50. Victorian Sentencing — Comprehensive Cheat Sheet

Scope and currency

Sentencing Act 1991 (Vic) · standard sentences · category ½ · statutory minimums · full aggravating & mitigating factor tables · built from Nick's sentencing notes

Starting point — s 5(1): the only purposes are just punishment, deterrence, rehabilitation, denunciation and community protection. They are "guideposts … but sometimes they point in different directions" (Veen [No 2]). Sentence by instinctive synthesis (Markarian) — never a two-tier arithmetic. Work the gates in order: they run from the constraints that displace ordinary discretion down to the ordinary synthesis.

The sentencing sequence

GATE 0 Which regime governs? — does a special scheme displace or overlay the ordinary frame?

Is it a standard sentence offence, a Category ½ offence, a statutory-minimum offence — or is the offender a serious / CCE offender? Resolve this FIRST; each reshapes the whole task.

Regime	Trigger	Effect on the ordinary frame	Provision
Standard sentence	Listed offence; committed on/after 1 Feb 2018; higher court; offender 18+	Standard sentence (≈ 40% of max) is a "statutory guide post" / one factor — not a starting point or presumptive sentence; sits within instinctive synthesis (s 5B(3)). Drives the s 11A NPP. Applies even on a guilty plea.	ss 5A, 5B, 11A
Category 1	s 3 list — murder, child homicide; gross-violence ICSI/RCSI (ss 15A/15B); rape (ss 38(1)/39(1)); sexual penetration of a child <12; persistent abuse <16; incest; agg home invasion / carjacking; LCQ trafficking; emergency-worker injury	Must make a custodial order; must not combine imprisonment + CCO. Only escape: a s 10A special reason — and only for the emergency-worker subset (s 5(2GA)).	s 5(2G), (2GA)
Category 2	s 3 list — manslaughter; kidnapping; armed robbery; home invasion; carjacking; arson causing death; culpable / dangerous driving causing death; CQ trafficking	Must make a custodial order; must not combine with CCO — unless a s 5(2H) exception (assistance; impaired functioning ↓culpability or ↑burden; treatment order; exceptional circumstances), proved on the balance of probabilities.	s 5(2H)
Statutory minimum	Prescribed offences — gross-violence manslaughter (s 9B) / single-punch (s 9C); gross-violence ICSI (s 10); emergency workers (s 10AA); supervision-order breach (s 10AB); agg home invasion / carjacking (ss 10AC/10AD); dangerous driving at emergency workers (s 10AE)	Mandatory minimum term / NPP. Departure only on a s 10A special reason — which only lifts the floor; it does not open a non-custodial outcome (prison remains the default).	s 10A
Serious offender (Pt 2A) / CCE (Pt 2B)	s 6B(2) serious arson / drug / violent / sexual offender (status proved beyond reasonable doubt); or s 6H CCE history (Sch 1A offence + requisite priors within 10 yrs)	Community protection becomes the principal purpose; the court MAY impose a longer-than-proportionate sentence (s 6D) — the one place disproportion is lawful. Presumptive cumulation (s 6E). CCE: maximum doubled or 25 yrs, whichever lesser (s 6I).	ss 6B–6E; 6H–6I

Standard-sentence exclusions & the "exceptional circumstances" hurdle

The standard-sentence scheme does not apply where the offender was under 18, the offence is heard summarily, or it was committed before 1 Feb 2018; an aggregate sentence is barred where the offences include a standard sentence offence (s 9(1A)(ab)). For the Category 2 / s 10A exceptional-circumstances gateway (s 5(2H)(e)): a very high hurdle — "substantial and compelling and exceptional and rare" (Farmer; DPP v Hudgson); under s 5(2HC) prioritise deterrence/denunciation and ignore prior good character, an early plea and rehabilitation prospects. By contrast the assistance gateway has no qualitative threshold.

Don't confuse the two schemes. Serious offender (Pt 2A) permits a longer-than-proportionate term (community protection as principal purpose). Standard sentence is only a guide post within proportionality. They are not the same lever.

The decision sequence

GATE 1 Constraint check — is ordinary discretion displaced?

Before anything else, ask which restrictive regime bites. Each one changes the task. → Category 1 offence: must impose a custodial order; no imprisonment+CCO combination — s 5(2G). → Gate 2. → Category 2 offence: must impose a custodial order unless an exception is made out — s 5(2H). → Gate 3. → Statutory minimum offence (ss 9B, 9C, 10, 10AA–10AE): must fix the prescribed minimum NPP unless a special reason under s 10A. → Gate 4. → Standard sentence offence: must take the standard sentence into account and explain how the sentence relates to it — ss 5A, 5B. → Gate 5. → Serious offender (Pt 2A): community protection becomes the principal purpose and a disproportionate sentence is permitted — s 6D. → Gate 9. → None of the above: ordinary synthesis → Gate 6.

GATE 2 Category 1 — custodial order mandatory (s 5(2G))

Category 1 offences are listed in s 3 (definitions) and apply to offenders 18 or older. Classification began 20 March 2017; offences added 28 October 2018. The only escape (s 5(2GA)) — available only where the Category 1 offence is (a) intentionally/recklessly causing injury or serious injury to an emergency worker, custodial officer or youth justice custodial worker on duty (accused knowing or reckless as to that status), or (b) intentionally exposing an emergency worker to risk by driving causing injury. All four must be satisfied: → 1. a special reason exists under s 10A; and → 2. accused proves on BOP impaired mental functioning at the time of the offence, causally linked, that substantially and materially reduced culpability (not if caused substantially by self-induced intoxication — s 5(2GC)); and → 3. the court has a report from a psychiatrist or registered psychologist who examined the accused about that offending, and has regard to it — s 5(2GB); and → 4. the court is satisfied a mandatory treatment and monitoring order (MTMO), residential treatment order or Court Secure Treatment Order is appropriate.

Result if s 5(2GA) is engaged: the court must make either a custodial order or an MTMO / residential treatment order / Court Secure Treatment Order. Note this escape route does not exist for any other Category 1 offence.

GATE 3 Category 2 — custodial order unless an exception (s 5(2H))

Custodial order mandatory, and no imprisonment+CCO combination, unless ONE of the following is established: → (a) Assistance: offender has assisted, or given an undertaking to assist after sentencing, law enforcement in the investigation or prosecution of an offence. → ©(i) Impaired mental functioning — culpability: at the time of the offence, causally linked, substantially and materially reduced culpability. Self-induced intoxication excluded (s 5(2HA)) — but offending caused substantially by intoxication is not fatal provided the impaired mental functioning was not so caused (Dabaja v The King [2023] VSCA 209). → ©(ii) Impaired mental functioning — burden: would result in substantially and materially greater than the ordinary burden or risks of imprisonment. Evidence of unavailable/inaccessible treatment in custody can satisfy this (Peers v The Queen [2021] VSCA 264). → (d) Treatment order: the court proposes a Court Secure Treatment Order or residential treatment order. → (e) Exceptional circumstances: substantial and compelling circumstances that are exceptional and rare justifying no custodial order.

Applying s 5(2H)(e) — the s 5(2HC) direction: give more weight to general deterrence and denunciation; less weight to personal circumstances; and must not have regard to early guilty plea, good character (other than absence of priors), prospects of rehabilitation, or parity. Under s 5(2I) the court must have regard to Parliament's intention that Category 2 offences ordinarily attract imprisonment (not combined with a CCO), and whether the cumulative impact of the circumstances justifies departure.

Category 2 exceptional-circumstances case law

• Fariah v The Queen [2021] VSCA 213: D does not bear an onus of satisfying the court there were substantial and compelling circumstances — it is an evaluative judgment for the court once the underlying facts are established. That some circumstances are commonly encountered does not itself deprive them of being substantial and compelling, and exceptional and rare.

• DPP v Lombardo [2022] VSCA 204: must be "weighty and forceful or powerful" and "wholly outside 'run of the mill' factors typical of relevant offending". But "it is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly, or even wholly, relatively common."

• DPP v Hudgson [2016] VCSA 254: "powerful circumstances of a kind wholly outside … factors typically present in offending of this kind" [112].

• Farmer [2020] VSCA 140: on assistance — a full confession naming co-offenders was not "assistance" where there was no material suggesting it altered the investigation, was not already known, or led to evidence not otherwise obtainable [84]. On substantial and compelling — should have been found by virtue of alopecia, school bullying and likely similar bullying in custody.

GATE 4 Statutory minimum sentences & the s 10A special reason

The court must fix the prescribed minimum NPP unless a special reason exists. There is no minimum NPP for category offences as such — the two schemes are distinct, but some offences are both.

Prescribed statutory minimums

Provision	Offence	Minimum
s 9B	Manslaughter in circumstances of gross violence	10 years min NPP
s 9C	'Coward's punch' manslaughter (single punch/strike)	10 years min NPP
s 10	ICSI or RCSI in circumstances of gross violence	4 years min NPP
s 10AA	ICSI with gross violence — emergency worker / custodial officer / youth justice custodial worker on duty	5 years
s 10AA	RCSI with gross violence — same class of victim	5 years
s 10AA	ICSI — same class of victim	3 years
s 10AA	RCSI — same class of victim	2 years
s 10AA(4)	Causing injury intentionally or recklessly — same class of victim	6 months head sentence
s 10AB	Breaching a restrictive condition of a Serious Offender Act supervision order	12 months
s 10AC	Aggravated home invasion	3 years min NPP
s 10AD	Aggravated carjacking	3 years min NPP
s 10AE	Endangering emergency workers by driving (ss 317AC, 317AD) where injury caused	2 years min NPP

Young offenders: despite these provisions, offenders under 21 may still be sentenced to a YJC order in certain circumstances for some of these offences.

s 10A special reason — five gateways (established on the balance of probabilities)

• 1. Assistance: the offender has assisted or given an undertaking to assist authorities.

• 2. Impaired mental functioning — culpability: causally linked to the offence and substantially reduces culpability.

• 3. Impaired mental functioning — burden: would result in substantially and materially greater than the ordinary burden or risks of imprisonment.

• 4. Treatment order proposed: Court Secure Treatment Order or residential treatment order.

• 5. Substantial and compelling circumstances that are exceptional and rare and justify doing so.

"Impaired mental functioning" (s 10A(1)): (a) mental illness within the Mental Health and Wellbeing Act 2022; (b) intellectual disability within the Disability Act 2006; © an acquired brain injury; (d) an autism spectrum disorder; (e) a neurological impairment, including but not limited to dementia. Impairment caused substantially by self-induced intoxication is expressly excluded.

s 10A(2B) — determining "substantial and compelling": the court must regard general deterrence and denunciation as the most important purposes; give less weight to personal circumstances; ignore previous good character, early guilty plea, parity and prospects of rehabilitation; and have regard to Parliament's expressed intention that the minimum ordinarily be imposed. "The bar is raised about as high as it can be without becoming fictional or illusory" (Haberfield [2019] VCC 2082 [91]).

Effect of a special reason — and a change to the test

Establishing a special reason means the court is not obliged to set the prescribed NPP. It does not mean the offender escapes a term of imprisonment. The test changed on 28 October 2018: it is no longer a special reason that the offender was aged 18–21 with particular psychosocial immaturity diminishing their ability to regulate behaviour.

Special reason — worked outcomes

• DPP v Webster [2019] VCC 2239: [YES SPECIAL REASON] special reason established on the offender's cooperation (statement to police) combined with youth.

• DPP v Haberfield [2019] VCC 2082: [YES SPECIAL REASON] RCI of a paramedic; 22yo, no priors, autism and schizophrenia. Special reason established by both impaired mental functioning at the time of the offence — "the only route to a non-custodial option" [70] — and burden of imprisonment (disconnection from treatment, vulnerability, suicide/psychosis risk). Sentence: 18-month MTMO. On drug-induced psychosis: a person acting in a psychotic state who was not on notice as to the likely effect of taking drugs has significantly reduced moral culpability (Avan [2019] VSCA 257; Marks [2019] VSCA 253) [80].

GATE 5 Standard sentence scheme (ss 5A, 5B, 11A)

Replaced the repealed baseline scheme in 2017. Applies to relevant offences committed on or after 1 February 2018 (s 162). Creates a "legislative yardstick" for seriousness alongside the maximum penalty. The standard sentence is the middle of the range of seriousness, determined by objective factors only — by reference to the nature of the offending; matters personal to the offender are not referenced (s 5A(1)). In most cases it is 40% of the maximum (except murder and trafficking a large commercial quantity). → Does NOT apply to: offences by children; offences heard and determined summarily; offences committed before 1 Feb 2018; and conspiracy, incitement or attempt to commit a standard sentence offence (s 5A(2)). → Effect: the court must take it into account and explain how the sentence imposed relates to it, giving reasons if higher or lower (s 5B(4)–(5)). Current sentencing practices may only be considered from after the scheme's introduction (post ½/18).

