Criminal division – sentencing

c) Whether the deception involved some other person, either as an accomplice or as a victim;

d) Whether there was any threat or violence involved;

e) Whether the offence was spontaneous or premeditated;

f) Whether the deception resulted in the deception of the court or the creation of false public records and, if so, the extent and consequences of that.

Nettle JA said at [7] that judged by reference to these criteria the accused’s offence (of providing false alibis to help a person avoid detection for drug trafficking activities) was relatively serious, albeit falling well short of the most serious category of cases. His Honour imposed a wholly suspended sentence of IMP 2.5y.

See also DPP v Thymiopoulos [2012] VSCA 220; R v Pantazis & Ors [2012] VSCA 160; Zotos v The Queen [2014] VSCA 324.

11.2.31 Sentencing for property damage

In DPP v Eade [2012] VSCA 142 the accused, Mr Eade & Mr Vanstone, had pleaded guilty to one count of arson and one count of criminal damage and had been sentenced to 2y4m youth detention on the first count and 3m concurrent youth detention on the second count. After having drunk bourbon and coke all evening, they broke into the heritage-listed Camperdown Milk and Cheese Factory and lit the plastic wrapping on some milk crates on the floor of the factory. They then went to the next door dairy where they gained entry by smashing a window with a metal pole. Subsequently the fire destroyed the Milk and Cheese Factory. However, it was common ground that the accused had not intended to destroy the building. The Court of Appeal held that on the uncontested evidence as to their state of mind, the accused could not have been convicted of intentionally destroying the factory. At [16]-[18] Maxwell P, Neave JA & Lasry AJA analysed the nature of the offence of arson as follows:

[16] “Arson is a sub-category of the offence of intentionally destroying or damaging property, under s.197 of the Crimes Act 1958. Section 197(1) provides:

‘A person who intentionally and without lawful excuse destroys or damages any property belonging to another or to himself and another shall be guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).’

Section 197(6) provides:

‘An offence against this section committed by destroying or damaging property by fire shall be charged as arson.’

[17] The element of intention is dealt with exhaustively by s.197(4), which provides:

‘For the purposes of subsections (1) and (2) a person who destroys or damages property shall be taken as doing so intentionally if, but only if-

(a) his purpose or one of his purposes is to destroy or damage property; or

(b) he knows or believes that his conduct is more likely than not to result in destruction of or damage to property.’

[18] This subsection makes clear that proof of the offence depends on showing that the offender had turned his/her mind to the likely destruction or damage of property, either because that was his/her conscious purpose or because (s)he was aware that destruction or damage was ‘more likely than not to result’. Of these alternatives, only the first is what would ordinarily be understood as intentional conduct. The second alternative is a statutory form of recklessness: cf. The Queen v Crabbe (1985) 156 CLR 464, 469-70; see R v Stephenson [1979] 1 QB 695 (CA). As the Director’s submission noted, the subsection does not incorporate any concept of negligence.”

The accused had already been in youth detention for 4m. The Court of Appeal held that the presentments be amended to reflect the actual offence which the accused committed, namely the intentional destruction of milk crates by fire. At [2] & [58] the Court held that though the unintended consequences of their conduct were very serious, the actual offence was one of very low culpability and no further penalty was warranted. The appeal was allowed and the appellants were convicted and discharged pursuant to s.73 of the Sentencing Act 1991.

11.3 Some mechanics of sentencing

11.3.1 “Instinctive synthesis” or “two-tiered approach”

In recent years there has been a great deal of high-level judicial debate as to whether a sentencing judge must impose a sentence which represents his or her “instinctive synthesis” of all of the various aspects involved in the sentencing process or whether, on the other hand, he or she is entitled to adopt a “two-tiered” approach, namely first to determine what would be a proper sentence absent mitigating factors and then reducing that sentence by reference to such mitigating factors as may exist. The distinction was discussed by the Court of Appeal in R v McIntosh [2005] VSCA 106 at [25] where the “two-tiered” approach was described as “impermissible”. The Court of Appeal continued:

“It seems clear enough that…a two-tiered approach to the imposition of the sentence effectively constitutes sentencing error in this jurisdiction. The proper approach that must be adopted in this jurisdiction is based on the instinctive or intuitive synthesis, as that concept was explained in R v Williscroft, Weston, Woodley and Robinson [1975] VR 292 at 300-301 and affirmed in R v Young [1990] VR 951 (and in later decisions of this Court).”

In R v Young [1990] VR 951 the sentencing judge determined the sentence which was proportionate to the gravity of each of the charges. Then, having regard to other considerations, including factors peculiar to the particular offender such as previous convictions, he determined the actual sentence to be imposed. In their joint judgment Young CJ, Crockett & Nathan JJ disapproved this approach, holding at p.960 that “its adoption would be likely to lead either to the imposition of inadequate sentences or to injustice”. Their Honours continued:

“What is a sentence proportionate to an offence is a matter of discretion and there must in most cases be a range of sentences open to a sentencing judge which are proportionate to the offence. There cannot be said to be a sentence which is the proportionate sentence…Thus to attempt to fix a proportionate sentence before fixing the sentence to be imposed will only multiply the possibilities of error.”

