Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 (22 December 2014)

Last Updated: 7 October 2015

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0135

JAMES BOULTON Appellant v THE QUEEN Respondent

S APCR 2013 0141

BENJAMIN JAMES CLEMENTS Appellant v THE QUEEN Respondent

S APCR 2013 0177

JOHN THOMAS FITZGERALD Appellant v THE QUEEN Respondent

and

THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA Intervener and VICTORIA LEGAL AID Intervener

and SENTENCING ADVISORY COUNCIL Amicus Curiae

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JUDGES: MAXWELL P, NETTLE, NEAVE, REDLICH and OSBORN JJA WHERE HELD: MELBOURNE DATE OF HEARING: 31 July 2014 and 1 August 2014 DATE OF JUDGMENT: 22 December 2014 MEDIUM NEUTRAL CITATION: st Revision: 30 September 2015, paras [21], [245] and [247]) [2014] VSCA 342 (1 Revision: 30 September 2015, paras [21], [245] and [247]) JUDGMENTS APPEALED FROM: DPP v Boulton (Unreported, County Court of Victoria, Judge McInerney, 20 June 2013); DPP v Caithness & Clements (Unreported, County Court of Victoria, Judge McInerney, 28 June 2013 and 4 July 2013); DPP v Fitzgerald (Unreported, County Court of Victoria, Judge Pullen, 23 August 2013). (Unreported, County Court of Victoria, Judge McInerney, 20 June 2013);(Unreported, County Court of Victoria, Judge McInerney, 28 June 2013 and 4 July 2013);(Unreported, County Court of Victoria, Judge Pullen, 23 August 2013).

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GUIDELINE JUDGMENT

CRIMINAL LAW – Sentence – Sentencing principles – Guideline judgment – Community correction order (‘CCO’) – Application by Director of Public Prosecutions – Application supported by Victoria Legal Aid and Sentencing Advisory Council – Consideration of function of sentencing guidelines – Need for consistency of approach by sentencing courts – Promotion of public confidence in criminal justice system – Underutilisation of CCOs since introduction – Proper case for guideline judgment – Sentencing Act 1991 ss 5, 6AA, 6AE, 8A, 36–48Q.

CRIMINAL LAW – Sentence – Guideline Judgment – Non-custodial sentence – Community correction order (‘CCO’) – Purposes of sentencing – Just punishment – Whether CCO suitable for serious offences – Consideration of punitive effect of CCO compared to imprisonment – Duration of CCO – Mandatory conditions – Power of sentencing court to attach conditions – Considerations of proportionality and suitability – Conditions capable of significantly disrupting offender’s life – Community protection – Conditions directed at rehabilitation reduce risk of re-offending – Advantages of non-custodial disposition – Disadvantages of imprisonment – General deterrence – Need for government to explain benefits of CCO – Sentencing Act 1991 ss 5, 36–48Q.

CRIMINAL LAW – Sentence – Guideline judgment – Community correction order (‘CCO’) – Determination of length of order – No correlation with imprisonment term – Order punitive for entire duration – Power to combine CCO with short term of imprisonment – Power to attach conditions requiring treatment for addiction or mental illness – Evidence-based sentencing – Pre-sentence reports – Expert assistance required – Difficulty of forecasting period of time required for offender’s rehabilitation – Whether term of CCO can extend beyond rehabilitation period – Power to cancel or vary CCO – Judicial monitoring condition – Flexibility of CCO – Sentencing court able to fashion order to address offender’s needs – Power to modify as rehabilitation progresses – Requirement of consent by offender – Sentencing Act 1991 ss 36–48Q.

BOULTON v THE QUEEN

CRIMINAL LAW – Appeal – Sentence – Armed robbery, recklessly cause injury – Sentenced to 3 months’ imprisonment and community correction order (‘CCO’) for 8 years – Nine months’ pre-sentence detention already served – Whether power to imprison in addition to imposing CCO – Whether manifestly excessive – Impaired mental functioning – Moral culpability reduced – Punitive effect of combined sentence – CCO conditions punitive – Intensive compliance period – Mandatory assessment and treatment for drug and alcohol abuse – Benefits for community of appellant’s rehabilitation –Sentence manifestly excessive – Resentenced to 3 months imprisonment, 3 year CCO – Same CCO conditions reimposed – Judicial monitoring condition added – Sentencing Act 1991 ss 36–48Q.

CLEMENTS v THE QUEEN

CRIMINAL LAW – Appeal – Sentence – Armed robbery, attempted armed robbery – Sentenced to community correction order (‘CCO’) for 10 years and fined $4,000 – Young offender – No prior convictions – Influenced by older co-offenders – Offending while drug-intoxicated – Conditions requiring unpaid community work (intensive compliance period), supervision, assessment and treatment for drug abuse, mental health assessment and treatment – Punitive effect of CCO and conditions – Punitive effect of monetary penalty – Prospects of rehabilitation – Likelihood of rehabilitation within 5 or 6 years – No warrant for longer order – Heightened risk of breach of longer order – Sentence manifestly excessive – Parity with co-offender – Resentenced to CCO for 6 years, fined $4,000 – Sentencing Act 1991 ss 36–48Q.

FITZGERALD v THE QUEEN

CRIMINAL LAW – Appeal – Sentence – Common assault (2) – Unprovoked attacks on elderly women – Pre-sentence detention 18 months – Sentenced to community correction order (‘CCO’) for 5 years – Serious mental illness – Probably operative at time of offending – Reduced moral culpability – Specific and general deterrence moderated – Protection of community – Low risk of reoffending – Proportionality – Sentence disproportionate to gravity of offending – No warrant for additional punishment beyond time served – Consent of offender to CCO – Whether appeal rights affected – Appeal allowed – Resentenced to time served – Sentencing Act 1991 ss 36–48Q.

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APPEARANCES: Counsel Solicitors For the Appellant Boulton Mr M D Stanton Victoria Legal Aid For the Appellant Clements Mr D A Dann with Ms J M Fallar James Dowsley & Associates For the Appellant Fitzgerald Mr S R Johns Leanne Warren & Associates For the Director of Public Prosecutions Mr J Champion SC with Mr B Kissane SC and Mr P Doyle Mr C Hyland, Solicitor for Public Prosecutions For the Attorney-General Dr G J Lyon QC with Ms K Argiropoulos Victoria Government Solicitor For Victoria Legal Aid Ms H Fatouros with Ms T Karp Victoria Legal Aid For the Sentencing Advisory Council Professor A Freiberg Ms C Marwood

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MAXWELL P

NETTLE JA

NEAVE JA

REDLICH JA

OSBORN JA:

Introduction

1 Since January 2012, the sentencing option of a community correction order (‘CCO’) has been available to Victorian courts. The CCO is a non-custodial order, to which are attached certain mandatory conditions laid down by the legislature. In addition, the sentencing court can attach to a CCO a range of conditions which are variously coercive, prohibitive, intrusive and rehabilitative.

2 The CCO is a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. The CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation.

3 The Director of Public Prosecutions has applied under s 6AB(1) of the Sentencing Act 1991 (‘the Act’) for this Court to give a guideline judgment to assist sentencing courts in deploying the CCO as a sentencing option. In each of the appeals before the Court, the offender was sentenced to a CCO. The Director submits that, by giving a guideline judgment in these appeals, the Court will serve the statutory objectives of promoting consistency of approach and promoting public confidence in the criminal justice system.

4 This is the first time the Court has been asked to give a guideline judgment. For reasons which follow, we have concluded that this is a proper case for such a judgment. The CCO is a radical new sentencing option, with the potential to transform sentencing in this State. It is vitally important, therefore, that sentencing courts be given as much guidance as possible about how a CCO can serve the various purposes for which a sentence is imposed.

5 As explained below, the advent of the CCO calls for a re-consideration of traditional conceptions of imprisonment as the only appropriate punishment for serious offences. This in turn will require a recognition both of the limitations of imprisonment and of the unique advantages which the CCO offers.

6 The judgment falls into two principal parts. Part 1 contains the guideline judgment, which comprises:

our reasons for concluding that this is an appropriate case for a guideline judgment; and

our analysis of the CCO as a sentencing option and, in particular, our reasons for concluding that a CCO can serve all of the purposes of punishment even in quite serious cases.

Part 2 contains the judgments in the three individual appeals.

7 There are three appendices, as follows:

Appendix 1 contains a set of guidelines, based on the views expressed in the guideline judgment, in a form suitable for use by sentencing courts;

Appendix 2 contains the provisions of the Sentencing Act 1991 which authorise this Court to give a guideline judgment;

which authorise this Court to give a guideline judgment; Appendix 3 contains the CCO provisions as in force at the date of this judgment.

