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The content on this page was last reviewed on 31 May 2016

Recent cases alert
DPP (Cth) v MHK [2017] VSCA 157 — rehabilitation will carry less significance where undergone in environment where offender sheltered from kind of influences that initially impelled him to engage in offending conduct.
DPP (Cth) v Besim [2017] VSCA 158 — rehabilitation could not be regarded as form of assurance of community protection in preparatory terrorism offence as no basis for finding that offender had changed his views.
R v Succarieh; R v Succarieh; Ex parte DPP (Cth) [2017] QCA 85 — offender not renouncing fundamentalist religious views does not mean prospects of rehabilitation are adversely affected as views only need to be ameliorated to the point where they no longer govern one’s obedience to local domestic law.
Miao v The Queen [2017] NSWCCA 89 — offender’s paraphilia relevant to assessment of rehabilitation.  
R v Constant (No 2) [2017] SASCFC 36 — where offender’s rehabilitation primarily achieved through motherhood after giving birth to second child while released on parole and bail.
*Guidance from these cases has not yet been incorporated into the commentary

1. Overview

Section 16A(2)(n) requires a court to take into account various factors personal to the offender including their prospects of rehabilitation.

Section 16A

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

(n) the prospect of rehabilitation of the person

Courts have relied on several factors to consider an offender’s prospects of rehabilitation. These include:

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2. Rehabilitation and Protection of the Community

The purpose of rehabilitation is to reform the offender and encourage the offender not to re-offend. 1 In R v Pogson [2012] NSWCCA 225, McClellan CJ at CL and Johnson J (RA Hulme and Button JJ agreeing) stated at [123]–[124]:

[R]ehabilitation has as its purpose the remodelling of a person’s thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law abiding citizen.

[E]very offender is in need of rehabilitation. Some may need greater assistance than others. It has been commonplace to speak of “paying your debt” to society. That phrase, in colloquial parlance, captures the essence of rehabilitation, enabling the offender to re-establish him or herself as an honourable member of the community (emphasis added).

The Court cited the following comment of King CJ in Vartzokas v Zanker (1989) 51 SASR 277, 279:

Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. 2

Successful rehabilitation enhances community protection.  In Yardley v Betts (1979) 22 SASR 108, King CJ stated at 112:

The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced (emphasis added). 3

Rehabilitation and the protection of the community are therefore considerations that are intertwined. In the state sentencing case of B (A child) v The Queen (1995) 82 A Crim R 234, the Court stated at 244:

It is fallacious to regard the rehabilitation of an individual offender as a consideration separate and apart from, and somehow inimical to, the protection of the public.  The two things are intrinsically connected.  The criminal justice system aims to rehabilitate offenders (particularly young offenders) because rehabilitation removes the danger to the public from one of its (previously) errant members (emphasis added).

For example, in R v Philpot [2015] ACTSC 96, Murrell CJ imposed a sentence of 19 months imprisonment for an offender convicted of using a carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Commonwealth Criminal Code. In deciding that the offender should be released immediately on recognizance, she took into account the fact that the offender had sought treatment and was continuing to engage with health professionals, with the support of family and friends. Murrell CJ stated at [63]:

In considering the manner in which that sentence should be served, I pay full regard to the objective seriousness of the matter but when I look at the purposes of sentencing I find that the community will be best protected if the offender continues with the rehabilitation that he is currently undergoing (emphasis added).

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3. Rehabilitation not confined to disadvantaged offenders

Rehabilitation is not confined to people whose offending is predicated by disadvantage. As King CJ explained in Vartzokas v Zanker (1989) 51 SASR 277, at 279:

Rehabilitation … is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. … Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound process for rehabilitation… (emphasis added) 4

For example, in federal sentencing cases involving white collar offenders, Courts have taken into account the rehabilitation of the offender. 5 Courts have observed that the prospects of rehabilitation of white collar offenders are generally high. 6

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4. Prospects of Rehabilitation

Various factors appear to influence the weight given to an offender’s prospects of rehabilitation in the formulation of a sentence. These include the offender’s character, criminal record, conduct between offending and sentence, youth, treatment, education and support networks/relationships.

