Rehabilitation

Last Updated: 26 August 2009

List of subheadings:

Crimes Act 1914 (Cth)
Scope of s16A(2)(n)
Measuring Prospects of Rehabilitation

Commentary on Rehabilitation under the Crimes Act 1914 (Cth)

'The prospect of rehabilitation of the person' is a matter which must be taken into account, where relevant and known, by the court in sentencing federal offenders: Crimes Act 1914 (Cth) s 16A(2)(n).

The fundamental purpose of rehabilitation is that the offender will no longer offend: R v Bugeja [2001] NSWCCA 196, [39] (Adams J); see below.

Rehabilitation is not solely relevant to people whose offending is predicated by disadvantage. It applies equally to those who offend notwithstanding a privileged background (Vartzokas v Zanker (1989) 51 SASR 277, 279 (King CJ)); see further below.

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

character;
criminal record;
conduct between charge and sentence ;
youth ;
whether the offender has engaged in treatment;
education; and
relationships

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Scope of s16A(2)(n)

PURPOSE OF REHABILITATION

At common law rehabilitation is designed to reform the offender.

The purpose of rehabilitation is to encourage the offender not to re-offend. In R v Bugeja [2001] NSWCCA 196, [39] Adams J said:

it seems obvious that the fundamental purpose of rehabilitation is that the offender will no longer offend.

In Vartzokas v Zanker (1989) 51 SASR 277, 279, King CJ said:

[r]ehabilitation 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.

See also R v Valentini [1980] FCA 133;(1980) 48 FLR 416, 420 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'.

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REHABILITATION NOT CONFINED TO DISADVANTAGED OFFENDERS

At common law, rehabilitation is not confined to people whose offending is predicated by disadvantage. As King CJ explained in Vartzokas v Zanker (1989) 51 SASR 277, 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).

The comments of King CJ were cited in the federal decision Tuncks v Chief Executive Officer of Customs [2005] SASC 408; (2005) 227 ALR 122, [21].

Judicial decisions suggest that rehabilitation is not confined to the disadvantaged under s 16A(2)(n) of the Crimes Act 1914 (Cth). See, for example, the prosecution of 'corporate criminals', such as former HIH officers and directors: R v Boulden [2006] NSWSC 1274, [49] (Whealy J); R v Williams [2005] NSWSC 315, [72] (Wood CJ at CL). Courts have observed that the prospects of rehabilitation of white collar offenders are generally high: R v Fodera [2007] NSWSC 1194; (2007) 65 ASCR 109, [67].

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Measuring 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 and criminal record, youth, treatment, education and relationships.

CHARACTER

Whilst an offender's character is an independent sentencing factor pursuant to s 16A(2)(m) of the Crimes Act 1914 (Cth), it may also be relevant in measuring their 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.

R v Zapata (Unreported, Victorian Court of Appeal, Phillips CJ, Charles JA and Southwell AJA, 17 October 1996) is illustrative. The offender was convicted in the County Court of conspiracy to import a commercial quantity of cocaine contrary to s 233B(1)(ab) (since repealed) of the Customs Act 1901 (Cth). He appealed against the initial sentence of eight and a half years imprisonment with a non-parole period of five years. The Court of Appeal accepted that his prospects of rehabilitation were very good, as evidenced by his past behaviour, especially his responsible attitude to his family and the community. Nevertheless the Court of Appeal did not disturb the sentence. See also R v Cohen [1998] VSC 309 (young Jewish man convicted of importing a traffickable quantity of heroin whose religious background and military service were relevant to his prospects of rehabilitation).

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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.

Repeat offenders

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 196, 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 (with whom Dunford and Buddin JJ agreed) dismissed the Crown appeal. He held at [29] – [30]:

… scepticism 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.

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First time offenders

As the Full Court of the Supreme Court of South Australia observed in Kovacevic v Mills [2000] SASC 106; (2000) 76 SASR 404, [79] (Doyle CJ, Mullighan, Bleby and Martin JJ) quoting King CJ in Yardley v Betts (1979) 22 SASR 108, 112-113:

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 order to avoid offending in future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public 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]

See also R v Campos [1999] NSWCCA 339, [13] (James J with whom Meagher JA and Kirby J agreed).

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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, [125], Bennett J said:

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.

Justice Bennett at [126] 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.

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.