The power to give a guideline judgment

8 The power of the Court of Appeal to give a guideline judgment is conferred by pt 2AA of the Act, which was inserted into the Act in 2003. The relevant provisions for present purposes are as follows:

6AB Power of Court of Appeal to give or review guideline judgments (1) On hearing and considering an appeal against sentence, the Court of Appeal may (on its own initiative or on an application made by a party to the appeal) consider whether― (a) to give a guideline judgment; or (b) to review a guideline judgment given by it in a previous proceeding. ... (3) The Court of Appeal may give or review a guideline judgment even if it is not necessary for the purpose of determining any appeal in which the judgment is given or reviewed. (4) A decision of the Court of Appeal to give or review a guideline judgment must be a unanimous decision of the Judges constituting the Court. (5) A guideline judgment may be given separately to, or included in, the Court of Appeal's judgment in an appeal. (6) Nothing in this Part requires the Court of Appeal to give or review a guideline judgment if it considers it inappropriate to do so. 6AE Matters to which Court of Appeal must have regard In considering the giving of, or in reviewing, a guideline judgment the Court of Appeal must have regard to― (a) the need to promote consistency of approach in sentencing offenders; and (b) the need to promote public confidence in the criminal justice system; and (c) any views stated by the Sentencing Advisory Council and any submissions made by the Director of Public Prosecutions or a lawyer under section 6AD.

9 Section 6AD of the Act further provides that, if the Court of Appeal decides to give a guideline judgment, it must:

(a) notify the Sentencing Advisory Council (‘SAC’) and consider any views stated by the Council; and

(b) give the Director of Public Prosecutions and Victoria Legal Aid[1] (‘VLA’) an opportunity to appear before the Court and make submissions.

The Director’s application

10 Each of the three appellants — Boulton, Clements and Fitzgerald — was sentenced to a CCO. Each applied under s 278 of the Criminal Procedure Act for leave to appeal against sentence. Pursuant to s 6AB(1)(a) of the Act, the Director then made application (as a party to each appeal) for the Court to give a guideline judgment in those proceedings.

11 The Director’s application came on before the Court (Nettle, Redlich and Coghlan JJA) on 14 November 2013. The Director submitted that there was a need for guidance from this Court to sentencing judges and magistrates about the considerations which should be brought to bear in deciding whether a CCO was an appropriate sentencing disposition in a particular case and, if so, what the duration of the order should be and what conditions should be attached to it. The Director was thus seeking a guideline judgment within the meaning of paragraph (d) of the definition in s 6AA, that is, a judgment containing guidelines that will apply ‘to a particular penalty or class of penalty’.

12 At that time, the application was opposed by counsel for each of the appellants and by counsel for VLA. The grounds of opposition were twofold. First, it was said, the CCO provisions had been enacted so recently that there were insufficient first instance decisions to inform the consideration necessary for a guideline judgment. Secondly, it was submitted that:

as a matter of principle ... the traditional technique of the common law of proceeding on a case by case basis, and thereby offering such guidance as is appropriate in the circumstances of the particular case in hand, is a surer and more certain way of providing guidance in the long term.[2]

13 The Court concluded that the Director’s application should go forward for hearing by a bench of five:

[A]s has been urged by the Director, we are here dealing with Community Correction Order provisions which are new and radically different to any which have appeared in the Sentencing Act 1991 before now, and it is arguable that, in the circumstances which apply, there is both a unique opportunity and need for the court to provide guideline judgments to avoid sentencing disparity in the short and medium term ahead. In any event, all things considered, we are persuaded it is sufficiently arguable that it might be appropriate to give a guideline judgment in each of the three proceedings that the Director’s applications for guideline judgment should be referred to a court of not less than five members, or such other number as may be determined by the President, for determination at the same time as the hearing and determination of the appeal in each proceeding.[3]

14 Although no decision had then been made about whether a guideline judgment would be given, the Court decided, consistently with s 6AD, that both the SAC and VLA should be given notice of the Director’s application and invited to make submissions. The Court granted leave to appeal in each case, gave directions for the service of documents on the SAC, VLA and the Attorney-General, and directed the filing of detailed submissions on the guideline judgment questions.

15 The Court subsequently received detailed submissions from each of the institutional participants, and from each of the appellants. The submissions were of the highest quality and, as will appear, they have been of very great assistance to the Court in the consideration of the issues raised.[4]

16 The Sentencing Advisory Council has significant responsibilities imposed on it by pt 9A of the Act. One of its most important functions is the provision of statistical information on sentencing and the conduct of research on sentencing matters.[5] Sentencing courts every day derive assistance from Council publications, in particular the Sentencing Snapshots.

17 Importantly, the legislation which established the Council also established the scheme for the giving of guideline judgments. The first of the listed functions of the Council is

to state in writing to the Court of Appeal its views in relation to the giving, or review, of a guideline judgment.[6]

In the present case, the Council’s views were communicated in the form of a very detailed set of draft guidelines, entitled ‘Structure for possible guidance’. In addition, the Court invited the Chair of the Council, Professor Freiberg, to appear at the hearing and to make oral submissions. Professor Freiberg was the founding chair of the Council, and his expert advice informed the decision of the Victorian Government to introduce the guideline judgment provisions.

18 These provisions also give VLA the right to appear and make submissions, in its institutional capacity, if the Court of Appeal decides to give a guideline judgment.[7] VLA is, of course, heavily involved in the criminal justice system, as it funds the legal representation of defendants in approximately 80 per cent of indictable crime cases in this State. As the present hearing illustrated, VLA’s accumulated experience in the defence of criminal charges gives it a unique institutional understanding of sentencing law. The submissions advanced by VLA reflected that understanding.

The sentence appeals

19 The three sentence appeals, and the Director’s application for a guideline judgment, came on for hearing on 31 July 2014 before the Court as presently constituted. After hearing a brief opening submission from each of the institutional participants on the guideline questions, the Court proceeded to hear the individual sentence appeals, in turn. It was common ground that this should occur before any decision was made about whether the Court would give a guideline judgment.

20 For reasons set out in Part 2, we have concluded in each appeal that the appeal should be allowed and the appellant resentenced.

PART 1: THE GUIDELINE JUDGMENT

The case for a guideline judgment

21 On the hearing of his appeal, Mr Boulton was represented by different counsel. On this occasion, he submitted that it would be appropriate for the Court to give a guideline judgment

in order to promote the consistency of approach of sentencing offenders, and to promote public confidence in the criminal justice system.[8]

Mr Clements, too, was represented by new counsel, who submitted that it was an appropriate case for a guideline judgment. Mr Fitzgerald maintained his opposition, submitting that a guideline judgment was premature and that any decision on a guideline judgment should wait until the courts had greater experience with the COO as a sentencing option.

22 Each of the institutional participants — the Director, VLA and the SAC — submitted that the Court should give a guideline judgment. The Director and the Council each submitted a draft set of guidelines. The Attorney-General did not make a formal submission on the threshold question but described his position as ‘generally supportive’ of the pronouncement of a guideline judgment. The Attorney-General’s submission expressed substantial agreement with the drafts submitted by the Director and the Council.

23 The Director identified three ‘imperatives’ which were said to support the giving of a guideline judgment, namely:

(a) the need to promote consistency in determining the period of CCOs;

(b) the need to promote public confidence in the criminal justice system; and

(c) the need to ensure that the CCO scheme was operating as intended.

As the Director pointed out, the first two of these are specified in the Act as considerations to be addressed by the Court in deciding whether to give a guideline judgment.[9]

24 VLA advanced the following considerations in support of the giving of a guideline judgment:

The CCO is a new and highly flexible order, designed to replace a range of intermediate sanctions. Despite its protean nature, the new conditions available under a CCO are used infrequently, and few CCOs make use of the increased available range as regards duration. The conditions and duration of the CCOs that have been imposed ‘are very similar to those for the community-based orders (CBOs) that CCOs have replaced.’ Given the scope and flexibility of the CCO, it is arguable that CCOs are not currently being used as intended by Parliament. There is a lack of transparency in the reasoning adopted by courts regarding the purpose for which the sanction and its particular length, condition(s) and combination of conditions are selected.[10]

There is a need for greater clarity and appellate court guidance regarding the proper use of CCOs, given that, save for exceptional cases, CCOs are unlikely to be tested by traditional appeal processes.[11]

The current uncertainty as to the reach of a CCO makes it difficult for parties to assist the court and advise clients in respect of pleading guilty, sentencing outcomes and appeal prospects. A guideline judgment will assist courts by structuring the approach to be taken in determining whether to impose a CCO and the length and conditions of a CCO. This will enhance consistency and transparency,[12] and promote greater public confidence in the criminal justice system. The need for guidance is particularly timely. Suspended sentences will no longer be available in the Magistrates’ Court after 14 September 2014.[13] A clear articulation of the approach to be taken in selecting between sanctions and in determining the structure of CCOs will assist the Magistrates’ Court to utilise CCOs as Parliament intended.

