Yet it seems to be required that the non-parole period be not less than just punishment. The absence of concern with any such problem in longstanding continual practice urges that there is some implied reconciliation within the authorities or, if not, simply happening. It may be that just punishment takes different contextual senses; that just punishment for non-parole period is not the same as just punishment for head sentence and may have lesser measure. Or perhaps the idea and measure of just punishment is so imprecise as to veil the existence of any problem, a veil perhaps intensified by the need for instinctive synthesis, see above.
Fixing of non-parole period for standard sentence offence: Sentencing Act s.11A.
Fixing of new non-parole period in respect of multiple sentences: Sentencing Act s.14; R v Morgan  VSCA 258; R v Robertson  VSCA 71; R v Bortoli  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: Koumis v R  VSCA 47; DPP v Johnson  VSCA 288, (2011) 213 A Crim R 262; DPP v Rongonui  VSCA 274, (2007) 17 VR 571; R v Piacentino  VSCA 49, (2007) 15 VR 501. However consideration of the principle must take into account that an offender who commits a crime whilst released into the community on parole, in the ordinary course of events will be required to serve the balance of the sentence earlier imposed: R v Alashkar  VSCA 182, (2007) 17 VR 65.
Administration, grant etc of parole
Corrections Act establishes the Adult Parole Board which makes the parole decisions. It consists of Supreme Court and other judicial officers, and other persons: see further: s.61. The Act provides that safety and protection of the community be paramount in parole decisions: s.73A. Conditions required almost exclude parole for any prisoner who murdered a police officer: s.74AAA including any sentenced before the section came into operation. A provision sets conditions for making a parole order for person imprisoned for certain fatal offences: s.74AABA. Provisions set conditions for making a parole order for specific persons Knight and Minogue: ss.74AA, 74AB; Minogue v Victoria  HCA 31.
There is automatic cancellation of parole when prisoner on parole for sexual offence or serious violent offence is convicted of a sexual offence or serious violent offence that was committed during the parole period: Corrections Act s.77(6).
> IMPAIRED MENTAL FUNCTIONING
There is a defence of mental impairment (in times past known as criminal insanity) which if found requires a verdict of not guilty and has consequence of supervision order often with major confinement: Crimes (Mental Impairment and Unfitness to be Tried) Act. The defence of mental impairment has an extreme definition and is uncommonly taken, see Notes 1.
It commonly occurs however that a person with impaired mental functioning not extreme enough to provide defence of mental impairment (criminal insanity) pleads guilty or is found guilty.
In sentencing, this level of impaired mental functioning requires attention to the Verdins principles stated in R v Verdins  VSCA 102, (2007) 16 VR 269, see also Muldrock v R  HCA 39, (2011) 244 CLR 120.
The Verdins principles are frequently applied. Some recent Court of Appeal examples are: Singh v R  161 VSCA 161; Davies v R  VSCA 66 (autism spectrum disorder).
The Verdins principles are an explanation, in the context, by the Court of Appeal of general principles from the Sentencing Act and cases, advancing from principles stated in R v Tsiaras  VicRp 26;  1 VR 398 and R v Anderson  VicRp 17,  VR 155.
Whether one or more of the Verdins considerations applies is for the sentencing court alone; sentencing courts depend upon the evidence of psychiatrists and psychologists in relation to the mental functioning of offenders at relevant times, but it is wholly outside their expertise to express views on whether one or other of the Verdins principles is applicable: Wright v R  VSCA 333. See further expert evidence Notes 4.
The Verdins principles arise for consideration 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 impaired mental functioning would properly be described as a (serious) mental illness such as for example mental retardation: Ryder v R  VSCA 3.
The Verdins principles are that impaired mental functioning, whether temporary or permanent, 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.
With the concurrent operation of alcohol or drug intoxication, there is at least some mitigating effect by the Verdins principles if the mental impairment is causally linked with the offending: DPP v Davis  VSCA 341; Wright v R  VSCA 333.
With drug induced psychosis, the critical factor whether the Verdins principles may be relevant to culpability is the degree of foreknowledge on the part of the offender: Alexander v R (a pseudonym)  VSCA 217; DPP v L'Eveille  VSCA 60; DPP v Arvanitidis  VSCA 189; R v Martin  VSCA 291, (2007) 181 A Crim R 352.