In the state sentencing case of Elyard v The Queen [2006] NSWCCA 43, Basten JA broadly set out the types of material a court will examine to assess an offender’s prospects of rehabilitation under common law sentencing principles at [19]:

In assessing prospects of rehabilitation, the Court will generally have access to material falling within one or more of the following categories:

(a) evidence of past conduct and behaviour of the offender;

(b) professional opinions, taking into account past conduct and behaviour and expressing views as to future prospects, and

(c) at least in some cases, the opinions and expressions of intention of the offender himself or herself.

4.1 Character

An offender’s character is a listed sentencing factor in s 16A(2)(m) of the Crimes Act 1914 (Cth). ‘Character’ may also be relevant in examining an offender’s prospects of rehabilitation.

Good or bad character can influence the weight given to an offender’s prospects of rehabilitation, depending on the circumstances of the case. Factors such as the offender’s prior public service and good standing amongst family or a religious community may be influential.

For example, in R v Zapata [1996] VSC 486, the Court accepted that the prospects of rehabilitation of the offender were very good, as evidenced by his past behaviour, especially his responsible attitude to his family and the community. 7

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4.2 Criminal Record

An offender’s criminal record may be relevant in measuring their prospects of rehabilitation, as well as being an independent sentencing factor by virtue of s 16A(2)(m) of the Crimes Act 1914 (Cth).

The likelihood that offenders will successfully rehabilitate themselves might be inferred from their criminal record, depending on the circumstances of the case.

4.2.1 Repeat offenders

An offender’s prospects of rehabilitation may be considered to be low where they have a past history of recidivism. For example, in R v Holzberger [2007] QCA 258, the offender sought leave to appeal the sentence imposed on the grounds that insufficient weight was given to his efforts to rehabilitate. The Court of Appeal noted that the offender had a significant criminal history and concluded at [19] that:

The judge was entitled to consider that those efforts of rehabilitation must be treated with some circumspection in the light of his persistent past recidivism.

Conversely in R v Hunt [2002] NSWCCA 482, the lenient sentence granted to a 43-year-old serious repeat offender was upheld. The Court of Appeal explored the notion of ‘wishful thinking’ and the process of evaluating rehabilitative prospects. Spigelman CJ (Dunford and Buddin JJ agreeing) dismissed the Crown appeal. The Court held at [29] – [30]:

[S]cepticism is often justified and the Court must avoid what Dunford J has described as “wishful thinking” in R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314. In a judgment with which James J and Smart AJ agreed, his Honour said at [35]:

“Sentencing judges must be vigilant to ensure that they do not accept uncritically at face value all submissions to the effect that the person standing for sentence is `at the cross-roads’, `has seen in the error of his ways’, `is at the turning point in his life’, or `has excellent prospects of rehabilitation’. Often such submissions have no justification in fact and are based on no more than wishful thinking, but there are exceptional cases where such submissions do have validity and the Court should be astute to recognise them.”

What Dunford J referred to as “wishful thinking”, I have referred to as the “triumph of hope over experience”. The idea is the same. I agree with his Honour. There are cases where persons have indicated a determination to change their previous life, which included a life of crime.

In this case the evidence of holding down a responsible job for 18 months, together with the evidence of success in drug rehabilitation, the significance of support from a close family, and his own responsibility for a young teenage daughter, are such as to indicate that this is a case in which a conclusion of this character is warranted.

4.2.2 First time offenders

Rehabilitation assumes particular importance in the case of first time offenders, and offenders who have not developed ‘settled criminal habits’. 8 In Yardley v Betts (1979) 22 SASR 108, King CJ stated at 112-3:

The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits

[P]ublic concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations … The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so … (emphasis added) 9

For example, in R v Jiao [2015] NSWCCA 95, [38] it was noted that the offender’s prospects of rehabilitation were good as it was her first offence and there was ‘no record of any other criminal behaviour on her part’.

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4.3 Conduct between offending and sentence

An offender’s behaviour in between offending and being sentenced may be relevant to measuring their prospects of rehabilitation.

