Criminal division – sentencing

11.2.9 Relevance of risk to offender’s safety while in custody / relevance of protective custody

In York v The Queen [2005] HCA 60 the appellant, who had pleaded guilty to serious drug offences, had cooperated with prosecuting authorities to secure a conviction in relation to a very brutal execution style murder. There was “clear and unchallenged” evidence that the appellant’s life would be endangered in prison. She had been sentenced at first instance to a wholly suspended term of imprisonment because of that risk. On an Attorney-General’s appeal the Queensland Court of Appeal, by majority, re-sentenced the appellant to serve a term of actual imprisonment. The High Court allowed the appellant’s appeal and restored the trial judge’s sentence. In holding that the safety of the prisoner is a relevant sentencing consideration, Mc Hugh J said at [21]-[23]:

[21] “With great respect, the Court of Appeal erred in finding that ‘the risk to a criminal's safety whilst in prison’ was not a consideration that was relevant to whether ‘the otherwise appropriate penalty, namely imprisonment, ought not be imposed’. In fixing an ‘appropriate penalty’, a sentencing judge is entitled to take into account any matter that ensures that, to some extent, the fixing of the sentence ‘discharge[s] the true function of the criminal law and the purposes of punishment’ [Leach (1979) 1 A Crim R 320 at 327] in the instant case. The common law's conception of the "purposes of punishment" is settled. Sentences are imposed to further ‘the public interest’ [Ball (1951) 35 Cr App R 164 at 165] – which may include the rehabilitation of the prisoner – and to enhance the liberty of society by ensuring ‘the protection of society’ [Veen v The Queen [No 2] (1988) 164 CLR 465; Leach (1979) 1 A Crim R 320 at 327; R v Jackway; Ex parte Attorney General [1997] 2 Qd R 277] from the risk of a convicted criminal re-offending [R v Morris (1958) 76 WN (NSW) 40; R v Radich [1954] NZLR 86] or others engaging in similar criminal activity [R v McCowan [1931] St R Qd 149; R v Skeates [1978] Qd R 85; R v McGlynn [1981] Qd R 526; R v Radich [1954] NZLR 86].

[22] The common law's conception of liberty is not limited to ‘liberty in a negative sense’, that is, ‘the absence of interference by others’ [Braithwaite and Pettit, Not Just Deserts: A Republican Theory of Criminal Justice, (1990) at 55].. It extends to a conception of liberty in a ‘positive’ sense, which is ‘exemplified by the condition of citizenship in a free society, a condition under which each is properly safeguarded by the law against the predations of others.’ [op.cit., p.57]. Thus, sentencing judges must impose sentences that are apt, not merely to prevent a convicted criminal from interfering with others, but also to enable the prisoner's rehabilitation so as to resume citizenship in the free society [Duncan v The Queen (1983) 47 ALR 746; Bell (1981) 5 A Crim R 347 at 351-352]. They must seek to ensure that each and every citizen, including a convicted criminal, ‘is properly safeguarded by the law against the predations of others.’ [Braithwaite and Pettit, Not Just Deserts: A Republican Theory of Criminal Justice, (1990) at 57]. That means that a sentencing judge must endeavour not only to protect society from the risk of a convicted criminal re-offending but also to protect the convicted criminal from the risk of other prisoners re-offending while in jail.

[23] The common law's equal concern for the physical safety of each citizen makes it appropriate for a sentencing judge to take into account the grave risk that a convicted criminal could be killed while in jail. What weight should be given to the risk of a prisoner being killed or injured will depend on all the circumstances of the case including the likelihood of its occurrence.”

In R v Bangard [2005] VSCA 313 all 3 members of the Court of Appeal held that the trial judge had been in error in entirely disregarding the fact that the offender was in protective custody as a result of having been assaulted in prison. At [14] Buchanan JA relied on the cases of R. v. Roston [1996] 2 VR 97; R. v. ZNN (2002) 4 VR 537; R. v. Slater (2001) 121 A Crim R 369 at [26]-[29]; R. v. Fraser [2004] VSCA 145 at [15] & R. v. Wilhelm [2005] VSCA 192 at [5] in holding:

“In my view his Honour ought not to have entirely dismissed what was a factor relevant to sentence. It was an administrative arrangement which the courts do take into account as a matter of course in sentencing. The fact that the appellant was unable to predict the duration of the need for his protection did not wholly devalue its relevance.”

Eames JA agreed at [35] and Nettle JA agreed at [38].

On the other hand, in R v Stevens [2009] VSCA 81 Maxwell P, Vincent JA & Hargrave AJA held at [22]-[23] that the circumstances giving rise to the placing of a prisoner in protection are clearly relevant as are the actual restrictions which result [cf R v Males [2007] VSCA 302]. However, the appellant’s placement in protection was attributable to his own past conduct and conformed with his own wishes. Accordingly no significance can be attributed to it when considering the sentence to be imposed.

11.2.10 Effect of forgiveness by the victim

By s.5(2)(da) of the Sentencing Act 1991 the sentencing judge must have regard to “the personal circumstances of the victim of the offence” and by s.5(2)(db) the judge must have regard to “any injury, loss or damage resulting directly from the offence”. In R v Skura [2004] VSCA 53 the appellant, who had been found guilty of incitement to murder her husband, was the beneficiary of a very supportive victim impact statement from him. At [48] Smith AJA said:

"It may be said that neither of the above provisions change the long-standing position that it has always been relevant for a sentencer to have regard to the impact on the victim: R. v Mallinder (1986) 23 A Crim R 179,183; R. v Webb [1971] VR 147,150. So far as the attitude of the victim to the degree of sentence is concerned, that is generally irrelevant: R. v Pritchard (1973) 57 Cr App R 492, 494. But evidence that the victim has forgiven the offender may indicate that the effects of the offence had not been long-lasting: R v Marasovic [unreported, CCA Vic, 16/2/1982]. It may mean that:

'psychological and mental suffering must be very much less in the circumstances. Accordingly, some mitigation must be seen in that one factor': R v Hutchinson (1994) 15 Cr App R (S) 134,137.