In so holding, the Court of Criminal Appeal in R v Young approved and applied dicta of Adam & Crockett JJ in their majority judgment in R v Williscroft, Weston, Woodley and Robinson [1975] VR 292 at 300:

“Now, ultimately every sentence imposed represents the sentencing judge’s instinctive synthesis of all the various aspects involved in the punitive process. Moreover, in our view, it is profitless (as it was thought to be in Kane’s Case [1974] VR 759 at 764-766) to attempt to allot to the various considerations their proper part in the assessment of the particular punishments presently under examination.”

See also R v Holder [1983] 3 NSWLR 245 per Priestley JA at p.270; DPP v Rose, DPP v Miller [2005] VSCA 275 at [29].

Following R v Young, Victorian courts have continued to reject the two-stage approach {see e.g. R v Nagy [1992] 1 VR 637; R v Li [1998] 1 VR 637; R v Ken Ha Khanh Phong [2005] VSCA 149 at [84]} save, of course, for situations where a statute required specific identification of the extent of an adjustment to a sentence, as for instance in s.21E of the Crimes Act (Cth).

In Markarian v The Queen [2005] HCA 25, a decision handed down on 18/05/2005, the High Court re-entered the debate in earnest in relation to a sentence handed down by the NSW District Court and subsequently increased on appeal by the NSW Court of Criminal Appeal. In their joint judgment Gleeson CJ, Gummow, Hayne and Callinan JJ - while noting that “identifying ‘instinctive synthesis’ and ‘transparency’ as antonyms in this debate misdescribes the area for debate” – nevertheless adopted the majority view in Wong (2001) 207 CLR 584 and the minority view in AB v The Queen (1999) 198 CLR 111 that the adoption of a two-stage approach to sentencing was wrong. In his judgment at [50]-[68] McHugh J endorsed his earlier minority view in AB v The Queen, strongly preferring the ‘instinctive synthesis’ approach. At [35]-[39] Gleeson CJ, Gummow, Hayne and Callinan JJ set out in detail their reasons for endorsing Wong:

[35] “The appellant's next submission invited the Court to reject sequential or two-tiered approaches to sentencing taking as their starting point the maximum penalty available, and to state as a universal rule to the extent that legislation does not otherwise dictate, that a process of instinctive synthesis is the one which sentencing courts should adopt.

[36] No universal rules can be stated in those terms. As was pointed out earlier, much turns on what is meant by a ‘sequential or two-tiered’ approach and, likewise, the ‘process of instinctive synthesis’ may wrongly be understood as denying the requirement that a sentencer give reasons for the sentence passed. So, too, identifying ‘instinctive synthesis’ and ‘transparency’ as antonyms in this debate misdescribes the area for debate.

[37] In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed. As Gaudron, Gummow and Hayne JJ said in Wong (2001) 207 CLR 584 at 611-612 [74]-[76]:

‘Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.

It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.

In R v Thomson (2000) 49 NSWLR 383, Spigelman CJ reviewed the state of the authorities in Australia that deal with the 'two-stage' approach of arriving at a sentence, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen (1999) 198 CLR 111 expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to 'discount' a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher (1991) 23 NSWLR 220 when he said:

'It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.'

So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.’

[38] Following Wong benches of five judges in New South Wales in R v Sharma (2002) 54 NSWLR 300 and R v Whyte (2002) 55 NSWLR 252 and in South Australia in R v Place (2002) 81 SASR 395, have sought to state general sentencing principles to be applied in those States. In the first two of these cases the Court of Criminal Appeal of New South Wales endorsed an approach of instinctive synthesis as a general rule but also accepted as a qualification that departure from it may be justified to allow for separate consideration of the objective circumstances of the crime. On occasions intermediate courts of appeal have however refused to find error where a staged approach has been undertaken. In Place at 424-425 the Court of Criminal Appeal of South Australia (Doyle CJ, Prior, Lander, Martin and Gray JJ) although it rejected a staged approach in general, made it clear that a reduction of penalty for a plea of guilty should be identified. This approach, their Honours held, was in conformity with the relevant sentencing legislation of South Australia.

[39] Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of ‘instinctive synthesis’, as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression ‘instinctive synthesis’ may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.”

Although agreeing with the orders proposed by the other members of the Court, Kirby J was strongly in dissent on the “minor judicial controversy” on the proper approach to sentencing. His Honour had previously suggested that “some of the debates over the two-stage approach and instinctive or intuitive synthesis may be semantic, not substantive”: see e.g. Cameron (2002) 209 CLR 339 at 362. To that extent he agreed with what was said in paragraph [36] of the joint reasons. But a sticking point remained, his Honour being unable at [132] to “accept a Williscroft ‘instinct’ or a Young prohibition on two-stage reasoning as sentencing principles, where a more transparent course is available, appropriate and more conformable with modern legal principles governing the deployment of public power”. At [124] Kirby J stated:

“Where so many judges in Australia, experienced in criminal trials and in sentencing, have expressed their disagreement with the approaches derived from Williscroft and Young, it is undesirable, in my respectful opinion, for this Court (even in the present watered-down version) to impose those authorities on sentencing judges throughout the Commonwealth.”