An offender’s behaviour post offending is indicative of their prospects for rehabilitation. For example, in ACCC v Chubb Security Australia [2004] FCA 1750, Bennett J stated at [125]:

Section 16A(2)(n) of the Crimes Act requires consideration of the prospects of rehabilitation. … To my mind, that involves, inter alia, a consideration of corrective steps taken after the offences had been discovered. 10

4.3.1 Rehabilitation achieved prior to sentencing

Courts have been reluctant to impose a sentence that will interfere with a rehabilitative process that has been commenced after the commission of the offence. 11

In Duncan v The Queen (1983) 9 A Crim R 354, 356 the Court stated:

[W]here, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation. 12

In the state sentencing case of Green v Police [2013] SASC 119,  Nicholson J noted that the imposition of a custodial sentence after significant rehabilitation has been achieved may induce the offender to reoffend. He stated at [31]:

[T]he present case is one where an immediate term of imprisonment is likely to cause irreparable harm to the quite exceptional level of rehabilitation already achieved … there may be no recovery for the appellant and her family from that harm.  As such, the appellant, upon release from prison, will be back where she started and with an enhanced risk of reoffending (emphasis added).

For example, in cases involving child exploitation, Courts have taken into account that an offender has engaged in rehabilitation prior to sentencing. 13 In the state sentencing case of R v McGaffin [2010] SASCFC 22, the offender was convicted of the possession of child pornography at the age of 22. The offender had developed an addiction to viewing child pornography after first viewing such material at the age of 11. The Court found the offender had ‘actively addressed his problem by participating in a prolonged course of psychological treatment’ and held that it would be ‘inappropriate’ to impose a sentence ‘which would detract from that recovery’. 14

Similarly, Courts have been reluctant to impose a custodial sentence where doing so may undermine the offender’s employment prospects and familial relationships, 15 or affect the ability of refugees to establish themselves in their place of asylum. 16

4.3.2 Rehabilitation while imprisoned: the “model prisoner”

Courts have taken into account that the offender has acted as the “model prisoner” while on remand. For example, in R v Lam [2003] NSWCCA 162, [29]-[31] Sheller JA (Hidden J and Carruthers JA agreeing) emphasised evidence of rehabilitation when resentencing the applicant. There was evidence that the applicant was of ‘excellent behaviour’, had ‘worked in areas of a sensitive nature’, was ‘selected as one of eight inmates to participate in an alcohol and other drugs peer support programme’ and was enrolled in various courses. This indicated that:

[T]he applicant has prospects of rehabilitation which he is striving to achieve and will benefit from a longer period of parole. 17

4.3.3 Relevance of restitution or reparation

The fact that an offender has made reparation for injuries, loss or damage suffered as a result of their offence may be relevant in measuring their prospects of rehabilitation, as well as being an independent sentencing factor by virtue of s 16A(2)(f)(i) of the Crimes Act 1914 (Cth).

Restitution or reparation payments may in some circumstances indicate the offender feels remorse or contrition, suggesting that there are good prospects of rehabilitation. 18

For example, in R v Robertson (1984) 115 LSJS 51, King CJ stated at 53:

The [reparation] is important in another way because it shows that the appellant has made use of the time which he has had since he has been on bail to rehabilitate himself by working, and working hard, and making good use of the money which he has earned for the benefit of those whose money he had taken. This augurs well for his rehabilitation and gives this Court some ground for extending a leniency to him … (footnotes omitted) 19

King CJ’s comments were applied in the federal sentencing case of Twigden v Centrelink [2010] SASC 154. Gray J stated at [55]:

[T]he defendant’s offer of reparation may be characterised as late, it is still relevant and significant. The fact of full restitution demonstrates that the defendant has accepted responsibility for her actions and her willingness to make amends. That acceptance of responsibility further indicates the progress made by the defendant in her rehabilitation. Furthermore, the reparation is significant as it recompenses in full the loss suffered by Centrelink.