Standard sentence offences

Offence	Standard sentence
Murder	25 years
Murder of an emergency worker on duty	30 years
Homicide (manslaughter) by firearm — commenced 1/7/20	13 years
Rape	10 years
Sexual penetration of a child under 16	6 years
Sexual assault of a child under 16	4 years
Culpable driving causing death	8 years
Traffick large commercial quantity of drugs	16 years
Various other sexual offences with a 10-year maximum	4 years

Standard sentence — how the courts have read it

• R v Brown [2018] VSC 742 (Champion J): the first standard sentence decision. "While sentences might rise as a consequence of courts considering the standard sentence as an additional sentencing factor, it is not an imperative to which I must have regard" [56]. "Nothing in the provision demands that the standard sentence assumes a dominant role" [66]. "Simply another factor … not to be treated as a determinative figure and should not interrupt the operation of the instinctive synthesis principle" [68]. Upheld by a bench of five: Brown v The Queen [2019] VSCA 286.

• R v Robertson [2019] VSC 145 (Champion J): the scheme is "not a two-step approach"; standard sentence considered "as one of the factors in my instinctive synthesis, but it has not assumed a dominant or determinative significance" [89].

s 11A standard-sentence NPP scheme: unless it is in the "interests of justice" not to do so, the court must fix an NPP of at least 30 years if the relevant term is life; 70% of the relevant term if 20 years or more; 60% if less than 20 years. So a 20-year sentence attracts a 14-year NPP.

Ordinary synthesis

GATE 6 The s 5(2) mandatory considerations

The court must have regard to: - the maximum penalty; - the standard sentence (if any); - current sentencing practices (s 5(2)(b)); - the nature and gravity of the offence; - the offender's culpability and degree of responsibility; - the impact of the offence on any victim; - the personal circumstances of any victim; - any injury, loss or damage directly resulting; - whether the offender pleaded guilty and at what stage (s 5(2)(e)); - the offender's previous character (s 5(2)(f)); - the presence of any aggravating or mitigating factors; and - any other relevant circumstances.

Standards of proof on the plea

What is being proved	Who proves it	Standard	Authority
Aggravating facts	Prosecution	BRD Beyond reasonable doubt	Storey [1998] 1 VR 359; s 141(1) Evidence Act
Mitigating facts	Offender	BOP Balance of probabilities	Storey [1998] 1 VR 359; s 141(2) Evidence Act

Evidence on the plea: the Evidence Act applies under s 4(2) if the court so directs — but not the tendency and coincidence rules, and not in relation to uncontested facts. Contested facts must be proved by admissible evidence (Rumph [1988] VR 466). Prior criminal history does not include Children's Court priors more than 10 years old (s 3 Criminal Procedure Act; s 584 CYFA).

The governing principles

• Instinctive synthesis: the judge identifies all relevant factors, discusses their significance, then makes a value judgment as to the appropriate sentence. Only at the end does the judge determine the sentence (Markarian [2005] HCA 25 per McHugh J).

• Proportionality: defines the upper and lower limits of punishment, constraining both excessively lenient and overly severe responses (DPP (Vic) v Jones (a Pseudonym) (2013) 40 VR 267). A sentence should never exceed what is proportionate to the gravity of the offence in light of its circumstances (Veen [No 2] (1988) 164 CLR 465), including the maximum penalty, degree of harm, method, and culpability.

• Parsimony: the judge must be satisfied no other sentence is appropriate before imposing imprisonment (R v O'Connor [1987] VR 496); the sentence must be no more severe than necessary to achieve the purposes (R v Piacentino (2007) 15 VR 501). Applies to length as well as type (Greatorex v The Queen [2016] VSCA 136). Requires the least severe option that achieves the purpose (Milne). Statutory in s 5; s 17A Cwth Crimes Act.

• Totality: the aggregate must be "a just and appropriate measure of the total criminality involved" (Postiglione (1997) 145 ALR 408). Ask what the total would have been had all offences fallen for consideration on the same occasion — includes interstate offences (Mill (1988) 166 CLR 59). Applies to serious offenders too (Connell [1996] 1 VR 436). "Once the aggregate satisfies both the mitigatory objectives and the punitive principles, 'that is enough'. 'More than enough is wrong because the excess is not only purposeless but might be harmful'" (Azzopardi [61] referring to Postiglione).

• Crushing sentences: avoid where possible — one that destroys any reasonable expectation of a useful life after release (Yates [1985] VR 41). But in some very serious cases it cannot be avoided (Gregory [2000] VSCA 212).

• Crown sentencing range: the prosecution must not submit a numerical range — it is a "statement of opinion, not a submission of law" (Barbaro; Zirilli [2014] HCA 2; cf MacNeil-Brown). Prosecutors must still prevent appealable error, assist with facts, principles, legislation and case law, identify comparable cases and assess gravity.

• Defence duty: must not knowingly mislead the court, by words or by omission. But no duty to disclose prior convictions or detrimental antecedents so long as what is put is not misleading (Rumpf [1988] VR 466). Must not keep the court's error secret to preserve an appeal point (Giannarelli v Wraith).

MITIGATING FACTORS — balance of probabilities (Storey; s 141(2) Evidence Act)