And at [139] his Honour concluded:

“So analysed, the residue of this judicial debate over twenty years – in this Court over the past five years – is revealed for what it is. Australian judges must now express their obeisance to an ‘instinctive synthesis’ as the explanation of their sentencing outcomes. It might be prudent for them to avoid mention of ‘two stages’ or of mathematics. Yet in many instances (and increasingly by statutory prescription) if judges do so, no error of sentencing principle will have occurred. Such mention may, in fact, sometimes even be required. The lofty and absolute prescriptions of Williscroft and Young remain in place like the two vast and trunkless legs of stone of Ozymandias. But, with all respect, they are now beginning to look just as lifeless. One day, I expect that travellers to the antique land of this part of the law of sentencing will walk this way without knowing that the two proscriptions once were there.”
In R v DCP [2006] VSCA 2 two members of the Court gave cautious support to a two-tier approach in very limited circumstances. At [36] Callaway JA said: “It is usually unhelpful to speculate as to what a sentence would have been absent a plea of guilty, but there are some cases where such an argument may with due caution be permissibly advanced. See, for example, R. v. Monardo [2005] VSCA 115 at [4].” And at Vincent JA said:

“Like Callaway JA, I acknowledge that whilst there may be some situations in which assistance can be derived from a consideration of the sentence that would have been appropriate in the absence of mitigating circumstances, to embark upon such an exercise would rarely be helpful and, in any event, would need to be approached with care. In this case, what counsel for the appellant endeavoured to do was to ascribe to the mitigating factors a particular value measured in years of imprisonment and say that, allowing for them, a sentence of specific length would otherwise have been ordered. As Chernov, J.A. pointed out, to do so runs quite counter to the approach which has been adopted in this Court for a number of years.”

In R v Flaherty (No.2) [2008] VSC 270 at [8] Kaye J held that it was not the intention of s.6AAA of the Sentencing Act 1991 [as amended] – which like s.362A of the CYFA requires a court to quantify a sentencing discount for a plea of guilty in certain circumstances – “to abrogate, in its entirety, the fundamental approach to sentencing, as an ‘instinctive synthesis’ of all relevant circumstances”. However, his Honour went on to discuss at [9]-[15] the practical difficulties of applying s.6AAA while still holding true to the concept of an “instinctive synthesis” in sentencing.
Other cases involving a discussion of instinctive synthesis include R v Bangard [2005] VSCA 313 at [20] per Eames JA; R v Mladenov [2006] VSCA 246 at [4]-[5] per King AJA with whom Ashley JA & Smith AJA agreed; R v Eastham [2008] VSCA 67 at [11]-[12] per Buchanan JA with whom Neave JA & Lasry AJA agreed; R v Johnston [2008] VSCA 133 at [16] per Nettle JA with whom Buchanan & Ashley JJA agreed; R v Hasan [2010] VSCA 352 at [47] per Maxwell P, Redlich & Harper JJA; R v Trajkovski & Waters [2011] VSCA 170 at [44]-[93] per Weinberg JA (with whom Ashley JA & Hargrave AJA agreed); Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [28].

11.3.2 Use of sentencing statistics and sentencing snapshots

In DPP v Ross (2006) 166 A Crim R 97, 104 Maxwell P said that consistency “in sentencing is absolutely fundamental to public confidence in the criminal justice system. It is also a basic requirement of the rule of law.” It is therefore legitimate to consider the sentences imposed in other cases: see DPP v TY (No 3) [2007] VSC 489 at [66] per Bell J; Shields v The Queen [2011] VSCA 386 at [40] per Robson AJA.

In a schedule to the judgment of the Court of Appeal in DPP v OPQ [2012] VSCA 115 there are two tables detailing respectively:

• 
  six sentences imposed for possession and attempted possession of a marketable quantity of a border controlled drug contrary to s.307.6(1) of the Cth Criminal Code; and
  
• 
  24 sentences imposed for importation and attempted importation of a marketable quantity of a border controlled drug contrary to s.307.2(1) of the Cth Criminal Code
  

Neave JA (with whom Maxwell ACJ specifically agreed) stated at [39] that the “provision of information of this kind is particularly helpful when it is claimed that a sentence falls outside the range of sentences which can be imposed for a particular offence.”

However, in R v McIntosh [2005] VSCA 106 the Court of Appeal sounded a note of caution in relation to the use of sentencing statistics in determining the appropriate sentence in any particular case, and specifically in that case in determining the appropriate sentence on a count of attempted murder: At [10] Chernov JA, with whom Batt & Vincent JJA agreed, said:

“It has been often said by this Court that past sentences and sentencing statistics are, at best, only a guide because ‘no two cases are the same and ... the circumstances of particular offences and particular offenders are infinitely various, especially where multiple offences ... are concerned’: see R v Young [1990] VR 951 at 955 per Young CJ, Crockett and Nathan JJ. And, as Callaway JA said in R v. Adajian [1999] VSCA 105 at [28]: ‘Sentences are not precedents which must be applied unless they can be distinguished, and the paramount duty of the court is to do justice in individual cases’. Moreover, the time is long gone since there has been any serious suggestion that there is a specific practical ceiling on the period of imprisonment that may be ordered for this crime: R v Kasulaitis [1998] VR 224 at 233 to 234, per Batt JA, with whom Phillips CJ and Callaway JA agreed. As the learned President said in R v. Boaza [1999] VSCA 126 at [48]: ‘There are no 'benchmarks' setting binding limits for the crime of attempted murder...’ This is unsurprising given that, as I have said, each case must be decided on its own facts and given the serious nature of the offence, in respect of which the maximum custodial sentence has been raised from 20 to 25 years.”