Courts have been reluctant to interfere in circumstances where:

Interference may undermine the offender’s employment prospects and familial relationships: Kovacevic v Mills [2000] SASC 106; (2000) 76 SASR 404, [79] (Doyle CJ, Mullighan, Bleby AND Martin JJ); Whyte v DPP (Cth) [2008] SASC 310, [33]-[34], or
Interference may affect the ability of refugees to establish themselves in their place of asylum: Elder v Said [2005] SASC 286 (Gray J); Elder v Shojaee [2005] SASC 285 (Gray J); Shillabeer v Hussain [2005] SASC 198 (Gray J).

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Model prisoner: Dedication to own rehabilitation

In R v Lam [2003] NSWCCA 162; (2003) 140 A Crim R 435, [29]-[31] Sheller JA (with whom Hidden J and Carruthers JA agreed) emphasised evidence of rehabilitation when resentencing the applicant. 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 indicated:

…that the applicant has prospects of rehabilitation which he is striving to achieve and will benefit from a longer period of parole. [1]

See also R v Simon [2003] NSWCCA 147, [34]-[41] (Sheller JA) and R v Roche [2005] WACCA 4, [22] (Murray ACJ).

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YOUTH

At common law, rehabilitation has been treated as a principal consideration in the sentencing of young offenders.

For example, in Lahey v Sanderson [1959] Tas SR 17, 21, Bunbury CJ said:

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...

See also B (a child) v The Queen (1995) 82 A Crim R 234; C (a child) v The Queen (1995) 83 A Crim R 451.

Judicial comment suggests that rehabilitation remains a principal consideration in the sentencing of young people under the Crimes Act 1914 (Cth).

In R v Campos [1999] NSWCCA 339, [13], the New South Wales Court of Criminal Appeal acknowledged that the offender's young age was a particularly relevant factor in the formulation of a sentence. See also R v Lawson (1997) 142 FLR 323; 198 A Crim R 463, 465-466 (Hunt CJ at CL).

Note: Courts have been flexible in their interpretation of 'young' for the purposes of rehabilitation.

In R v Chhom Nor [2005] VSCA 46; (2005) 152 A Crim R 118, [29] Chernov JA (with whom Winneke P and Cummins AJA agreed) said it was generous for the trial judge to have treated the 31 year old offender as youthful.

Conversley, in R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531, [175] Carruthers JA described a 30 year old prisoner as relatively young by modern standards.

For further commentary on young federal offenders see Child or Young Person.

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TREATMENT

An offender's future prospects of rehabilitation may be improved by treatment.

This may include treatment to address:

drug and alcohol dependence: R v Marcus [2004] VSCA 155, [10] (Winneke P with whom Batt and Nettle JA agreed); R v Tang [1998] 3 VR 508 (Tadgell, Batt JA, Vincent AJA) ; R v De Groot Van Embden [2003] NSWCCA 156; (2003) 140 A Crim R 406, [40], [82] (Carruthers JA);
gambling addiction: R v Berry [2007] VSCA 60, [26] (Habersberger AJA with whom Vincent and Nettle JA agreed); R v Perkins [2000] VSCA 132, [12] (Phillips JA); and
mental illness: DPP (Cth) v Rogers [1998] VSC 274 (Ormiston JA with whom Phillips CJ and Tadgell JA agreed).

An offender may be given credit for efforts to obtain treatment, even though that treatment has been unsuccessful.

For example in Burman v Commonwealth Services Delivery Agency [2004] SASC 224, [7] (Gray J), the offender was given credit for seeking treatment, even though his 'mental health problems made it particularly difficult' to do so.

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 said:

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 cure him. The gravity of the offence must be the prime consideration...

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EDUCATION

Education might improve an offender's prospects of rehabilitation.

Courts have given credit for efforts to obtain:

elementary education: R v Tang [1998] 3 VR 508 (Tadgell, Batt JA, Vincent AJA);
tertiary education: McPherson v Commonwealth Services Delivery Agency [2005] SASC 187; (2005) 156 A Crim R 188, [28]; The Queen v Zapata (Unreported, Victorian Court of Appeal, Phillips CJ, Charles JA and Southwell AJA, 17 October 1996; and
postgraduate qualifications: R v Simon [2003] NSWCCA 147, [35]-[36] (Sheller JA with whom Hidden and Carruthers AJ agreed).

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RELATIONSHIPS

A court may consider the offender's familial network in measuring 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.

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Footnotes

[1] R v Lam [2003] NSWCCA 162; (2003) 140 A Crim R 435, [32].

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