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LIV concern over reaction to recent sentencing decision

LIV concern over reaction to recent sentencing decision

By LIV Media


Sentencing of offenders to a Community Corrections Order, which include mandatory treatment for mental health and drug issues, can result in more effective community protection than an immediate jail term, according to the Law Institute of Victoria.

LIV criminal law section co-chair Mel Walker said that Community Correction Orders, with conditions, could result in the long-term protection of the community by changing an offender’s behaviour.

“Jail does punish an offender in the short term, but it may not protect the community if offenders do not undertake any treatment,” Ms Walker said.

“Recidivism rates of individuals sent to prison are very high. The community can feel more comfortable if an offender is forced to address the causes of offending through treatment as part of a Community Corrections Order”.

Ms Walker said it was paramount that there was a separation of powers between the government, the courts and the prosecution.

“Our court system is rightly independent of Government and contains checks and balances. Government makes the laws and our courts apply them. Sentences are reviewed by the independent Director of Public Prosecutions who makes a decision on whether to lodge an appeal.”

Ms Walker said Magistrates take a number of factors into account before deciding on an appropriate sentence. These include any plea, mental health issues, general and specific deterrence and the impact on the victim.

“The Sentencing Act contains very narrow exceptions to compulsory imprisonment for assaults against emergency workers on duty,” she said.

The Sentencing Act gives courts discretion in sentencing, including where the offender has a mental illness. Under Section 10A of the Sentencing Act requires rigorous consideration by a judicial officer before being satisfied of the circumstances found by the court in this case. The court must consider a report in which a psychiatrist or registered psychologist who examined the offender in relation to the offending addresses whether the offender had impaired mental functioning at the time of the offence that is causally linked to the commission of the offence and substantially and materially reduces their culpability, and any other evidence that the court considers relevant.

When the amendments were introduced in July 2018, the Government specifically addressed the inclusion of a new exception to the requirement of a court to impose a term of imprisonment and the new orders which can now be imposed for offenders whose mental or other impairment substantially and materially reduces their culpability. “The mandatory treatment and monitoring order retains the punitive aspects of a CCO, while ensuring that the offender is supported in receiving treatment for the condition that has contributed to the offending behaviour,” then Attorney-General Martin Pakula said.

The legislation is aimed at the importance of protecting first responders from violence in their workplace, but mandatory sentences are a blunt tool which are not as effective as addressing the causes of the offending. People with mental health issues are not deterred by the prospect of a jail term, Ms Walker said.

Parliament clearly had contemplated that there were instances which could arise warranting an exception to the imposition of a jail term where certain criteria were present permitting a departure from the mandatory requirement.

The safety of the community in the long term is far better protected by balancing the requirement to punish the offender with the rehabilitation of the offender.

Ultimately, a CCO provides a workable option to address both of these requirements, Ms Walker said.


Read his Honour's full sentencing remarks here




Contact: Kerry O’Shea, Public Affairs Manager or Amanda Rajendra, Media & Communications Officer T: 03 9607 9597 E:

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