In DPP v Ralph [2007] VSCA 305 at [56] Coldrey AJA (with whom Maxwell P & Cavanough AJA agreed) said in sentencing the applicant for intentionally causing serious injury:

“The use of sentencing statistics of this nature provides a crude tool by which to measure the appropriateness of any individual sentence. It is trite to observe that such statistics provide no indication of the facts and circumstances relating to a specific offence and specific offender. In this regard, such material is of even more limited assistance than that sought to be derived by a comparison of individual cases. However, what those statistics make clear is that the sentencing range for this offence during the period cited varied from immediate custodial sentences to suspended sentences, intensive correction orders and community based orders. See DPP v Fevaleaki (2006) 165 A Crim R 524; [2006] VSCA 212 at [19]-[20].”

In R v Bangard (2005) 13 VR 146; [2005] VSCA 313 Buchanan & Nettle JJA also referred to the limited value of sentencing statistics but were a little more positive. At [39]-[40] Nettle JA said:

“Apart from the inherent limitations of sentencing statistics [R v Simon Milne Snowden Unreported, Appeal Division, 22/3/94, at 6; R v Papazisis and Bird (1991) 51 A Crim R. 242 at 245; Fox & Freiberg, Sentencing, State and Federal Law in Victoria, 2^nd ed. at [12.214]], those which are put forward imply that a number of judges in recent years have given insufficient weight to the increase in the maximum sentence for manslaughter, from 15 years to 20 years, which was implemented with effect from September 1997…So to say is not to ignore the importance of consistency in sentencing. If a sentence is higher than any other in statistics furnished to a court of criminal appeal, it goes without saying that it is a matter which calls for scrutiny [The Queen v Bugmy (1990) 169 CLR 525 at 538.] That is why trial judges should and do take sentencing statistics into account. But if upon analysis a sentence accommodates all of the criteria to which a sentencing judge must have regard, including the maximum sentence set by Parliament, the fact that the sentence may range above the current practice is not a basis to disturb it. [cf. R v Josefski [2005] VSCA 265 at [83], per Chernov JA].

At [11] Buchanan JA said:

“Sentencing statistics may be of limited value, for each sentence involves a unique synthesis of diverse factors stemming from the circumstances of the crime and the character and antecedents of the offender. Nevertheless, statistics may provide guidance by showing general trends in sentencing. In R. v. Giordano [1998] 1 VR 544 at 549 Winneke, P. said:

‘However, a general overview of the sentences imposed by courts over a substantial period for offences of a similar character must inevitably play its part in provoking the instinctive reaction of any court which is asked to consider whether a particular sentence is manifestly excessive or manifestly inadequate.’

His Honour was speaking of appellate courts, but in my view sentencing statistics may equally benefit judges imposing sentences at first instance.”

However, at [27]-[29] Eames JA spoke positively of the statistical analysis of 93 sentences for manslaughter which had been produced by counsel on the appeal: “I found the material very helpful, albeit in a ‘broad-brush’ way.” And at [31]-[32] & [34] His Honour gave unqualified approval to a trial judge’s use of statistics:

[31] “Computer data bases such as those of the Victorian Sentencing Manual (available to the public on the website of the Judicial College of Victoria) and of the Sentencing Advisory Council are very valuable research tools. The website of the Sentencing Advisory Council is also linked to a number of additional sites, both in Victoria and nationally, which also provide statistical information concerning sentencing.

[32] It is to be borne in mind that upon reserving to consider a sentencing decision a judge can conduct his or her own research on sentencing practices whether by consulting sentencing text books, decided cases or by searching relevant data bases…

[34] In my opinion the Courts should not discourage counsel from providing such practical assistance as [counsel] has demonstrated could have been provided to the judge in this case. The judge made it clear that he was inviting assistance in the exercise of his task; he was not inviting counsel to usurp his role.”

In R v Hasan [2010] VSCA 352 at [46] Maxwell P, Redlich & Harper JJA conceded that sentencing statistics and sentencing snapshots have “a part to play; but they must be used with their limitations in mind.” At [45]-[47] their Honours explained why and also explained how such statistics and snapshots are to be used and how they dovetail with the “instinctive synthesis”:

[45] “Tables or graphs showing average or mean sentences across the full spectrum from the statutory maximum to nothing, while important, will also be of limited use because they cannot of themselves identify the appropriate range for an offence of the particular gravity of that for which the particular offender is to be punished. Indeed, their limitations are conveyed by the description given to them by the Sentencing Advisory Council of Victoria as ‘snapshots’.

[46] The tables, therefore, have a part to play; but they must be used with their limitations in mind. As to the limitations in using comparable cases, this Court said in Hudson v The Queen [2010] VSCA 332 at [32]:

‘To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a “like” case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, recourse to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of “like” cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.’