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4.4 Youth

Rehabilitation is a principal consideration in the sentencing of young offenders both at common law and under the Crimes Act 1914 (Cth). 20 In Lahey v Sanderson [1959] Tas SR 17, Bunbury CJ stated at 21:

The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has … been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and, in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed … 21

Similarly, in the oft-cited case of R v Mills [1998] VSC 241, Batt JA (Phillips CJ and Charles JA agreeing) stated:

In the case of a youthful offender rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focusing on rehabilitation is to be preferred.  (Rehabilitation benefits the community as well as the offender.)

In Azzopardi v The Queen [2011] VSCA 372, the Court reaffirmed the general principles in R v Mills [1998] VSC 241,  22 and further clarified these common law principles at [35], [36]:

[C]ourts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending.

[C]ourts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community (footnotes omitted; emphasis added).

4.4.1 Rehabilitation and seriousness of the criminality

The importance of rehabilitation of youthful offenders may diminish where the offence is of a very serious nature. 23 For example, in the state sentencing case of DPP v Lawrence [2004] VSCA 154, Batt JA noted at [22]:

With an offence as serious as intentionally causing serious injury … the offender’s youthfulness and rehabilitation, achieved and prospective … were of much less significance than they would have been with a less serious offence.  As has been said, youth and rehabilitation must be subjugated to other considerations … particularly where … the perpetrator has been given previous chances to control his aggressive habits (emphasis added).

4.4.2 Definition of “youth”

Courts sentencing federal offenders have been flexible in their approach to ‘youthful’ offenders and have held that the mitigating effect of age may persist well beyond eighteen years of age. For example, in R v Evans [2013] NTCCA 9, the 26-year-old offender was treated as a youthful offender with good prospects of rehabilitation.  24 The offender was, at the time of offending, a sailor in the Royal Australian Navy who robbed the armoury of a Navy ship contrary to s 132.3 of the Commonwealth Criminal Code.

In R v Chhom Nor [2005] VSCA 46, the 32-year-old offender argued that the sentencing Judge had failed to give sufficient weight to his youth when sentencing for drug trafficking offences. In dismissing that ground of appeal, the court observed that it was ‘generous’ for the trial judge to have treated the offender as youthful. 25

In the drug importation case of R v Nguyen; R v Pham [2010] NSWCCA 238, [72] Johnson J (Hulme J and MacFarlan JA agreeing) stated that a 32-year-old offender was not young, and therefore ‘the immaturity of youth cannot be claimed as a factor bearing upon their transgressions’.

See further Age and Child or Young Person.

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4.5 Treatment

An offender’s future prospects of rehabilitation may be improved by treatment. This may include treatment to address drug and alcohol dependence, gambling addiction, or mental illness.

4.5.1 Drug and alcohol dependence

A court may consider an offender’s prospects of rehabilitation to be high where the offender has sought treatment for drug and alcohol dependence. An offender whose addiction has been treated may have a lower risk of recidivism in the long-term. 26

For example, in R v Marcus [2004] VSCA 155, the offender was considered to have good prospects of rehabilitation as, among other mitigating factors, he had successfully rid himself of cocaine dependence. 27 Similarly in R v De Groot Van Embden [2003] NSWCCA 156, Carruthers JA considered the offender’s prospects of rehabilitation were good as there was evidence he had taken steps to overcome his drug and alcohol abuse. 28

However, it has been recognised that drug addiction may be a ‘counter-indication’ to prospects of rehabilitation. As Doyle CJ noted in the state sentencing case of R v Proom [2003] SASC 88, at [50]:

Addiction to drugs may indicate that assurances by an offender of a desire to be rehabilitated are unreliable, or must at least be treated with caution, and sadly may mean that even a genuine wish to rehabilitate may have to be treated with caution. In the worst case, if there is no reason to think that the addiction will be broken, there will be no basis for leniency by reference to the prospect of rehabilitation.

4.5.2 Gambling addiction

In R v Berry [2007] VSCA 60, the offender had good prospects for rehabilitation as he had voluntarily broken his gambling addiction, and then ceased to offend, and continued to abstain from gambling between his detection and conviction. 29 Similarly, in DPP (Cth) v Golic [2014] VSCA 355 the offender’s prospects of rehabilitation were considered good where she had begun attending Gamblers Anonymous after the offences were detected. 30

4.5.3 Mental illness

Treatment for mental illness is relevant to an offender’s prospects of rehabilitation. For example, it may bear favourably on prospects of rehabilitation where an offender has demonstrated a commitment to taking medication to control the effects of their mental illness. 31

4.5.4 Child exploitation

The fact that an offender has sought treatment in relation to offending involving child exploitation has been taken into account as evidence of prospects of rehabilitation. 

