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...
Rehabilitation and Sentencing (Vic)
The Victorian Sentencing Act 1991 sets out the purposes for which courts may make sentencing orders. These are deterrence, community protection, denunciation, punishment and rehabilitation. These are the only purposes for which courts are permitted to make sentencing orders, such as fines, imprisonment and community-based orders. Different sentencing purposes have different levels of importance and relevance in each individual case, depending on the circumstances of the offender and of the offending. This article discusses the sentencing purpose of rehabilitation.
What is rehabilitation?
Section 1(d)(ii) of the Sentencing Act specifies that one purpose for which a sentence can be imposed is to facilitate the rehabilitation of offenders. This purpose refers to the goal of treating any underlying causes of offending behaviours, in particular, drug and alcohol misuse but can also focus on violent offending behaviour courses such as the Men’s Behaviour Change Program or anger management counselling. Any imposed sentence could include orders which direct an accused to perform certain courses, programs or simply attend upon their medical professional for counselling or treatment, as is suitable in the specific circumstances of the matter.
A term of imprisonment can also have rehabilitative purposes, especially in relation to drugs and alcohol, as it can be used as a detox. A number of rehabilitative programs are also generally offered in custody, enabling a term of imprisonment to satisfy the rehabilitative sentencing purpose.
Any sentence imposed will ultimately turn on the circumstances of the offending but also the personal circumstances of the accused, which become specifically relevant when considering the purpose of rehabilitation. A rehabilitation-focused sentence seeks to ensure that the offender is given support and education to enable him to be crime-free in future.
Young offenders and rehabilitation
Rehabilitation is a sentencing purpose that must be considered for all offenders. However, in the Children’s Court and when dealing with young offenders in the adult courts, rehabilitation is generally required to be the primary sentencing purpose (Herald and Weekly Times Pty Ltd v AB [2008] VChC 3, [24]; R v Evans [2003] VSCA 223, [44]). This is because young offenders are generally considered as being more able to be reformed, due to their character still developing. As such they are generally not used to communicate general deterrence and denunciation, though these sentencing purposes must still be addressed as well.
Repeat offenders and rehabilitation
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.
As Martin J in the 1992 decision of Bamaga v Trenerry said, however, “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”
Accordingly, even adult offenders with a lengthy criminal history, still need to be given sentences which support and encourage rehabilitation, if it is determined by the court that such is possible.
If an offender can show, prior to coming before the court for a plea hearing, that they have attempted to rehabilitate and even started the process, this will be given significant weight and increase prospects of receiving a rehabilitation focused sentence, as opposed to one focusing on punishment. Such positive and proactive steps also show a significant degree of insight and remorse, which can reduce the weight a court feels obligated to give towards sentencing purposes such as specific deterrence and punishment.
What steps must be taken?
The nature of rehabilitative steps that should be taken, depends significantly on the nature of the offending. For that reason, it is strongly advised that legal advice is obtained before entering a plea of guilty, as we have extensive experience and knowledge of programs/courses which the courts regularly use to drive rehabilitation. Engaging in these programs/courses before the course orders such engagement is considered significantly mitigating and may assist in avoiding a term of imprisonment.
It is important to understand that rehabilitation does not only apply to those with mental impairments or illnesses, or as one might ordinarily presume, only those with drug and alcohol addictions. As Chief Justice King stated in Vartzokas v Zanker (1989) rehabilitation applies “to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing”.
So irrespective of what you are charged with and what led you to offend, chances are there are some courses/programs or counselling available that could address the underlying factors that led to the offences being committed. As such, it is always advised that upon having been charged with any offence, an accused attend upon their GP to discuss their situation. Following any commission of criminal offences it is always advisable to meet with your local medical practitioner (GP) and speak with them about whether there are any rehabilitative steps you can take, even if this is limited to counselling to assist you in dealing with the court process.
Notably, also as stated by Justice Murphy in Boulton, Clements v Fitzgerald (2014):
“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.”
In imposing any sentence, even for the purpose of rehabilitation, the court must not impose a sentence 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”.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.