25 We accept these submissions. We are satisfied that this is an appropriate case for a guideline judgment. In particular, we agree that the giving of such a judgment should:

(a) promote consistency in sentencing and public confidence in the criminal justice system; and

(b) ensure that the CCO system operates as intended.

Consideration of the individual appeals has reinforced this view.

26 By enacting the provisions of pt 2AA, Parliament affirmed the importance of this Court providing guidance to sentencing courts. The giving of a guideline judgment is not a substitute for the case-by-case development of the law. The one complements the other. The great advantage of the case-by-case process is that it ensures that the development of legal principles is informed by the practical realities of individual cases. The great advantage of a guideline judgment is that it enables this Court to deal systematically and comprehensively with a particular topic or topics relevant to sentencing, rather than being confined to the questions raised by particular appeals.

27 Just as importantly, the giving of a guideline judgment does not fetter the discretion of the sentencing court in any way. The only constraints on the exercise of the sentencing discretion are those imposed by the common law[14] and by the substantive provisions of the Act. The function of a guideline judgment is to provide assistance to sentencing courts in the application of the law. Such assistance seems particularly appropriate in the present case, given how new the CCO regime is and how markedly different it is from the sentencing options previously available.

28 We deal first with consistency and public confidence. As s 6AE of the Act makes clear, these are key considerations when this Court is deciding whether to give a guideline judgment.

Consistency and the need to promote public confidence in the criminal justice system

29 The first stated purpose of the Act is to promote consistency of approach in sentencing of offenders.[15] The fourth and fifth stated purposes of the Act are as follows:

(d) to prevent crime and promote respect for the law by— (i) providing for sentences that are intended to deter the offender or other persons from committing offences of the same or a similar character; and (ii) providing for sentences that facilitate the rehabilitation of offenders; and (iii) providing for sentences that allow the court to denounce the type of conduct in which the offender engaged; and (iv) ensuring that offenders are only punished to the extent justified by— (A) the nature and gravity of their offences; and (B) their culpability and degree of responsibility for their offences; and (C) the presence of any aggravating or mitigating factor concerning the offender and of any other relevant circumstances; and (v) promoting public understanding of sentencing practices and procedures; (e) to provide sentencing principles to be applied by courts in sentencing offenders;[16]

30 Section 6AE of the Act picks up primary elements of these purposes. It requires in the first instance that, in considering whether to give a guideline judgment, the Court of Appeal must have regard to:

(a) the need to promote consistency of approach in sentencing offenders; and

(b) the need to promote public confidence in the criminal justice system.

The first requirement mirrors precisely the language of the first stated purpose of the Act, while the second picks up the core concern of promoting respect for the law which is found in the statements of further purpose to which we have referred.

31 Both the statements of purpose and the specified considerations to which this Court must have regard in considering whether to give a guideline judgment imply a need to promote underlying consistency of outcomes from the criminal justice system. The context in which this arises requires some elaboration.

32 The statement of purposes contained in s 1 of the Act demonstrates that consistency of approach must be sought in a sentencing system which gives effect to diverse and potentially competing purposes, including just punishment, deterrence, rehabilitation and denunciation. This complexity of purposes is further reflected in the governing principles stated in pt 2 of the Act. Section 5(1) of the Act provides that the only purposes for which sentences may be imposed are as follows:

(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.

33 Section 5(2) of the Act further provides:

(2) In sentencing an offender a court must have regard to― (a) the maximum penalty prescribed for the offence; and (ab) the baseline sentence for the offence; and (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 (daaa) whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated; and (daa) the impact of the offence on any victim of the offence; and (da) the personal circumstances of any victim of the offence; and (db) any injury, loss or damage resulting directly from the offence; and (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.

34 The discretionary decision which must be made to give effect to the purposes stated in s 5(1) of the Act, and take account of the factors listed in s 5(2), is further guided by the principles of parsimony,[17] proportionality and totality. Different approaches to the primacy of the various purposes for which sentences should be imposed in particular classes of cases, and different weighting of the factors to which the court must have regard, might produce substantially inconsistent results. If this is to be avoided, what is required is the adoption of a unified approach in principle to the sentencing synthesis in any given case. In response to this need, the courts have developed a body of principle bearing on the evaluation of factors such as moral culpability and the relevance of considerations such as mental illness, youth and the ingestion of drugs.

35 Nevertheless, all of the matters referred to in s 5(2) of the Act must be taken into account as they affect the justice of a particular case, and in circumstances where both social behaviour generally and patterns of criminal behaviour in particular, change over time. The prevalence of particular drug-related offending, or of particular kinds of violence or dishonesty, is not static. There is also constant development in our understanding of the neurology and functioning of the human mind, the nature and consequences of criminal behaviour, the consequences of different forms of penalty, and the potential opportunities which may be available to the sentencing court to facilitate rehabilitation. Sentencing is an inherently difficult task.

36 The potential for inconsistency which derives from this complexity of purpose and from the breadth of relevant factual considerations is particularly acute when a radically new sentencing option such as the CCO becomes available. The addition of CCOs makes the sentencing task, in this sense, even more complex.

37 Promotion of consistency of approach to the utilisation of such options is desirable for two fundamental reasons. First, the promotion of consistency of approach is necessary to avoid the perception of injustice which may result from differences in the treatment of individual cases. Secondly, there is a need to promote public understanding of, and confidence in, the use of the new sentencing option by promoting the principled application of it.

38 The underlying policy considerations were encapsulated by Mason J in Lowe v The Queen:[18]

Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[19]

39 To similar effect, Gleeson CJ observed (in dissent) in Wong v The Queen:[20]

One of the legitimate objectives of such guidance is to reduce the incidence of unnecessary and inappropriate inconsistency. All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.[21]

40 The provision of a guideline judgment can promote consistency and public confidence in the sentencing process by articulating elements that must be taken into account in a particular sentencing context, and by giving guidance as to a unified approach. It can also facilitate the development of coherent sentencing practice by way of unified application of principle and, in turn, assist the identification of relevant similarities and differences between cases.

41 In R v Jurisic,[22] Spigelman CJ explained how sentencing guidelines promote consistency:

The preservation of a broad sentencing discretion is central to the ability of the criminal courts to ensure justice is done in all the extraordinary variety of circumstances of individual offences and individual offenders. However, public confidence in the administration of criminal justice requires consistency in sentencing decisions. As I have said, inconsistency is a form of injustice .... The existence of multiple objectives in sentencing — rehabilitation, denunciation and deterrence — permits individual judges to reflect quite different penal philosophies. This is not a bad thing in a field in which ‘[t]he only golden rule is that there is no golden rule’: R v Geddes. Indeed, judges reflect the wide range of differing views on such matters that exists in the community. However, there are limits to the permissible range of variation. The courts must show that they are responsive to public criticism of the outcome of sentencing processes. Guideline judgments are a mechanism for structuring discretion, rather than restricting discretion.

42 In the present case, the Director submitted that there was a real risk of inconsistency in the use of CCOs unless this Court provided an authoritative statement of the principles to be applied in determining the period of a CCO. This was said to be illustrated by the fact that the orders made in relation to the three appellants were all ‘statistical outliers’.

43 We agree that the innovative aspects of CCOs as a sentencing option, and the apparent variations in the approach of courts towards them, make it desirable that this Court give guidance. There is a need for a framework which promotes consistency of sentencing approach. There is no sufficient body of current sentencing practice capable of fulfilling this function.

44 Both the Director and VLA further submitted that the bases on which CCOs were being imposed lack transparency. According to the SAC analysis, sentencing judges were giving little indication in their reasons as to the basis on which they were determining the duration of the CCOs which they were imposing. The sentencing decisions under appeal here illustrate this deficiency.

45 As well as helping to ensure that variations in the duration of CCOs are maintained within acceptable limits, the provision of guidelines should encourage greater transparency in sentencing. Given a framework in which to determine the appropriate period and conditions of CCOs, sentencing courts should be in a position to request relevant plea material (including in pre-sentence reports) and — most importantly — to explain the reasons for imposing a CCO of a particular length.