Personality disorders are not categorically excluded from the Verdins principles. Whether and to what extent a personality disorder in a particular case is impaired mental functioning is to be determined on the basis of expert evidence: Brown v R  VSCA 212.
> FURTHER NOTES
ABORIGINES AND RACE GENERALLY
R v Fuller-Cust  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 Bugmy v R  HCA 37, (2013) 249 CLR 571; Munda v Western Australia  HCA 38, (2013) 249 CLR 600; Neal v R  HCA 55, (1982) 149 CLR 305; HAT v R  VSCA 427; DPP v Terrick  VSCA 220, (2009) 24 VR 457.
Koori Court: County Court Act s.4G; Honeysett v R  VSCA 214; R v Morgan  VSCA 15.
Sentencing Act ss.9, 51; Sinclair v R  VSCA 144; DPP v Frewstal Pty Ltd  VSCA 266, (2015) 47 VR 660.
ALCOHOL INTOXICATION, ALCOHOL ADDICTION
may mitigate or aggravate an offence: Morrison v R  VSCA 222; Hasan v R  VSCA 352, (2010) 31 VR 28; R v Howell  VSCA 119; (2007) 16 VR 349; R v Audino  VSCA 318, (2007) 180 A Crim R 371. Where the intoxication is self-induced, it is not generally mitigation but may be so for example by reducing moral culpability if the conduct is shown out of character and that, if not for it, the offending would not have occurred: Hope v R  VSCA 177. Where it was part of an addiction since addressed, or to be addressed, it may bear favourably for instance on prospects for rehabilitation.
AVOIDANCE OF DOUBLE PUNISHMENT
There is not to be additional punishment for an act or omission already subject of punishment: Interpretation of Legislation Act s.51; Acciarito v R  VSCA 264; Woods v R  VSCA 34; Lecornu v R  VSCA 137; R v Vu  VSCA 231; R v Audino  VSCA 318, (2007) 180 A Crim R 371. Regardless of any such provision, it is good sentencing practice: Pearce v R  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 Ly2004] VSCA 45. Section 51 does not prevent separate punishments in respect of separate victims: R v WWS  VSCA 125; R v Bekhazi  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  VSCA 83,  1 VR 830. Nor is punishment for both conspiracy and a substantive offence being overt act of it: R v El-Kotob  VSCA 109, (2002) 4 VR 546. Punishment for both possession and trafficking of drugs in some circumstances would be impermissibly double R v Doherty  VSCA 93; R v Georgiou  VSCA 57; R v Ahmed  VSCA 270, (2007) 17 VR 454; R v Tan  VSCA 54; R v Langdon  VSCA 205 distinguished R v Chhom Nhor  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  VICSC 334,  1 VR 352.
BREACH OF TRUST
May go for instance as being an aggravating feature of offending or as diminishing weight of previous good character but it is error to allow it to result in double punishment: Torrefranca v R  VSCA 157.
COMPENSATION FOR VICTIMS OF CRIME
For pain and suffering: Sentencing Act s.85A-85M; DPP v Pain and Bush  VSC 728; St Clair and Holmes v Jamieson  VSC 57; Hunt v Akkus  VSC 79; Kaplan v Lee-Archer  VSCA 42, (2007) 15 VR 405; DPP v Energy Brix  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  VSCA 119.
CONFISCATION AND PECUNIARY PENALTY ORDERS
For circumstances in which a sentencing court may have regard to such orders and others where it must not: Sentencing Act s.5(2A) and (2B).
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  VSCA 110, (2009) 22 VR 343; R v Roussety  VSCA 259; R v Arundell  VSCA 69. A charge does not qualify as a CCE one where the qualifying amount is reached only by adding up in a rolled up charge unless such a charge is comprised of at least one transaction which reaches the qualifying amount: Cay v R  VSCA 2010. The higher maximum penalty does not compel a sentencing judge to increase any individual sentence; further, where an offence is a CCE offence, the individual sentence imposed for that offence should not be automatically increased by virtue of there being a greater maximum penalty for that offence; a judge increasing an individual sentence imposed on a CCE offence must explain the basis for doing so: Shiel v R  VSCA 359
COURT INDICATION OF SENTENCE IF PLEA OF GUILTY OR OFFER OF PLEA OF GUILTY
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  VSCA 343.