Factor	Principle & authority
Addiction (drug)	Clear and binding authority that drug addiction may be significant mitigation where a link to the offending is established on the balance of probabilities (R v Lacey [2007] VSCA 196 — street-level trafficking). Not mitigating above street-level trafficking; not in serious cases like armed robbery (Knell [2001] VSCA 82). Addiction resulting from an unfortunate background, or to cope with illness, leading to offending may mitigate (Redenbach (1991) 52 A Crim R 94).
Gambling addiction	Occasions where pathological gambling is mitigating will be uncommon; only in an unusual case will it significantly affect general deterrence, and on Verdins principles it should not on that ground alone result in any appreciable moderation (Grossi [2008] VSCA 51, Redlich JA [56]). Six reasons: (1) symptoms usually won't warrant reduced culpability; (2) offending typically repeated over a protracted period; (3) crimes commonly sophisticated, devious, planned; (4) breach of trust commonly attracts an increased penalty, making them apt vehicles for general deterrence; (5) offenders have had a degree of choice as to how they finance the addiction; (6) the nexus is often unsubstantiated.
Admissions	Where the offender's admissions prove an offence otherwise unknown and not otherwise provable, a significant discount follows (R v Doran [2005] VSCA 271 — a "demonstrable discount … in order to encourage others to make like admissions", citing Kirby J in Ryan v The Queen [2001] HCA 21 on the public interest in revealing additional offences). Re-affirmed in Latina v The Queen [2015] VSCA 102.
Age — old age	Relevant; the term should be in proportion to remaining life expectancy (Vella [2001] VSCA 174).
Age — youth	Mills [1998] 4 VR 235, three propositions: (1) youth is a paramount consideration; (2) rehabilitation normally far more important than general deterrence; (3) a youth should not be sent to adult prison if it can be avoided. Rationale: young offenders have potential to be redeemed, are still developing, and may be more open to positive influence (Azzopardi [35]). Need not be under 21 — but the older the offender, the more the principles diminish (Mills). "Young offender" = under 21 at the time of sentence (s 3). Significant priors do not always show no prospects, if there is increased maturity and desire for rehabilitation (Seymour). Youth Justice preferable to custody (Misokka); youth detention seen as rehabilitative (Vassallo & Tassioulas); absence of a minimum term may require an adult sentence with a parole period (Benfield; Misokka); the judge cannot take into account executive transfer between detention and imprisonment.
Youth — the limits	Principles may yield to general deterrence: "where the degree of criminality … requires deterrence, denunciation, just punishment and protection of the community to become more prominent …, the weight to be attached to youth is correspondingly reduced" (Azzopardi [2011] VSCA 372, Redlich JA). Examples: seriousness plus no real remorse and no reasonable prospects; wanton violence and viciousness; proper evidence a crime is particularly prevalent among young offenders. "Only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigating consideration of youth be viewed as all but extinguished" [44]. General deterrence remains relevant for children sentenced in the adult court under the Sentencing Act, but is likely significantly moderated.
Ancillary orders	Statutory penalties and confiscation/forfeiture orders are a form of punishment generally to be taken into account, being "part of the retribution exacted from offenders on behalf of the community" (Allen (1989) 41 A Crim R 51).
Bail conditions	Punitive element — onerous conditions (curfews, alcohol restrictions, reporting) constitute a deprivation of liberty and ought to be taken into account. Rehabilitative element — the ability to comply demonstrates capacity to be a good citizen and supports prospects. Quasi-custodial bail programs (residential rehabilitation with disciplinary conditions) should be given credit (R v Delaney (2003) 59 NSWLR 1).
Conditions in custody	Conditions under which a sentence is served are taken into account in assessing severity and impact (R v Faure [2005] VSCA 91). This is so even where the conditions are due to the offender's own conduct (further offending in prison) — e.g. effective solitary confinement or restricted movement (Yat v The King [2024] VSCA 93).
Delay	Undue delay not the fault of the accused can mitigate (Miceli [1998] 4 VR 588). What is undue depends on the case (not undue in a complex case requiring lengthy investigation). Delay may result in additional punishment and unfairness — e.g. where rehabilitation has occurred in the interim (Nikodjevic [2004] VSCA 222). Delay in sexual offences involving delayed complaint by young people is not normally mitigating (Glennon [1993] 1 VR 1997; Nikodjevic). Not mitigating where the delay is the accused's fault (Whyte (2004) 7 VR 397).
Deprived background	Bugmy v The Queen [2013] HCA 37: a deprived background (1) does not diminish in significance over time; (2) should be given full weight irrespective of criminal history; but (3) may not have the same relevance to all purposes of punishment. Weight is for individual assessment in each case. Examples: traumatic childhood leading to addiction — reduced moral culpability to a limited extent (Rookledge [2004] VSCA 300); sexual abuse can explain sexual offending and reduce culpability (R v AWF (2000) VSCA 172), particularly if it led to a lack of understanding of appropriate sexual behaviour (Gallagher); ward of the State (R v Chambers (2003) 145 A Crim R 15); childhood separation and cultural dislocation of an Indigenous offender (R v Fuller-Cust (2002) VSCA 168); abusive relationships / domestic violence / verbal and physical domination (Osland (1998) 197 CLR 316, 377–8 per Kirby J); extreme social disadvantage (R v Clarke (2006) VSCA 174); "it is not the aboriginality itself which is mitigating; rather it is membership of an Indigenous community with its associated disadvantage" (Neal v R (1982) HCA 55, Brennan J); Aboriginal people may find prison more burdensome and a lengthy term unduly harsh (Fernando (1994) 76 A Crim R 58).
Contribution to community	Mitigating — e.g. contribution to sport (DPP v Bulfin [1998] 4 VR 114).
Emotional stress	Leading to offending may lessen moral culpability (Cincotta): health problems (Tyley), relationship breakdown (Leonboyer [2001] VSCA 149), work-related stress (Cincotta), depression from marriage breakup (Salew [1998] VSCA 141), agitation by family circumstances and confrontation by a drunken aggressive person (Gangi [2003] VSC 221).
Double punishment	To the extent two offences contain common elements, it is wrong to punish twice for those common elements (Pearce (1998) 194 CLR 610; s 51 Interpretation of Legislation Act). But where a single act reflects separate harms, the law permits separate punishment (e.g. culpable driving) (Bekhazi (2001) 3 VR 321). Griffiths v The King [2025] VSCA 301 — threat to inflict serious injury and common assault, same victim, plea conducted on the basis both charges founded on the same statement ("Give me the knife, I'll stab him"): appeal allowed, TES and NPP reduced.
Extra-curial punishment	Loss of career (Ellis (2005) 11 VR 287); trauma from publicity (Pilarinos [2001] VSCA 9); injury during commission — grief at the accidental death of one's own child in a car accident can be traumatic and go to remorse/punishment (Teh (2003) 40 MVR 195); offender shot in a botched armed robbery (Asling and Barci (1994) 76 A Crim R 103); severe burns from arson relevant despite being caused by his own conduct (Haddara (1997) 95 A Crim R 108).
Good character (s 5(2)(f))	Character considers priors, general reputation and community contribution (s 6). A person may be of bad character even with no priors — e.g. evidence of long-term trafficking (Weininger (2003) 212 CLR 629). Good character may reduce specific deterrence and increase prospects. Little weight in the most serious cases, e.g. armed robbery (Knell), or where offending occurs over a protracted period e.g. fraud (Liddell [2000] VSCA 37). Relevant where the offence occurs in the wake of a personal crisis (DPP v Mobss and Elliot [2003] VSCA 148). Not mitigating where character was used to exploit the victim (Walsh [2000] VSC 433) — but for s 5AA one must ask whether the good character actually assisted the offending: DPP v Ooms [2023] VSCA 207 (teacher/student) — held open to take it into account; mere fact good character led D to become a teacher, thereby allowing the initial approach, does not itself mean it assisted the sexual acts; offending not at school, complainant not entrusted to D because of his character, relationship progressively less relevant (at times an impediment), not predatory.
Guilty plea	s 5 Sentencing Act; s 16A Cwth Crimes Act. Discounts approved and may be taken into account in mitigation (Cameron v R (2002) HCA 6). Potentially evidence of remorse and willingness to facilitate the course of justice; always mitigating on the basis of utilitarian benefit to the community. If a previously rejected plea is later accepted, the accused should get the benefit as if pleaded at the earlier stage (Heaney [1992] 2 VR 531).
Plea — the 10 propositions	Phillips v R [2012] VSCA 140 (Redlich JA): (1) a discount for utilitarian benefit must always be allowed save for an exceptional category; (2) exceptional cases arise where the gravity is such that no discount is appropriate; (3) the strength of the Crown case is irrelevant to the utilitarian discount; (4) a greater discount may be justified where the plea involves considerable savings/significant benefit; (5) it is always a question for the judge whether remorse, willingness to facilitate justice and acceptance of responsibility are to be inferred from the plea (subjective criteria); (6) where there is evidence or an accepted submission of the unqualified existence of those criteria they should be fully reflected; (7) the utilitarian benefits may also inform the discount for willingness to facilitate justice; (8) the weakness of the Crown case may inform willingness to facilitate justice; (9) the judge need not deal separately with objective and subjective criteria unless less than the full discount should be allowed for the subjective; (10) the strength of the Crown case can only support an inference that subjective criteria played little or no role where the contextual evidence permits that conclusion.
Hardship to family	s 16A(2) Cwth Act. Only mitigating if exceptional circumstances; there is no other residual discretion of mercy beyond exceptional circumstances (Markovic [2010] VSCA 105). Can affect type, quantum and ancillary orders. The test: cogent evidence that imprisonment would impose exceptional hardship on the family, "considerably more severe than normal for a family where the father is imprisoned", so highly exceptional that "it would be, in effect inhuman to refuse" (Esposito [2009] VSCA 277 per Nettle JA). Can be a combination of factors (Spicer [2003] 193 A Crim R 206), e.g. sole carer for severely disabled family members (Lam [2007] VSCA 246).
Separation from a dependent child	Mitigating (Ouless); given less weight for very serious offences (Zampaglione (1981) 6 A Crim R 287). Not being able to assist ill parents is mitigating as prison is more burdensome (Illic [2003] VSCA 82).
Foreign nationals	Not normally mitigating, especially where the offender came to Australia to commit offences (Ferrer-Esis (1991) 55 A Crim R 231). More likely mitigating where they came for a lawful purpose then offended (DPP v Miller [2005] VSCA 7).
Risk of deportation	Not an irrelevant consideration; probable deportation can be used two ways: it will usually increase the burden of imprisonment, and the loss of the opportunity to settle in Australia is a significant punishing consequence in itself (Guden v The Queen [2010] VSCA 196). A court cannot be asked to speculate: proper consideration of likelihood requires sufficient evidence to permit sensible quantification of the risk, and demonstration that deportation would actually be a hardship (R v Yildirim [2011] VSCA 219; Darcie v The Queen [2012] VSCA 11). Guden confirmed despite mandatory visa cancellation provisions — because of the Minister's discretionary revocation power, deportation cannot be treated as a certainty (Lima Da Costa Junior [2016] VSCA 49, contrary to obiter in DPP v Zhuang [2015] VSCA 96 [54]). Limited weight where the offending is particularly serious (Fichtner [2019] VSCA 297 [96]) — but the court will usually still take into account the burden flowing from the anxiety of possible deportation where there are significant ties.
Ill health	Two ways: (1) can make imprisonment harder (Van Boxtel (2005) 11 VR 259); and (2) imprisonment may cause health to deteriorate or have materially adverse consequences (Pilarinos [2001] VSCA 9). Also deterioration of mental health in custody as a result of disability (Tyley; Martin (1990) 47 A Crim R 16). Not enough to prove illness — must prove hardship (Gagliardi (1999) 108 A Crim R 344). Terminal illness and the prospect of dying in prison is relevant but does not justify a disproportionately lenient sentence (Cumberbatch (2004) 8 VR 9).
Informer discount	s 16A(2) Cwth CA. Significant discount (Su [1997] 1 VR 1 at 77). Weight for the burden of protective custody (Rostom [1996] 2 VR 97). Rarely given unless the offender discloses everything he knows; must have potential to offer significant assistance. Does not matter if it ultimately turns out unhelpful, e.g. police already had the information (Cartwright (1989) 17 NSWLR 243). Extent to which he has placed himself in danger is relevant (Golding (1980) 24 SASR 161). May be a large reduction purely for utilitarian purposes (Duncan [1998] 3 VR 208). No mechanical calculation (Cuthbertson). Discount available for assistance on unrelated offences (Williamson; Rostom). Cooperation balanced against seriousness (Nguyen [2000] VSCA 209). Significant benefit where offences not known to police (Lomax [1998] 1 VR 551). Commonwealth: for future assistance the court must state what the sentence would have been but for the assistance; past and future assistance treated separately.
Intellectual disability	May attract Verdins (McIntosh [2008] VSCA 242). Must consider how the impairment affected mental functioning / causal link (Muldrock [2011] HCA 39; Pettiford [2011] VSCA). Labels like "mild" or "moderate" do not assist; look at how the ID impacted at the time of offending and how it will impact in future (Leeder [2010] VSCA 98). An ID accused is likely to have impaired capacity to reason (Muldrock); general deterrence sensibly moderated (Bx [2002] VSCA 126). Specific deterrence may not be moderated if the court finds imprisonment will have a deterrent effect (DPP v Patterson [2009] VSCA 222).
Mental impairment (Verdins)	"Mental impairment" = any temporary or permanent restriction on mental or intellectual functioning, or any mental disorder or abnormality — may arise from defined mental illness or from PTSD, Asperger's, post-natal depression, schizophrenia or intellectual disability. No need for a diagnosable illness or a particular level of severity. R v Verdins (2007) 16 VR 269 — relevant in at least six ways: (1) reduce moral culpability (not legal responsibility) — affecting just punishment and denunciation; (2) influence the type of sentence and the conditions in which it is served; (3) & (4) eliminate or reduce general and specific deterrence — depending on the nature and severity and its effect on mental capacity at offending and/or sentence; (5) increase the hardship of prison; (6) justify a less severe sentence where there is a serious risk imprisonment will have a significant adverse effect on mental health.
Verdins — the operating rules	Enlivened where the offender suffers impaired mental functioning at the time of offending or sentence. Whether general deterrence is moderated, and by how much, depends on nature and severity: "what matters is what the evidence shows about the nature, extent and effect" [8]. The diagnostic label is not determinative, but the principles are confined to cases of impaired mental functioning; the court must direct attention to how the particular condition affected the particular offender in the particular circumstances. For limbs 1–3 there must be a connection to the offending: a 'realistic connection', or having 'caused or contributed', or being 'causally linked'. To enliven limbs 1–3 the offender must establish the impairment affected the ability to appreciate wrongfulness, or obscured intent, or impaired the ability to make calm and rational choices or think clearly at the time. Limbs 4 and 5 may operate where the impairment makes prison more onerous or prison may exacerbate the condition, if expert evidence establishes significance. Cogent evidence, normally expert opinion, is necessary; the assessment must be undertaken with rigour (R v O'Neill [2015] VSCA 325 [68], [80]). What the judge needs is "not a diagnostic label but a clear, well-founded expert opinion as to the nature and extent of the impairment and … its likely impact at the time of the offending and/or in the foreseeable future" (Brown v The Queen [2020] VSCA 212).
Personality disorders	Brown v The Queen [2020] VSCA 212 recognises personality disorders can activate the Verdins impaired-mental-functioning considerations in the same way as any other condition — overturning R v O'Neill [2015] VSCA 325 in that respect. Personality disorders or cognate conditions have continued to be regarded as relevantly mitigating to some degree (R v Kunduraci [2015] VSC 707; R v Cia Xia Liao [2015] VSC 730).
Self-induced mental impairment	Depends on: the connection between the drug use and the MI (are they independent?); whether the decision to take the drug was a free decision; and whether the accused had knowledge of the impact (if not usually violent when taking drugs the MI may be mitigating — Rees [2011] VSC 523). Where drug use was caused by the MI, the MI will be mitigating (Dupuy [2008] VSCA 63). Wright [2015] VSCA 333 — schizophrenia controlled for 20 years until he ceased medication and used ice: "the fact that offences are committed under the influence of drugs does not mitigate … unless the evidence establishes that the decision to begin taking the drug was not a free, rational decision" [5]. Note the countervailing effect: the same impairment may suggest a heightened risk of reoffending and hence community protection — "one tending to favour a shorter sentence, the other a longer sentence" [6].
Motivation	May be aggravating or mitigating. Altruistic motivation is mitigating (Ryan); suicide for the terminally ill (Maxwell [2003] VSC 278). Little weight to misguided loyalty (Kelly & Townsend). Need — e.g. threats (Parker), debt (Gill (1986) 8 Cr App R 321); the threat must be proportionate (Roach [2005] VSCA 162).
Parity	Equal justice requires like offences be treated alike, but that relevant differences be capable of justifying different outcomes. If there is a 'marked' or 'manifest' disparity giving rise to a justifiable sense of grievance, parity may be infringed. No justifiable grievance arises where it was reasonably open to the judge to differentiate (Anthony v The Queen). Children and adults: the principle does not strictly apply but has some relevance where the age gap is not large (Evans [2003] VSCA 223). Parity may require a sentence to be reduced because of a co-offender's sentence even if that sentence is thought manifestly inadequate — to the lowest level within the range reasonably open, but not to a level which is manifestly inadequate (Abdou and Chebib [2015] VSCA 356 [59], drawing on Wilson; O'Loughlan; Fletcher; Farrugia; Taleb).
Proportionality	A court should never exceed what can be justified as appropriate or proportionate to the gravity of the crime considered in light of objective circumstances (Veen [No 2] (1987) 164 CLR 465).
Provocation	Mitigating — goes to explain the offending. Relevant where there is loss of self-control, but not where it becomes vigilantism (Aboujaber). May reduce the need for specific deterrence and encourage rehabilitation; may show the accused is not a cold-blooded killer.
Rehabilitation (s 5(1)©)	An offence may be so grave that rehabilitation is not as important (Kane [1974] VR 759). Established rehabilitation may be taken into account (Duncan (1983) 9 A Crim R 354). Bad priors can indicate limited prospects (O'Brien & Gloster [1997] 2 VR 714). Subsequent offences can only be taken into account in assessing prospects (Pham [2003] VSCA 207). Offending on bail is relevant to prospects (Gray [1977] VR 225). A gap in time since the last offence is relevant (Smith). Forgiveness of the victim and personality disorder are relevant to prospects (Skura [2004] VSCA 53). May give effect to rehabilitation through a shorter non-parole period (Deakin (1984) 54 ALR 765).
Remorse	Mere entry of a guilty plea does not establish remorse; proper evidence is required (Barbaro VIC 365–66 [35], [40]–[41]). Contrition, repentance and remorse after the offence are mitigating, leading in a proper case to some, perhaps considerable, reduction (Neal (1982) 149 CLR 305 at 315). Also goes to prospects of rehabilitation (Skura). Only genuine remorse mitigates, cf self-pity — it is rare (Whyte (2004) 7 VR 397). The time remorse is manifest is relevant to weight; voluntary disclosure demonstrates remorse (Lomax [1998] 1 VR 551). A plea may demonstrate remorse (Starr & Smith [2002] VSCA 180). The court may consider conduct during proceedings (s 5(2C)). Demonstrated by: self-mutilation (Gallagher), attempted suicide (Sellen (1991) 57 A Crim R 313), apology (Neal), making restitution (Halfpenny [2003] VSC 308; Kovacevic), cooperation with police (Rookledge [2004] VSC 300).
Restitution	Shows remorse (Halfpenny [2003] VSC 308; Kovacevic); may go to self-rehabilitation (Ryan). Not enough to avoid punishment (Morris [1993] 2 VR 192).
Uncharged acts	A sentencer cannot punish for an unaverred circumstance of aggravation where, if averred, it would have reconstituted the offence as a different, more serious offence (De Simoni (1981) 147 CLR 383). Uncharged acts may provide context (Rankin (2001) VSCA 158).