46 As the Director submitted, greater clarity in sentencing reasons as to why an order was imposed of a particular duration or subject to particular conditions will have two obvious benefits. First, both the offender and Corrections will be clear about the Court’s assumptions and expectations as to what should occur during the life of the CCO. Secondly, it will draw attention to circumstances which may in future warrant the variation or cancellation of the order.

Ensuring CCOs are given their intended operation

47 As explained further below, Parliament intended CCOs to replace not only Community Based Orders (CBOs), but Intensive Correction Orders (ICOs) and suspended sentences. Recent data collected by the SAC, however, suggests that CCOs are not yet being fully utilised. The SAC’s research shows that the higher courts have tended to impose CCOs of the same length as CBOs, and to impose the same kinds of condition. The new kinds of conditions now available as part of CCOs have been used only rarely.

48 Both the Director and the Attorney-General submitted that CCOs (and the new conditions) were being under-utilised. They drew attention to the following findings of the SAC’s research, covering the period January 2012 – December 2013:

as the rate of imposition of suspended sentences decreased by 16.8 per cent, sentences of imprisonment rose by 11.4 per cent but the use of CCOs rose by only 2.3 per cent;

the median length of CCOs imposed by the higher courts was two years, with only 15 per cent being of longer duration; and

in the vast majority of cases, the conditions attached to a CCO in the County Court were those requiring offenders to undergo assessment and treatment (81 per cent), or supervision (75 per cent) or community work (74 per cent).

49 The Director’s submission included the following helpful table showing the very limited use of other, novel, types of conditions:

Condition type Magistrates’ Court Higher courts Judicial monitoring 10.6 14.3 Non-association 1.4 4.3 Residence restriction 0.4 3.3 Place restriction 1.0 1.1 Curfew 0.5 0.9 Alcohol Exclusion 1.0 0.9

50 According to the Attorney-General’s submission, these findings demonstrated that there was

scope for greater use of CCOs, including at the higher end consistently with the intention of Parliament. In particular, there is scope for the higher courts to impose CCOs that have a greater number of and more onerous conditions attached, and with a duration of more than two years.

The content of the proposed guidelines

51 In his initial application, the Director submitted that the guidelines should address two issues, namely:

whether a CCO was an appropriate sentencing disposition in a particular case; and

what length a CCO should be imposed, the maximum period being equal to the maximum term of imprisonment for the relevant offence.

52 According to the Director’s first submission:

Guidelines directed to these topics will be of particular use in cases, like these, which concern serious offending which may otherwise warrant a term of imprisonment. In such cases, the Courts would be assisted by guidance on the following kinds of questions: (a) what are the criteria to be applied in selecting between a CCO and other sentencing alternatives?[23] (b) are punishment, denunciation and general deterrence relevant sentencing considerations in determining the period of a CCO? (c) to what extent are specific deterrence and community protection relevant considerations in determining the period of a CCO? (d) is a Court entitled to take into account the capacity for a CCO to be varied pursuant to s 48N of the Act in determining the period? (e) what kinds of evidentiary material would assist the Court in determining an appropriate period for a CCO? For example, is the appropriate period for a CCO something which should be specifically addressed in pre­sentence reports? (f) what are the kinds of circumstances in which very lengthy CCOs will be appropriate? (g) what are the kinds of circumstances in which very lengthy CCOs will be inappropriate?

53 In a later submission, the Director suggested that all of these specific questions could be related to a ‘single, overarching question’, namely: ‘What is the relationship between the sentencing purposes set out in s 5(1) of the Act and the different components of a CCO?’ These reasons will confirm the centrality of that question, and the importance of providing guidance to sentencing courts on how to approach it.

The legislative history

54 The CCO regime commenced on 16 January 2012.[24] Until recently, the jurisdiction to impose community-based dispositions of greater than two years’ duration was conferred only on the County and Supreme Courts. It has now been extended to the Magistrates’ Court.[25] As amended, s 38(1) of the Act provides:

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— (a) in the case of an order made by the Magistrates’ Court— (i) in respect of one offence, 2 years; or (ii) in respect of 2 offences, 4 years; or (iii) in respect of 3 or more offences, 5 years; or (b) in the case of an order made by the County Court or the Supreme Court whichever is the greater of— (i) the maximum term of imprisonment for the offence;[26] or (ii) 2 years.

55 Under the sentencing regime which was replaced when CCOs were introduced, ICOs and Combined Custody and Treatment Orders (CCTOs) could not exceed 12 months,[27] while CBOs could not exceed two years in length.[28]

56 In the Second Reading Speech for the amending Act which introduced CCOs, the Attorney-General said:[29]

The existing range of community-based sentences does not provide courts with sufficient flexibility to directly target the offender and the offence. The combined custody treatment order (CCTO), for example, is rarely used by the courts and intensive correction orders are generally considered an inflexible option. The Sentencing Advisory Council, in the Suspended Sentences -- Final Report -- Part 2, noted that the overuse of suspended sentences in Victoria is at least partly due to the failings of intermediate sentencing orders. The new CCO introduced in this bill will replace these orders with a single comprehensive and highly flexible order. ... Specifically, the CCO will replace the combined custody treatment order, intensive correction order (ICO), the intensive correction management order (which has not come into effect) and the community-based order (CBO). ... The CCO will also provide an alternative sentencing option for offenders who are at risk of being sent to jail. These offenders may not yet deserve a jail sentence but should be subject to significant restrictions and supervision if they are going to live with the rest of the community. The broad range of new powers under the CCO will allow courts wide flexibility to tailor their response to address the needs of offenders and set appropriate punishments. Instead of using the legal fictions of imposing a term of imprisonment that is suspended or served at home, the courts will now openly sentence offenders to jail or, where appropriate, use the CCO to openly sentence the offender to a community-based sentence. Unlike the CCTO and ICO, which are technically sentences of imprisonment, the CCO is a community-based sentence. There is no legal fiction involved. The CCO can be combined with a jail sentence, but it will not pretend to be one. The CCO is a transparent sentence that can be understood by everyone in the community. Structure of the CCO Under the old regime, the longest a community-based sentence could last for was two years. In addition, offenders given the more serious community-based sentences, such as the CCTO and ICO, are only subject to obligations for a maximum of one year. These limited sentencing orders simply do not allow the courts sufficient flexibility. A key feature of the new order is that it will allow the courts to tailor the length of an order rather than limiting the order to a fixed time period. A CCO can last for up to two years in the Magistrates Court. In the higher courts, the bill does not set a uniform maximum duration. Instead, the maximum duration will be determined by the maximum term of imprisonment for the relevant offence. Importantly, a CCO may be combined with a fine and/or jail for up to three months.

57 Two points should be noted. First, it was contemplated that CCOs would be able to be used in place of sentences which were, strictly speaking, sentences of imprisonment (such as suspended sentences and intensive correction orders). Secondly, and to that end, it was recognised that courts would need flexibility in determining both the duration of the order and the conditions to be attached. As the Director submitted, the conferral of jurisdiction to impose CCOs for a period up to the maximum term of imprisonment for an offence can be seen as a key aspect of the flexibility which Parliament intended the courts to have, and a key feature of CCOs which makes them suitable for use in more serious cases. Hence this statement in the Explanatory Memorandum:

The longer maximum duration in the higher courts is because a CCO can be imposed for more serious offences in the higher courts.

58 As the Director’s submission pointed out, legislative guidance concerning the sentencing purposes underlying community-based dispositions was first introduced in response to the Report of the Victorian Sentencing Committee chaired by Sir John Starke QC in 1988 (‘the Starke Committee’).[30] The Starke Committee conducted a comprehensive review of sentencing law and practice in Victoria. At the time of the review, CBOs were already in place as a statutory disposition.[31] In its discussion paper, published shortly after the introduction of CBOs, the Committee stated:

Another concern that has been expressed is that it is difficult to know precisely what sentencing purpose is being served by a community based order. Some combinations of available options would result in a greater emphasis being given to retribution, and others to rehabilitation. It has been suggested that there is no guidance in the legislation as to which of these options should be followed.

59 In its final Report, the Starke Committee recommended that the purposes of CBOs be defined as follows:[32]

[T]he purpose of a Community Based Order― — containing a supervision condition or an educational or other program condition is to allow for the rehabilitation in the community of an offender who has committed a serious offence and who:

has a personal problem which contributed to the commission of the offence, and has acknowledged the existence of the problem and wishes to try to overcome the problem, and is capable of overcoming the problem in response to help offered by supervision in the community.