When considering whether a delay requires the element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control over the length of that delay. Nguyen v R  VSCA 18; Arthars v R  VSCA 258; R v Merrett  VSCA 1, (2007) 14 VR 39; R v Tiburcy  VSCA 244, (2006) 166 A Crim R 291. 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: Crouch (a pseudonym) v The Queen  VSCA 30; DPP v Toomey  VSCA 90.
providing it is more than a completely speculative possibility, is a proper matter for consideration in sentencing; it may mean that the burden of imprisonment will be greater for that person and be viewed as a serious punishing consequence of the offending: Matamata v R  VSCA 253; Schneider v R  VSCA 76; Guden v R  VSCA 196, (2010) 28 VR 288.
DEPRIVED OR TRAUMATIC BACKGROUND
may be relevant in different ways to the different purposes of sentencing. It may be viewed as reducing the offender’s moral culpability requiring some moderation of the purposes of deterrence and denunciation. On the other hand, it may mean that appropriate weight be given in sentencing to the purpose of community protection: Ellis v R  VSCA 229; Lockyer (a pseudonym) v R  VSCA 321; Dieu Chol v R  VSCA 252; Bugmy v R  HCA 37, (2013) 249 CLR 571. Offender a victim of child abuse: GEM v R  VSCA 168; Bourne v R  VSCA 159.
Drug addiction does not of itself necessarily call for a lesser sentence than otherwise appropriate. The sentence has to reflect the seriousness of the crime. Denunciation and general deterrence assume particular importance as purposes. The extent to which a decision to experiment with drugs has been freely made bears upon the moral culpability of the offender who commits a crime as a consequence of addiction. Age is relevant. With adults, despair and low self-regard may play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse. An addiction may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated: Mohtadi v R  VSCA 238; Mourkakos v R  VSCA 26; R v Koumis  VSCA 84, (2008) 18 VR 434; R v McKee  VSCA 16, (2003) 138 A Crim R 88.
It is not relevant for the court to consider the harmfulness, as a general matter, of the drug in question: Haddara v R  VSCA 168; Trajkovski v R  VSCA 170; R v Pidoto  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  HCA 15, (2008) 234 CLR 143.
For sentencing practice in offences of trafficking offence in a commercial quantity: Fernando v R  VSCA 208; Gregory (a pseudonym) v R  VSCA 151.
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: R v Doble  VSCA 47; R v Wylie  VR 21. There is comparable provision for cultivation s.72(1). There is provision for lenient sentence for small quantity first offenders: s.76.
Example of combined Imprisonment and Community Corrections Order with conditions requiring assessment and treatment for drug abuse or dependency: El Achkar v R  VSCA 209.
On drug treatment orders and Drug Court of Magistrates' Court: Sentencing Act ss.18X-18ZS.
Sentencing Advisory Council 2015 Major Drug Offences: Current Sentencing Practices (pdf).
The sentencing purposes of denunciation, specific deterrence and general deterrence are important in sentencing perpetrators of family violence (domestic violence): Kalala v R  VSCA 223; Portelli v R  VSCA 159; DPP v Meyers  VSCA 314; Pasinis v R  VSCA 97. Such offending will attract even harsher penalties where it involves the breach of an order which exists for a victim's protection: Filiz v R  VSCA 212. Current sentencing practices for offences involving domestic violence may be seen to depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations: R v Kilic  HCA 48, (2016) 91 ALJR 131.
FORFEITURE OF PROPERTY
The fact that property acquired 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  VSCA 183; R v Tezer  VSCA 123; R v Tabone  VSCA 238; R v Yacoub  VSCA 203.
FUTURE EXECUTIVE POLICY OR ACTION
not relevant to sentence: Sentencing Act s.5(2AA)(a); Morgan v R  VSCA 33; R v Roadley  VICSC 576, (1990) 51 A Crim R 336; Shrestha v R  HCA 26, (1991) 173 CLR 48.