AGGRAVATING FACTORS — beyond reasonable doubt (Storey; s 141(1) Evidence Act)

Factor	Principle & authority
Bad character / priors	Can increase specific deterrence and condign punishment; may indicate moral culpability, limited prospects and need for community protection. "The antecedent criminal history … cannot be given such weight as to lead to a penalty disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences (DPP v Ottewell). It is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested … a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate a more severe penalty. It is legitimate to take account of antecedent history when it illuminates the moral culpability of the offender, or shows his dangerous propensity, or shows a need to impose condign punishment to deter" (Veen [No 2] (1987) 164 CLR 465). Sentence must still be proportionate despite priors, and the offender must not be punished for previous crimes (O'Brien & Gloster [1997] 2 VR 714; Ryan (2001) 206 CLR 267). Weight reduced by a significant time lapse (Smith). Foreign convictions are relevant (Postiglione (1991) 57 A Crim R 301).
Offending on bail	Aggravating; impacts prospects of rehabilitation (Gray [1977] VR 225). Triggers the presumption of cumulation — s 16(1A)(e).
Breach of trust	Friends do not count (DPP v Gorgulu [2023] VSCA 140). An invitation to an event, and subsequent attendance, does not give rise to a position of trust (Watkins (a pseudonym) v The King [2023] VSCA 203). Number of victims relevant (Gibson (1993) 68 A Crim R 531). Whether property was stolen from individuals, the duration of the crime and impact on public confidence all relevant (Barrick (1985) 7 A Cr App R 142). Status (lawyer, police officer) relevant (Wright (No 2) [1968] VR 174). Police breach of duty a serious aggravating circumstance (Cosgrove (1988) 34 A Crim R 299). Doctors (Pahuja (1989) 40 A Crim R 252); teachers (Ellis (2005) VSCA 105); lawyers (Ryan); employees generally (McLean (2000) 2 VR 118); sex offences (Sposito); violent offences against children (Kesic [2001] VSCA 17).
Current sentencing practice (s 5(2)(b))	Inevitably involves an overview of other sentences (Giordano [1998] 1 VR 544), but single cases are rarely of assistance (Lawson (1997) 142 FLR 323). Schedules of cases give a general guide but without context are of limited application; the larger the sample the more likely useful (Bloomfield (1998) 44 NSWLR 734). Care needed given the limitations of statistics (DPP v Maynard [2009] VSCA 129). Current practices can never do more than indicate the range; every case is different and there is no single correct sentence. Statistics are 'yardsticks' only (Pham); "little if any weight can be given to … broad statistical information" (Basic (2017), citing Pham (2015) 256 CLR). Current sentencing practice does not limit the Court of Appeal's power on a Director's appeal to impose the appropriate sentence — "it is simply a matter to be taken into account" (DPP v Dalgliesh (a pseudonym), cited in Basic per Redlich JA). Obiter that current practices for upper-range commercial quantity trafficking needed to change (Gregory (a pseudonym) [2017] VSCA 151).
Denunciation & deterrence (s 5(1)(d))	Where deterrence needs to be strongly emphasised, personal mitigating factors such as good character may receive little, if any, weight (Najpurki v Luker (1993) 117 FLR 148; Liddell [2000] VSCA 37).
Hate crime (s 5(2)(daaa))	Requires the court to have regard to anti-group prejudice or hatred where it motivated (or partly motivated) the offending. Three possible consequences: it may increase the seriousness of the offence; elevate the importance of denunciation; and elevate the importance of deterrent sentencing.
Intoxication	Generally no mitigation in self-induced intoxication; the 'out of character exception' is rare (Hasan [2010] VSCA 352). Intoxication may aggravate because of the recklessness with which the offender became intoxicated (Coleman (1990) 47 A Crim R 306). Recklessness = the accused is aware they are likely to become aggressive when intoxicated and drinks anyway (Hay [2007] VSCA 147). Aggravating where the offender is aware of the impact and has priors in similar circumstances (Currie (1988) 33 A Crim R 7).
Maximum penalty	Reflects the seriousness of the offence (Oliver (1980) 7 A Crim R 174). Reserved for the worst category of offending (Ibbs (1987) 163 CLR 447). Where an offence tried on indictment would normally have been dealt with summarily, it will generally be appropriate to take that into account (Miller (1989) 44 A Crim R 185).
Motivation	May aggravate or mitigate. Absence of motive does not diminish moral culpability (DPP v Cook (2004) 141 A Crim R 579). Aggravating: greed, racially motivated. Revenge usually aggravating (Summers (1972) 56 A Cr App R 604) but can be mitigating, e.g. assaulting a person who sexually abused them (C [2004] VSCA 97).
Paedophilia	Verdins principles have little application. Propensity to commit sexual offences is aggravating due to the need to protect the community and the difficulty of treatment (DPP v EB [2008] VSCA 127).
Planning	Pre-planning may indicate a prolonged impulse to criminality, calling for emphasis on specific deterrence and community protection (Sullivan [1998] VSCA 95). Using knowledge gained from employment as part of the crime is aggravating (Idolo). E.g. being armed with a weapon / use of a disguise.
Post-offence conduct	Can aggravate — e.g. moving a dead body to the driver's seat to make it look like the other party was driving (DPP v Scholes [1999] 1 VR 337; [1998] VSCA 17).
Resulting pregnancy	Treated as an aggravating feature of a sexual offence; part of the justification is that juvenile pregnancies often adversely affect the victim, her family and society (Clarkson v The Queen; E J A v The Queen [2011] VSCA 157). Arguably less aggravating where (1) the offending is consensual (the child not a reminder of a traumatic non-consensual experience) or (2) the offending is not incestuous (greater risk of harm to the child and social stigma otherwise).
Prevalence	Prevalent offending is aggravating (Downie & Dandy [1998] 2 VR 517; Baldwin (1988) 39 A Crim R 465 — armed robbery; Quach — heroin trafficking). General deterrence of greater importance (Williscroft [1975] VR 292).
Protection of the community (s 5(1)©)	The court can take into account the prevalence of the offences, the community's attitude towards them, the fact the applicant was in a position of trust, and that an offence was committed while on parole for similar offences (Burnett (1993) 70 A Crim R 469).
Role	Moral culpability is linked to role — the lesser the role the less culpable (Baird (1985) 32 A Crim R 67). Limitations on role are not as important where the offence is very grave (Dunbar) or where the offender is a vital link in the chain (e.g. drug courier) (Thiagarajah (1989) 41 A Crim R 45).
Special status	E.g. lawyer or police officer (Wright (No 2) [1968] VR 174) — as distinct from breach of trust. The offence need not be committed on the job. General deterrence significant (Pangello (1991) 56 A Crim R 441).
Specific deterrence	Less important if the person is unlikely to reoffend (Browne [1999] VSC 282); more important where likely to reoffend (Pickard [1998] VSCA 50).
Subsequent convictions	Unless relying on good character, the defence has no duty to disclose. Cannot be considered in aggravation of the offence. But can be led to rebut mitigation — e.g. prospects of rehabilitation, remorse, specific deterrence (Rumpf [1988] VR 466).
Value and benefit	Actual enrichment may be a significant aggravating feature (Thomas [1998] 3 VR 188 — tax fraud involving gold, jewellery and riches). Not mitigating if there is no enrichment. Must consider loss to the victim (Zakaria (1984) 12 A Crim R 386). Doesn't matter if the loss is shifted to a third party (e.g. insurance) (Senese [2004] VSCA 136).
Vigilante conduct	Courts are generally concerned to suppress vigilante conduct by deterrent sentences; it generally requires condign punishment (DPP v Pham [2010] VSCA 181). Judicial intolerance of vigilante conduct (Sumner [2010] VSCA 221).
Weapon	Not aggravating if an element of the offence — that is reflected in the maximum penalty. High-powered firearm aggravating (Kelly). A single kick can be characterised as a weapon (Johns [2003] VSC 415). A blood-filled syringe is aggravating, "calculated to instil an exquisite sense of anguish and fear in soft targets" (Pratt [2003] VSCA 186). Weapons frequently used in particular charges are aggravating (Williscroft [1975] VR 292). Imitation firearm: generally not mitigating as the victim doesn't know the difference; terror to the victim relevant (Murnane) but relevant to reduced risk to victims (Smith). The way the weapon was used is relevant (Hatherley). Spontaneous rather than pre-planned use is less aggravating (Laffey [1998] 1 VR 155). Use on a vulnerable group aggravating (Hansford).
Status of victim (s 5(2))	Disparity in ages (Webb [1971] VR 147). Vulnerable victims / 'soft targets': elderly (Wilson — rape), infants (Moran — murder), pregnant (Mizon [2002] VSC 115), disability (Smith), police (Kane [1974] VR 759), prison officer (Hansford). Must be a causal link. No mitigation for the victim's contribution to the offending or complicity. The victim's attitude to sentence is irrelevant (Pritchard (1973) 57 Cr App R 492), but forgiveness shows less lasting impact (Marasovic). Offending with no permanent physical injury but ongoing emotional consequences (Birrell [2010] VSCA 262). Victim impact may be inferred in the absence of a VIS (Darcie [2012] VSCA 11).
Vulnerable victims — detail	Generally: Mourad [2008] VSCA 4; Woolley [2008] VSCA 44; Wills [2010] VSCA 235; Birrell [2010] VSCA 262. Restraint of a vulnerable victim (Tscherepko [2010] VSCA 299). Protected victims — solicitors are not a protected class, and offences against solicitors by clients do not attract deterrent sentencing on that basis (Glascott [2011] VSCA 109). Sexual offence in the workplace against a vulnerable victim (Worsnop (2010) 204 A Crim R 38). Offending against an intellectually disabled child (LD [2009] VSCA 311). No presumption that sexual offences on an unconscious victim are less traumatic or less grave (Balassis [2010] VSCA 296). Small commercial burglary targets as vulnerable victims (Adams [2011] VSCA 77); relevance of 'soft targets' (Little & Holt [2011] VSCA 155). Offending under the pretence of giving lessons about sex, against a particularly vulnerable victim, abusing the trust a child places in their father (DM [2012] VSCA 227).
Secondary victims & relationships	Aggravation where offending occurs in the presence of children (DPP v Nguyen [2010] VSCA 31). Prior relationship between offender and victim (Lowe [2009] VSCA 268). Relative gravity of attacks on innocent strangers vs associates — unresolved (Ashton [2010] VSCA 329). Gravity of domestic violence offences (Kane [2010] VSCA 213). Whether a disabled child born of an incestuous relationship is a victim — questioned, but not resolved (DPP v CJA [2013] VSCA 18).
Forms of harm	Aggravation where pregnancy results (DPP v BDJ [2009] VSCA 298; OAA [2010] VSCA 155; CF [2010] VSCA 275). Error to take into account impact on victims of associated uncharged conduct (Maddocks [2011] VSCA 20). Gravity of causing-injury offences with unintended catastrophic consequences (DPP v Marino [2011] VSCA 133). Foreseen and unforeseen consequences (DPP v Wilkins [2009] VSCA 275; Tancredi [2010] VSCA 157; Pamvouxoglou [2010] VSCA 157; Ashe [2010] VSCA 119).
Victim opinion	Relevance of victim forgiveness — increased significance of victim impact in negligence offences (Marsh [2011] VSCA 6); circumstances where forgiveness is not of significant weight (Mok [2011] VSCA 38); relevance of an institutional victim's attitude (Marannu [2011] VSCA 105); a victim's choice not to participate in the hearing does not mitigate (DPP v Gerrard [2011] VSCA 200); forgiveness relevant but must be viewed with caution — motivation for reconciliation in a small community may be complex (Hards [2013] VSCA 119). A consensual relationship between a victim just below the statutory age and an offender over 18 tends to mitigate offence seriousness (Stewart; Tyley; Bakker).

Structuring the sentence

GATE 7 Aggregate sentence? (s 9)

→ Available where: offences are founded on the same facts, or form, or are part of, a series of offences of the same or a similar character (s 9(1)) — the same "unity of subject matter" test as joinder. → MUST NOT be imposed where: the offender is a serious offender under Pt 2A and any offence is a relevant offence (s 9(1A)(a)); the offences include at least one standard sentence offence (s 9(1A)(ab)); or include one offence committed on parole and one at another time (s 9(1A)(b)). → Quantum: must not exceed the total effective period available by separate sentences (s 9(2)); and should be the same as would have been imposed had s 9 not been used (Grossi [2008] VSCA 51 [42]). → Announce: before imposing, announce in open court the decision, the reasons, and the effect (s 9(3)). Need not identify separate events or state notional individual sentences or cumulation (s 9(4)).