— Containing a community service condition ... is to allow for the adequate punishment in the community of an offender who has committed a serious offence.[33]

60 The distinction between the rehabilitative components of a CBO, namely the supervision and program conditions, and the punitive element of a CBO, namely community work, found expression in the following provisions of the Act:

39 Community service condition The purpose of a community service condition is to allow for the adequate punishment of an offender in the community. ... 40 Supervision The purpose of a supervision condition is to allow for the rehabilitation of an offender in the community and the monitoring, surveillance or supervision of an offender who demonstrates a high risk of re-offending. 41 Personal development condition[34] The purpose of a personal development condition is to allow an offender with high needs in areas directly related to his or her criminal behaviour to participate in programs which will address those needs.

61 As can be seen, the supervision condition was directed not only to promoting rehabilitation but also to mitigating the risk of reoffending, through monitoring and surveillance. In the same way, an alcohol exclusion condition attached to a CCO may assist an offender’s rehabilitation, through addressing a problem with alcohol, while at the same time protecting the community. Such conditions may be attached in order to address ‘the role of alcohol in the offending behaviour.’[35]

62 The CCO provisions reflect both the punitive and rehabilitative components of community-based sentencing. As will appear, there was disagreement between the participants concerning the punitive purpose, and effect, of a CCO. We deal with this question below.

Proportionality

63 The SAC submitted, and VLA agreed, that the ‘overarching principles’ which should govern the CCO regime were proportionality and suitability. This submission should be accepted. We deal first with proportionality.

64 The principle of proportionality requires the sentencing court to ensure that the sentence imposed:

should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances.[36]

Australian sentencing law recognises the concept of proportionality as a ‘fundamental principle’ which fixes the outer limit of permissible sentences.[37] As Deane J explained in Veen v The Queen [No 2]:[38]

It is only within the outer limit of what represents proportionate punishment for the actual crime that the interplay of other relevant favourable and unfavourable factors — such as good character, previous offences, repentance, restitution, possible rehabilitation and intransigence — will point to what is the appropriate sentence in all the circumstances of the particular case.

65 The Act gives statutory recognition to this principle in its identification of ‘just punishment’ as one of the purposes for which a sentence may be imposed.[39] Moreover, one of the express purposes of the Act itself is:

(d) to prevent crime and promote respect for the law by― ... (iv) ensuring that offenders are only punished to the extent justified by― (A) the nature and gravity of their offences; and (B) their culpability and degree of responsibility for their offences; and (C) the presence of any aggravating or mitigating factor concerning the offender and of any other relevant circumstances; ...[40]

66 Of more immediate relevance is s 48A of the Act, which provides that the attaching of conditions to a CCO must be done in accordance with:

(a) the principle of proportionality; and (b) the purposes for which a sentence may be imposed as set out in s 5; and (c) the purpose of a community correction order set out in s 36.

67 The authorities on proportionality establish two propositions of importance to the present task. First, the principle of proportionality permits the fixing of a sentence by reference to all of the purposes of punishment — retribution, denunciation, specific deterrence, general deterrence and protection of the community. That is, to treat the gravity of the offence as the limiting consideration does not preclude the fixing of a sentence for purposes directed at protecting society. Secondly — and this is an important qualification to the first proposition — the principle of proportionality does preclude the imposition of a (longer) sentence merely for the purpose of protecting society (by enabling the offender to be treated for a condition which contributed to the offending).

68 As to the first point, the protection of society is the ultimate purpose of punishment, as Brennan J explained in Channon v The Queen:[41]

The necessary and ultimate justification for criminal sanctions is the protection of society from conduct which the law proscribes. Punishment is the means by which society marks its disapproval of criminal conduct, by which warning is given of the consequences of crime and by which reform of an offender can sometimes be assisted. Criminal sanctions are purposive, and they are not inflicted judicially except for the purpose of protecting society; nor to an extent beyond what is necessary to achieve that purpose.

69 In Veen [No 2],[42] the High Court affirmed that a sentence should not be increased beyond what was proportionate to the crime ‘in order merely to extend the period of protection of the community from the risk of recidivism’. At the same time, the Court said, the purpose of protecting the community could properly be taken into account in fixing the sentence:

It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.[43]

70 Their Honours acknowledged, however, that:

the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society’s protection in determining the sentence calls for a judgment of experience and discernment.[44]

Their Honours went on to emphasise that there was no opposition between the principle of proportionality and the imposition of a sentence which took into account the propensity of the offender — whether on account of mental illness or otherwise — to commit violent crime, and the consequent need to protect the community.[45]

71 In the case of an offender with a ‘mental abnormality’, their Honours said:

the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.[46]

72 The second proposition is that a sentence cannot be imposed — or extended — merely for the purpose of protecting society, by ensuring treatment of an offender’s mental abnormality or addiction to drugs or alcohol.[47] In this regard, Professor Freiberg drew our attention to the decision of the Full Court in Freeman v Harris, where Murphy J observed:

In sentencing, the punishment in the particular case should be proportionate to the offence. It is not open to the Court to punish an offender more, because he is ill, and because it is considered to be for his own benefit to try and cure him. The gravity of the offence must be the first and paramount consideration.[48]

To similar effect, Starke J said:

Furthermore in my judgment a lengthy term of imprisonment cannot be imposed for the purpose of curing a disease — for this purpose treating an addiction to a drug as a disease.[49]

73 This proposition is of particular importance given that the legislation (s 48D) expressly empowers the court to attach a condition to a CCO ‘that requires the offender to undergo treatment and rehabilitation specified by the court’. Under s 48D(3) of the Act, the court may specify:

assessment and treatment for drug or alcohol abuse or dependency;

any medical assessment and treatment; and

mental health assessment or treatment (defined to include psychological, neuropsychological and psychiatric treatment).

74 Parliament has thus equipped sentencing courts with an unprecedented capacity to fashion a sentencing order which will ‘address the underlying causes of the offending’.[50] These powers have obviously been conferred on the assumption, and in the expectation, that treatment of this kind can be delivered in a sustained and targeted way — the more so because the offender is not in custody — and is therefore likely to be more effective in reducing the risk of re-offending.

75 In that sense, conditions of this kind are to be imposed for the protection of the community. What cannot be done, however, is to impose a CCO of longer duration, or to attach more onerous treatment and rehabilitation conditions, if the resulting order would be disproportionate to the gravity of the offending.

76 Nor, of course, is the position affected by the offender’s consent to the order. Under s 37(c) of the Act, it is a condition of the making of a CCO that the offender consents to the order. But the willingness of the offender to consent to treatment proposed as part of a CCO does not relieve the court of the obligation to ensure that the order remains within the bounds of proportionality.[51]

Suitability

77 VLA submitted that the principle of suitability required a court to give effect to the applicable sentencing purposes ‘in the most appropriate way, having regard to an offender’s circumstances and capacity to comply (while remaining subject to the principle of proportionality)’. The principle of suitability was said to derive authority from the text and purpose of the CCO provisions.

78 VLA drew particular attention to s 36 of the Act, which identifies the purpose of a CCO as being to provide for 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’.[52] According to VLA, this means that the court must consider the offender’s suitability for a CCO, and must ensure that the terms of the order suit the offender’s particular circumstances.[53]

79 Reference was also made to s 8A(2) of the Act, which requires a court when considering a CCO to order a pre‐sentence report, so that the court can:

(a) establish the person’s suitability for the order being considered; and ... (c) ... gain advice on the most appropriate condition or conditions to be attached to the order’.[54]

80 At the same time, VLA urged that the suitability principle not be used in a way that resulted in disproportionate or unfair sentencing outcomes. The following examples were given:

Offenders should not be deemed unsuitable for a CCO simply because they have a disadvantage or disability that makes it more difficult for them to comply. Courts should consider whether, having regard to the circumstances of an offender, a CCO can be structured in a more suitable way, while still giving effect to the principle of proportionality and the relevant sentencing purposes. The fact that an offender has a disability or illness should not be used to justify a more punitive CCO than is necessary or proportionate. The conditions and length of a CCO should be structured in the least restrictive way possible, having regard to the circumstances of the offence, the offender and the sentencing purposes to be achieved. Example Scenario David pleads guilty to an offence of mid‐range objective seriousness. The Court determines that the seriousness of the offending warrants a sanction greater than a fine but that imprisonment may be disproportionate. David has significant mental health issues, is addicted to ice and is homeless. Each of these factors compromises his ability to comply with a CCO. In applying the guiding principles, the Court:

should not escalate the sentence to imprisonment simply because David’s mental health issues, drug addiction and homelessness make it more likely he will breach his CCO. Rather, the Court should have regard to these characteristics in selecting the most suitable CCO structure and package of conditions (considering the importance of not setting David up to fail);

should not impose greater restrictions on David than the sentencing purposes to be achieved require. For example, although David’s risk of re‐offending might be reduced by a lengthy period in a residential rehabilitation facility, such a restriction on liberty is only justifiable if it is commensurate with the seriousness of the offending.

