Criminal division – sentencing

[16] The essential feature of the offence of conspiracy is the agreement between two or more persons to commit the crime, sometimes referred to as the element of ‘concert’: Raptis, Lilimbakis & Sinclair v R (1988) 36 A Crim R 362, 364 (Young CJ, O’Bryan and Tadgell JJ). It is this element which differentiates the offence of conspiracy to commit a substantive offence from the offence of attempting to commit the substantive offence, and from the substantive offence itself. The element of concert makes the offence of conspiracy more serious than if an individual were acting alone to plan and commit the offence, as the likelihood of the crime occurring is increased by the involvement of multiple participants making a commitment to each other to do so. There is said to be a ‘dangerousness’ inherent in the plotting, ‘either because several may achieve what an individual would find difficult or impossible, or because other criminal plans may emerge from the group.’: M Goode, Criminal Conspiracy in Canada, applied by the Federal Court in R v Hoar and Noble (1981) 34 ALR 357, 364. (The present case exemplifies the last point, as the second conspiracy emerged following the completion of the first.) As Lee J stated in R v Shepherd, ‘men acting in combination to achieve unlawful ends present a far greater evil and danger to the community than do the acts of individuals acting alone to achieve their nefarious ends.’: R v Shepherd (1988) 37 A Crim R 303, 313.

[17] The extent of the offender’s participation in the combination, established by reference to his or her individual acts and declarations, will inform but not determine the conclusion as to the offender’s degree of criminality: Marie, Chitrizza and Casagrande (1983) 13 A Crim R 440; Raptis, Lilimbakis & Sinclair v R (1988) 36 A Crim R 362, 365; Shepherd (No 2) (1988) 37 A Crim R 466, 478; Gillies, The Law of Criminal Conspiracy , 2nd ed (1990) 254–5); R v Koh [2001] NSWCCA 324. The individual offender is to be punished for involvement in the conspiracy and not just for the acts that he or she performed. The sentencing judge therefore needs to assess, for the purpose of sentencing the individual conspirator, the ‘content and duration and reality’ of the conspiracy, and what is actually done in transaction of it, as well as the role of the offender before the court: R v Kane [1975] VR 658, 661, applied in Savvas v The Queen (1995) 183 CLR 1, 6.

[18] It is an error to equate conspiracy to commit an offence with an attempt to commit that offence. A comparison of s 321 (conspiracy) and s 321N (attempt) shows that the elements of the two offences are quite different. More relevantly for present purposes, whereas the maximum penalty for conspiracy is the same as the maximum for the substantive offence, s 321P of the Crimes Act 1958 (Vic) expressly fixes a lower maximum for an attempt than for the substantive offence.”

11.1.18 Offending in a custodial setting is a relevant sentencing consideration

In DPP v De Castres; DPP v Kent [2011] VSCA 377 Ross AJA (with whom Ashley & Harper JJA agreed) referred to R v Allen & Jackson (1994) 77 A Crim R 99, R v Devries [2005] VSCA 95 at [20] [23] per Vincent JA and R v Berry & Wenitong [2007] VSCA 202 at [126] per Redlich JA (with whom Buchanan and Kellam JJA agreed) and said at [36]:

“In my view, these authorities support the proposition that deterrence assumes particular importance as a sentencing principle where the offending takes place in a custodial or prison setting. Hence the custodial or prison setting of an offence may be regarded as an aggravating feature.”

11.2 Selected cases on sentencing

11.2.1 Young adults & children sentenced under the Sentencing Act

There are a plethora of cases in which principles relevant to the sentencing of young adults and a few cases in which principles relevant to the sentencing of children under the Sentencing Act 1991 have been discussed by superior courts. A convenient starting point is the judgment of Batt JA in R v Mills [1998] 4 VR 235. The offender, who was 20½ at the time of the offence and 21 at the date of sentencing and had no prior convictions, was convicted of recklessly causing serious injury resulting from a 'glassing'. The trial judge had sentenced him to 18 months imprisonment with a 9 month non-parole period. The Court of Appeal allowed the appeal and sentenced him to be imprisoned for a term of 12 months with 8 months to be suspended for 3 years. In the leading judgment Batt JA made the following observations (at p.241) about the sentencing of youthful offenders-

"(i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

(ii) In the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender).

(iii) A youthful offender is not to be sent to adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark of what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act)."

In so holding, his Honour referred with approval to R v Martin [1973] VR 854; R v Seymour (1983) 5 Cr App R (S) 85 at 87; R v Smith (1988) 33 A Crim R 95 at 97; R v G D P (1991) 53 A Crim R 112 at 116; R v Edwards (1993) 67 A Crim R 486 at 489 (a very strong case, albeit that it was a Crown appeal); and R v Misokka [Court of Appeal, unreported, 09/11/1995] at pp.6-7 per Callaway JA and at pp.10-11 per Vincent AJA.
In R v Le [2009] VSCA 247 Coghlan AJA (with whom Ashley & Weinberg JJA agreed) applied R v Mills, saying at [21]: