Gross violence is where an offender -
• plans in advance to engage in an attack intending to cause serious injury;The Council's terms of reference involved advice on the potential operation of a minimum four-year non-parole period for adults, and a minimum period in detention of two years for children aged 16 or 17, with a court only be able to sentence below the statutory minimum in tightly defined exceptional circumstances.
• engages in a violent attack as part of a gang of three or more persons;
• plans in advance to carry and use a weapon in an attack and then deliberately or recklessly uses the weapon to inflict serious injury; or
• continues to violently attack the victim after the victim is incapacitated.
The Council was specifically asked to provide advice on:
a. how the exceptional circumstances in which a court may impose a non-parole period of less than the statutory minimum sentence should best be specified;The terms of reference did not ask the Council to consider the merits of a statutory minimum sentence scheme.
b. how the factors making the offence one of gross violence to which the minimum sentence is applicable should best be specified;
c. the likely effects of recommendations and options put forward by the Council on sentencing levels for the relevant offences and on the numbers of persons serving custodial and non-custodial sentences; and
d. any other matters the Council considers relevant.
The Council consulted with criminal justice, governmental and non-governmental stakeholders, inc through two discussion forums. It received 26 written submissions.
The report features a "closely interrelated" package of recommendations addressing the form and content of gross violence offences and the policy objectives reflected in the terms of reference.
It recommends that rather than forming aggravating circumstances to the sentencing considerations for existing serious injury offences, separate new offences should be created. One offence should involve the intentional infliction of severe injury. The other offence should involve reckless infliction of severe injury (corresponding with the existing offences of intentionally causing serious injury and recklessly causing serious injury). In sentencing for the proposed offences, the minimum non-parole period (or period of detention) should apply to the case as a whole. Where there are multiple charges of gross violence, a single minimum statutory non-parole period (or period of detention) should apply to the whole case. It would remain open to a court to impose a nonparole period (or period of detention) greater than the minimum to take multiple charges into account if the court considers it appropriate having regard to ordinary sentencing principles.
The jurisdictional limit on the sentence that may be imposed by the Magistrates’ Court (and the proposed statutory minimum for adult offenders) means that the new offences cannot be determined summarily for adults in the Magistrates’ Court. Given the incompatibility of a two-year minimum sentence with the current sentencing powers of the Children’s Court, the report recommends that the offences should be excluded from the Children’s Court jurisdiction by listing the gross violence offences in s 516(1)(b) of the Children, Youth and Families Act 2005 (Vic)
The current threshold for ‘serious injury’ in the Crimes Act 1958 (Vic) is low, with the Court of Appeal holding that relatively minor injuries (such as two black eyes and a grazed forehead) can constitute ‘serious injury’. The Council -
does not consider that such injuries are consistent with the intended policy (the policy announcement referred to attacks that are leaving victims with ‘terrible life-long injuries’) and recommends that the new offences with the statutory minimum sentences should only apply to situations involving a higher level of injury.The Council considered each of the gross violence factors proposed in the terms of reference -
... the threshold should be ‘severe injury’, [d]efined in legislation [with] a test similar to that of ‘serious injury’ in the Accident Compensation Act 1985 (Vic). This would cover injuries of a long-term nature involving serious impairment to, or loss of, a body function or serious disfigurement.
‘Plans in advance to engage in an attack intending to cause serious injury’The Council adopted a merits-based approach to determining those circumstances that warrant exemption from the statutory minimum sentences. It recommends that the phrase ‘special reasons’ should be used to avoid confusion with other tests in Victorian law that use the phrase ‘exceptional circumstances’. Given the rationale of high culpability implicit in the gross violence elements of the new severe injury offences, the Council considered that exceptions to the imposition of a statutory minimum sentence should be based on circumstances that significantly diminish an offender’s culpability or that can be justified for public policy reasons. As a general statement test may be susceptible to broad interpretation and the clear policy objective is to tightly define exemptions from the statutory minimum sentences, the legislation should provide a list of special reasons, comprising those circumstances
The Council notes that planning offending behaviour in advance significantly increases an offender’s culpability. The Council recommends that the proposed circumstance be included as an alternative element of the offence of intentionally causing severe injury. As the proposed circumstance requires a plan in advance intending to cause injury, the Council recommends that planning in advance should not be included as an element of the new offence of recklessly causing severe injury.