When an aggregate is inappropriate: where the indictment has only a small number of charges, or the charges vary significantly in objective gravity or the manner of commission — each offence then requires separate consideration (Hassall v The King [2024] VSCA 163; Grossi; DPP v Rivette). The archetypical appropriate case is multiple burglary/theft counts over a relatively short period, where an aggregate is "more flexible and pragmatic" (DPP v Frewstal Pty Ltd (2015) 47 VR 660). YJC orders are not covered by s 9 (use s 32A); the Children's Court uses s 362B CYFA.

GATE 8 Cumulation or concurrency? (s 16)

Presumption of concurrency (s 16(1)): every term must, unless the court otherwise directs, be served concurrently with any uncompleted sentence. Where no order is made, concurrency follows by operation of law (Muschialli; Chibnall). There must be good reason to order cumulation where s 16(1) applies, and good reason to order concurrency where a statute calls for cumulation (R v Mantini [1998] 3 VR 340). → Cumulation presumed / required (s 16(1A)): (a) fine default; (b) prison or escape offence; © serious offender for a relevant offence; (d) offence committed on parole; (e) offence committed on bail; (f) young offender under s 33(1A); (g)–(l) certain serious offences against emergency workers (exposure to risk by driving, ramming an emergency vehicle, common assault by direct application of force). → "Exceptional circumstances" tests: parole offences (s 16(3B)) and prison offences (s 16(3)) — cumulation is mandatory unless otherwise directed because of exceptional circumstances. Serious offenders (s 6E) and fine defaulters have no exceptional-circumstances test, but a strong prima facie rule of cumulation. → Separate episodes: cumulation is required in relation to separate episodes or transactions (Grabovac [1998] 1 VR 664). Consider: common elements, time between, different elements, separate offending, harm against different victims.

The correct method (DPP v Marino [2016] VSCA 133; Grabovac)

• 1. Determine an appropriate individual sentence for each charge on the applicable considerations.

• 2. Designate the highest individual sentence as the base sentence.

• 3. Determine the extent of cumulation on each count to reflect the distinct criminality of each episode/victim.

• 4. Stand back and apply totality — moderate the orders for cumulation if the total effective sentence infringes the principle, and check it is not a crushing head sentence.

GATE 9 Protective regimes — serious offenders, CCE, indefinite

→ Serious offender (Pt 2A): s 6B(2) — an adult convicted and sentenced to imprisonment/detention as a serious arson, drug, violent or sexual offender (serious sexual offender requires two or more sexual offences, persistent sexual abuse of a child under 16, or one sexual + one violent offence from the same course of conduct). A "relevant offence" (s 6B(3)) corresponds to that category; a conviction may be treated as a relevant offence only if satisfied beyond reasonable doubt. → Consequence (s 6D): the court must regard protection of the community as the principal purpose, and may impose a sentence longer than proportionate to the gravity of the offence. Cumulation is presumed (s 6E). Totality still applies (Connell [1996] 1 VR 436). → CCE offender (Pt 2B): s 6H(1) — guilty of a Schedule 1A offence with the requisite history: one CCE offence + 2 prior relevant offences; or 2 CCE offences + 1; or 3 or more CCE offences. A "relevant offence" is a CCE offence found guilty within the preceding 10 years. s 6I(1): maximum increases to double the prescribed maximum or 25 years, whichever is the lesser, despite anything to the contrary (s 6I(2)). Status entered in the records (s 6J(1)). → Indefinite sentence (ss 18A–18P): Supreme or County Court, offender other than a young person, convicted of a serious offence; court's own initiative or DPP application (s 18A(1)). Must be satisfied to a high degree of probability the offender is a "serious danger to the community" (s 18B(1)) — prosecution bears the onus. No parole; must not fix an NPP — instead a "nominal sentence" equal to the NPP it would have fixed (s 18A(3)). Reviewed after the nominal sentence, then at intervals of not less than 3 years (s 18H(1)); on review must discharge unless still satisfied to a high degree of probability, then a 5-year reintegration program (s 18M). "To be sparingly exercised, and then only in clear cases" (R v Moffatt [1998] 2 VR 229, endorsed in Buckley v The Queen [2006] HCA 7 — a departure from proportionality requiring cogent evidence and a clear appreciation of its exceptional nature).

Non-parole period thresholds

Head sentence	Non-parole period	Provision
Life, or ≥ 2 years	Must fix an NPP — unless the nature of the offence or the offender's history makes it inappropriate.	s 11(1)
1 year to under 2 years	May fix an NPP (must not where the term is combined with a CCO under s 44).	s 11(2), (2A)
Under 12 months	Must not fix an NPP.	s 11(2A)
Standard sentence offence	Unless in the interests of justice not to: NPP ≥ 30 yrs (life) / 70% (term ≥ 20 yrs) / 60% (term < 20 yrs).	s 11A(4)

Quantum & multiple sentences. The NPP must be at least 6 months less than the term (s 11(3)); in practice usually 60–75%. On a further sentence for an offender already serving one, fix a new single NPP for all the sentences — it supersedes the old and must allow release no earlier than before (s 14).

Custodial mechanics

GATE 10 Non-parole period (s 11)

→ MUST fix: life, or a term of 2 years or more — unless the nature of the offence or the offender's past history makes it inappropriate (s 11(1)). → MAY fix: term of 1 year to under 2 years (s 11(2)). → MUST NOT fix: total sentence under 12 months; or where a term of 1–2 years is combined with a CCO under s 44 (s 11(2A)). → The gap: the NPP must be at least 6 months less than the term (s 11(3)). In practice NPPs run 60–75% of the head sentence, though that range is less useful at 10 years or more. → Multiple sentences (s 14): where an offender already serving with an existing NPP receives a further sentence, the court must fix a new single NPP for all sentences (s 14(1)); it supersedes the previous NPP and must not allow release earlier than under the previous sentence (s 14(2)).

Pre-sentence detention, Renzella “dead-time” and Akoka quasi-detention

GATE 11 Pre-sentence detention (s 18)
Any period in custody in relation to the proceedings for the offence (or proceedings arising from them, including pending an appeal) must be reckoned as already served (s 18(1)), and the court must declare the period and note it in the records (s 18(4)). → Excluded (s 18(2)): custody of less than one day; a sentence/detention in a designated mental health service of less than one day; and a period previously declared under s 18 or s 35. Also not declarable at common law where the offender was already serving another sentence, was in extradition detention, or immigration detention pending trial. → Concurrent custody: s 18(1) is not confined to custody held only because of this offence — the entire period from arrest to resentencing counts even where partly served concurrently with another sentence (Younger v The Queen [2017] VSCA 199). → Discretion not to credit: the court may "otherwise order", but not without good reason — and not merely to formulate a combination sentence of imprisonment and a CCO (Pang v The Queen [2019] VSCA 56). If it does, it must still declare the time as 'nil days'. → Renzella “dead-time”: where custody falls outside s 18 ('dead time'), the court retains a common law discretion to take it into account by reducing the base head sentence or moderating cumulation within the synthesis (R v Renzella [1997] 2 VR 88). → Akoka “quasi-detention”: Restrictive environments like residential rehabilitation or immigration detention can enliven it, but not being 'real incarceration' they attract less weight (Akoka v The Queen [2017] VSCA 214).
	R v Renzella [1997] 2 VR 88	Akoka v The Queen [2017] VSCA 214
In one line	Dead-time (Detention Proper) The common law discretion to credit custody that does not qualify as declarable pre-sentence detention under s 18 — "Renzella time" or "dead time".	Quasi-detention How to treat time in a residential rehabilitation facility (e.g. Odyssey House) before sentence — the punitive element must be recognised separately from the rehabilitative gain.
The offender	Richard Renzella Offending fell into two distinct periods of criminality.	Nathan Akoka Aged 21–22 at the time of the offending. History of non-compliance — subject to six (possibly seven) separate Community Correction Orders between January 2013 and December 2015.
The offending	Tranche 1 (Sept 1991 – Nov 1992) — conspiracy to cheat and defraud. The syndicate stole 59 motor vehicles (primarily Toyota Landcruisers) valued at over $1 million, altered engine and chassis numbers, removed number plates, and fraudulently sold them with purported good title through a business known as Southern Commercials. Charged December 1992; released on bail. Tranche 2 (April – Nov 1993) — committed while on bail. The failure of an initial cannabis crop caused a cash shortage, prompting further offending: trafficking cannabis (a substantial crop with an estimated street value of $2 million grown at a Highett panel-beating factory) and a second conspiracy to steal and strip 23 Landcruisers valued at approximately $400,000.	Pleaded guilty to 10 charges across two indictments. Offences were grave: armed robbery, aggravated burglary, theft, making a threat to kill, and trafficking a drug of dependence. At first instance: total effective sentence of 6 years' imprisonment with a non-parole period of 3 years.
The custody / residency in question	Charged with the second and third offences on 4 November 1993 and refused bail. Remained in custody 314 days, until granted bail on 13 September 1994. Critically, throughout those 314 days he was in custody concurrently for both the 1991–92 conspiracy charges and the 1993 bail-offending charges.	Before sentence, spent nearly 12 months residing at Odyssey House, a residential drug treatment facility. The program was highly restrictive: strict rules, confinement, and severe limitations on freedom of movement. On the plea it was submitted his rehabilitation over that year had been "spectacular".
The legal problem	Following conviction at a first trial for the initial conspiracy, the sentencing judge deducted the 314 days. But under s 18(1) Sentencing Act 1991 (Vic) as it was back then, statutory pre-sentence detention could only be declared where the offender was held "for no other reason" than the offence being sentenced. Because the detention was "doubly warranted" — attributable to two separate sets of charges — the statutory provision could not apply. That gap forced the Court of Appeal to recognise an inherent common law discretion.	The sentencing judge heavily credited Akoka for the rehabilitative progress made over the 12 months… …but failed to adequately account for the punitive nature of the confinement he had endured. The core dispute on appeal was therefore whether restrictive residency carries a punitive element requiring separate recognition.
The decision / principle	Establishes a common law discretion for sentencing courts to take into account time in custody that does not strictly qualify as declarable PSD under s 18. Rationale — avoidance of double punishment. The court is obliged, as a matter of fundamental justice and fairness, to take the prior custody into account when formulating sentence.	A sentencing judge must recognise the punitive element of residency in a rehabilitation facility — arising from the strict rules, confinement and restrictions on liberty — separately and in addition to the rehabilitative progress achieved. Policy rationale: the community interest in encouraging offenders — particularly young offenders struggling with substance abuse — to seek assistance and complete rigorous residential treatment programs.
Scope / reach	Originally: "doubly-warranted" detention — e.g. remand for the offences being sentenced while simultaneously serving a term for entirely unrelated offences. Since expanded to cover time on remand for unrelated charges that were later withdrawn, discontinued (nolle prosequi), or resulted in an acquittal.	Not equivalent to custody. Residence at a rehabilitation facility — no matter how restrictive — is not actual time in custody, and is fundamentally different from statutory PSD and Renzella time. Broader application: the reasoning on restrictions on liberty has been applied by analogy to immigration detention. Immigration detention has no punitive purpose and no rehabilitative element, but it is actual time in custody and must be recognised in a broad and practical way to avoid double punishment.
Methodology	Not a strict mathematical exercise. The offender is not entitled to a day-for-day deduction as if drawing "credit in a bank". The time is taken into account "in a broad and practical way" as part of the judge's instinctive synthesis and consideration of totality.	The credit cannot be calculated in a precise mathematical manner. It will not ordinarily result in the entire period of residency being deducted from a custodial sentence. The extent of moderation depends on the specific facts, and requires an evidentiary basis as to the nature, severity and duration of the restrictions faced.
Relative weight	Because Renzella time represents real incarceration, it will usually be afforded greater weight in mitigation.	Time in a residential facility attracts less weight than Renzella time, precisely because it is not real incarceration.
Practice point	Run the s 18 declaration first. If the custody fails s 18 — because it was doubly warranted, or referable to withdrawn / discontinued / acquitted charges — do not stop: pivot to the Renzella discretion and ask for the head sentence (or the orders for cumulation) to be moderated within the synthesis. Never frame it as a day-for-day entitlement — that invites rejection. Frame it as avoidance of double punishment, taken into account broadly and practically.	Lead evidence of the restrictions, not just the therapeutic outcome — the nature, severity and duration of the confinement. Without that evidentiary base there is nothing on which the punitive element can be assessed. Make the two-limb submission expressly: (1) rehabilitative progress; and separately (2) the punitive deprivation of liberty. Akoka is authority that crediting only the first is error.