[47] Following an appropriate study of comparable cases, together with the application of the relevant sentencing principles, the judge will be in a position to identify the boundaries marking the range within which the particular sentence must fall. Up to this point, the exercise will have been a largely objective one, but with an element of the subjective introduced by the process of instinctive synthesis without which the case for which, and the offender upon whom, the sentence is to be imposed cannot be assessed. Beyond the point at which the boundaries are identified, however, the judge must exercise his or her discretion in deciding where within the range the particular sentence should fall.”

In R v McNeill & Brown/Piggott [2008] VSCA 190 at [130] Buchanan JA reiterated his qualified approval of the use of sentencing statistics and explained how they could most appropriately be used:

“In my opinion, counsel can best assist a sentencing judge, not by advancing what they consider to be sentences at the lower or upper limits of a sound sentencing discretion, but by making submissions as to the existence and nature of aggravating and mitigating circumstances and providing some guide to the manner in which other judges have approached like cases by supplying sentencing statistics and citing passages from decided cases which bear upon aspects of the instant case. The synthesis of the raw material is the task of the sentencing judge, not counsel.”

In their joint judgment in R v AB (No 2) [2008] VSCA 39 at [42] Warren CJ, Maxwell P & Redlich JA were generally supportive of the use of sentencing statistics as an aid to the “instinctive synthesis”:

“Though sentencing statistics have ‘inherent limitations’ {R v Bangard (2005) 13 VR 146. 153 [39] (Nettle JA)} and are of limited assistance {R v Musson [1997] 1 VR 656, 660; DPP v Josefski (2005) 13 VR 85, 105-6 [83] (Chernov JA)}, it is generally accepted now that they provide useful guidance as to general trends in sentencing. Such information must ‘inevitably play its part in provoking the instinctive reaction of any court’ {R v Giordano [1998] 1 VR 544, 549 (Winneke P)}, whether in imposing, or reviewing, a sentence {R v Bangard (2005) 13 VR 146, [11] (Buchanan JA), [23] (Eames JA)}. Such information provides an extremely useful aid in achieving uniformity of sentence for a particular category of crime {R v Zakaria (1984) 12 A Crim R 386, 388 (Crockett J)}.”

However, in R v Rowlands [2007] VSCA 14 at [13] Eames JA outlined some of the limitations of statistics relating to sentencing trends for armed robbery published by the Sentencing Advisory Council and which showed the average head sentence to be 3y 9m and the average non-parole period to be 2y 2m:

“Useful as such statistics are, whether they relate to median or average sentences imposed on offenders, there are limitations to them. They cannot tell us, for example, what would be the sentencing range for persons such as this offender, who could not claim youth in his favour for sentencing and who had multiple very serious prior convictions for violence and dishonesty, which offences in some cases resulted in sentences of imprisonment.”

And in R v Vandenberg [2009] VSCA 9 at [27] Nettle JA was quite scathing about the utility of sentencing statistics:

“Statistical reference to the most common length of actual sentence imposed is seldom much of assistance, and in this case I think largely irrelevant. To state the obvious, each case depends upon its own facts and circumstances and, critically in a case of this kind, upon the effects on the victim of the offence.”

See also R v Joan Mary Walsh [2006] VSCA 87 at [28]-[32] per Neave JA; R v Winter [2006] VSCA 144 at [57] per Maxwell P; R v Detenamo [2007] VSCA 160 at [13]; R v Casey [2008] VSCA 53 at [56]-[60]; R v Parker [2009] VSCA 19 at [44]; Alavy v The Queen [2014] VSCA 25 at [24]; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen [2014] HCA 2.

11.3.3 The Sex Offenders Registration Act 2004 and its relevance to sentencing

The Sex Offenders Registration Act 2004 (Vic) came into operation on 01/10/2004. Section 1(1) states that the purpose of the Act is:

(a) to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time-

(i) to reduce the likelihood that they will re-offend; and

(ii) to facilitate the investigation and prosecution of any future offences that they may commit;

(b) to prevent registered sex offenders working in child-related employment.
By providing for the establishment of a Register of Sex Offenders, the Act requires certain offenders who are, or have been, sentenced for registrable offences, to report specified personal details to police for inclusion in the Register. Such offenders must then report annually to police, unless there is a change in their personal details beforehand, in which case such change must also be reported. Under s.46, failure to comply with any reporting obligations without a reasonable excuse is an offence for which the maximum penalty is level 6 imprisonment (5 years maximum).
The Act has application to both adult and juvenile offenders, albeit to a much more restricted class of juvenile offenders. Save for the uncommon cases referred to in s.6(2) of a corresponding registrable offender or a New South Wales registrable offender, it appears from ss.6-11 that the Act does not apply to a person sentenced under the CYFA, the CYPA or the Sentencing Act 1991 for an offence committed as a child unless-

• 
  the person has been sentenced for a Class 1 or Class 2 offence (listed in Schedules 1 & 2 respectively); and
  
• 
  the Court has imposed a fine, probation, YSO, YAO or detention under the CYFA or CYPA or a sentencing order under the Sentencing Act 1991; and
  
• 
  the Court is satisfied beyond reasonable doubt that the child poses a risk to the sexual safety of one or more persons or of the community; for this purpose it is not necessary that the court be able to identify a risk to particular people, or to a particular class of people.
  