The fact that an offender was motivated to the commission of the crimes by an addiction to gambling will usually be a relevant, and may be an important, consideration for a judge sentencing the offender but it will be a rare case where an offender can properly call for mitigation of penalty on the ground that the crime was committed to feed a gambling addiction: R v Cusack  VSCA 207; R v Grossi  VSCA 51, (2008) 23 VR 500; R v Petrovic  VSCA 95.
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: Cross v R  VSCA 310; Trinh v R  VSCA 307; El-Hage v R  VSCA 309; Markovic v R  VSCA 105, (2010) A Crim R 510.
Sentencing Act sections 18A-18P: Buckley v R  HCA 7, (2006) 224 ALR 416; R v Davies  VSCA 90; R v Moffatt  2 VR 229. Review: s.18M; Carolan v R  VSCA 167.
INFORMING AND 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: Levy v R  VSCA 44; R v Kohunui  VSCA 31; R v Koumis  VSCA 84, (2008) 18 VR 434. Assistance may be in unrelated offence: R v ZMN  VSCA 140, (2002) 4 VR 537. A substantial discount may be given notwithstanding that the assistance given did not objectively turn out to be effective: R v Freeman  VSCA 37, (2001) 120 A Crim R 398. 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 Sadler  VSCA 206 and as to DPP appeal upon failure to fulfil undertaking, see Criminal Procedure Act ss.260-262; DPP v Briggs  VSCA 82; DPP v S (No 2)  VSCA 127; DPP v Kolalich  VSCA 110; DPP v Stevens  VSCA 34, (2004) 144 A Crim R 489. See also R v Crossley  VSCA 134; R v Johnston  VSCA 133.
On methods by which sentencing remarks in this context may strike a balance between the need to be transparent and accountable and the need to avoid compromising the offender’s safety and the efficacy of ongoing criminal investigations, see Haamid (a pseudonym) v R  VSCA 330.
LOSS OF CAREER
DPP v Ellis  VSCA 105, (2005) 11 VR 287; Ryan v R  HCA 21, (2001) 206 CLR 267.
MANDATORY CUSTODIAL ORDERS
There are complex Sentencing Act provisions mainly concerning major crimes of violence, child sexual abuse, drugs and terrorism. The legislation does not here employ the term mandatory, though commentators sometimes do. They are not mandatory in the strictest sense because some judicial discretion is left, though it is very limited. Section 5(2G) requires custodial order mandatory for category 1 offences, subject to narrow exceptions stated by s.5(2GA). Section s.5(2H) makes custodial order mandatory for category 2 offences subject to exceptions the main one of which is where there are substantial and compelling circumstances that are exceptional and rare and that justify not doing so, see further s.5(2I). The categories are stated by s.3.
OFFENDING ON BAIL
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: Djordjuc v R  VSCA 227; R v Sebborn  VSCA 200: cf with s.16(3B).
PRE-SENTENCE DETENTION AND DEAD TIME IN CUSTODY
Sentencing Act s.18; Pang v R  VSCA 56. 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. It also extends to time held in custody before trial etc which is doubly warranted i.e. 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  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: Thurlow v R  VSCA 71; Jojic v R  VSCA 77; Khayre v R  VSCA 286; Karpinski v R  VSCA 94, (2011) 32 VR 85; R v Harvey  VSCA 127; R v Renzella  VICSC 58,  2 VR 88. It is not by a declaration, but by an appropriate reduction in head sentence and non-parole period: R v Stares  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  VSCA 129; R v Smith  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  VSCA 49, (2007) 15 VR 501. 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  VSCA 283; R v Scholes  VSCA 303.
Immigration detention is not this kind of pre-sentence detention but it is to be taken into account in broad and practical way: Sahnitanandan v R  VSCA 115.
PREVIOUS AND SUBSEQUENT CONVICTIONS
Criminal Procedure Act ss. 3, 78, 245; Sentencing Act s.115. Previous convictions also include previous findings of guilt. For the general relevance of previous convictions, see R v Wilson  VicLawR 31,  VLR 199. In Veen v R (No 2)  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: e.g. R v Ponton  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: e.g. Sentencing Act ss.5 (2), 6 (a), 11(1), 32(2); DPP v Rongonui  VSCA 274. Of these s. 6 (a) "previous findings of guilt or convictions of the offender" concerning character is by Alexandros v Birchell  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 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: R v Kane  VicRp 90,  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  VicRp 55,  VR 466.
a matter of mitigation: Cameron v R  HCA 6, (2002) 209 CLR 339; CD v R  VSCA 95; Va v R  VSCA 426; Davy v R  VSCA 98; Lunt v R  VSCA 56.
