Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen  VSCA 342 (22 December 2014)
In Victoria’s first guideline judgment the Court of Appeal stated that the availability of community correction orders (CCOs) dramatically changes the sentencing landscape. The Court of Appeal unanimously held that CCOs enable punitive and rehabilitative sentencing purposes to be served simultaneously, positing CCOs as punitive non-custodial sentences.
Since January 2012 courts have been able to impose CCOs as sentencing outcomes. CCOs replaced Intensive Correction Orders, Community Based Orders and Combined Custody and Treatment Orders.
In 2013 three sentence appeals were lodged against lengthy CCOs – the appellants Boulton, Clements and Fitzgerald had respectively received an eight year, 10 year and five year CCO.
In the context of three sentence appeals, in November 2013 the Director of Public Prosecutions applied for a guideline judgment pursuant to s6AB(1) of the Sentencing Act 1991 (the Act). A guideline judgment contains guidelines to be taken into account by courts in sentencing offenders. The Court of Appeal concluded that the application should be heard by a bench of five, recognising that there was a unique opportunity to avoid sentencing disparity in relation to this new sentencing order.
There were two main questions that the Court needed to address in this matter – should there be a guideline judgment, and if so, what should be included in that guideline judgment.
The threshold question – should the Court give a guideline judgment
Pursuant to s6AD of the Act, the Sentencing Advisory Council (SAC) and Victoria Legal Aid (VLA) were invited to make submissions. The Attorney General also joined the proceedings. On the threshold question, the Director, VLA, SAC and Boulton all submitted that the Court should give a guideline judgment. The Attorney General indicated general support for a guideline judgment, whilst Clements and Fitzgerald opposed a guideline judgment, respectively stating that there was a lack of evidence about inconsistent sentencing to warrant a guideline, and that it was premature.
In support of a guideline judgment VLA submitted that the CCO is a new and highly flexible order and is arguably not being used as intended by Parliament; that there is a lack of transparency in reasoning adopted by Courts imposing CCOs; that there is a need for clarity and appellate guidance regarding appropriate use of CCOs; that there is uncertainty about the reach of CCOs; a guideline judgment would assist Courts in structuring CCOs; and that the need for guidance is timely in light of the abolition of suspended sentences.
In accepting VLA’s submissions the Court considered it appropriate to issue a guideline judgment, noting in particular at  that the judgment should promote consistency in sentencing and public confidence in the criminal justice system; and ensure that the CCO system operates as intended.
What should be the content of the proposed guideline judgment
Overarching principles – proportionality and suitability
The Court accepted the submissions of VLA and SAC that the overarching principles which should govern a CCO regime were proportionality and suitability. In respect of proportionality the Court at  noted that proportionality precludes the imposition of a longer sentence merely for the purposes of protecting society. As regards suitability, the Court referred to the requirement in s36 of the Act that courts consider whether the terms of a CCO suit an offender’s personal circumstances.
A CCO is punitive in nature
The Court concluded that a CCO has obvious punitive elements, including the mandatory conditions, the fact that contravention of the CCO is an offence punishable by imprisonment, and the range and nature of optional conditions (which are variously coercive, restrictive and/or prohibitive).
In comparing a CCO with imprisonment, the Court pointed out that imprisonment is often seriously detrimental for the prisoner and the community and that imprisonment is a sentence of last resort. The Court stated at - that a CCO ‘offers the court something which no term of imprisonment can offer, 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 offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender...’.
The Court accepted that the CCO is intended to be available for serious cases where an offender is at risk of immediate imprisonment, and that it is undesirable and unnecessary to impose any outer limits on the availability of CCOs. At  the Court suggested that in sentencing an offender the court should ask itself the following question - 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?
CCOs combined with imprisonment
The ability for sentencing courts to impose CCOs in combination with terms of imprisonment, according to the Court, adds to the flexibility of a CCO and also reduces the negative effects of having served a custodial term. The Court accepted VLA’s submission that there are significant practical and conceptual difficulties in considering the imposition of a non-parole period and/or a CCO, and that a non-parole period and a CCO should be treated as alternatives.