For example, in R v Harvey [2014] ACTSC 393 the Court sentenced a 22 year old first-time offender for child exploitation offences, including one count of using of a carriage service to access child pornography material contrary to s 474.19(1) of the Commonwealth Criminal Code. Walmsley AJ noted the opinions of a forensic psychiatrist and a psychologist who had seen the offender, and stated at [20]:

That the offender pleaded guilty and assisted the police when they spoke to him at his home and subsequently submitted himself to examination by a forensic psychiatrist and ongoing treatment by a psychologist, suggests to me that the offender has reasonably good prospects of rehabilitation.

Pure clinical assessments of risk have helped to shape judicial views on the likelihood or possibility of rehabilitation.

For example, in R v Grehan [2010] QCA 42, the Court considered a Crown appeal against sentences imposed for child exploitation offences, including one count of using of a carriage service to access child pornography material contrary to s 474.19(1) of the Commonwealth Criminal Code. The Court referred to the views of a clinical psychologist on the offender’s prospects of rehabilitation, stating at [19]:

Mr Hatzipetrou [the clinical psychologist] had this to say with respect to the applicant’s prospect of rehabilitation:

“(The applicant) presented with insight into the seriousness of these actions and appeared motivated to continue to address these deviant behaviours and thought processes. He will benefit from participation in … programs and treatments. … the risk of recidivism is likely to be reduced. … (the applicant) possesses the intellectual capacity and moral reasoning to benefit from the recommended treatment strategies. Coupled with the ongoing employment or structured day activity, these steps may provide protective factors against future offending. … He has access to a network of social supports and participates in treatment for sexual deviant behaviour and mental illness. … these present … significant protective factors. … (the applicant) demonstrated appropriate remorse … and … appeared to be highly distressed about the potential impact of the offences upon his family. Importantly, (the applicant) appeared to be disappointed and remorseful about his own behaviour and he appeared to make a significant commitment to changing his behaviour.” 32

Courts have also considered actuarial risk assessments when determining an offender’s prospects of rehabilitation. A third type of risk assessment often used by psychologists and psychiatrists is a ‘structured professional judgment’. This allows the clinician to qualify the risk estimates produced as a result of the actuarial scoring.  These final adjustments are based on clinical assessments of the assessed individuals via a clinical interview. In the following examples it is unclear whether the Court is relying on a pure actuarial risk assessment or a ‘structured professional judgment’.

In R v De Leeuw [2015] NSWCCA 183, the Court considered an appeal against sentences imposed for child exploitation offences, including three counts of using of a carriage service to access child pornography material contrary to s 474.19(1) of the Commonwealth Criminal Code. Johnson J (Ward JA and Garling J agreeing) noted at [35]:

An actuarial risk assessment indicated that the Respondent was a low/medium risk of reoffending. The presentence report and ICO [Intensive Correction Order] assessment report indicated that consultation with a Department of Corrective Services psychologist suggested that the Respondent fell into the low-risk category of reoffending. Dr Nielssen expressed a similar opinion.

In Fedele v The Queen [2015] NSWCCA 286, the Court allowed an appeal against sentences imposed for child exploitation offences, including one count of using of a carriage service to access child pornography material contrary to s 474.19(1) of the Commonwealth Criminal Code. Hidden J (Davies J agreeing) noted the offender’s strong prospects of rehabilitation 33 and directed that the substituted sentences be served by way of an Intensive Correction Order. In assessing the prospects of rehabilitation, the Court considered a risk assessment referring to both static factors (factors that do not vary over time and context, e.g. past history of offending) and dynamic factors (factors that vary over time and context, e.g. available social support) that indicated the offender had a low risk of re-offending at [13]–[14]:

Mr Sheehan, well-known and respected in the area of forensic psychology, considered the danger of the applicant re-offending by reference to static and dynamic risk factors and concluded that he “has almost none of the characteristics associated with re-offending as identified in the literature.”