81 The last proposition accords with what we have already said about proportionality. Greater difficulty arises, however, where (as in the example) the offender’s mental health and addiction problems ‘compromise his ability to comply with a CCO’. We return to this issue below.

82 VLA further submitted that, for the purposes of determining suitability, a pre‐sentence report should not be treated as the end of the inquiry:

[W]hile the court is required to take into account a pre‐sentence report in determining the suitability of the order and its potential conditions,[55] the court must still exercise its sentencing discretion, having regard to the information provided in the report and the submissions of the parties.[56]

83 As a statement of principle, this submission is undoubtedly correct. It properly emphasises the need for the court to make its own judgment about the appropriate order, and in particular to ensure that a CCO is carefully tailored to the circumstances, and particular needs, of the offender. But the court’s judgment as to what is required in the particular case will, inevitably, depend heavily on the recommendations in the pre-sentence report, not least because — unlike the court — the maker(s) of the report will have seen and assessed the offender.

84 We turn now to address the specific issues which need to be resolved in order to determine what guidance can properly be given. We deal first with the CCO as a form of punishment, as distinct from being an instrument of rehabilitation. In addressing this issue, we first consider the CCO as a stand-alone sentencing option. The alternative of a CCO combined with a short term of imprisonment will be considered separately.

To what extent can a CCO be punitive?

85 As noted earlier, it was Parliament’s express purpose that CCOs be used ‘for a wide range of offending behaviours’.[57] Moreover, as the recently-enacted s 36(2) makes clear, Parliament expressly contemplated the imposition of a CCO in circumstances where a suspended sentence might previously have been imposed.

86 As the Director’s submission pointed out, however, there is a significant difference between a non-custodial order, like a CCO, and a suspended sentence. Before a sentencing court could have concluded that a suspended sentence was appropriate, the court must first have concluded that a sentence of imprisonment was the only kind of sentence which met the purposes of sentencing in the particular case. This must be so since, as the Director pointed out, s 5 of the Act provides as follows:

5(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. 5(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.

87 The Director’s submission posed the following rhetorical question:

How, then, could a CCO be an appropriate sentence for cases which previously attracted terms of imprisonment?

According to the submission, the answer lies in the differences between a CCO and the non-custodial disposition which it replaces, the community-based order (CBO). The Director’s contention is that the CCO ‘has the potential to be a more robust sentencing disposition’ than the CBO, because of:

(a) the broader range of conditions which may be attached to a CCO (including a curfew condition (s 48I), a non-association condition (s 48F) and an alcohol exclusion condition (s 48J)); and

(b) the fact that the maximum period of a CCO is greater than that for a CBO.

88 According to the Director’s submission, these features of CCOs mean that the sentencing court may more readily conclude that a term of imprisonment is not necessary. The sentencing purposes of deterrence, community protection and rehabilitation may be satisfied by the imposition of a CCO in a case where, previously, imprisonment might have been thought to have been necessary to satisfy those purposes.

89 It is of central importance, therefore, to consider the extent of the punishment which a CCO can be seen to inflict. While the principle of proportionality requires that a sentence not exceed what is warranted by the gravity of the offence, the sentencing court is also obliged to satisfy itself that the sanction imposed is no less than is required for ‘just punishment’ of the offender.

90 The (relative) severity of a penal sanction can be assessed by reference to its impact on the offender’s rights and interests. The more important the rights and interests intruded upon, and the more significant the intrusion, the severer is the sanction. Attention should therefore be directed to the degree to which the sanction will affect fundamental rights and interests such as the offender’s freedom of movement, choice regarding his/her activities, choice of associates, and privacy.[58]

91 Viewed in this way, a CCO has obvious punitive elements. First, the mandatory conditions, which are attached to each CCO by force of s 45(1), do materially impinge on an offender’s liberty. Thus, during the period of the order, the offender:

must report to and receive visits from the Secretary;

must notify the Secretary of any change of address or employment;

must not leave Victoria without the Secretary’s permission; and

must comply with any direction given by the Secretary necessary to ensure compliance with the order.

92 Secondly, a contravention of any condition attached to a CCO (except for a contravention of a direction by the Secretary) is itself an offence, punishable by three months’ imprisonment.[59] Contravention of a CCO also carries with it the prospect that the offender will be resentenced on the original offence.[60] In Director of Public Prosecutions v Edwards,[61] Warren CJ described these as ‘significant burdens’ on an offender.[62] We respectfully agree. We would also wish to emphasise, as counsel for Mr Boulton argued, that these provisions should have a powerful deterrent effect.[63]

93 We think, however, that the punitive character of a CCO is most clearly illustrated by the range and nature of the conditions which may be attached to such an order. The available conditions are variously coercive, restrictive and/or prohibitive, and the obligations and limitations which they impose will bind the offender for the entire duration of the order (subject to any contrary order).

94 Moreover, the Court is empowered to fix a period — defined as ‘the intensive compliance period’ — within which the offender must fully comply with one or more conditions as specified in the order. By this means, the Court can both increase the punitive burden and seek to maximise the benefits of compliance.

95 Some examples will illustrate the nature of the conditions available to the sentencing court. As noted below, s 48D authorises the court to attach a condition requiring the offender to undergo ‘treatment and rehabilitation specified by the court’. A condition of this kind is both coercive and intrusive. For example, a condition imposed under s 48D may require an offender:

to have treatment for drug or alcohol abuse;

to be tested and treated at a residential facility for ‘withdrawal from or rehabilitation for’ drug or alcohol dependency;

to have treatment in a hospital or residential facility for any medical or mental health problem.

96 Likewise, the court has power to attach conditions:

prohibiting the offender from contacting or associating with a person (or class of persons) specified in the order; [64]

requiring the offender to reside, or prohibiting the offender from residing, at a particular place; [65]

prohibiting the offender from entering or remaining in a specified place or area; [66]

imposing a curfew, requiring the offender to remain at a specified place between specified hours of each day; [67] and

and prohibiting the offender from entering licensed premises or the location of any major event, or from consuming alcohol in any licensed premises.[68]

97 Plainly enough, an order attaching conditions of this kind, whether singly or in combination, is likely to interfere very significantly with the offender’s freedom to live as he/she chooses. Compliance with such conditions may require a drastic alteration of daily life. Indeed, by attaching conditions prescribing where the offender must live, and which locations and persons he/she must avoid, the court can effectively require the offender to embark on a new life.

98 Under s 48LA, moreover, a court (other than the Magistrates’ Court) may require an offender to be electronically monitored. The punitive effect of electronic monitoring is self-evident. This requirement can be attached for the purpose of monitoring the offender’s compliance either with a curfew condition or with a condition relating to exclusion from a place or area (both called a ‘monitored condition’). This can only be done, however, if a pre-sentence report provides a positive statement (and the court is then satisfied) that the person is suitable for such a condition, and there are appropriate resources to enable this monitoring.

Assessing the punitive effect

99 At this early stage, it is difficult for sentencing courts to assess the punitive effect of a CCO. Whereas the seriousness of a deprivation of liberty is well enough understood, it is hard to know how onerous it will be for a particular offender to comply with conditions requiring, for example, attendance at treatment; supervision; separation from acquaintances; exclusion from clubs and bars; and the obtaining of permission from the Secretary for interstate movements.

100 Moreover, comparisons between orders will be more difficult than when the comparison is simply between different periods of imprisonment. Not only will the particular ‘cocktail’ of conditions vary from case to case, according to the offender’s particular circumstances, but the same condition (eg non-association) is likely to have a quite different impact on different offenders. For some, compliance with such a condition will require a radical change in behaviour, while for others in different circumstances the burden of compliance will be less significant.

101 This analysis highlights the particular responsibility of defence counsel who wishes to argue for the imposition of a CCO. No longer will it be sufficient merely to recite the offender’s personal circumstances, as conventionally occurs on a plea in mitigation. When a CCO is proposed, counsel will need to make submissions directed at the formulation of an order which directly addresses those personal circumstances. Attention will need to be paid to the formulation of conditions which will address the offender’s particular needs, and the causes of the offending, and which will promote the necessary changes in the offender’s life to reduce the risk of reoffending.

