Supreme Court Considers Relevance of Conditions of Detention to Sentencing

R v Kent [2009] VSC 375 (2 September 2009) On 2 September 2009, Bongiorno J of the Victorian Supreme Court handed down a decision which considered the application of the Charter to sentences of imprisonment imposed on individuals with mental health conditions. 


Shane Kent was indicted with 12 other men on a number of counts of terrorism offences under Part 5.3 of the Commonwealth Criminal Code.  Mr Kent faced two counts – one count relating to membership of a terrorist organisation and one count of making a document connected with the preparation for a terrorist act, being reckless as to that connection. 

Mr Kent was arrested on 8 November 2005 and remained in custody until he was granted bail in September 2008.

At trial, Mr Kent pleaded guilty to the two offences, each of which carries a maximum penalty of imprisonment for ten years.   

In his plea, considerable evidence was presented to the court about Mr Kent’s mental health.  Medical reports submitted by Mr Kent’s counsel revealed that Mr Kent was diagnosed with major depression which had been severely exacerbated when he was incarcerated in the Acacia Unit of Barwon Prison leading up to his trial. 

At the sentencing hearing, evidence was presented that Mr Kent was still suffering significant, enduring and severe psychological disturbance that needed intense treatment, without which there was a high risk of relapse to even more severe depressive symptoms after sentencing.


Based on the sentences given to Mr Kent’s co-accused (who are being held in the Acacia Unit of Barwon Prison), the Court was required to consider, in determining Mr Kent’s sentence, that Mr Kent would be subjected to these, or similar, conditions after he is sentenced.

In sentencing Mr Kent to imprisonment for a period of four and a half years with a non-parole period of three years and nine months, Bongiorno J considered the obligation to treat persons deprived of their liberty with humanity and with respect for their inherent dignity as human beings (provided for in section 22(1) of the Charter).

Justice Bongiorno held (at para 32):

The Victorian Charter of Human Rights and Responsibilities provides that persons deprived of their liberty by law must be treated with humanity, and with respect for their inherent dignity as human beings.  To place people in a custodial environment which is able to be foreseen as likely to result in their suffering a major psychiatric illness can hardly be said to be treating them with humanity.  This is particularly so if, as here, no cogent grounds have ever been put forward as justifying such conditions for these prisoners.  The relevance of the conditions of incarceration to sentencing has been referred to in the sentencing remarks with respect to Kent’s co-accused to which reference has been made.  The law requires that, if the conditions of incarceration of a prisoner are so harsh as to produce the kind of consequence referred to by Mr Newton, that must be taken into account in determining the length of any appropriate sentence.

Justice Bongiorno thought it appropriate to take into account the probable conditions under which Mr Kent will serve his sentence and the effect of those conditions on his psychological state.  However, even after taking these factors into account, the Court was satisfied that immediate imprisonment was the only appropriate sentence in all of the circumstances of Mr Kent’s case.  This was because of the nature and gravity of the offences to which Mr Kent had pleaded guilty, the circumstances in which they were committed and his personal circumstances.

The decision is available at

Melissa Gundrill is on secondment to the Human Rights Law Resource Centre from Clayton Utz