Where the offence occurs in a domestic situation, the attitude of the victim may also be relevant to the question of rehabilitation: R v H (1995) 81 A Crim R 88."

In R v Hester [2007] VSCA 298 at [9] Chernov JA, with whom Vincent JA agreed, said:

“[T]o the extent that a victim impact statement evidences forgiveness or support for the victim those factors must be given appropriate weight: Skura [2004] VSCA [13] (Eames JA). 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: Skura [2004] VSCA 53; R v Wise [2004] VSCA 88; R v Rowley [2007] VSCA 94. Thus, as Smith AJA said in Skura at [48], evidence of forgiveness by the victim may indicate that the consequences of the offence on the victim have not been long-term or debilitating, thereby affording some mitigation: Furthermore, particularly ‘[w]here the offence occurs in a domestic situation, the attitude of the victim may be relevant to the question of rehabilitation’.”

While agreeing generally with Chernov JA, Neave JA added a cautionary note at [27]:

“It is a common pattern of behaviour for perpetrators of domestic violence to express penitence and persuade their victims to reconcile. For a number of complex reasons which have been discussed in the social science literature dealing with this issue [see the Victorian Law Reform Commission, Review of Family Violence Laws Report (2006) 32 36; and Shirley Patton, Pathways: How Women Leave Violent Men (2003) 36] many victims are assaulted on several occasions before they summon the courage to leave an abusive relationship. Often they require considerable support in order to do so. In my view, these are matters which should be given considerable weight by a judge who is considering the weight that should be given to a victim impact statement made by a person who has been the victim of domestic violence. I therefore agree with the comments of Simpson JA in R v Glen (Unreported, NSW Court of Criminal Appeal, Grove & Simpson JJA and Loveday AJ, 19 December 1994) at p.4 that evidence of forgiveness of the victim of domestic violence should be treated with extreme caution.”

In R v Sa [2004] VSCA 182 the appellant, a 28 year old Australian citizen of Samoan descent, had pleaded guilty to one count of aggravated burglary and one count of intentionally causing serious injury to his 47 year old cousin, also of Samoan descent. One of the grounds of the appeal was that the trial judge had not given sufficient weight to the victim's forgiveness of the appellant. In rejecting that ground Callaway JA said at [5]: "The community and not just the immediate victim of an offence, has a right to peace and order: Attorney-General v. Tichy (1982) 30 SASR 84 at 93 per Wells J." And Eames JA, with whom Callaway & Buchanan JJA agreed, said:

"[38] The statement of his Honour that the attitude of the victim could not 'govern' the sentencing approach was consistent with the principles stated in Skura. In the present case, however, there was good reason why the judge would be cautious in evaluating the weight to be given to the evidence of the victim. In the first place, he was not the only victim of the appellant’s crime; the two children also witnessed what must have been a horrifying incident, although there was no evidence of any long lasting adverse effects on the children. Crimes of violence frequently create alarm and distress to people other than the immediate victims, and in assessing the need for general deterrence a sentencing judge must have regard to the impact of crime more broadly than merely upon the immediate victim.

[39] An additional reason for being cautious about the weight to be given to the evidence of the victim related to the nature of [his] evidence. One reason why courts do not allow the wishes of the victim to determine the sentence to be imposed is that the victim might not always be able to assess what is in his or her own best interest. For example, when considering what weight to give to factors of general and specific deterrence in a case of a woman assaulted by her partner a sentencing judge would be minded to have regard to the imperatives which might motivate a battered wife to plead for leniency towards her attacker. In such circumstances the sentencing judge might be cautious about giving undue weight to such a plea for leniency.

[40] In the present case, the victim was himself in a difficult position among other members of the Samoan community, and his acceptance of the apology might have been motivated by a range of considerations.'

In R v LFJ [2009] VSCA 134 Maxwell P & Kellam JA approved the sentencing judge’s reliance on dicta of the NSW Court of Criminal Appeal in R v Rowe (1996) 89 A Crim R 467 when holding at [15]: “The importance of general deterrence in such cases [viz. incest] overrides any minor relevance that evidence of forgiveness might have.”
In R v Wise [2004] VSCA 88 the 34 year old appellant had stabbed his 17 year old partner. She gave evidence that she loved the appellant and wanted him home with her and their son and that she believed herself to be at fault with respect to the assault because she had been suffering post-natal depression and amphetamine psychosis. Eames JA said at [36]: "The support offered to the appellant by his victim is also a significant factor when assessing his prospects of rehabilitation. It is, of course, an unfortunate fact that victims of violent, drunken partners, to their own cost, often seek to forgive their partner and to resume a dangerous relationship. The courts must offer protection even when the potential victims deny its need, but the forgiveness of an offender by a victim of crime and the positive effect that has on prospects of rehabilitation is not an irrelevant factor in sentencing."
See also R v Lidonnici [2007] VSC 3 at [20]; The Queen v CLP [2008] VSCA 113; DPP v Marsh [2011] VSCA 6; R v Koljatic-Bestel [2011] VSC 124 at [22]-[24].