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Community Protection and Sentencing (Vic)

When a court imposes a sentencing order on an offender, it may do so for any one or more of five sentencing purposes. These are rehabilitation, punishment, denunciation, deterrence and community protection and they are set out in Section 5 of the Sentencing Act 1991. Which of these principles is given primacy and which are considered less relevant depends on the circumstances of the offending and of the offender.

What is community protection?

The principle of community protection refers to the preservation of the wellbeing of all citizens within a community and their protection from any harm resulting from criminal conduct. Community protection may at times be considered the overarching aim of any sentencing exercise and all other purposes for which sentences may be imposed should ultimately uphold this primary purpose.

In the 1978 case of Channon, the court held:

The necessary and ultimate justification for criminal sanctions is the protection of society from conduct which the law proscribes… criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society.

Proportionality

The principle of proportionality is the idea that the severity of a sentence ought to match the seriousness of the offending. This principle applies where the primary purpose of a sentence is community protection just as much as in any other case. A sentence imposed for the purpose of community protection is generally only legitimate if the sentence is proportional to the offences that have been committed. It is not permissible to impose a sentence as a preventative measure even where community protection is paramount.

How important is community protection?

Whilst community protection can be seen as an overarching sentencing purpose, the weight given to it differs from case to case. In cases involving violence, the principle is given more importance than in cases involving financial loss or property damage. Community protection is very important when sentencing offenders for sexual offences, especially those involving children or other vulnerable members of society.

When a court considers how important community protection is in the sentence it imposes, it looks at:

  • The prevalence of the offence/s;
  • Community attitudes towards the offence/s;
  • Whether or not the offender was in a position of trust at the time of the offending, eg. in a parent/child relationship;
  • Whether or not the offence/s were committed while the offender was on parole or bail, especially for similar offences.

Who does the community need protection from?

It is not only serious offences and serious offenders that attract sentences based on the principle of community protection. Where an offender has prior convictions, particularly for similar kinds of offending behavior, the court is likely to impose a more severe penalty in the interests of community protection. In cases where rehabilitation is a consideration, for example where the offender suffers from a drug addiction which led to offending behaviour, if the offender has been given rehabilitative opportunities in the past, then community protection is bound to take priority.

Nonetheless, it should be noted that reducing the risk of reoffending is a big part of community protection. The High Court of Australia has made it clear that any sentence imposed should not be longer than what is required to reduce the risk of recidivism of the offender.

Mentally impaired offenders

It is particularly difficult to impose a proportionate sentence in the interests of community protection when the offender suffers from an acute mental impairment. Whilst an offender with a mental impairment may pose a greater risk to the community, it may also be the case that such an offender has a lower level of moral culpability.

In such a situation, the

“danger to society [because of a mentally impaired offender] cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality” (Veen, 1987).

In such a case, the court must ensure it imposes a sentence that takes into account the offenders’ personal circumstances and not blindly focus on the need to protect the community.

Serious offender provisions

The Sentencing Act 1991 provides a framework for dealing with serious offenders who are sentenced to imprisonment. This regime is contrary to the general principle that offenders should only be imprisoned for a period that is proportionate to the seriousness of the offence they have committed.

Under Part 2A of the Sentencing Act, when the court sentences a person to imprisonment for a serious offence such as murder, manslaughter, rape or arson, it must regard community protection as the paramount sentencing purpose. Section 6D(b) provides that in order to serve the purpose of community protection, the court may impose a sentence that is longer than what is proportionate to the gravity of the offence.

However, in imposing a disproportionate sentence, the court must consider the protection of the community as the principal but not the sole purpose. A number of other sentencing purposes must also be given due weight, making it a complex and difficult exercise to arrive at the suitable sentencing order.

The provisions in Part 2A of the Sentencing Act generally come into play when the court considers that an offender is so likely to re-offend that he or she constitutes a danger to the community. Where the court is satisfied that the offender will continue to pose a significant danger to the community, even beyond the imposition of a proportionate term of imprisonment, the court must give reasons for its belief that the offender is “so likely to commit further crimes of violence … that [they] constitute a danger to the community, the [court] may impose a sentence longer than that which would be justified by the principle of proportionality” (Veen, 1987).

Sentencing is a complex exercise and courts are required to take into account a wide array of circumstances, factors and purposes when determining the appropriate order/s to make. An overarching consideration is always to limit the risk of re-offending and thus to protect the community from further offending behaviour.

If you require legal advice or representation in a criminal law matter or in any other legal matter, please contact Go To Court Lawyers.

By Deike Kemper, Associate

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