Slades & Parsons Criminal Law

SENTENCING OVERVIEW

The sentencing of persons convicted of criminal offences is a complex and at times difficult task, undertaken by judges and magistrates on a daily basis.  Assistance is given to judges in legislative provisions, for example Part 5 of the Sentencing Act Victoria 1991.

The Sentencing Act provides the only purposes for which a sentence may be imposed, namely:

         (a)     to punish the offender to an extent and in a manner which is just in all of the circumstances (specific deterrence); or

         (b)     to deter the offender or other persons from committing offences of the same or similar nature (general deterrence); 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.

In sentencing a judge is entitled to consider each matter separately and in combination.  In determining the appropriate sentence and in considering the purposes for which a sentence may be imposed, a court must have regard to other matters including the offenders culpability and degree of responsibility for the offence and the presence of mitigating factors concerning the offender.

A recent decision of the Supreme Court of Victoria, Court of Appeal (see The Queen v Mark Andrew Verdins, The Queen v Robert Buckley, The Queen v Nhat Viet Vo [2007] VSCA 102 23rd May 2007), considered issues relating to the sentencing of offenders suffering from psychiatric illness and the relevance to sentencing that actual imprisonment may adversely impact on an offender’s mental health.  The Court of Appeal laid down the following matters that are to be considered:

Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways: 

     1.     The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility.  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 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.

It is important that lawyers obtain adequate instructions from their clients together with any appropriate psychiatric, psychological or medical reports and that a judge’s attention be drawn to the matters which have the potential to impact on determination of the appropriate sentence.  Of course, each case is different and will be viewed on the facts but the above guidelines for courts are an invaluable reference point for practitioners preparing such cases.

POWERS OF THE COURT TO CANCEL, SUSPEND OR VARY LICENCES AND PERMITS

It is important to be aware of a little known section of the Road Safety Act 1986 Victoria which provides for the following:

      s.28(1) If a court convicts a person of, or is satisfied that a person is guilty of, an offence against this Act or any other offence in connection with the driving of a motor vehicle the court -

      (b) in any case, but subject to paragraph (a), may suspend for such time as it thinks fit or cancel all driver’s licences or permits held by that person and, whether or not that person holds a driver’s licence, disqualify him or her from obtaining one for such time (if any) as the court thinks fit.

In plain language, what this means is that a court may cancel and disqualify or suspend a licence of an offender who commits an offence (other than as described in s.28(1)(a) ) which has a substantial relationship to the driving of a motor vehicle.  For example, where a person is convicted of theft of motor vehicle notwithstanding there may be no offences committed involving any breach of the road laws in the driving of that stolen vehicle, a court may cancel and disqualify or suspend the person’s driver’s licence for such time as the court sees fit.

The court must take into account in determining the period of disqualification the extent to which disqualification is required in considering the total punishment to demonstrate the community’s attitude towards the offence committed.

The court must also consider questions of rehabilitation of the offender, the impact of such a disqualification on the person’s ability to obtain and maintain employment, and the practical need of a person to have a driver’s licence.

A recent decision of the Supreme Court of Victoria, Court of Appeal, The Queen v Milorad Novakovic [2007] VSCA 145 considered s.28(1)(b).  Importantly the court found that persons whose licences have been cancelled and disqualified pursuant to s.28(1)(b) of the Road Safety Act have a right to appeal against the making of that order and that any order made under this section is a sentence which is properly appealable.

The case provides a useful discussion as to the considerations that should be given by courts in considering the cancellation and disqualification of driving licences under this section.