‘Engages in a violent attack as part of a gang of three or more persons’
The Council notes that violent offending involving three or more co-offenders increases each offender’s culpability. However, the Council considers that the degree by which culpability is increased will depend on the extent of involvement of each offender in the offence. The law of complicity provides that co-offenders
who may have limited involvement in offending can still be convicted of the offence. Ordinarily, a sentencing court can impose a sentence that appropriately reflects each co-offender’s level of culpability. Where a statutory minimum applies, the least culpable co-offender will still receive the minimum sentence. The Council recommends against the use of the word ‘gang’, as it may require evidence of some form of common identity among co-offenders and limit the application of this element to formalised ‘gangs’, rather than simply offending in company. In accordance with the policy objective to target highly culpable offenders, the Council recommends that this gross violence element be limited to those offenders who either themselves inflict severe injury, or act in concert to inflict severe injury. Those offenders who aid, abet, counsel or procure a gross violence offence should still be liable to conviction, but should not be subject to the statutory minimum sentences.
‘Plans in advance to carry and use a weapon in an attack and then deliberately or recklessly uses the weapon to inflict serious injury’
The Council notes that violent offending involving the use of a weapon carried for the purpose of that offending significantly increases an offender’s culpability. The Council recommends that this circumstance be included as an alternative element of both intentionally causing severe injury and recklessly causing severe injury, save that the words ‘deliberately or recklessly’ should be replaced with either ‘intentionally’ or ‘recklessly’ to correspond with the mental element of the relevant offence.
‘Continues to violently attack the victim after the victim is incapacitated’
The Council notes that an offender’s culpability is significantly increased in circumstances where that offender has continued to attack a victim after the victim is incapacitated. The Council has considered whether the term ‘incapacitated’ should be defined and concludes that to do so may unreasonably exclude otherwise highly culpable offending and that the term is an ordinary word capable of determination by the finder of fact. The Council recommends that this circumstance be included as an alternative element of both intentionally causing severe injury and recklessly causing severe injury. The Council recommends that this element should also cover situations in which an offender continues to violently attack or cause injury to the victim after the victim is incapacitated (such as where an offender releases an unconscious victim allowing him or her to fall and sustain injury). The Council recommends that the alternative elements of the new severe injury offences should be read disjunctively, such that proof of one element is sufficient to make out a gross violence offence. The presence of one gross violence element is sufficient for an offender to demonstrate a high level of culpability.
that are foreseeable and commonly regarded as appropriate exemptions on the basis of the rationales of diminished culpability and public policy. The list of special reasons should not be exhaustive, as there are unforeseeable circumstances.
The non-exhaustive list of special reasons should include at least -
• intellectual disability or cognitive impairment (including acquired brain injury);The majority of 'serious injury charges (72.7% in 2008–09) result in a sentence of imprisonment, with one in five (21.0% in 2008–09) cases involving a charge of intentionally causing serious injury reflected in a non-parole period equivalent to, or greater than, the proposed statutory minimum of four years. Of the 454 charges sentenced in the Magistrates’ Court in 2008–09, 17.4% received a sentence of imprisonment. Of the 158 charges sentenced in the higher courts in the same year, 42.4% received a sentence of imprisonment. Based in part on an analysis of sentencing in 2008–09, the Council estimates that a broad definition could result in a compound increase of 1150 to 1450 adult prisoners and its recommended definition would result in a compound increase of approximately 200 adult prisoners. Under the broad definition the Council estimates that the number of monors sentenced to a youth justice centre order could increase from approximately 20 to approximately 80
• mental illness;
• particular psychosocial immaturity and/or particular vulnerability in custody; or
• assistance by the accused to police or an undertaking by the accused to assist the Crown.
per year. Minors would also be retained in custody for a much longer period of time than is currently the case.
The Council considered the impact on the number of pleas, plea negotiation, court costs and court delay. It noted that in the overwhelming majority of cases involving the existing serious injury offences, the accused pleads guilty (providing "significant benefits to the community" and a reduction in sentence). The report notes that
Stakeholders raised concerns that, under the statutory minimum scheme, there would be little, if any, incentive for an accused person to plead guilty to the new offences. In addition, under the broad definition approach, a very large number of cases that are currently dealt with as a plea of guilty in the Magistrates’ Court would have to proceed as a committal in the Magistrates’ Court and then to a contested trial in the County Court. Concerns were expressed that, in the absence of a significant injection of resources, this could overwhelm the system and lead to significant delays. The potential for this to occur is significantly reduced under the recommended definition approach.Other matters examined by the Council includede -
• the potential for a disproportionate impact on certain kinds of offenders;The Council notes a substantial degree of uncertainty and unremarkably suggests that the scheme's impact should be monitored.
• the impact on Indigenous offenders, including the potential impact on the Koori Court;
• the impact on human rights obligations, including international human rights obligations;
• the loss of access to group conferencing and other rehabilitative and restorative measures;
• the impact on victims;
• issues of recidivism and deterrence; and
• custodial and future costs.