It appears from ss.11(2) & 11(3) that a court sentencing a person for a Class 1 or Class 2 offence committed as a child has a discretion whether or not to make a sex offender registration order but may make such an order only if it is satisfied beyond reasonable doubt that the child poses a risk to the sexual safety of one or more persons or of the community. An instructive case is Victoria Police v MA [2011] VChC7. The 17 year old offender – who had no prior criminal history – pleaded guilty to assault with intent to rape, stalking and rape, the three offences being committed over a 27 day period. On the charge of rape a magistrate had sentenced him to YJC 9m. In the course of deciding whether MA should be subject to the reporting requirements of the Act, her Honour referred to the decision of the Court of Appeal in RJE v The Secretary to the Department of Justice, Attorney-General for the State of Victoria and Victorian Human Rights Commission [2008] VSCA 265 where Maxwell P & Weinberg JA stated at [16]:

“Predicting whether a particular person will commit a criminal offence in the future is notoriously difficult…the making of such a prediction in a particular case requires expertise in observation and assessment of those who commit offences of a particular type, and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending.”

Her Honour also noted that in RJE at [24] Maxwell P & Weinberg JA had cited with approval dicta of Denning LJ in Miller v Minister of Pensions [1974] 2 All ER 372 at 373-374 in relation to the criminal standard of proof beyond reasonable doubt:

“It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt must not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’, the case is proved beyond reasonable doubt but nothing short of that will suffice.”

Her Honour held that the word “risk” in s.11(3) means “a real or appreciable risk” for the following reasons:

“(1) It is not mandatory for young offenders to be registered. Accordingly, in order to give effect to and not undermine the exercise of a discretion, it must be more than a statistical risk which necessarily arises upon a person having been found guilty of a registrable offence.

(2) Such an interpretation would be consistent with the acknowledgement by Parliament of the rehabilitative prospects of young offenders.”

Applying this test to the evidence – including the evidence of a forensic and clinical psychologist LB – her Honour was “satisfied beyond reasonable doubt that the respondent poses a risk, a real risk, to the sexual safety of the community”. Accordingly she ordered that MA be subject to the reporting requirements of the Act for a period of 7½ years. See also Bowden v The Queen [2013] VSCA 382 at [30]-[54]; Singh v The Queen [2013] VSCA 300 at [44]-[54].
Section 34 of the Act sets the length of reporting period for an adult registrable offender as follows:

(a) 8 years if he or she has only ever been found guilty of a single Class 2 offence; or

(b) 15 years if he or she has only ever been found guilty of a single Class 1 offence or of two Class 2 offences; or

(c) life if he or she has been found guilty of-

• 
  2 or more Class 1 offences; or
  
• 
  a single offence referred to in item 2 of Schedule 1; or
  
• 
  a Class 1 offence and one or more Class 2 offences; or
  
• 
  3 or more Class 2 offences.
  

Section 35 provides that the reporting period for a juvenile registrable offender is half that for an adult (or 7½ years in a case where an adult would be required to report for life).
In DPP v Ellis [2005] VSCA 105 Callaway JA, with whom Batt & Buchanan JJA agreed, said:

[16] “As a general rule…an offender’s reporting obligations under the Sex Offenders Registration Act are irrelevant. Parliament has decided that that persons sentenced for particular offences constitute a class in relation to whom such obligations are appropriate. They are an incident of the sentence. It would unduly burden the sentencing process if judges were required to take them into account, any more than if they were required to take into account other ordinary incidents of the criminal justice system. An exception should be recognized only where the reporting obligations operate with unusual severity on a particular offender. In other words, they are relevant to sentencing only in exceptional circumstances. Like Brooking JA in R v Stevens [1999] VSCA 173 at [10], a case concerned with s.31(5A) of the Sentencing Act, I would be reluctant to see ‘a jurisprudence of exceptional circumstances’ develop for this purpose.

[17] The prohibition on taking part in child-related employment will usually be irrelevant too, but there will be occasions where it should be taken into account. The present case is an example: compare Ryan v R (2001) 206 CLR 267 at 285 [54] per McHugh J. The respondent was a qualified school teacher with some 12 years’ experience who had been actively involved in voluntary activities. The loss of her career and her exclusion from those activities should be taken into account.”

See also R v Fidler [2006] VSCA 17 at [14]-[17] per Charles JA; WBM v Chief Commissioner of Police [2012] VSCA 159.

In Chan v The Queen [2006] VSCA 125 at [17] Nettle JA noted that the regard which a sentencing judge might have to the effects of a sex offenders registration order in determining the requirements of general deterrence and community protection was now foreclosed by s.5(2BC) of the Sentencing Act 1991, enacted after the decision in DPP v Elllis and providing: “In sentencing an offender a court must not have regard to any consequences that may arise under the Sex Offenders Registration Act 2004 from the imposition of the sentence." However, as the Sentencing Act does not directly apply to juveniles sentenced under the CYFA, it may be that the principles in DPP v Ellis are still applicable in the Children’s Court.

