Judgments Library

• Appeal against sentence allowed – Sentencing Judge erred in application of statutory aggravating factors – evidence of applicant’s institutionalisation accepted on re-sentence

[137] … The issue of the Applicant’s institutionalisation is also relevant to the special circumstances issue. The Court should take into account the need for a sufficient period of conditional and supervised liberty to assist the protection of the community, by maximising the prospect that the Applicant will not reoffend when the time comes for him to be released into the community. This approach does not involve the somewhat unrealistic suggestion that institutionalisation can be avoided in the Applicant’s case. Rather, it acknowledges the fact of institutionalisation and seeks to reduce the adverse consequences of that state of affairs: Jinnette v R [2012] NSWCCA 217 at [103].

• The sentence should establish conditions which facilitate rehabilitation taking into account “the purpose of preventing recidivism and institutionalisation and facilitating a prisoner’s reintegration into the community”: at [18]; DPP(Vic) v Stone [2003] VSCA 208 at [20].
• In mitigation, the offender has spent so much of adult life in prison there is a danger of becoming so institutionalised by further imprisonment as to be unable to function in society upon release – the law should never give up on the prospects of someone avoiding institutionalisation, especially someone who out of self-respect wants to do so – however, this is only a consideration, and community protection is the most important one: at [18], [26].

• Appeal allowed on basis disadvantage not taken into account – risk of institutionalisation a relevant consideration on resentence given applicant’s age and potentially crushing nature of sentence: at [45], [47].

• Applicant’s institutionalisation a matter of considerable significance at sentence hearing – although sentencing judge was not bound to accept counsel submissions, he was bound to consider them: at [29].
• Sentencing Judge erred in declining to find special circumstances by not referring to unchallenged expert opinion that applicant was institutionalised – absence of any reference to institutionalisation indicates judge had no regard to it: at [30], [42]-[44].
• No lesser overall sentence warranted, but special circumstances established – significant positive signs that with longer period on parole, rehabilitation likely to be successful, as opposed to mere possibility: at [57], [59]

Nature and Impact of Incarceration – General

[105] There is the loss of personal autonomy and of privacy, and the associated loss of control over choice of activities and choice of associates. The prisoner is subject to strict discipline, restriction of movement, forced association with other prisoners and — for a substantial part of each day — confinement in a small cell (in many instances, a cell shared with a cellmate not of the prisoner’s choosing). There is, moreover, exposure to the risks associated with the confinement of large numbers of people in a small space — violence, bullying, intimidation.

…

[107] Importantly for present purposes, these features of the restrictive prison environment also have the consequence that the opportunities, and incentives, for rehabilitation are very limited. For example, there is no access to sustained treatment for psychological problems or addiction. Access to anger management and sex offender treatment programs is rationed, and such programs are often unavailable to those sentenced to short prison terms.

[108] In addition, imprisonment is often seriously detrimental for the prisoner, and hence for the community. The regimented institutional setting induces habits of dependency, which lead over time to institutionalisation and to behaviours which render the prisoner unfit for life in the outside world. Worse still, the forced cohabitation of convicted criminals operates as a catalyst for renewed criminal activity upon release. Self-evidently, such consequences are greatly to the community’s disadvantage.

[109] These same points were made with great force 40 years ago by Fox J in R v Dixon (1975) ACTR 13 at 19-20. His Honour said:

In general, but by no means always, persons convicted of serious crime are the maladjusted people of the community, and some will have developed serious behavioural problems. … Unfortunately, gaol may well make their anti-social tendencies worse. This is not always the case; sometimes the experience of gaol effects a real improvement. Nevertheless, I think it is well accepted that it is so in most cases; at least where the sentences are at all long. The reasons are obvious enough: the prisoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals, some of whom are bound to be quite vicious, their sex life must be unnatural, scope for psychiatric treatment is very limited, if not non-existent, and employment is limited and stereotyped. To many this must seem one of the most absurd aspects of the whole matter. They may well ask why the system has to be so anti-social in operation, why it cannot be improved so that people for whom there is a prospect of reformation, and who are not so dangerous that they have to be kept in strict confinement, are given a real opportunity for self-improvement. The irony is that prison authorities are among the strongest advocates of reform.

…

When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again.

[110] In 2013, this Court in DPP v Anderson (2013) 228 A Crim R 128 endorsed Fox J’s criticisms:

There is no reason to believe that in 2013 the adult prison system has changed sufficiently to remove these concerns, notwithstanding considerable efforts by many people over a long period. The community would still ask today, as his Honour suggested then, why the prison system has to be ‘so anti-social in operation, why it cannot be improved so that people for whom there is a prospect of reformation are given a real opportunity for self-improvement’. Time and again, courts are told that correctional authorities are simply not adequately resourced to provide the sorts of facilities which are essential if those in prison — many of whom have very serious psychological and behavioural problems — are to be meaningfully rehabilitated and assisted so that, when they are released, they will have some real prospect of reintegration into the community.

• Crown appeal against sentence of periodic detention for offence of armed robbery dismissed
• Case for each respondent included evidence of difficult and deprived childhood – found no error in Sentencing Judge taking into account impact of incarceration in light of this background:

[53] The judge said, amongst other things:

“…if I sentence either of these young men to full time custody the awful problems that they have had in their lives thus far will be compounded and they will be in an absolutely hopeless situation…”

…

[66] I do not think that that observation, in the context, evidences the error suggested. It is a comment consistent with Yardley v Betts (1979) 22 SASR 108 at 112-3 which was referred to by Wood CJ at CL in Blackman and Walters at para 44 with evident approval (para 45). It is not irrelevant to take into account the effect which a sentence is likely to have.

• Crown appeal against suspended sentence for offence of armed robbery dismissed in view of exceptional circumstances
• Case for each respondent included evidence each had achieved substantial rehabilitation including use of delay between offence and arrest to break away from criminal associates: at [42]

[45] This has particular relevance for the present case. His Honour was, in my view, entitled to find that the position of each respondent was wholly exceptional, and that each had achieved a remarkable level of rehabilitation. Additionally, as I have previously noted, it was only by reason of their admissions, that their guilt could ever have been established. Moreover, if they had been sentenced to full time custody, they would have been at considerable personal risk by reason of the assistance given, which would have made their detention arduous and limited their opportunity to participate in the kinds of rehabilitation programs that would have been appropriate for young offenders. There was every reason to suppose that to send them to gaol would have been more likely to turn them towards a criminal way of life, than to maintain the degree of rehabilitation which each had, of his own effort and initiative, achieved. (emphasis added)