CRIMINAL LAW – Appeal – Sentence – Mandatory sentencing – Aggravated carjacking – Mandatory custodial sentence, minimum 3 year non-parole period ‘unless special reason exists’ – Judge not satisfied of ‘substantial and compelling circumstances that are exceptional and rare’ – Whether conclusion reasonably open – Applicant just 18 at time of offending – Immaturity, mental ill-health, substance abuse, vulnerability in custody – Need for rehabilitative disposition – Sentencing court prohibited from considering applicant’s prospects of rehabilitation – Exception not applicable – Leave to appeal refused – Farmer v The Queen [2020] VSCA 140 distinguished – Sentencing Act 1991 s10AD.
CRIMINAL LAW – Sentence – Sentencing principles – Mandatory sentencing – Statutory obligation to imprison – Exclusion of recognised sentencing principles – Purported exception practically impossible to satisfy – Effective removal of discretion – Judge as instrument of injustice – Breach of equal justice principle – Adverse impacts of imprisonment – Public interest in rehabilitation of offenders – Benefits of non-custodial dispositions – Need for review of mandatory sentencing provisions – DPP v Tokava [2006] VSCA 156, Azzopardi v The Queen (2011) 35 VR 43; [2011] VSCA 372, Boulton v The Queen (2014) 46 VR 248; [2014] VSCA 342, DPP v Bowen [2021] VSCA 355 considered.
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Counsel
Applicant:
Mr P J Smallwood
Respondent:
Ms K Hamill
Solicitors
Applicant:
James Dowsley & Associates
Respondent:
Ms A Hogan, Solicitor for Public Prosecutions
MAXWELL P T FORREST JA:
Summary
Over the past decade, the Victorian Parliament has introduced mandatory sentencing provisions for a range of offences. In a case to which one of these provisions applies, the sentencing court is effectively compelled — by law — to impose a custodial sentence and to fix a minimum term of imprisonment. The court is prohibited from making a non-custodial order, even as part of a combination sentence with a term of imprisonment. The obligation to imprison applies where the offender is aged 18 or over, and it therefore applied to the present applicant, who was barely 18 at the time of the offence.[1]
[1]Under s 10AD(2) of the Sentencing Act 1991 (‘Sentencing Act’) (as amended), the mandatory sentence does not apply to an offender who is under 18 at the time of the offence.
Each of the mandatory sentencing provisions includes what purports to be an exception to the obligation to imprison. That exception applies if the sentencing court is satisfied that ‘a special reason exists which would justify’ a different disposition. A judge can only find that a ‘special reason’ exists if he or she is satisfied (relevantly) that there are ‘substantial and compelling circumstances which are exceptional and rare’ and…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Buckley v The Queen [2022] VSCA 138
Case
[2022] VSCA 138
Decision Date
CaseChat Overview and Summary
The case of Buckley v The Queen involves an appeal against a sentence imposed for aggravated carjacking. The applicant, Buckley, was convicted of aggravated carjacking and sentenced to a mandatory custodial term with a minimum non-parole period of three years, as required by the Sentencing Act 1991. The Victorian Court of Appeal considered whether the sentence imposed was lawful and whether the trial judge’s conclusion was reasonably open on the evidence presented.
The primary legal issue was whether the trial judge's decision not to impose a sentence with a non-parole period was reasonably open on the facts. The court needed to determine if the judge was correct in finding that there were no substantial and compelling circumstances that were exceptional and rare to warrant a departure from the mandatory minimum sentence. Additionally, the court examined the broader implications of mandatory sentencing laws, particularly in light of the applicant's age at the time of the offence, his immaturity, mental health issues, and vulnerability in custody.
In evaluating the trial judge's decision, the Court of Appeal noted that the mandatory sentencing framework under the Sentencing Act 1991 did not permit consideration of the applicant's prospects for rehabilitation. The court held that the trial judge was correct in concluding that there were no exceptional and rare circumstances that warranted a departure from the mandatory minimum sentence. The court distinguished this case from Farmer v The Queen, where the Court found a different set of exceptional circumstances. The Court of Appeal further noted that the mandatory sentencing regime effectively removed judicial discretion and breached the principle of equal justice, but found that the statutory obligations left no room for the judge to consider rehabilitation.
The Court of Appeal refused leave to appeal, upholding the trial judge's decision. The decision reinforces the strict application of mandatory sentencing laws and the limited scope for judicial discretion in such cases. The court did not find the mandatory sentencing provisions to be unconstitutional or in breach of the principle of equal justice, and thus, the sentence imposed was affirmed.