Atanackovic v The Queen [2015] VSCA 136

Atanackovic v The Queen [2015] VSCA 136 - VSCA 2015 case summary — Zoe

[29]

5 Sentencing guidelines

(1) The only purposes for which sentences may be imposed are -

(a) to punish the offender to an extent and in a manner which is just in all of the circumstances; or

(b) to deter the offender or other persons from committing offences of the same or a similar character; or

(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender may be facilitated; or

(d) to manifest the denunciation by the court of the type of conduct in which the offender engaged; or

(e) to protect the community from the offender; or

(f) a combination of two or more of those purposes.

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(2) In sentencing an offender a court must have regard to―

(a) the maximum penalty prescribed for the offence; and

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(b) current sentencing practices; and

(c) the nature and gravity of the offence; and

(d) the offender's culpability and degree of responsibility for the offence; and

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(e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and

(f) the offender's previous character; and

(g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.

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(3) A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

(4) A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.

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(4C) A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.[10]

[31]

36 Purpose of an order

(1) The purpose of a community correction order is to provide a community based sentence that may be used for a wide range of offending behaviours while having regard to and addressing the circumstances of the offender.

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37 Community correction order

A court may make a community correction order in respect of an offender if -

(a) the offender has been convicted or found guilty of an offence punishable by more than 5 penalty units; and

(b) the court has received a pre-sentence report (if required) and has had regard to any recommendations, information or matters identified in the report; and

(c) the offender consents to the order.

38 Period and commencement of a community correction order

(1) The period of a community correction order is the period determined by the court which must not exceed -

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(b) in the case of an order made by the County Court or the Supreme Court whichever is greater of -

(i) the maximum term of imprisonment for the offence; or

(ii) 2 years.

(2) Unless section 44(3) applies, a community correction order must commence on a date specified by the court that is not later than 3 months after the making of the order.

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43 Fine and a community correction order

A court may impose on an offender a fine authorised by law in addition to making a community correction order.

44 Imprisonment and a community correction order

(1) When sentencing an offender in respect of one, or more than one, offence ..., a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 2 years or less.

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(3) If a court makes a community correction order in respect of an offender in addition to imposing a sentence of imprisonment in accordance with this section, the community correction order commences on the release of the offender from imprisonment or, if the offender is released on parole, on the completion of the parole period (as defined in section 55(1) of the Corrections Act 1986).

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48A Matters to be considered when attaching conditions

The court must attach conditions to a community correction order in accordance with -

(a) the principle of proportionality; and

(b) the purposes for which a sentence may be imposed as set out in section 5; and

(c) the purpose of a community correction order set out in section 36.

[46]

16A Matters to which court to have regard when passing sentence etc. - federal offences

(1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(a) the nature and circumstances of the offence;

(b) other offences (if any) that are required or permitted to be taken into account;

(c) if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;

(d) the personal circumstances of any victim of the offence;

(e) any injury, loss or damage resulting from the offence;

(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence - any victim impact statement for the victim;

(f) the degree to which the person has shown contrition for the offence:

(i) by taking action to make reparation for any injury, loss or damage resulting from the offence; or

(ii) in any other manner;

(fa) the extent to which the person has failed to comply with:

(i) any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or

(ii) any obligation under a law of the Commonwealth;

(iii) any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;

about pre-trial disclosure, or ongoing disclosure, in proceedings relating to the offence;

(g) if the person has pleaded guilty to the charge in respect of the offence - that fact;

(h) the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences;

(j) the deterrent effect that any sentence or order under consideration may have on the person;

(k) the need to ensure that the person is adequately punished for the offence;

(m) the character, antecedents, age, means and physical or mental condition of the person;

(n) the prospect of rehabilitation of the person;

(p) the probable effect that any sentence or order under consideration would have on any of the person's family or dependants.

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(3) Without limiting the generality of subsections (1) and (2), in determining whether a sentence or order under subsection 19B(1),[25] 20(1)[26] or 20AB(1)[27] is the appropriate sentence or order to be passed or made in respect of a federal offence, the court must have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order.

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At a glance

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Judgment (395 paragraphs)

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Legislation Cited (13)

Cases Cited (28)