When sentencing a criminally accused in Melbourne, there are a number of principles that counsel for the defence or prosecution can seek, and that the Judge or Magistrate must take into account. Where applicable, these will form part of the ‘instinctive synthesis’ and final sentencing outcome.
A ‘crushing sentence’ in a legal context is one which effectively destroys “any reasonable expectation of (a) useful life after release” from custody. Where possible, judges are to avoid imposing crushing sentences on the criminally sentenced, except where considered ‘just and appropriate’.
Though similar to the totality principle, this principle can apply to sentences on single charges, as well as overall multiple sentences.
When evaluating whether a sentence is crushing or not, the Melbourne Court will generally look to:
The nature and gravity of the offences
The length of the sentence being considered
The age of the offender upon release
Where two or more co-accused have or are receiving sentences, parity requires that any differences in their sentence are a reflection of their varying levels of culpability. Where both co-accused are equally culpable, their sentences should be similar in severity. This ensures equal justice and consistency in sentencing.
Parity is a fundamental element to the legal system, because without it the public can have no confidence that justice will be administered fairly. This does not mean that each criminal co-offender will always receive the same sentence, but raises an appealable grievance where the difference in sentences between co-offends is unjustified based on the facts and circumstances.
Where a co-offender received what would be regarded as an inadequate sentence for the offending committed, the parity principle does not allow a court to impose an equally inadequate sentence for the co-offender. The sentence handed down by the Melbourne Court must still be within range, however it allows the Melbourne Court to sentence at the lower end of the range.
It is important for criminal lawyers & defendants to remember that there can often be significant differences in co-offenders personal circumstances, so while their culpability in the offending may be the same, these differences can justify receiving dissimilar sentences.
To assist the Melbourne Courts in maintaining parity in sentences of co-offenders, it is preferable that their matters be dealt with by the same Judge or Magistrate, and at the same time. Criminal lawyers in Melbourne will often highlight this point when the time arises.