⚠ Sequence to run on any pre-sentence custody question: (1) declarable PSD under s 18 (mandatory declaration, s 18(4)) → (2) if it fails s 18, the Renzella common law discretion for real custody ('dead time') → (3) if it is quasi-custody (residential rehabilitation), the Akoka dual-limb approach → (4) immigration detention: real custody, recognised broadly and practically, but no punitive or rehabilitative purpose.

1. Immigration detention — the position

Issue	Position
Can it be declared under s 18?	No. Time in immigration detention cannot be declared as statutory pre-sentence detention under s 18(1) Sentencing Act 1991 (Vic). It exists pursuant to executive powers under the Migration Act 1958 (Cth) to regulate visas and deportation; it is not ordered “in relation to proceedings for the offence” as the statute requires, and it lacks a punitive purpose.
Must it be credited anyway?	Yes. The Court of Appeal has firmly established that time in immigration detention must be taken into account to mitigate a sentence, drawing on the common law discretion in R v Renzella [1997] 2 VR 88 and the restrictive-liberty principles in Akoka v The Queen [2017] VSCA 214.
How is it credited?	It must be recognised in a “broad and practical way” as part of the instinctive synthesis, to avoid double punishment (Underwood (a Pseudonym) v The Queen (No 2) [2020] VSCA 87; Sahhitanandan v The Queen [2021] VSCA 115). Following Akoka, the extent of the credit depends on the individual circumstances — including the duration of the detention and the nature and severity of the restrictions.
Where does it sit on the scale?	Unlike a rehabilitation facility, immigration detention is actual custody. Unlike a prison, it has no punitive purpose — so its burden may be less onerous in practice.
The judge’s obligation	A sentencing judge must clearly explain the weight given to the immigration detention, in order to justify what might otherwise appear to be an unduly lenient sentence.

2. The immigration detention cases

Case	Facts	Decision
Sahhitanandan v The Queen [2021] VSCA 115	Pleaded guilty to dangerous driving causing serious injury. After arrest, spent 104 days on remand before being granted bail. On release he was immediately taken into immigration detention, where he remained for 527 days, because his bridging visa was cancelled specifically due to the pending criminal charges.	The sentencing judge moderated the discount, incorrectly concluding the offender was in immigration custody for a reason “not related to these proceedings”. The Court of Appeal corrected this error, holding his detention was entirely related to the offending. Significant weight must be given to the 17 months in immigration detention to reflect the deprivation of liberty; resentenced to a substantially reduced term.
Underwood (A Pseudonym) v The Queen (No 2) [2020] VSCA 87	An Indian national, convicted of rape and indecent assault. Arrested and granted bail — but because his spousal visa was no longer valid he had become an unlawful non-citizen and was taken into immigration detention. Spent nearly two years in immigration detention awaiting trial.	The sentencing judge failed to give sufficient weight to that period in the synthesis. Fairness dictated the sentence must reflect that the appellant was kept in suspense with charges hanging over his head for two years while deprived of his liberty. Required a significant moderation of sentence.
Lefoe v The King [2023] VSCA 131	27-year-old offender sentenced for four charges of sexual penetration of a 12-year-old child. Before conviction, spent approximately 2 years and 8 months in immigration detention.	Applying Underwood and Sahhitanandan, the total effective sentence of 8 years (NPP 5 years 6 months) was manifestly excessive because it failed to adequately reflect the substantial loss of liberty already suffered. Resentenced to 6 years and 6 months’ imprisonment.

⚠ Run the sequence in order: (1) declarable PSD under s 18 (mandatory declaration — s 18(4)); → (2) if it fails s 18, Renzella for real custody (doubly-warranted remand, withdrawn/discontinued/acquitted charges, quashed convictions); → (3) Akoka for quasi-custody (residential rehabilitation — lead evidence of the restrictions, and make the two-limb submission); → (4) immigration detention: actual custody but no punitive purpose — credited broadly and practically, and the judge must explain the weight given.

Disposition ladder (ascending severity)

Disposition	Key point	Provision
Diversion	Pre-conviction; no finding of guilt on completion; needs acknowledgement + mutual consent + appropriateness; not where a fixed sentence / mandatory licence loss applies.	s 59 CPA 2009
Adjourned undertaking / discharge / dismissal	Good-behaviour undertaking; breach without reasonable excuse is itself an offence (s 83AC).	ss 72, 75
Fine	Convert ≤ 100 penalty units to community work (s 64); on default → a community-work order (s 69D); imprisonment in default only if the only appropriate order (s 69H), 1 day per penalty unit, max 24 months (s 69N).	ss 64, 69D, 69H, 69N
Community correction order	Intrinsically punitive — not a soft option (Boulton). Max length: Magistrates' 2 / 4 / 5 yrs, County/Supreme 5 yrs (s 38). Combine with imprisonment only if total imprisonment ≤ 1 yr after declared PSD (s 44). Unavailable as a combination for a Category ½ offence. ≥ 1 optional condition required (s 47).	ss 38, 44, 45, 47/48
Imprisonment	Last resort (s 5(4)) — only if the purposes cannot be met by a non-custodial sentence; then fix the NPP (Gate 5).	s 5(4); Pt 3 Div 2
GATE 12 Community correction order — availability (ss 36–48Q)
→ Available if: the offender is convicted/found guilty of an offence punishable by more than 5 penalty units (s 37(a)); the court has a pre-sentence report (s 37(b)); and the offender consents (s 37©). → PSR not required: where the CCO will be community work only and less than 300 hours (s 8A(3)). → Maximum length (s 38): Magistrates' Court — 2 years (one offence), 4 years (two), 5 years (three or more). County/Supreme — 5 years for one or more offences. Single aggregate CCO available for related offences (s 40); cumulative CCOs cannot exceed 5 years (s 41A); combined imprisonment+CCO for 2 or more offences capped at 5 years total (s 44(1B)). → Combining with imprisonment (s 44): for offences sentenced on or after 20 March 2017, the maximum term of imprisonment combinable with a CCO is 1 year, after deduction of PSD (s 44(1); Younger [2017] VSCA 199; Pang [2019] VSCA 56). Exception: serious arson offenders — a CCO may be added to any sentence of imprisonment. The CCO commences on release from imprisonment (or on completion of parole if released on parole). May be imposed on a single offence, as an aggregate, or imprisonment on one offence and a CCO on another (Wright v The King [2023] VSCA 243). → Conditions: mandatory core conditions (s 45(1)(a)–(f)) plus at least one discretionary condition (ss 48C–48LA), including a justice plan for intellectually disabled offenders (ss 47(2)(b), 80). Community work cannot exceed 600 hours (s 48C(4)). Cannot attach conditions as to restitution, compensation, costs or damages, or ancillary orders.

Boulton; Clements; Fitzgerald [2014] VSCA 342 — the CCO guideline judgment

• The two-step assessment: first assess the objective nature and gravity of the offence and the moral culpability of the offender; then ask whether the crime is so serious that nothing short of an immediate term of imprisonment will satisfy just punishment, or whether a CCO (alone or with imprisonment) would satisfy it.

• The question to ask yourself: "Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?"

• Why the CCO changed the landscape: it "dramatically changes the sentencing landscape" — the court can choose a disposition enabling all purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to imprisonment which is "skewed towards retribution and deterrence" [113]. It offers what no term of imprisonment can: demanding the offender take personal responsibility for self-management and self-control, pursue treatment, refrain from undesirable activities and associations, while maintaining family relationships [114].

• Punitive character: the broad range of conditions means the offender's life and freedom is significantly interfered with [97]. CCOs are "intended and expected to operate punitively for the entire duration of the order" [138]. They may achieve just punishment, deterrence, rehabilitation, denunciation and community protection (Cole [2015] VSCA 44 [22]).

• Combination sentences: it is a mistake to assume the imprisonment component deals with deterrence/denunciation/just punishment and the CCO is limited to rehabilitation (Greatorex [2016] VSCA 135 [28]). The court does not have to assign sentencing considerations between the two (Melnikas [2016] VSCA 112 [60], approved in Greatorex [60]).

• No need to expressly exclude: a court does not have to expressly rule out a CCO before imposing imprisonment (McGrath [2015] VSCA 176 [36]) — but given the range over which opinions can differ, it may be difficult to establish a CCO was not 'reasonably open' [102] (Melnikas [63]).

Varying, suspending & other dispositions

• Variation (s 48M): the court may vary or cancel a CCO or its conditions where satisfied that: circumstances have materially altered so the offender will not be able to comply; circumstances were wrongly stated or not accurately presented; the offender no longer consents; rehabilitation or reintegration would be advanced; or continuing the sentence is no longer in the interests of the community or the offender. Where a CCO commences after a period of imprisonment, an application to vary may only be made after release (DPP v Star [2015] VCC 2020 [20], [34]).

• Suspension (s 48O): the Secretary may suspend the operation of a CCO or a condition where the offender is ill or there are other exceptional circumstances; the suspended period does not count toward the order's duration.

• Deferral of sentence (s 83A): Magistrates' and County Court may defer for up to 12 months where the court finds guilt, is of the opinion deferral is in the interests of the offender, and the offender agrees. Purposes: assess capacity/prospects of rehabilitation; demonstrate rehabilitation has occurred; participate in programs addressing the underlying causes; participate in programs addressing the impact on the victim; or any other appropriate purpose. On the return date the court must have regard to the offender's behaviour during deferral, any PSR, and any other relevant matter (s 83A(3)). If the offender offends during deferral the court may re-list early (s 83A(4)); a warrant may issue for non-attendance (s 83A(5)). The Supreme Court appears to have an inherent power to defer (DPP v SJW (No 4) [2023] VSC 505, Tinney J [10]–[14]).

• Recording of conviction (ss 7, 8): a finding of guilt is a prerequisite. Custodial sanctions (imprisonment in its forms, YJC orders) must be accompanied by a conviction; for all other sanctions it is discretionary (s 7(1)). Under s 8 the court must have regard to all the circumstances, including (a) the nature of the offence; (b) the character and past history of the offender; and © the impact of recording a conviction on the offender's economic or social wellbeing or employment prospects. A finding of guilt without conviction is not a conviction for any purpose except as otherwise provided, but has the same effect for appeals, variation/contravention proceedings, subsequent offences and subsequent proceedings for the same offence. Nothing in s 8 detracts from proportionality — determine the appropriate proportionate sanction first, then consider s 8. Recording a conviction is "a significant act of legal and social censure … a diminution of the offender's legal rights and capacities" (Fox & Freiburg).

Ancillary matters

Victim impact statements

• The test: it is irrelevant whether the harm was reasonably foreseeable — the only requirement is that it be the 'direct result' of the offending; the offending need not be immediate or proximate, and there may be intervening steps (Berichon v The Queen).

• Disputed harm: if the court intends to impose a more severe sentence because of alleged harm and the origin of that harm is disputed, the causal connection must be established beyond reasonable doubt.

• Reception: weight is a matter for the sentencing judge. Contents "must be approached with care and understanding"; victims cannot be expected to be familiar with sentencing considerations, nor would it normally be practicable for the judge to explore the accuracy of assertions (DPP v DJK [2003] VSCA 109). Approach reception "with a degree of flexibility, subject … to the overriding concern that, in justice to the offender, the judge must be alert to avoid placing reliance on inadmissible matter" (R v Hester [2007] VSCA 298).

• Purpose: not intended to change sentencing principles — they introduce in a more specific way factors the court could ordinarily consider, and constitute "a reminder of what may be described as the human impact of the crime" (Beckett, Vincent J [79]).

• Absence of a VIS: a victim is not obliged to prepare one. The court may draw inferences about impact (Lomax [1998] 1 VR 551 at 559); even absent a VIS the judge may draw reasonable inferences from the evidence of injury, loss or damage to victims and their immediate families (Miller [1995] 2 VR 348 at 354). Absence does not compel an assumption of no impact — there is merely a lack of evidence (DPP v Samarentsis (2007) 170 A Crim R 224 [4]). A statement favourable to the offender must be given appropriate weight, but the victim's attitude cannot govern the process, in part because victims may not always be able to assess their own best interests.

Pre-sentence reports & diversion

• PSR — power: the court may order a PSR in any case before passing sentence, and may adjourn to enable preparation (s 8A(1)). The report concerns the circumstances of the offender, not the offence. Prepared by the Secretary to DHS for a YJC or youth residential centre order (s 8A(4)(a)), otherwise the Secretary to DJR (s 8A(4)(b)). Need not be authored by the Secretary personally so long as obtained through the relevant machinery (Ngo [1999] 3 VR 265 [47]).