In a supplementary report Mr Sheehan recorded that the applicant had attended 8 treatment sessions between May and July 2015. It is sufficient to say that he concluded that the applicant had “participated well in the treatment process, particularly given that he had only 8 sessions to cover a broad range of difficult issues.” Mr Sheehan continued:

“He has made a positive start to his treatment journey, and would appear to have a solid grasp on the range of behaviours that have contributed as background factors to the index offences. In my expert opinion, all evidence suggests that Mr Fedele’s risk of re-offending is low” (emphasis added).

However, in R v Porte [2015] NSWCCA 174, the Court cautioned against undue focus on treatment when sentencing for offences involving child exploitation. Johnson J (Leeming JA and Beech-Jones J agreeing) stated at [71]:

A common feature on sentence for this class of offence is the tender of material (and often substantial material) concerning steps taken with respect to counselling and treatment in aid of rehabilitation. Evidence of this type is important to the exercise of the sentencing discretion: s.16A(2)(n) Crimes Act 1914 (Cth); s.21A(3)(h) Crimes (Sentencing Procedure) Act 1999 (NSW). However, it is important to keep in mind the further observations of Simpson J in R v Booth [2009] NSWCCA 89 at [47]:

“Examination of the Remarks on Sentence satisfies me that undue focus was placed upon the respondent’s need for counselling at the expense of other legitimate and important sentencing considerations. While I do not dissent from the importance of achieving prevention of further offences by such means, it is not the only matter to be considered. As I have made clear, the need to deter others from involving themselves in child pornography by signalling that such behaviour will be met by significant penalties is an important consideration. So also is denunciation of those who engage in this callous and predatory crime.” 34

4.5.5 Success of treatment

An offender may be given credit for efforts to obtain treatment, even though that treatment has been unsuccessful. For example in R v Thorn [2015] ACTSC 218, the offender was treated as having good prospects of rehabilitation where whilst on bail, he had undergone treatment and then suffered a minor relapse. Murrell CJ stated that she was ‘not overly concerned about the relapse’ in circumstances where the offender had taken important steps towards rehabilitation and demonstrated an ability to remain drug free for a number of years in the past. 35

4.5.6 Sentence cannot be prolonged to encourage treatment

At common law, an offender’s sentence cannot be prolonged merely for the purpose of effecting their treatment.  In Freeman v Harris [1980] VR 267, 281, Murphy J stated:

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 to cure him. The gravity of the offence must be the first and paramount consideration.

Similarly, a Court cannot increase the length of the non-parole period on the basis that the offender will benefit from treatment in prison. In Muldrock v The Queen [2011] HCA 39, the High Court stated at [57]:

It was an error [for the Court of Criminal Appeal] to determine the structure of the sentence upon a view that the appellant would benefit from treatment while in full-time custody. Full-time custody is punitive. The non-parole period is imposed because justice requires that the offender serve that period in custody. Furthermore, the availability of rehabilitative programs within prisons is a matter for executive determination. There can be no confident prediction that an offender will be accepted into a program or that the program will continue to be offered during the term of the sentence (footnotes omitted).

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4.6 Education

Education may improve an offender’s prospects of rehabilitation.

Courts have given credit for efforts to obtain:

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4.7 Support Networks/Relationships

A court may consider the offender’s familial network or support networks in examining their prospects of rehabilitation.

For example, in R v Pham [2005] NSWCCA 314, [52] Hall J of the New South Wales Court of Criminal Appeal commented that the defendant enjoyed reasonable prospects of rehabilitation, particularly with the support of his family. Similarly in Speer v The Queen [2004] NSWCCA 118, the support of the offender’s family was relevant in determining the offender’s prospects of rehabilitation. 36

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5. Rehabilitative sanctions

Rehabilitation is an important consideration in determining the length of a non-parole period. In Deakin v The Queen [1984] HCA 31, the High Court stated at [3]:

The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence. 37

A judge may impose a sentence with a rehabilitative purpose by fixing a lower non-parole period than would otherwise be imposed. In R v Houston (1982) 8 A Crim R 392, Starke J stated at 399:

However, when one turns to the rehabilitation of the prisoner himself which is always, of course, a matter of concern for the court, it seems to me that one can give relief to a prisoner who appears genuinely to be endeavouring to rehabilitate himself by fixing a shorter period as the minimum term than the one that might otherwise have been imposed (emphasis added).

