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Rehabilitation and Sentencing (Vic)

Written by Deike Kemper

Deike holds a Juris Doctor (Master of Laws degree) from Monash University. She also holds a Graduate Diploma of Legal Practice from the College of Law and is admitted as a Lawyer in the Supreme Court of Victoria and the High Court of Australia. Deike is also a Registered Migration Agent. Deike has a passion for family and criminal law, as well as regularly assisting clients with matters relating to outstanding infringements. She has assisted clients with a wide range of criminal charges, ranging from driving offences, assaults and thefts to child pornography and sex offences involving children.

When a court makes a sentencing order, it must consider the purpose for which the sentence is being imposed. A sentence can be imposed for one or more of five purposes. These are deterrence, punishment, denunciation, community protection and rehabilitation and they are set out in Section 5 of the Sentencing Act 1991Courts may impose sentences with the goal of minimising the risk of further offending by the same offender or by other members of the community, to protect the community, to denounce the offending behavior or to support the offender to stay out of criminal trouble in the future.  Which of these sentencing purposes is given priority depends on the circumstances of the offending and of the offender.

What is rehabilitation?

The sentencing purpose of rehabilitation refers to the treatment and reeducation of an offender with the goal of restoring them to a position where they are able to live a crime-free life. A sentence imposed for the purpose of rehabilitation may include interventions such as a condition that the offender take part in drug and alcohol programs, mental health treatment, training courses, and anything else the court considers necessary for their rehabilitation. A term of imprisonment can also be imposed for the purpose of rehabilitation.

Any sentence imposed with rehabilitation as one of its purposes should try to help the offender address the causes, contributors and behaviours that led to the commission of the offence. This may mean imposing a sentencing order that addresses the personal circumstances which contributed to the offending. A sentence imposed for the purpose of rehabilitation encourages the offender not to re-offend, but to learn from their mistake and re-establish a positive presence and role in the community. When an offender is successfully rehabilitated, the community is better protected.

Young offenders

Rehabilitation is a particularly important sentencing purpose when dealing with young offenders. It has been well-established that when sentencing young offenders (10-18 years of age) and youthful offenders (18 to 25 years of age) rehabilitation is generally far more important than other sentencing principles, especially general deterrence. This is because young people are still forming their habits and character and are generally considered to be a poor vehicle for general deterrence. When sentencing young offenders, it is generally agreed that punitive sentences are less likely to prevent reoffending than sentences that have rehabilitation as their primary goal.

Older offenders

It should be noted that while rehabilitation is given special weight when dealing with young offenders, it can also be a relevant sentencing purpose when the offender is of an advanced age, and when he or she has a significant prior criminal history.

“If those with a bad record feel that there is no benefit from attempts at rehabilitation then why should they bother? It is in the interests of the community that rehabilitation be encouraged”

said Martin J in the 1992 decision of Bamaga v Trenerry. As such, even where an offender has a lengthy criminal record, it can be argued that rehabilitation should be the primary purpose of any sentence imposed. This is particularly the case where there has been a considerable lapse of time since the last occasion the offender was before the court.

Rehabilitation is more likely to be prioritised when there is evidence before the court that the offender has taken positive steps to change their lifestyle and address the causes of their offending. This may be through drug and alcohol treatment courses, Men’s Behavioural Change Programs, Road Trauma Awareness Seminars, driving courses or general counselling sessions.

Proportionality

The principle of proportionality holds that the severity of the punishment should fit the seriousness of the crime. When the court is imposing a sentence with rehabilitation as its primary purpose, it must not impose a sentence which would be longer or more severe than what is needed to cure or rehabilitate the offender.

Justice Murphy has stressed

“it would be wrong […] to impose a sentence of imprisonment upon an offender which is dictated not by the gravity or heinousness of the crimes committed, but by the […] desire to cure the offender of some disease such as drug addiction.”

Although rehabilitating the offender may be the purpose of the sentence, the court does not have the power to impose an order of a “longer duration, or to attach more onerous treatment and rehabilitation conditions, if the resulting order would be disproportionate to the gravity of the offending”  (Boulton, Clements v Fitzgerald, 2014).

In considering this principle, the court is also required to consider whether the public interest will be best served by a sentence focused on rehabilitation, or one that prioritises other sentencing purposes.

Who can be rehabilitated?

A major misconception surrounding rehabilitation is that it only applies to those who have a specific physical or mental illness. This is incorrect and as pointed out by Chief Justice King could not be further from the truth. The sentencing purpose of rehabilitation applies “to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing” (Vartzokas v Zanker, 1989). Accordingly, it also applies to people who may simply be having a hard time and struggling as a result of this. Following the commission of criminal offences it is always advisable to meet with your local medical practitioner (GP) and speak with them as to whether there are any steps you can take to address factors that contributed to the offending, such as attending counselling sessions.

Notably, whilst rehabilitation is a principle that must always be considered, there are occasions where it carries very little weight. For example, where an offender has been afforded a number of prior opportunities to rehabilitate him or herself, especially through previous sentencing orders, and yet finds him or herself again before the court for further offending. Rehabilitation becomes a particularly low priority where the offending is of a similar nature to the prior offending and previous sentencing orders have not been complied with. In such a situation, the sentencing purpose of community protection is likely to take priority over that of rehabilitation.

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

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