• PSR — effect: a judicial officer's discretion as to the sentence is in no way fettered by the contents of a PSR (Callander; Webber (1996) 86 A Crim R 361; Chamberlain).

• Diversion (s 59 Criminal Procedure Act 2009): does not apply to an offence punishable by a minimum or fixed sentence or penalty, including mandatory licence cancellation/suspension, or to a s 49(1) Road Safety Act offence not so referred (s 59(1)). Requires, before a formal plea, that the accused acknowledges responsibility (s 59(2)(a)); the court considers diversion appropriate (s 59(2)(b)); and both prosecution and accused consent (s 59(2)©). Adjournment not exceeding 12 months. The acknowledgment is inadmissible and does not constitute a plea (s 59(3)). On completion no plea is taken and the court must discharge without any finding of guilt (s 59(4)); participation is not a finding of guilt except for the Confiscation Act, Control of Weapons Act s 9, Firearms Act s 151 and Pt 4 of the Sentencing Act. On failure, the court must take into account the extent of compliance (s 59(5)).

• Diversion — discretion: the magistrate should consider the circumstances, gravity and prior convictions before deciding suitability, and is not constrained by the opinion of the diversion co-ordinator or any established court policy (Rumbiak v Hough [2004] VSC 95; TH v Police (2005) 91 SASR 329). Prosecution consent is a necessary precondition (s 59); DPP v Venier-Moro [2015] VSC 704 implicitly accepts the availability of diversion on appeal to the County Court.

Breach of orders

• Adjourned undertaking (s 83AC): contravening an order for release on adjourned undertaking (ss 72/75, with or without conviction) — penalty Level 10 fine; defence reasonable excuse. On a finding of guilt the court must (s 83AT(1)): vary the order under s 78; confirm; cancel and re-sentence as though just found guilty; or make no further order. Must take into account the extent of compliance (s 83AT(2)).

• CCO (s 83AD): contravening a CCO — penalty 3 months' imprisonment; defence reasonable excuse. Because contravention is a discrete offence, the court should generally distinguish the penalty for the contravention from any re-sentencing for the original offence (McCallum [2007] VSCA 286). Powers mirror s 83AS(1): vary; confirm; cancel and deal with the offender as though just found guilty; or cancel and make no further order. Bond: may be forfeited in whole or part if the order is varied or confirmed (s 83AS(4)(a)); must be forfeited in whole or part if cancelled (s 83AS(4)(b)). Must take account of the extent of compliance (s 83AS(3)); failure to comply diminishes prospects of rehabilitation and is relevant to specific deterrence (Luu [2018] VSCA 92 [27]; Bieljok [2018] VSCA 99 [58]; Hamoud [2018] VSCA 123 [36]).

• Luu v The Queen [2018] VSCA 92 — combination sentences: on cancelling a CCO imposed in combination with imprisonment, the better approach is to set aside the whole of the sentence — cancelling the CCO and setting aside the term of imprisonment already imposed — and sentence afresh, declaring pre-sentence detention including time already served under the original term [23]. This preserves equal entitlement to an NPP however the sentence arose, and avoids the uncertainty of cumulating a new sentence. It would be a "very unusual case" where, having cancelled a CCO, a court imposed a term longer than the period of the original combination sentence [26].

• Lesser CCO contraventions: failure to comply with a community work condition — the court may direct up to 16 additional hours in a 12-month period (s 83AU), only if the failure is sufficiently serious, not serious enough to charge under s 83AD, the work is incomplete, and the s 48C(4) maximum will not be exceeded. Failure to comply with a curfew condition — hours may be increased by up to 2 hours per day or the period extended by up to 14 days (s 83AV), on equivalent conditions; electronic monitoring increased in the same way. Reasonable excuse is in s 83AW. Directions offences: s 83AE (leaving a place, failure to notify inability to attend, failure to attend, failure to produce a medical certificate, entering an unauthorised area) and s 83AF (contravening a written direction under s 46) — Level 11 fines. If acquitted, convicted or found guilty under one of ss 83AD, 83AE or 83AF, proceedings cannot be brought under the other two.

• Fine orders: contravention of a fine conversion order (s 83ADA) and of a fine default unpaid community work order (s 83ADB) — Level 10 fine; defence reasonable excuse.

Sex offender registration (Sex Offenders Registration Act 2004)

• The court's four duties: s 50 — notify registrable offenders of their reporting obligations and the consequences of non-compliance, and of the length of their reporting period where they became registrable through a sentence imposed by that court; s 11 — determine applications for a sex offender registration order; s 11A — determine applications for registration exemption orders. Additionally s 51 — ensure the Chief Commissioner of Police is advised of the details of the sentence or order as soon as practicable (not applicable to foreign courts).

• Registrable offender / offence: a person whom a court has at any time sentenced for a registrable offence (s 6(1)); a registrable offence is a Class 1 or Class 2 offence committed as an adult, or an offence resulting in a sex offender registration order (s 7(1)).

• Mandatory vs discretionary: SORA is a mandatory matter of procedure for Class 1 and 2 offences. It is discretionary for Class 3 and 4 — an application must be made. If granted, Class 3 attracts the same periods as Class 1, and Class 4 the same as Class 2 (s 34(4)).

• Class definitions: Schedule 1 defines Class 1 (essentially sexual penetration of children); Schedule 2 defines Class 2 (sexual abuse of children, non-penetrative child sex offences, non-child-specific offences when committed upon children, burglary with intent to sexually assault a child, child prostitution and child pornography). Both schedules cover repealed offences, attempts, conspiracy, incitement and foreign offences identified by regulation. Class 3 and 4 (s 8, Schedules 3 and 4) require that the offence was committed against a person other than a child and that the offender is a 'serious sexual offender' — defined by s 8(3) as a person sentenced for two or more offences listed in Schedules 1 to 4.

• Calculating the period: s 34(1) applies different periods based on the combination of offences the offender has 'ever been found guilty' of — the court must take into account both the current offences and all previously proven offences. s 34(3)(a): two or more offences from the same incident are treated as a single offence; s 34(4)(b): treated as a single Class 1 offence if at least one is Class 1. Offences arise 'from the same incident' only if committed against the same person within a 24-hour period (s 5(1)) — but s 5(1) limits rather than defines the phrase, so a sentencer retains a discretion to hold several offences within 24 hours are separate incidents if that is their true characterisation. s 35 provides a reduced period for child offenders, but s 35(3): no reduced child period if the person has committed a registrable offence as an adult. A course of conduct charge counts as a single finding of guilt (Criminal Procedure Act Sch 1 cl 4A(2)).

• Interaction with other orders: where a registration order is made for an offender subject to a Serious Sex Offenders (Detention and Supervision) Act 2009 order, the reporting period must be at least 15 years (s 11(10)). Where a reporting period would end while the offender is on parole, obligations continue until the end of the full term of imprisonment (s 36). The Act applies retrospectively to offences committed before commencement (s 34(2)).

Children's Court sentencing

• Sentencing principles (s 362(1) CYFA): as far as practicable the court must have regard to: the need to strengthen and preserve the relationship between the child and their family; the desirability of allowing the child to live at home; the desirability of allowing education, training or employment to continue without interruption or disturbance; the need to minimise stigma; the suitability of the sentence to the child; if appropriate, the need to ensure the child is aware they must bear responsibility for their actions; and, if appropriate, the need to protect the community or any person from violent or other wrongful acts. The court must have regard to each specified matter to the maximum extent possible (Poutai v The Queen [2011] VSCA 382).

• Pre-sentence reports (s 571 CYFA): general power to order and adjourn (s 571(1)). Mandatory when considering a Youth Residential Centre Order or Youth Justice Centre Order (s 571(2)), and where it appears the child is intellectually disabled (s 571(3)). The author may recommend an appropriate sentence (s 573(3)).

• Sentencing orders: dismissal; non-accountable undertaking; accountable undertaking; good behaviour bond; fine; probation order; youth supervision order; youth attendance order; youth control order; youth residential centre order; youth justice centre order; plus compensatory and costs orders.

Case law compendium — further authorities

How to read this section: Everything above is drawn from your notes. This section adds every further authority found in the source material on the same topics. Where the source material flagged a case in your notes as absent, that does not mean the case is wrong — the two bodies of material differ — but those are marked below as verify so you can check before citing.

Mitigation — additional authorities

• Drug addiction: R v Koumis (2008) 18 VR 434; R v Katelis [2010] VSCA 239; R v McKee (2003) 138 A Crim R 88 (addiction may reduce culpability where the decision to begin taking drugs was not a free, rational decision but the product of youth, despair or social/economic disadvantage); R v Bisset; R v Bouchard (1996) 84 A Crim R 499; R v Ibrahim; Jamel Mohtadi v The Queen; R v Giannioudis; DPP v Clifford; Munda v Western Australia [2013] HCA 38 (addiction may increase personal deterrence and community protection); Bui v DPP (Cth) (2012) 244 CLR 638; R v Nagy [1992] 1 VR 637.

• Gambling: Jeong Pang v The Queen [2019] VSCA 56 (gambling does not lessen seriousness but may be relevant to motivation); R v Martin (1994) 74 A Crim R 252; R v Huynh & Others; DPP v Raddino (2002) 128 A Crim R 43; R v Atalla (2002) 132 A Crim R 531; R v Luong & Ors; Novak (1993) 69 A Crim R 145; R v Do; DPP v Bulfin [1998] 4 VR 114; R v Telford; R v De Stefano.

• Admissions / Doran: Sherman (a pseudonym) v The Queen [2018] VSCA 241; Adamson v The Queen [2015] VSCA 194; AB v The Queen (1999) 198 CLR 111.

• Informer / cooperation: Haamid (a pseudonym) v The Queen [2019] VSCA 330; R v Johnston (2008) 186 A Crim R 345; DPP v Cooper [2019] VSCA 21; Collins v The Queen [2018] VSCA 131; R v Perrier (No 2) [1991] 1 VR 717; R v Nagy [1992] 1 VR 637; R v Ritter; R v DS; Farmer v The Queen [2020] VSCA 140.

• Old age & ill health: R v Bazley (1993) 65 A Crim R 154 (age/ill health alone do not justify an unacceptably lenient sentence for grave offences); R v RLP (mitigating where the offender will spend the whole or a substantial portion of remaining life in custody); R v AMP; R v Belbruno (2000) 117 A Crim R 150; R v Gregory; R v Whyte (2004) 7 VR 397; Bufton v The Queen; Lowndes v The Queen (1999) 195 CLR 665; Leimonitis v The Queen; Dinsdale v The Queen (2000) 202 CLR 321; R v Yates; R v Crowley (1991) 55 A Crim R 201; R v Bollen; Okutgen v R (1982) 8 A Crim R 262; R v Iles; R v McDonald (1988) 38 A Crim R 470; R v Grant; R v Mitchell (2000) 112 A Crim R 315; Spence v The Queen; R v De Montero (2009) 25 VR 694.

• Youth & rehabilitation: DPP v Lawrence (2004) 10 VR 125; DPP v SJK & GAS; R v McGaffin; DPP v TY (No 3) (2007) 18 VR 241; R v Tran (2002) 4 VR 457; R v Marshall; R v Lam & Ors; R v Hatfield; R v Dixon (1975) 22 ACTR 13; R v Wright; R v Bell; DPP v McCloy; R v Huynh; R v Wyley; DPP v Terrick (2009) 24 VR 457; IE v The Queen (2008) 183 A Crim R 150; Bergman (a pseudonym) v The Queen; DPP v Herrmann; Yat v The King [2024] VSCA 93; R v Osenkowski (1982) 30 SASR 212; R v Seymour (1983) 5 Cr App R (S) 85.

• Bail conditions & custody conditions: Akoka v The Queen [2017] VSCA 214 (punitive element of quasi-custody, e.g. residential rehabilitation — use this rather than Delaney, which the source material does not contain: verify); R v Renzella [1997] 2 VR 88 ('dead time'); Robinson v The Queen (2015) 47 VR 226; Bekink v The Queen (1999) 107 A Crim R 415; R v Liddy [No 2] (2002) 84 SASR 231; R v Lian; Packard (a pseudonym) v The Queen (2022) 300 A Crim R 55; VIM v The State of Western Australia; The Queen v Males; DPP v Vanu; Sahhitanandan v The Queen [2021] VSCA 115 and Underwood (A Pseudonym) v The Queen (No 2) [2020] VSCA 87 (immigration detention).

• Delay: Tones v The Queen [2018] VSCA 118 — the two limbs: (1) unfairness of charges hanging over the offender; (2) rehabilitation progress during the delay. Also R v Nutter; R v Better; R v Todd [1982] 2 NSWLR 517.

