SENTENCING - serious sexual offenders

Being sentenced as a serious sexual offenders means that your penalty will be higher than some other offenders. That is because the law says that the protection of the community can be of greater importance than other sentencing considerations;

The definition of a serious sexual offender comes from the Sentencing Act;

"serious sexual offender means an offender (other than a young offender)-

(a) who has been convicted of 2 or more sexual offences for each of which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre; or

(ab) who has been convicted of an offence to which clause 1(a)(viii) of Schedule 1 applies for which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre; or

(b) who has been convicted of at least one sexual offence and at least one violent offence arising out of the one course of conduct for each of which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre;"

For a person who is sentenced as a serious sexual offender the following section has a significant impact;

Factors relevant to length of prison sentence

6D. Factors relevant to length of prison sentence

If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence-

(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and

(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances."

The effect of how these sections are interpreted comes from the case law. An extract from
one case on the issue follows;

The respondent's status as a serious sexual offender has three consequences.

"First, in determining the length of the sentences imposed on counts 3, 4, 5 and 6, we are obliged to regard the protection of the community from the respondent as the principal purpose for which those sentences are imposed.

Secondly, we have a discretion, in order to achieve that purpose, to impose a sentence or sentences longer than would be proportionate to the gravity of the offences considered in the light of their objective circumstances.

Thirdly, each of the terms of imprisonment imposed on those counts will be served cumulatively unless otherwise directed by the Court. In the present case it is very unlikely that the respondent will re-offend.

The protection of the community from her is of much less importance than general deterrence, just punishment and the denunciation of her conduct.

The prima facie rule of cumulation is to be applied only to the extent that that is consistent with the overall requirements of justice and, in particular, with the principle of totality.

DPP v Ellis [2005] VSCA 105 (5 May 2005)