The ceiling principle is that ordinarily a successful appellant should not receive a longer sentence after conviction on a re-trial than at the original trial: RHMcL v R  HCA 46, (2000) 203 CLR 45; Murdoch (a pseudonym) v R  VSCA 272; DPP v Short  VSCA 120; R v Chen  VicRp 64;  2 VR 139.
RESTORATIVE JUSTICE AND THERAPEUTIC JURISPRUDENCE
These concepts are expressly referred to by Magistrates Courts Act s.5 in connection with assigning Magistrates to the Neighbourhood Justice Division. There is no displacement of the Sentencing Act and its principles.
The Neighbourhood Justice Centre states that it seeks to apply a restorative justice approach in its everyday operation. It adopts a statement that restorative justice is a theory of justice that emphasizes repairing the harm caused by criminal behaviour; it is best accomplished when the parties themselves meet co-operatively to decide how to do this. It is said "The whole underpinning of therapeutic jurisprudence is to actually deal with those fundamental underlying causes of offending. If you deal with those issues - the housing issues, the mental health issues, the drug and alcohol issues - then you will affect the offending behaviour". See further at www.neighbourhoodjustice.vic.gov.au. See also Children, Youth and Families Act s.520A.
REVEALING OWN OFFENDING
which otherwise may not have been detected: Ryan v R  HCA 21, (2001) 206 CLR 267; Sharman (a pseudonym) v R  VSCA 241; Latina v R  VSCA 102; DPC v R  VSCA 395; R v Doran  VSCA 271.
SERIOUS SEXUAL OFFENDERS, SERIOUS VIOLENT OFFENDERS, SERIOUS DRUG OFFENDERS, SERIOUS ARSON OFFENDERS
Sentencing Act ss.6A-6F. There are important sentencing consequences for an offender found to be of one of these defined categories, including that the court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed and may impose a disproportionate sentence.
The relevant offences on an indictment are those after the offender has acquired the serious status: Cardona v R  VSCA 58; R v Fuller-Cust  VSCA 168, (2002) 6 VR 496.
On disproportionate sentence: s.6D; Matheas v R  VSCA 330; R v LD  VSCA 311; R v Tutchell  VSCA 294; R v Prowse  VSCA 287.
Where by s.6E full cumulation prima facie applies, the principle of totality also applies and is given effect typically by orders for partial cumulation: Zhao v R  VSCA 267; Gordon v R  VSCA 343.
SEXUAL OFFENCE REGISTRATION
Sex Offences Registration Act; R v Cheetham  VSCA 126; R v Chan2006] 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: Teryyaki v R  VSCA 120; TP v R  VSCA 166; R v Iles  VSCA 197; R v Van Boxtel  VSCA 175, (2005) 11 VR 258; R v Eliasen  VICSC 357, (1991) 53 A Crim R 391. Need for protection: R v SH  VSCA 83; R v Rostom  VICSC 213,  2 VR 97.
Young offenders, who are under the age of 21 years but beyond Children's Court jurisdiction are subject of various Sentencing Act provisions mainly concerning wider sentencing options. Youth Justice Centre provisions: Sentencing Act ss.32-35.
Young adults, not necessarily young offenders as defined, may have a significant reduction to sentence mainly due to the manner the purposes of sentencing especially rehabilitation tends apply to them, but depends upon kind of offence: May-Jordan v R  VSCA 30; DPP v Ghazi  VSCA 188, (2015) 45 VR 852; Boulton v R  VSCA 342, (2014) 46 VR 308; Azzopardi v R  VSCA 372, (2011) 35 VR 43; DPP v Lawrence  VSCA 154, (2004) 10 VR 125; R v Mills  VICSC 241,  4 VR 235.
Offending as youth sentenced as adult after long delay: Miller v R  VSCA 143; R v Boland  VSCA 242, (2007) 17 VR 143.
Victorian Sentencing Manual
Sentencing Advisory Council
Barrister Victorian Bar (ret)
© Don Just
latest 14 September 2021
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