Determining the length of a CCO
On the basis that sentencing purposes inform the length of sentencing orders, the Court accepted VLA’s submission that the CCO operates punitively for its entire duration, and stated that the punitive effect will be determined by the extent and duration of the curtailment of the offender’s freedoms. As to the provisions allowing courts to vary or cancel a CCO, the Court at  said future variation or revocation is not a matter that should be taken into account in fixing the duration of a CCO, as the assumption is that the offender will have to comply with the CCO for every day of its duration.
Difficulties with compliance with conditions
Acknowledging that for many offenders difficulties which contributed to their offending (for example mental illness, drug addiction, and/or homelessness) may also present problems in compliance with a CCO, the Court at [171-172] stated that it would be a paradoxical outcome if anticipated difficulties led the court to conclude that a CCO was inappropriate. The Court stated that for offenders who have been assessed as suitable for a treatment and rehabilitation condition, the sentencing court should assume that compliance difficulties are likely to be abated once treatment commences. Additionally, the Court noted that relapses are common, that courts should resist arriving at pessimistic conclusions about future non-compliance, and that if non-compliance persists there is capacity to apply for variation or cancellation.
CCOs and young offenders
The Court considered that CCOs can be fashioned to adequately punish and rehabilitate young offenders, accepting VLA’s submission that a lengthy CCO should be avoided for a young offender as most young offenders disengage from criminal behaviour, that long orders have a greater impact on a young offender, and that young offenders are more receptive to change and will respond more quickly to interventions.
Appearing on behalf of VLA, Director Criminal Law, Helen Fatouros describes the guideline judgment as historic, a judgment which has the capacity to serve the community by leading a shift towards meaningful and supported rehabilitation of offenders.
A CCO is not a lenient sentence
The guideline judgment is designed to promote the flexibility and robustness of CCOs and ensures that imprisonment remains the punishment of last resort. Non-custodial sentences have traditionally been viewed as lenient dispositions given the way previous community based orders operated. The guideline judgment makes clear that CCOs constitute serious punishment and that CCOs should assume a greater role in the sentencing hierarchy.
The Court acknowledged the need to change public opinion and inform the community that CCOs are not only very significant punishment but that they better serve the community than imprisonment, as CCOs seek to address the causes of offending behaviour and ultimately prevent future offending. This change relies on appropriate use of CCOs, and their effectiveness in addressing criminal behaviour.
As to effectiveness, VLA data for the last two financial years shows the breach rate of CCOs is 16.5%. This is lower than the breach rate for previous community-based orders, and demonstrates the recidivism potential of CCOs, particularly if supports and programs are sufficiently tailored and resourced.
Evidence-based decision making
The Court stressed the need for the provision of pre-sentence reports and expert evidence by government agencies and defence counsel to allow a sentencing court to impose a CCO which appropriately details the rehabilitative needs of an offender, and to the extent possible provide material about the estimate of the period of time required for rehabilitative programs to be effective.
The guideline calls on all parties to take a more thorough approach in assisting courts to impose well-crafted sentences. The Court explicitly stated that defence counsel will need to direct submissions at the formulation of a CCO which directly addresses the causes of offending, and which promote changes in the offender’s life to minimise the risk of reoffending. In the absence of sufficient expert guidance and full submissions from practitioners around duration, conditions and programs the guideline will not deliver on its important aims.
Impact of the guideline judgment
Proper application of the guideline will lead to an increase in CCOs, as they are imposed in matters which would have previously received a suspended sentence and also in matters where the offender is facing immediate imprisonment but is suitable for a CCO. This should in turn promote greater community confidence in the criminal justice system whilst going some way to address over-reliance on imprisonment and the many risks that flow from overcrowded prisons. Anecdotally, we note that the judgment has been relied on by VLA lawyers in a significant number of matters, including successfully in bail applications and in sentence appeals.
The true impact of the guideline judgment will depend on whether sentencing courts have confidence in the effectiveness of CCOs. As the Court cautioned, this will depend on Corrections Victoria providing adequate resources and supports to enable CCOs to produce meaningful results.
In relying on the guideline judgment, a shift in both focus and investment away from prisons to effective treatment and support programs for offenders is possible, and to this extent advocates who rely on the guideline judgment appropriately can play a role in shaping the sentencing landscape.
The full decision can be found online here: http://www.austlii.edu.au/au/cases/vic/VSCA/2014/342.html
Helen Fatouros is the Director of Criminal Law at Victoria Legal Aid.