102 This analysis also highlights the ‘quintessentially discretionary’ nature of the judgment made by the court in fashioning a CCO — both in length and in conditions attached — to suit an offender. As a corollary, there is likely to be a broader range within which opinions can reasonably differ about what was appropriate for the particular offence and the particular offender. It may, as a result, be more difficult to establish on appeal that a decision to impose a CCO was ‘not reasonably open’.[69]

Comparing a CCO with a prison sentence

103 The challenge for sentencing courts in the early years of the CCO regime will be to re-examine the conventional wisdom about the types of offending which ordinarily attract a term of imprisonment. For reasons which follow, such a re-examination is essential if the CCO is to fulfil its potential as a sentencing option, in accordance with the legislature’s clearly-expressed intention.

104 For so long as imprisonment has appeared to be the only option available for offending of any real seriousness, sentencing courts have had no occasion to reflect either on the severity of imprisonment as a sanction or on its ineffectiveness as a means of rehabilitation. As to the first, imprisonment is uniquely punitive because of that feature which distinguishes it from all other forms of sanction, namely, the complete loss of liberty. But imprisonment has a number of other punitive features, apart from the loss of physical freedom.

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.

106 On any view, this is severe punishment.[70] As the New South Wales Court of Criminal Appeal said in Mainwaring v The Queen:[71]

Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last available punitive resort in any civilised system of criminal justice. Public discussions about the need to deter crime by the imposition of heavier sentences are not always obviously, or at least apparently, informed by an appreciation of the significance of full-time incarceration upon men and women who receive such sentences.

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.[72] 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[73] 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.

111 Axiomatically, imprisonment is a sentence of last resort. As s 5(4) of the Act makes clear, such a sentence must not be imposed unless the court 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.

112 Given the adverse features of imprisonment to which we have referred, the conclusion that imprisonment is the only appropriate punishment amounts to a conclusion that the retributive and deterrent purposes of punishment must take precedence. Put another way, it is a conclusion that the offender’s ‘just deserts’ for the offence in question require imprisonment, even though the court is well aware that the time spent in prison is likely to be unproductive, or counter-productive, for the offender and hence for the community.

113 The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.

114 The CCO option offers the court something which no term of imprisonment can offer,[74] namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.

115 In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor (or a judge) to say, ‘How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment?’ As we have endeavoured to explain, that question should mark the beginning, not the end, of the court’s consideration.

116 As the Attorney-General submitted, the CCO

is intended to be available in serious cases where an offender may be at risk of receiving an immediate custodial sentence, but the Court considers that immediate custody is not necessary to fulfil the statutory purposes of sentencing given the range of options provided by a CCO.

In this sense, the Attorney submitted, the CCO has ‘the robustness and flexibility to be imposed in a wide variety of circumstances’. We agree.

The 2014 amendment

117 The views we have expressed are reinforced by the recent insertion into the Act of s 5(4C). This provision came into force on 29 September 2014, after the completion of argument in the present proceeding.[75] The new subsection provides as follows:

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.

The new provision is a companion provision to s 5(4), referred to above.

118 According to the Director’s supplementary submission, this new subsection is

a declaratory tool, intended to ‘highlight’ the punitive potential of a CCO that includes the named (and under-utilised) restrictive conditions, without diminishing the punitive potential of CCOs that do not include these conditions.

The submission drew attention to the following passage from the Explanatory Memorandum accompanying the 2014 amending Bill:

The purpose of this provision is to highlight that a community correction order can have a punitive effect and may be an appropriate sentence to address serious offending. It is not intended to suggest that a community correction order without the above listed conditions may not be punitive, or that the sole purpose of attaching the above conditions is to punish the offender.[76]

119 VLA’s further submission also quoted this passage, and emphasised that the particular conditions identified in the subsection had so far been used very infrequently. At the same time, VLA submitted, the specification of particular conditions in the subsection should not be construed as implying that one or more of those conditions had to be attached to a CCO in order to justify a conclusion that imprisonment was not necessary.

120 These submissions of the Director and VLA should be upheld. They capture correctly, in our view, the intention of the new subsection. What is most powerful about s 5(4C) is that it prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:

(a) the purposes for which sentence is to be imposed on the offender; and

(b) whether those purposes can be achieved by a CCO to which one or more of the specified (onerous) conditions is attached.

121 The process of deliberation which this provision requires should assist in the reconceptualisation of sentencing options to which we have referred. In particular, that process will throw into much sharper focus the distinction we have sought to draw, between the narrow punitive purpose (and effect) of imprisonment, on the one hand, and the multi-purpose character of the CCO. The sentencing court should ask itself a question along the following lines:

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?

No correlation between prison term and CCO term

122 There was debate at the hearing about the extent (if any) to which the sentencing court, when considering the appropriate length of a CCO for a particular offender and offence, is likely to be assisted by considering the term of imprisonment which might previously have been imposed on such an offender for such an offence. In our view, given the differences between the two types of sanction in punitive character and in rehabilitative capability, the comparison is likely to be of very limited assistance. Perhaps all that can be said is that, other things being equal, the term of a CCO is likely to be longer — often, markedly longer — than the term of imprisonment which might otherwise have been imposed.

General and specific deterrence

123 The principle of general deterrence requires the sentencing court to bear in mind, in determining an appropriate sentence, the need to deter others who might contemplate engaging in offending conduct of the relevant kind.[77] As a general rule, the effectiveness of an individual sentence as a deterrent depends on two things:

(a) the degree to which the sentence is, and will be perceived by the relevant section of the community to be, punitive in nature; and

(b) the extent to which the fact of the sentence, and its punitive character, is communicated to those whom it is intended to deter.

Both conditions must be satisfied. Self-evidently, a sentence of which the public are unaware can have no deterrent effect on anyone other than the offender.

124 These issues assume particular importance in relation to CCOs. As we have explained, a CCO is intrinsically punitive and is capable — depending on the length of the order and the nature and extent of the conditions imposed — of being highly punitive. It follows that, as a matter of principle, a CCO can operate to deter others. But, unlike a prison term, a CCO is not self-evidently punitive.

125 It will be a particular challenge, therefore, to communicate adequately to the public how and why a CCO operates punitively. In the most obvious respect, as we have said, the CCO is less punitive than prison. There is no incarceration. In other important respects, however, the CCO is a very significant punishment.

126 Necessarily, the punitive features of a CCO will require explanation. The task of communication must begin with the sentencing court. When it is concluded that a CCO sufficiently punishes the offender for the offence, the reasons for that conclusion should be clearly set out.

127 Overwhelmingly, however, the responsibility for communicating ‘the message’ about CCOs rests with government. As this Court said recently in DPP v Russell,[78] courts have neither the expertise nor the resources to undertake the kind of systematic public communication on which the theory of general deterrence depends. That is properly a function of government, which is responsible for public safety and law enforcement.

128 As noted earlier, the Attorney-General submitted that there should be greater utilisation of CCOs and that they were perfectly capable of serving the purposes of punishment and deterrence.[79] But whether the CCO is utilised more widely, and whether it can be seen to serve the purpose of general deterrence, will to a very large degree depend upon there being an active and well-funded program of public communication. Otherwise, the use of the CCO may well attract the kinds of public criticisms which have characterised the increasingly punitive debate about sentencing in recent years.

129 The question of specific deterrence is much more straightforward. There are several reasons why, in our view, a CCO can very effectively serve the purpose of specific deterrence. First, because it will be a real punishment, it should deter repeat offending. Secondly, there is the mandatory condition attached to every CCO, prohibiting the commission of an offence punishable by imprisonment.[80] The commission of such an offence will potentially lead to the imposition of three separate penalties, as follows:

a penalty for the offence itself;

a penalty for the contravention of the CCO condition; and

a resentencing for the original offence in respect of which the CCO was first imposed.[81]

We agree with the Director’s submission that these provisions, in combination, create ‘powerful disincentives’ to re-offending, which last for the full length of the CCO.

130 Thirdly, the focus of the conditions attached to the CCO will be to minimise the risk of re-offending — by ensuring appropriate treatment to address the causes of the offending and/or by prohibiting the offender from visiting places or associating with persons which might lead to criminal activity. In this way, the purpose of protecting the community, to which specific deterrence is directed, can be well served by a CCO.

Are there offences for which a CCO would ordinarily be unsuitable?

