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Tuesday, 21 January 2014

Victoria's Sentencing Manual - a guide to the severity of criminal offences in Victoria

This online manual provides sets out the broad principles Victoria's judges might use when weighing penalties for convicted prisoners.

Victorian Sentencing Manual

 

Published in Melbourne by the Judicial College of Victoria

 

Level 7, 223 William Street

Melbourne VIC 3000

 

T: (03) 9032 0555

F: (03) 9032 0500

E: info@judicialcollege.vic.edu.au

 

1 - Introduction

Purposes of the Manual

Sentencing is a complex task. It is probably the most difficult function members of the Judiciary are required to perform. In Channon (1978) 20 ALR 1 at 24, Deane J said:

Of all the responsibilities which an Australian judge can be called upon to discharge, probably the heaviest is that of determining the appropriate sentence to be passed upon his fellow citizen who has been found, or has pleaded, guilty to a serious criminal offence.

Because of its complexity, a sentencer is vested with a broad discretion in dealing with offenders. However, the exercise of this discretion is often the subject of public comment, and leads to criticism of perceived disparity in sentences imposed.

 

32.11.1 - Gravity of bribery and secret commission offences

Offences of bribery, and of giving or accepting secret commissions are serious because they frequently threaten the integrity of social institutions: Jackson & Hakim (1987) 30 A Crim R 230 (SC NSW); Tilley (1991) 53 A Crim R 1 (CCA Qld); DPP v Pangallo (1991) 56 A Crim R 441 (CCA NSW). In George & Ors (1987) 29 A Crim R 380 (CCA NSW), Street CJ, at 403, endorsed the following observations of the trial judge in relation to the acceptance of a bribe by a Minister of the Crown:

The crime of which they have been convicted is a serious one. The maintenance of a democratic system of government is dependent upon public acceptance and the trust of public officials. Any attempt therefore to corrupt public officers strikes at the very fabric of our democratic way of life.

In Clarke [1954] ALR 312, O’Bryan J, at 313, (in a charge to a jury) made the following remarks in relation to the offence of bribery of a public officer:

They are charges which relate to the purity of executive administration of the State. They are charges of very great importance in the general set-up of our political community here. When a man accepts a position of trust and confidence under the Crown he undertakes duties the pure administration of which is of the utmost importance to the community in which he lives, and the law requires from such a person a very great care in the exercise of his office and he should never put himself into a position in which his own interests may point one way, and the duties which he has undertaken for the Crown point in the opposite direction.

Similarly in Jackson & Hakim (1987) 30 A Crim R 230 (SC NSW), Roden J, when sentencing a Minister of the Crown in relation to a conspiracy, said at 244:

As a general rule, when there is a conspiracy involving corrupt practices by the holder of a high public office, the holder of that office is to be regarded as the most culpable. By virtue of his office, he has the power to maintain or destroy the integrity of the great institutions upon which our way of life depends. Wholesale corruption in high places can destroy the very fabric of our society.

Secret commissions are damaging to commercial life: Wilson (1982) 4 Cr App R (S) 337; Hopwood (1985) 7 Cr App R (S) 402.

The serious nature of these offences is compounded by the circumstance that offences concerned with the business morality of the community are hard to detect: Jamieson [1988] VR 879.

 

32.10 - Falsification of documents

The courts view the offences of making and using false documents seriously. This was highlighted in the case of Williamson 20/2/1996 CA Vic (which involved the forgery of certificates of title), where Tadgell JA stated at 3 to 4:

The conspiracy which the evidence disclosed, and which the applicant’s plea of guilty confirmed, was of formidable audacity and iniquity. Apart from its meanness towards those individuals who were immediately defrauded, its wickedness was, in my judgment, calculated to produce widespread repercussions. As the learned judge correctly observed in his sentencing remarks, the scheme had a potential for enormous damage to the operation of the Torrens System of title registration, and to the confidence, security and well-being of registered proprietors, as well as for a benefit to the applicant. I need hardly say that both registered proprietors and mortgagees, and indeed the community at large, have come to accept a certificate of title under the Torrens System, literally and metaphorically, as being ‘as safe as houses’. The applicant’s stratagem had, it is fair to say, the capacity to wound, in the short term at least, an important part of the social and economic fabric of the state of Victoria by impairing confidence in the integrity of the system. The scheme to which the conspiracy gave birth was by no means of spontaneous origin, but was the product of careful forethought. The premeditation was obvious from the complexity of the scheme, although perhaps it was bound of its nature to be relatively short-lived before it was discovered and extirpated.

The gravity of the offence may be affected by:

  • the planning involved - Williamson 20/2/1996 CA Vic; McKendry 5/6/1996 CA Vic
  • the effect on community acceptance of documents of the type falsified - Williamson 20/2/1996 CA Vic (forgery of certificates of title under the Torrens System)
  • putting at risk Australia’s reputation as a reliable exporter - Song 29/11/1994 CCA Vic (offender forged fish transfer certificates to transfer illegally harvested abalone).

 

32.8 - Money laundering

Money laundering offences are generally regarded as serious, but with the new graded statutory scheme introduced in 2004, it is possible to distinguish in charging between the most serious and the relatively minor instances of the offence class.

In Lustig [2004] VSC 483, a solicitor received an unlawfully obtained cheque from a client and subsequently disbursed the proceeds thereof upon instructions from the client. Whelan J in sentencing the offender at [25]:

It is no doubt the case that money laundering would attract a gaol term which would not be suspended in all but unusual cases. This is an unusual case. The nature and gravity of your conduct and your culpability are, it seems to me, less than the conduct commonly giving rise to these offences.

Where the offence is committed by a professional, such a solicitor, the offence is regarded as particularly grave: Lustig [2004] VSC 483 (Whelan J at [26]).

 

 

11.4 - Cooperation with authorities

Assistance given by an offender to investigating or prosecuting authorities can be a strong mitigating factor. The discount given varies according to the level of cooperation, its subjective significance and the impact or potential impact of the assistance given.

At the lowest level cooperation can be reflected in the making of admissions and the entering of a guilty plea. For more information about the impact of a guilty plea see 11.2 - Guilty plea.

At higher levels, cooperation may involve implicating co-offenders or providing other information of assistance to authorities, and giving evidence in criminal proceedings.

The highest level discount is reserved for so-called ‘true informers’, who assist authorities proactively, acting as ‘undercover’ agents to provide information and evidence, commonly at greatly increased personal risk.

 



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