11.3.4 Power to direct that time held in detention before trial be reckoned as already served

In ss.18 & 35 of the Sentencing Act 1991 (Vic) a court sentencing a person to imprisonment or YJC pursuant to that Act is given express power to reckon as already served a period during which the person was held in custody before trial in relation to proceedings for any offences for which sentence was passed or proceedings arising from those proceedings.
Sections 411(5) & 413(1) of the CYFA import into the CYFA the powers which a sentencing court has under s.35 of the Sentencing Act when imposing imprisonment or adult YJC. Thus if a court sentences a young person to YRC or YJC under the CYFA, that court has statutory power to reckon as already served a period during which the person was held in custody before trial in relation to proceedings for any offences for which sentence was passed or proceedings arising from those proceedings.
In addition, a court sentencing a young person to YRC or YJC under the CYFA has power, as part of the exercise of a sentencing discretion quite distinct from the s.35 power, to take account, in the defendant’s favour, a period during which he or she was held in custody before trial unless it is wholly unrelated to proceedings for the offences for which sentence is passed.
In R v Arts and Briggs [1998] 2 VR 261 at 264 the Court of Appeal referred with approval to dicta of Lord Bingham of Cornhill CJ in R v Governor of Brockhill Prison; Ex parte Evans [1997] QB 443 at 462 [emphasis added]:

“It has in our experience been the practice to assume that all periods of custody before sentence, other than custody wholly unrelated to the offences for which sentence is passed, will count against the period of the sentence to be served.”

Applying this dictum and dicta from R v Heaney [Court of Appeal, unreported, 27/03/1996] and R v Renzella [1997] 2 VR 88, the Court of Appeal deducted from the head sentence a period that took account of the period of time the appellants’ detention was “doubly warranted”. See also R v Wade [2005] VSCA 276 at [11]-[12]; R v Chimirri [2003] VSCA 45 at [4]; R v Orphanides (2002) 130 A Crim R 403; R v Greenslade [2004] VSCA 213 at [31]; R v Sheen [2005] VSCA 296 at [7]; R v Smith [2006] VSCA 23 at [8]; R v Watts & Black [2007] VSCA 81; R v Black [2007] VSCA 82; R v Harvey [2007] VSCA 127; R v Strezovski [2007] VSCA 260; R v Barrett [2010] VSCA 133 at [39]-[53]; R v Broad [1999] 3 VR 31; DPP v TY [2009] VSCA 226; R v Ciantar and Rose [2010] VSCA 313; R v Wheldon [2011] VSCA 83 at [18]-[26]; R v Cook [2011] VSCA 187 at [12]; R v Gavanas [2013] VSCA 178 at [102]-[105]. For judicial discussion of the concept of deduction of “dead time”, namely time spent in custody in respect of unrelated matters of which the prisoner was later acquitted or in relation to which his or her sentence was reduced see Warwick v The Queen [2010] VSCA 166; R v Karpinski [2011] VSCA 94.
The outcome was similar in R v Giakoumogianakis [2005] VSCA 156. The appellant had been kept in custody for “other offences” in respect of which he was ultimately acquitted. He had been on bail for the offences in respect of which he was sentenced and no application had been made to revoke that bail when he was taken into custody on the “other offences”. Hence that “period wasted” was not capable of being declared under s.18 of the Sentencing Act. The Crown conceded it was appropriate that “some adjustment to the sentence be made for the unwarranted time spent in custody”. Winneke ACJ, with whom Ormiston JA agreed, approved at [6] dicta of Callaway JA in R v Kotzmann [1999] 2 VR 123 at 137:

“There can be no question of a person on remand who is subsequently acquitted acquiring a kind of bank balance on which to draw in relation to subsequent offences unconnected with the reason for custody: see R v Arts and Briggs [1998] 2 VR 261 at 264; but sentencing involves a very wide discretion and the matters [relating to unconnected time in custody] are important parts of the applicant’s background. We are entitled to take them into account and to temper the sense of injustice that he entertains.”

At [7], while cautioning against regarding the outcome as a precedent, the majority in Giakoumogianakis’ Case considered it “appropriate to make some adjustment to take account of the time spent in prison which…was unwarranted for reasons not the fault of the applicant”.

11.3.5 Exercise of mercy

In R v Leach [2003] VSCA 96 at [48]-[49]; (2003) 139 A Crim R 64 at 74 Eames JA – with whom Vincent JA agreed - said of the Court of Appeal:

[48] “It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community.

[49] Thus, I acknowledge the very important right of a sentencing judge to extend leniency in a case which seems to him or her to be appropriate, and to do so even if it is difficult to identify precisely what it is about the offender which leads to that conclusion.”
In R v Osenkowski (1982) 30 SASR 212 King CJ remarked that there always remains a place for leniency and mercy “when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform”.
In R v Hanh Lam; R v Thanh Thuan Tran [2007] VSCA 246 Curtain AJA (with whom Buchanan & Chernov JJA agreed) exercised mercy in allowing the appeal of the first appellant and setting a non-parole period which ensured her immediate release from custody, saying at [8]:

“Accepting as I do that the appellant's incarceration in circumstances where she was the principal carer of her young family, and in particular her autistic child, and that that effects an undue hardship in particular to that child, I am satisfied that the exercise of mercy dictates that the appellant serve a non-parole period of nine months.”

