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Community Protection as a Sentencing Purpose (Vic)

When sentencing a person for criminal offending of any kind, courts must apply a number of principles. When imposing a sentencing order, a court must have one or more sentencing purposes in mind. This is what the sentence is intended to achieve. One of these sentencing purposes is community protection. Others include rehabilitation, just punishment and deterrence. This article outlines how the sentencing purpose of community protection is applied in Victoria.

What is community protection?

Community protection at its simplest refers to ensuring that the public is safe from the offender committing further crimes, something generally achieved most simply by removing the offender from society in order to limit their opportunities to commit further crimes.

Community protection generally aims to result in incapacitation, meaning the offender is likely to be imprisoned to satisfy this purpose. However, it has been established that sentences that enable the offender to remain in society, most notably Community Correction Orders, can also be considered to achieve this sentencing purpose. Community Correction Orders generally protect the community by imposing various conditions on what the offender can do, so as to limit their likelihood of reoffending and opportunities to reoffend – for example, by imposing alcohol exclusion conditions or drug treatment program attendance.

What does the court take into account?

There are a number of factors that the court will take into account when considering the importance of community protection relative to other sentencing purposes.

This includes:

  • How common is the type of offending being considered for sentence, and how significantly it impacts society generally. For example, drug trafficking offences are generally considered to have a significant negative impact on society due to their ripple effect and ability to affect many people very negatively.
  • What are the general community attitudes towards the offences being considered for sentence? For example, child sex offending is broadly viewed by society as being of a very serious nature.
  • Whether or not the offender was in a position of trust at the time of the offending. For example, a parent/child relationship or an employer/employee relationship
  • Whether or not the offences were committed while the offender was on parole or bail, especially for similar offences or while on other court-imposed orders such as Personal Safety or Family Violence Intervention Orders.

How much weight is given to community protection?

The weight given to community protection as a sentencing purpose differs depending on the case and the offence involved. The weight that a court can give to community protection is hindered primarily by the sentencing purpose of just punishment. This limitation is due to the proportionality principle, which provides that the punitive effect of any sentence should be consistent with the crime and circumstances. Accordingly, whilst community protection may be best achieved by imprisonment, it may be disproportionately punitive to sentence an offender to such a sentence.

Generally, the sentencing purpose of community protection is given more weight in cases involving violence, especially where the offender has committed prior offences of a similar nature or expresses a reluctance to participate in treatment such as drug rehabilitation, where this is a significant trigger behind the violent offending. This is because a lack of insight, remorse and willingness by the offender to seek assistance and better themselves, leaves them at greater risk for committing further subsequent offences. The risk of offenders committing further offences is ultimately able to be viewed as something that is sought to be reduced by all sentencing purposes.

Serious offenders

If an offender comes before the court for multiple offences of the same nature and is ultimately sentenced to a term of imprisonment on each offence, they are generally classified formally as ‘serious offenders’. If this occurs, the court must consider community protection as the ‘principal purpose’ when sentencing the offenders. Notably this only applies if an offender finds themselves for offending in the Supreme Court or the County Court. This will allow the court to impose a sentence longer than what is otherwise ‘proportionate to the gravity of the offence’ taking into account relevant circumstances.

Where does this leave us?

Ultimately the court must take into account a great variety of subjective and objective matters when considering what sentence is appropriate for an offender. As such it is generally important to obtain legal representation to ensure that the court is directed towards the aspects of the case which have a mitigating impact.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

Deike Kemper - Senior Associate - Melbourne

This article was written by Deike Kemper - Senior Associate - Melbourne

Deike Kemper holds a Juris Doctor (Master of Laws degree) from Monash University, a Graduate Diploma of Legal Practice from the College of Law and a Graduate Certificate of Forensic Psychology from Curtin University. She is admitted to practice in the Supreme Court of Victoria and the High Court of Australia. Deike’s main area of practice is criminal law. She...

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