In Lam v The Queen [2014] WASCA 114, McLure P (Buss and Newnes JJA agreeing) stated at [56]:

[B]ecause a non-parole period is a mitigation of punishment in favour of rehabilitation, positive sentencing factors in favour of rehabilitation in a particular case can reduce not only the length of the head sentence but also lower the proportion that the non-parole period bears to the head sentence.

For example, in Lam v The Queen [2015] NSWCCA 87, the sentencing judge had noted that a longer than usual period of supervision after release was justified by the ‘significant need for rehabilitation … with the support of the Probation and Parole Service, as well as ongoing psychological guidance, if he was not to relapse into further offending’. 38

However, as noted in Lam v The Queen [2014] WASCA 114, [57]:

There is a limit below which the non-parole period cannot go. It cannot be reduced below the minimum that the justice of the case requires in order to satisfy all of the other sentencing objectives, including punishment, retribution and general deterrence.

See further Non Parole Period and Recognizance Release Order.

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  1.  R v Bugeja [2001] NSWCCA 196, [39] (Adams J).
  2.  See also R v Valentini [1980] FCA 133 where the Court remarked that rehabilitation attempts to ensure the sentence imposed will be consistent ‘with the offender’s returning to society as a contributing member’.
  3.  Applied in the federal sentencing case of Kovacevic v Mills [2000] SASC 106, [79] (Doyle CJ, Mullighan, Bieby and Martin JJ).
  4.  Cited with approval in the federal sentencing decisions of Tuncks v Chief Executive Officer of Customs [2005] SASC 408, [21] (White J); R v Pogson [2012] NSWCCA 225, [116] (McClellan CJ at CL and Johnson J).
  5.  R v Boulden [2006] NSWSC 1274, [49] (Whealy J); R v Williams [2005] NSWSC 315, [72] (Wood CJ at CL).
  6.  See, eg, R v Fodera [2007] NSWSC 1194, [67].
  7.  See also R v Cohen [1998] VSC 309 (young Jewish man convicted of importing a trafficable quantity of heroin whose religious background and military service were relevant to his prospects of rehabilitation).
  8.  Kovacevic v Mills [2000] SASC 106, [79] (Doyle CJ, Mullighan, Bleby and Martin JJ). See, eg, R v Campos [1999] NSWCCA 339, [13] (per James J, Meagher JA and Kirby J agreeing).
  9.  Applied in the federal sentencing case of Kovacevic v Mills [2000] SASC 106, [79] (Doyle CJ, Mullighan, Bleby and Martin JJ).
  10.  Justice Bennett noted favourably that after the commission of the offence Chubb Security had taken positive steps to improve compliance procedures and compensate those harmed by its criminal behaviour. New systems and a culture of compliance demonstrated that Chubb Security had rehabilitated itself. See ACCC v Chubb Security Australia [2004] FCA 1750, [126].
  11.  Duncan v The Queen (1983) 9 A Crim R 354, 356.
  12.  The offender in Duncan v The Queen (1983) 9 A Crim R 354 was convicted of 14 offences against the Bankruptcy Act 1966 (Cth) after a three year delay in bringing the charges, despite authorities being aware that the appellant had committed the offences around the time of their commission. The offender had re-established himself in the interim period and incurred financial liabilities which could not be met if imprisoned. See also Scook v The Queen [2008] WASCA 114, [31] (McLure JA), [62] (Buss JA).