In DPP v King [2008] VSCA 151 at [35] Redlich JA (with whom Warren CJ & Forrest AJA agreed) said of an “extremely lenient” 3y8m/1y9m sentence (described by Warren CJ at [6] as “merciful”) imposed on a respondent for culpable driving:

“Justice tempered by compassion required that the severe and permanent injuries sustained by the respondent in this act of criminality should ‘be regarded as some punishment for that criminality: R v Barci and Asling (1994) 76 A Crim R 103, 104 (Southwell, Hampel and Hansen JJ).”

See also DPP v Ramos, Delos Santos & Herasan [2003] VSCA 215 at [38]; DPP v Rzek [2003] VSCA 97 at [33] per Eames JA and the dissenting judgment of Maxwell P in R v Josefski [2005] VSCA 265 at [33]-[34]; DPP v Coley [2007] VSCA 91 at [43]-[44] per Neave JA; R v NAD [2008] VSCA 192 at [3], [11]-[15] & [54]: dpp v najjar [2009] VSCA 246; DPP (Cth) v Parfrey [2010] VSCA 212 at [33]; Ramezanian v The Queen [2013] VSCA 71 at [23]-[32].

11.3.6 Conviction or non-conviction

In R v P & Ors [2007] VChC 3 the President of the Children’s Court, Judge Grant, imposed youth supervision orders or probation on eight young co-offenders. Each had pleaded guilty to:

• 
  representative counts of procuring by intimidation a young woman FS described as “mildly delayed in her intellectual development” to take part in an act of sexual penetration with two of them;
  
• 
  assault of FS; and
  
• 
  making child pornography, namely a film depicting FS engaging in sexual activity.
  

A major issue was whether or not each offender should be convicted. At [30]-[32] Judge Grant said:

[30] “Probation orders and youth supervision orders can be made with or without conviction. Fox and Freiberg in their book on Sentencing describe the consequences of conviction as follows-

‘The recording of a criminal conviction is a significant act of legal and social censure. It is a judicial act by which a person’s legal status is officially and, under present Victorian law, irretrievably altered. The alteration effected by a conviction is a diminution of the offender’s legal rights and capacities, These follow automatically from the fact of conviction and are not necessarily tied to the particular sanction that follows.’

[31] The fact that the general consequences of conviction are in the nature of a penalty is a relevant matter for a court to take into account. It is also relevant in those cases where the are particular, identifiable consequences arising from conviction in the individual circumstances of an offender.

[32] The CYFA is silent on the type of matters the Court should take into account in exercising its discretion to record a conviction or otherwise. I have been referred by a number of counsel to section 8(1) of the Sentencing Act 1991 which provides-

‘In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including-

(a) the nature of the offence; and

(b) the character and past history of the offender; and

(c) the impact of the recording of a conviction on the offender’s economic or social wellbeing or on his or her employment prospects.’

I accept these factors must apply when considering the exercise of discretion in the Children’s Court with an appropriate acknowledgement of the matters referred to in section 362 of the CYFA.”
Applying this test, Judge Grant imposed a conviction on 7 of the 8 co-offenders, explaining that he did so because of the seriousness of their offending, their active role in the criminal activity and the need for them to be accountable for their criminality: see e.g. [37]-[39] & [41].

11.3.7 Effect of an injury sustained by offender while committing a crime

In Khoja v The Queen [2014] VSCA 9 the appellant had pleaded guilty to one charge of culpable driving causing death and 4 charges of negligently causing serious injury and been sentenced to aggregate IMP 8y6m/5y6m. Following the accident the appellant developed a stress disorder and associated depression as a direct result of the accident, reflecting his guilt and shame and his feelings of responsibility for the grevious consequences of his own driving. In the course of dismissing the appeal against sentence, Maxwell P, Nettle & Priest JJA said at [32]-[34]:

[32] “It is well established that an injury sustained by an offender during the course of committing a crime is a relevant consideration on sentence. Depending on the circumstances, the injury may be viewed as constituting part punishment in itself: RLP (2009) 213 A Crim R 461, 471 [21]. The Court in RLP accepted — as would we — that there is no basis in principle to distinguish between physical injury and mental illness for this purpose.

[33] As counsel for Mr Khoja properly acknowledged, however, the Court in RLP was not persuaded that the offender’s supervening mental condition was to be treated ‘as a form of punishment that entitles him to some reduction in the sentence he would otherwise receive’: at [23]. Counsel sought to distinguish RLP on the same basis as before. That is, Mr Khoja’s mental infirmity was to be seen as having resulted, at least in part, from the commission of the offence itself.

[34] We are not persuaded by that submission. Reactive mental illness of the kind in issue here is hardly ever likely to qualify as an injury of the relevant kind. There is no real difference between this case and RLP. The trigger for Mr Khoja’s illness — as it was for the offender in RLP — was his own reaction to the enormity of his crime, namely, a combination of shame, guilt, embarrassment and remorse.”