• Deprived background: Marrah v The Queen [2019] VSCA 119; Leslie v The King [2023] VSCA 13; Munda v Western Australia [2013] HCA 38; Kennedy v R; Hoskins v R; Nasrallah v R; Veen v The Queen [No 2] (1988) 164 CLR 465 (the countervailing community-protection effect).

• Mental impairment / Verdins: Brown v The Queen (2020) 62 VR 491 (the source material gives this parallel citation — note your notes cite [2020] VSCA 212); Wright v The Queen [2023] VSCA 243; Dabaja v The King [2023] VSCA 209; R v Tsiaras [1996] 1 VR 398; DPP v Heaton; Singh v The King; Hasan v The Queen (2010) 31 VR 28; Avan v The Queen [2019] VSCA 257; Marks v The Queen [2019] VSCA 253; Lisle v The Queen; Morrison v The Queen; Clark v The Queen.

• Family hardship & dependants: Lindemann v The King [2023] VSCA 313 — distinguish third-party hardship (needs Markovic exceptional circumstances) from the offender's own anguish at being unable to care for family, which is a conventional mitigating factor increasing the burden of imprisonment and does not require the exceptional test. Also R v Polterman; R v Power; R v Edwards (1996) 90 A Crim R 510; R v Wirth (1976) 14 SASR 291; DPP v Snow (a pseudonym); Totaan v The Queen [2022] NSWCCA 75; Andrews v The King; Curtis v The Queen.

• Guilty plea: R v Hall (1994) 76 A Crim R 454; Siganto v The Queen (1998) 194 CLR 656; R v Thomson; R v Houlton (2000) 49 NSWLR 383; Pajic v The Queen; Worboyes v The Queen; R v Duncan (2001) 121 A Crim R 451; R v Majeric; R v RND; R v Tasker; R v Diep; R v Vosinthavong; R v Donnelly [1998] 1 VR 645; Wangsaimas, Vanit and Tansakun v R; DPP (Cth) v Thomas (2016) 53 VR 546.

• Remorse: CD v The Queen; R v Sellen (1991) 57 A Crim R 313; Halfpenny [2003] VSC 308; Rookledge [2004] VSC 300.

• Good character: Fichtner v The Queen [2019] VSCA 297 (the source material treats this as a character case, not deportation); Ryan v The Queen (2001) 201 CLR 297 (note: your notes cite (2001) 206 CLR 267 — verify which); Markovic v The Queen (2010) 30 VR 589; R v Storey [1998] 1 VR 359; Bhatia v R.

• Deportation: Guden v The Queen (2010) 28 VR 288 — deportation is not technically punishment for the offence, but operates as extra-curial punishment by adding to the burden of imprisonment and depriving the offender of permanent settlement. Also Allouch v The Queen; Ong v The King; Hague v The Queen; Ah-Kau v The Queen; Matamata v The Queen; Le v The King; Bedjeti v DPP; Magedi v The Queen (2016) 261 A Crim R 1; Nguyen v The Queen; Loftus v The Queen.

• Double punishment, parity, restitution: R v Orgill; DPP v Solomon (2002) 36 MVR 425; R v Teh (2003) 40 MVR 195. Parity: Postiglione v The Queen (1997) 189 CLR 295; Lowe v The Queen (1984) 154 CLR 606; R v Wilson (2000) 116 A Crim R 90; O'Loughlan; Fletcher; Farrugia (2011) 32 VR 140; Taleb. Restitution/emotional stress: Kovacevic v The Queen; Gangi [2003] VSC 221.

Aggravation — additional authorities

• Prior history: Bugmy v The Queen (2013) 249 CLR 571; Russo v The King [2024] VSCA 291.

• Offending on bail / parole: R v Bayley [2013] VSC 313 — offences committed while on parole and on bail aggravate in serious matters such as rape and murder. Caution: in Barbaro a Crown submission labelling offending on bail as aggravating was rejected on the facts.

• Breach of trust — by category: Police/justice: R v Jones (1989) 41 A Crim R 1; R v Fraser; R v Strawhorn (2008) 185 A Crim R 326; R v Ferguson (2009) 24 VR 531; Miechel v The Queen (2010) 207 A Crim R 334; DPP v Blackberry. Public officials: DPP v Armstrong; R v Petroulias (No 36); R v Buckskin; R v Note Printing Australia Ltd; R v Lamella. Parents/caregivers: R v Franklin (2008) 191 A Crim R 354; EDM v The Queen; Russell v The Queen (2011) 212 A Crim R 57; EMT v The Queen; PG v The Queen; Carter (a pseudonym) v The Queen (2018) 272 A Crim R 170. Family friends: Dibbs v The Queen (2012) 225 A Crim R 195; Neubecker v The Queen (2012) 34 VR 369. Teachers: DPP v Riddle; R v Dunne; R v Coffey (2003) 6 VR 543; DPP v Ellis (2005) 11 VR 287. Doctors: DPP v Joseph. Employees: DPP v Gonzalez; DPP v Caulfield. Others: R v Manners; DPP v Fabriczy (2010) 30 VR 632; Murray v The Queen.

• Current sentencing practices: DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; R v Pham (2015) 256 CLR 550; Barbaro (2014) 253 CLR 58; Wong v The Queen (2001) 207 CLR 584; Hili v The Queen (2010) 242 CLR 520; DPP v Ooms; Hudson v The Queen; Nguyen v The Queen.

• Deterrence & denunciation: De Castres v The Queen (2011) 33 VR 493 (general deterrence paramount for 'soft targets' and so that "the law of the jungle" cannot take hold in prisons); Williscroft & Ors; DPP v DJK; WCB v The Queen; R v Ngui (2001) 1 VR 579; Boulton v The Queen (2014) 46 VR 308; Byrne v The Queen; DPP v Janson (2011) 31 VR 222.

• Hate crime: protected groups include religious affiliation, racial or cultural origin, and sexual orientation — Sentencing Advisory Council, Sentencing for Offences Motivated by Hatred or Prejudice (Report, 24 July 2009).

• Intoxication: DPP v Lawrence (2004) 10 VR 125; DPP v Simpas; DPP v Malikovski; Winch v The Queen (2010) 27 VR 658; Smith v The Queen (2013) 39 VR 336.

• Maximum penalty: Ibbs v The Queen (1987) 163 CLR 447; Markarian v The Queen (2005) 228 CLR 357; Elias v The Queen (2013) 248 CLR 483; DPP v Dalgliesh (a pseudonym) [2017] HCA 41.

• Motivation & vigilante conduct: R v Reddrop; Craddock; Taskiran v The Queen; R v Downie; R v Charles; Frost v The Queen; Harvey v The Queen.

• Paedophilia — an important shift: historically a paedophilic condition was not a proper basis for moderating culpability, but Brown v The Queen displaced that strict prohibition: where the disorder operates as part of a constellation of disorders (e.g. with depressive or personality impairment) it can enliven Verdins, provided the evidentiary burden is met (DPP (Cth) v Knipe [2019] VSCA 228).

• Planning: Jurj v The Queen; R v MDB; R v Welsh; Shrestha v The Queen; Grey (a pseudonym) v The Queen; Ji v The King; DPP v Beck.

• Post-offence conduct: R v Bayley [2013] VSC 313; R v Culleton; R v Hunter; R v Nguyen; Freeburn v The Queen (No 2).

• Prevalence: R v Bateman; R v Hatfield; Wan v The Queen.

• Role / offending in company: offending "in company" heightens culpability as it is more vicious, cowardly, and underlines the victim's powerlessness; "taking it in turns" rape is particularly appalling because it treats the victim as mere chattel (Jurj v The Queen). Also DPP v Granata; DPP v Lian.

• Weapon: DPP v Shackley; Wyka v The Queen; DPP v Gerrard (2011) 211 A Crim R 171; Nash v The Queen (2013) 40 VR 134; Hamid v The Queen; Lukudu.

• Victim vulnerability — by category: Family/domestic violence (severely aggravating; the relationship does not lessen seriousness — the breach of trust in the domestic setting, often with premeditation and in the victim's own home, requires profound denunciation): Pasinis v The Queen; Skeates (a pseudonym) v The King; Bullock v The King; Feliz v The Queen. Elderly: DPP v Grabovac [1998] 1 VR 664; GAS v The Queen (2004) 217 CLR 198; Hi v The Queen. Children/infants: DPP v Clunie; Harlow v The Queen; Bromley v The Queen; R v Quarry (2005) 11 VR 337; DPP (Cth) v Garside (2016) 50 VR 800. Sleeping/unconscious: Hasan v The Queen (2010) 31 VR 28; R v Wano; DPP v McInnes; Wan v The Queen. Sex workers: DPP v Daly; Dulihanty v The Queen; R v Livas. Pregnant: Crawford v The Queen. Intoxicated: R v Nabegeyo (2014) 34 NTLR 154. Innocent strangers: DPP v SJK.

• De Simoni — full citation: R v De Simoni (1981) 147 CLR 383 at 389 (per Gibbs CJ). See also R v Olbrich (1999) 199 CLR 270 at 278; Nguyen v The Queen [2016] HCA 17; DPP v OJA (2007) 172 A Crim R 181.

Structural & procedural — additional authorities

• Totality & crushing: Hoare v The Queen (1989) 167 CLR 348; Boulton v The Queen (2014) 46 VR 308; DPP v Grabovac [1998] 1 VR 664; DPP v Marino [2016] VSCA 133; Grant Berry v The Queen; Phongthaihong v The Queen; DPP v Eagles. Note the refinement: a severe sentence is not automatically disproportionate simply because it is crushing.

• Crown submissions: Matthews v The Queen (2014) 44 VR 280; DPP (Cth) v Haynes; R v Tait and Bartley (1979) 24 ALR 473; R v Casey and Wells (1986) 20 A Crim R 191. Defence counsel retains the duty to obtain the least punitive sentence properly available (R v Anzac; R v Storey).

• Category 1 & 2: DPP v Kenneison [2022] VSCA 321; DPP v Bowen [2022] VSCA 355; DPP v Georgiou [2019] VCC 2036.

• Statutory minimums / s 10A: DPP v Kenneison; DPP v Bowen; Buckley v The Queen [2021] VSCA 138; DPP v Weatherburn [2019] VCC 1440.

• Standard sentence scheme: DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; Muldrock v The Queen (2011) 244 CLR 120; Julian Lockyer (a pseudonym) v The Queen [2021] VSCA 321.

• Aggregate sentences: Fitzpatrick v The Queen [2019] VSCA 63; Kerapa v The Queen [2018] VSCA 56.

• Cumulation — mandatory subsections: note s 16(3D) (emergency workers) alongside s 16(3B) (parole/bail).

• Pre-sentence detention: R v Foster; R v Nguyen; Mokbel v The Queen [2013] VSCA 106.

• Non-parole periods: R v Dang; Diver v The Queen.

• Indefinite sentences: Chester v The Queen (1988) 165 CLR 611; McGarry v The Queen (2001) 207 CLR 121; R v Jackamarra; R v Ainsworth. Buckley stresses such an order requires cogent evidence and consideration of whether protective aims could be met by a standard sentence.

• CCOs: Boulton v The Queen (2014) 46 VR 308; DPP v Ooms; Atanackovic v The Queen [2015] VSCA 136; Manariti v The Queen.

• SORA reporting periods: the source material states s 34 yields, broadly, 8 years for a single Class 2, 15 years for a single Class 1, and life for multiple serious offences — cross-check against the s 34/35 table before relying.

Currency watch

• 1 February 2018 — standard sentence scheme applies to relevant offences committed on or after this date (s 162); replaced the repealed baseline scheme (2017). Current sentencing practices only considered from after this date.

• 20 March 2017 — Category 1 and 2 classification commenced for offenders 18 or older; also the date from which the 1-year cap on imprisonment combinable with a CCO applies (s 44(1)).

• 28 October 2018 — special reason test changed (s 10A); a number of offences added to Categories 1 and 2. Psychosocial immaturity of an 18–21 year old is no longer a special reason.

• 1 July 2020 — manslaughter by firearm added as a standard sentence offence (13 years).

• Mental Health and Wellbeing Act 2022 — now the source of "mental illness" in the s 10A(1) definition of impaired mental functioning (the notes also record the earlier Mental Health Act 2014 formulation).

• Brown v The Queen [2020] VSCA 212 — personality disorders can now activate Verdins, overturning R v O'Neill [2015] VSCA 325 in that respect.

• Griffiths v The King [2025] VSCA 301 — most recent authority in the notes; double punishment where charges founded on the same statement.