131 It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.

132 The Attorney-General submitted that even a lengthy CCO would not be appropriate in cases of culpable driving or manslaughter, unless there were ‘very exceptional circumstances’. The Director took a different position, submitting that if (contrary to his primary position[82]) the length of a CCO could serve the purpose of punishment, there was ‘no obvious reason why CCOs of up to 20 years could not be imposed for some cases of culpable driving or manslaughter.’

133 It is, in our view, both undesirable and unnecessary to seek to impose in advance any outer limits on the availability of this sentencing option. First, these are early days, and the scope for utilising CCOs is largely unexplored. Secondly, realising the full potential of CCOs will require, as we have said, a re-examination of accepted views about offences for which imprisonment has been thought to be the only option. That process of rethinking and re-evaluation will take some time.

134 Thirdly, and most importantly, the readiness of sentencing courts to impose CCOs for serious offences will depend on these orders being shown to be effective. And they will not be effective unless they are properly supported and resourced by Corrections Victoria. Proper resourcing is essential to enable courts to attach conditions — both punitive and rehabilitative — in the knowledge that compliance with the conditions is likely to produce meaningful results. Otherwise, this new sentencing option will simply not realise its potential.

135 We would add this. Sentencing courts are uniquely placed to monitor the adequacy of the resourcing provided, and should be astute to draw attention to any shortfall.

Combining a CCO with a sentence of imprisonment

136 When the CCO provisions were first enacted, the sentencing court was empowered to make a CCO in addition to imposing a sentence of imprisonment, provided that the term of imprisonment did not exceed three months. The Emergency Workers Act, however, replaced the three month limit with a two year limit.[83] (In what follows, we will refer to a sentence which combines a CCO and a term of imprisonment as a ‘combination sentence’). Pre-sentence detention is not counted for this purpose.[84]

137 The Director submitted that the lifting of the maximum imprisonment term to two years supported his contention that the duration of a CCO must be justified by its capacity to serve sentencing purposes other than punishment.[85] When imposing a combination sentence, the Director submitted, it will ordinarily be appropriate

for the court to pursue punishment primarily through the custodial component. It would be undesirable for the court to seek also to punish through the duration and conditions of the CCO (allowing that the court will need to have regard to the intrinsic punitive quality of conditions imposed for other purposes ...

138 We are not persuaded by that submission. For reasons given in the next section,[86] the Director’s approach mischaracterises the nature and purpose of a CCO. It is punitive in nature, and is intended — and expected — to operative punitively for every day of its operation.

139 More importantly, the adoption of the Director’s split-level approach to a combination sentence — prison for punishment, CCO for rehabilitation — would tend to reinforce traditional views of sentencing options. By effectively inviting the sentencing court to ignore the punitive effect of a CCO, this approach would likely result in prison continuing to be viewed as the only real option for offending of any seriousness. That is precisely the view which the introduction of the CCO was intended to change.

140 There will, of course, be cases where the sentencing court concludes, after engaging in the deliberation now required by s 5(4C), that certain sentencing purposes — typically, just punishment, denunciation and/or deterrence — cannot be sufficiently served by the making of a CCO, even with onerous conditions. Consistently with the principle of parsimony, the court would then impose the shortest term of imprisonment consistent with the achievement of those purposes.[87]

141 The availability of the combination sentence option adds to the flexibility of the CCO regime. It means that, even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration, with conditions tailored to the offender’s circumstances and the causes of the offending.

142 According to VLA, the particular benefit of imposing a CCO to commence on completion of the term of imprisonment would be

in its capacity to assist an offender’s rehabilitation and reintegration, and to reduce the negative effects of having served a custodial term. ... [T]he sentencing purposes for imposing a back end CCO and the emphasis in selecting its component parts should be primarily rehabilitative in nature. However, this is not to say that other purposes are not capable of being pursued. Like parole, a back-end CCO can, for example, assist in facilitating community protection and specific deterrence.

143 VLA accepts that, when a CCO follows imprisonment, it can also be used for the purpose of punishment, but submits that the pursuit of that objective

should be in the context of attaining broader rehabilitative and reintegrative outcomes, for example by enabling a ‘progressive reduction in the level of punishment and supervision to which an offender is subject.’ If the benefit of a back end CCO is primarily to assist with rehabilitation and reintegration, a punishment heavy CCO (for example, a CCO that contains significant community work, curfews, electronic monitoring and other restrictions) may inhibit those intended aims.[88]

144 The VLA submissions also draw attention to the position of an offender who at the date of sentence has already served time in custody on remand. (Mr Fitzgerald was in that position). In such a case, the court may conclude that there is no warrant for further imprisonment beyond time served but that the proportionate sentence requires a significant degree of further punishment. The CCO must be fashioned accordingly. (In Mr Fitzgerald’s case, as we have explained in our reasons, no further punishment was warranted beyond the time served, and there was hence no basis for the imposition of a CCO.)

145 VLA’s submissions are consistent with our analysis of the CCO regime, and should be accepted.

How significant a factor is punishment in determining the length of a CCO?

146 A proper approach to the determination of the period of any CCO will involve consideration of the purposes of sentencing which are being met by the order. Naturally, those purposes inform both the fixing of the period of the CCO, and the decision as to which conditions should be attached.

147 The Director’s submission sought to distinguish between the punitive effect of a CCO, on the one hand, and the part to be played by punishment as a purpose in determining the length of a CCO. According to the submission:

[O]n a proper construction of the statutory regime governing CCOs, punishment would generally not be a significant consideration in the determination of the period of a CCO. That is, while the punitive effect which a CCO will have over its lifetime must be taken into account by a sentencing court in determining its period, imposing long CCOs on offenders for the sole purpose of punishing them is not what is contemplated by the statutory scheme.

148 This construction was said to be supported by two features of the CCO regime. The first was that the community work condition available under s 48C was the only condition expressly said to have the purpose of punishing the offender.[89] The Director also drew attention to s 48C(7), which provides as follows:

If a court attaches an unpaid community work condition as the sole condition under this Division of a community correction order for up to a maximum of 300 hours, the order expires on the satisfactory completion of those hours of work.[90]

149 According to the Director’s submission:

This provision suggests that, at least where a community work condition is the sole condition of an order, the punitive component of the order is exhausted on completion of the community work. Looked at another way, if an offender was obliged to remain subject to a CCO for its entire period as a component of their punishment, it would not be open to them to truncate this period, and hence mitigate their punishment, simply by completing their community work promptly. To take an example, an offender might be subject to an order which requires as its sole condition that they complete 200 hours of community work, and is for a period of 12 months. It would be open to the offender to complete this community work, and bring the order to an end, in only 5 weeks.

150 The submission from VLA rejected the distinction between punitive effect and punitive purpose. According to VLA, a CCO operates punitively for its entire duration and there is no reason to doubt that punishment is one of the purposes to be considered in determining the duration of the order, as well as the conditions to be attached.

151 In our view, VLA’s submission must be upheld. The Director’s emphasis on the purposes of rehabilitation, deterrence and community protection is wholly consistent with the provisions but it is, we think, incorrect to suggest that — the community work condition apart — the sentencing court must treat punishment as a subsidiary, or lesser, purpose in determining the length of a CCO or the conditions to be attached.

152 As we have said, the sentencing court will want to be satisfied — and the community would expect — that the imposition of a CCO will ‘punish the offender to an extent and in a manner which is just in all the circumstances’.[91] Both the period of the CCO, and the conditions attached, bear upon the extent of the punishment inflicted. In the particular case, the punitive effect will be determined by the extent, and duration, of the curtailment of the offender’s freedoms.

153 The Director also drew attention to the broad powers conferred by s 48M to cancel, suspend or vary a CCO or its conditions. Such an alteration can be made, inter alia, where the court considers that this will advance ‘the rehabilitation and reintegration of the offender’ or that the continuation of the sentence ‘is no longer necessary in the interests of the community or the offender.’

154 The Director argues that, the proper measure of just punishment is determined by the criminal conduct and is therefore ‘in a sense, irrevocable’. Changes in the offender’s circumstances could not, it is said, alter the proper measure of punishment. It follows, so the Director contends, that to impose a lengthy CCO as a punitive measure would be inconsistent with the broad discretion to vary or cancel the order.

155 We do not agree. As VLA pointed out, the determination of the head sentence for an offence is invariably informed by the purpose of just punishment, amongst other purposes. The court must sentence on the basis that the offender may have to serve every day of the sentence.[92] (The same assumption must be made when considering the length of a CCO.) But, in the very act of fixing a non-parole period, the court recognises the probability that the head sentence will not be served and that, subject to the progress of the offender’s rehabilitation, the offend