Younger v The Queen

[2017] VSCA 199

Victorian Court of Appeal

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When a Court of Appeal resentences an offender following a successful sentence appeal, the Radenkovic principle ordinarily requires resentencing according to the law as it stood at the time of the initial sentence, particularly where the earlier law was more favourable; a very clear statutory indication is needed to displace that entitlement. The Court expressed doubts that the Amending Act's transitional provision displaced this principle but did not reach a concluded view.
Pre-sentence detention declared under s 18 of the Sentencing Act 1991 does not count towards the maximum term of imprisonment that may be combined with a CCO under s 44; accordingly, an effective imprisonment term exceeding the s 44 cap may be imposed where the remaining time to be served after deducting pre-sentence detention falls within the cap (following Boulton and Hancock, distinguishing Grech).
A sentencing judge may communicate reservations about an offender's prospects of complying with a CCO and the consequences of breach, but must not express those consequences in absolute terms (e.g. that imprisonment will inevitably follow any breach), as this risks improperly influencing the offender's consent.

Citation[2017] VSCA 199

CourtVSCA

JurisdictionVictoria

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