  13.  See R v Philpot [2015] ACTSC 96, [63] (Murrell CJ); R v Honeyman [2016] ACTSC 2, [60], [66] (Penfold J).
  14.  R v McGaffin [2010] SASCFC 22, [75].
  15.  See Kovacevic v Mills [2000] SASC 106, [79] (Doyle CJ, Mullighan, Bleby AND Martin JJ); Whyte v DPP (Cth) [2008] SASC 310, [33]-[34] (Doyle CJ).
  16.  See Elder v Said [2005] SASC 286 (Gray J); Elder v Shojaee [2005] SASC 285 (Gray J); Shillabeer v Hussain [2005] SASC 198 (Gray J).
  17.  R v Lam [2003] NSWCCA 162; (2003) 140 A Crim R 435, [32]. See also R v Simon [2003] NSWCCA 147, [34]-[41] (Sheller JA); R v Roche [2005] WACA 4, [22] (Murray ACJ).
  18.  R v Robertson (1984) 115 LSJS 51.
  19.  Applied in the federal sentencing cases of Kovacevic v Mills [2000] SASC 106, [81] (Doyle CJ, Mullighan, Bleby and Martin JJ); Twigden v Centrelink [2010] SASC 154, [51]-[55] (Gray J).
  20.  See, eg, R v Evans [2013] NTCCA 9, [44];  R v Campos [1999] NSWCCA 339, [13]; R v Lawson (1997) 98 A Crim R 463, 465-466 (Hunt CJ at CL) for emphasis on rehabilitation in the federal context.
  21.  Applied in the federal sentencing case of R v Lovi [2012] QCA 24, [38]. See also R v Mills [1998] VSC 241.
  22. See also R v Curtis [2013] ACTSC 291.
  23.  Azzopardi v The Queen [2011] VSCA 372, [44] (Redlich JA, Coghlan and Macaulay JJA); IE v The Queen [2008] NSWCCA 70, [16] (Latham J, Spigelman CJ and Hulme J agreeing).
  24.  R v Evans [2013] NTCCA 9[44]. See also R v Leask [2013] WASCA 243.
  25.  R v Chhom Nor [2005] VSCA 46, [29] (Chernov JA, Winneke P and Cummins AJA agreeing).
  26.  See R v De Groot Van Embden [2003] NSWCCA 156,  [82] (Carruthers JA, Spigelman CJ agreeing); Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014), 307.
  27.  R v Marcus [2004] VSCA 155, [10] (Winneke P, Batt and Nettle JA agreeing).
  28.  R v De Groot Van Embden [2003] NSWCCA 156, [40], [82]. See also R v Thorn [2015] ACTSC 218, [18]-[21], [35] (Murrell CJ); R v Tang [1998] 3 VR 508 (Tadgell and Batt JJA, Vincent AJA).
  29.  R v Berry [2007] VSCA 60, [26] (Habersberger AJA, Vincent and Nettle JA agreeing). See also  R v Perkins [2000] VSCA 132, [12] (Phillips JA).
  30.  DPP (Cth) v Golic [2014] VSCA 355, [39] (Neave, Whelan and Beach JJA).
  31.  R v JK [2015] ACTSC 140, [13], [18], [20] (Burns J). See also the state sentencing cases of R v Aggelidis [2008] VSC 445; R v Oznek [2007] VSC 192. 
  32.  See also R v RJ [2014] ACTSC 226, [41]-[42] (Penfold J); R v Monaghan [2014] ACTSC 278, [35] (Murrell CJ).
  33.  Fedele v The Queen [2015] NSWCCA 286,  [69] (Hidden J, Davies J agreeing).
  34.  See also R v De Leeuw [2015] NSWCCA 183,  [70] (Johnson J, Ward JA and Garling J agreeing).
  35.  R v Thorn [2015] ACTSC 218, [21]. See also Burman v Commonwealth Services Delivery Agency [2004] SASC 224, [7] (Gray J).
  36.  See also Burman v Commonwealth Delivery Agency [2004] SASC 224, [30]; Atanackovic v The Queen [2015] VSCA 136, [138]; R v Honeyman [2016] ACTSC 2, [39], [51], [60] (Penfold J).
  37.  Applied in the federal sentencing case of Hili v The Queen; Jones v The Queen [2010] HCA 45, [40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
  38.  Lam v The Queen [2015] NSWCCA 87, [55] (Schmidt J, Meagher JA and Bellew J agreeing). The finding of the sentencing judge was not disturbed on appeal.