The recent debate over the opposition's bill to make sentencing for historical sex offences stricter, which ultimately did not pass, highlights an ongoing public discussion about how to handle these complex cases. The bill aimed to eliminate the possibility of suspended sentences for historical sex offences, described by the opposition as a "loophole" that allows offenders to evade imprisonment. However, this perspective overlooks the nuanced and often challenging nature of historical sex offence cases and the reasons why a non-custodial sentence may be appropriate in some cases.
Challenges in Sentencing for Historical Sex Offences
Historical offences present unique challenges for both victims and defendants. Victims, often children at the time of the abuse, are now adults who might not wish to relive their traumatic experiences or confront the offender. On the other hand, offenders may be coming before the court facing sentencing after decades have passed since the offending took place.
Courts must consider various competing factors when sentencing for historical offences. The passage of time, changes in the law, and the personal development of the offender are often important considerations that the court must weigh up in the sentencing exercise.
It is frequently the case that the person being sentenced today is not the same individual who committed the crime years ago. They may have demonstrated significant personal growth and lived law-abiding lives since the offence. If an individual has rectified their earlier wrongs and demonstrated ongoing compliance with the law, there is a basis for compassion and acknowledgement of demonstrated reform.
It is also important to note that any sentence resulting from these offences carries profound consequences beyond the punishment itself. A conviction for sex offences against a child results in the person becoming a reportable offender, often for the rest of their lives, which itself is a significant punishment. This lifelong consequence should not be underestimated, particularly when the defendant has maintained a clean record for decades.
Relevant Sentencing Principles
When determining an appropriate sentence for historical child sex cases, there are particular sentencing considerations which are a feature of these cases. Courts must carefully balance the need for punishment and deterrence with considerations of the offender's current character and circumstances, ensuring that the sentence is just without imposing undue hardship.
One important sentencing factor in these cases is evidence of the person's subsequent good character. Since the offence, the individual may have lived a law-abiding life and made positive contributions to the community. Evidence of good character, whether before or after the offence, is relevant. If the offender has lived a law-abiding life for many years post-offence, this can be seen as evidence of reform and personal change. Even more compelling is if the offender has taken proactive steps to address their behaviour, such as engaging in mental health treatment. These factors are pertinent to the offender's prospects of rehabilitation and their risk of recidivism. The weight given to post-offence character is determined by the sentencing judge and varies on a case-by-case basis.
It is not uncommon for an individual found guilty of historical sex offences to be elderly or in poor health, raising questions about the appropriateness of a sentence of imprisonment. The concept of "crushing sentences" comes into play here. These are sentences so severe that they disproportionately impact the offender, especially if they are elderly or in poor health. Courts have an obligation to avoid such outcomes, ensuring that punishment is fair and just, but also allowing the opportunity for a person to meaningfully reintegrate into society after they have served their sentence.
Conversely, a person who is being sentenced for a historical offence may have already been sentenced to a significant period of imprisonment for similar offending that occurred around the same time.
The principle of totality may be an important factor in such cases. This sentencing principle is designed to ensure that the total sentence served by the client is just and proportionate to the overall criminal behaviour of the offender. Taking into account a prior term of imprisonment, a court may consider that a suspended sentence is capable of adequately addressing just punishment of the offender in all the circumstances. 1
Suspended Sentences in Historical Sex Offence Cases
In Victoria, suspended sentences were abolished in 2013. However, courts have interpreted this change to the law to not have a retrospective effect, meaning that it remains an option for courts sentencing for offences that took place before 2013.
There are good reasons why a person cannot be punished under a law that was not in effect at the time the alleged offence was committed. Legal certainty is a cornerstone of the rule of law, ensuring that individuals can foresee the legal consequences of their actions. Retrospective laws violate this principle by applying new legal standards to past actions, which carried different penalties when committed. The rule against retrospectivity is a fundamental principle of our justice system which is enshrined in Victoria's Charter of Human Rights.
At the same time, section 34A of the Sentencing Act provides that in sentencing individuals for sexual offences against children, the court must sentence the offender in accordance with sentencing practices at the time of sentencing, as opposed to sentencing practices in existence at the time of offending. This provision was introduced following the Royal Commission into Institutional Responses to Child Sexual Abuse, which highlighted the inadequacies in historical sentencing practices. Section 34A aims to ensure that justice is served in a manner that reflects the contemporary understanding of the gravity of these offences and provides appropriate redress for victims.
Considering all of the above, retaining suspended sentences for historical sex offences allows for an appropriate balance of these competing factors in certain cases. This flexibility is crucial in ensuring that the justice system can take into account the unique circumstances of each of these complex cases.
Balanced Approach for a Fair Sentencing
While there is a drive to make sentencing for historical sex offences tougher, it's essential to maintain a balanced approach that recognises the complexities of these cases. Courts must retain the ability to consider all factors and deliver sentences that are fair, just, and humane. The decision to reject the opposition's bill maintains this flexibility, allowing the justice system to respond appropriately to the unique circumstances of each case and ensure that justice is administered fairly.
Footnote
See e.g. DPP v Swingler [2018] VCC
220
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.