Where an offender with complex mental health needs establishes severe and entrenched mental illness and submits that imprisonment would impose a substantially and materially greater burden under s 5(2H)(c)(ii) of the Sentencing Act 1991 (Vic), the prosecution is best placed to adduce evidence from Corrections Victoria that those needs can be met in custody; the mere existence of a mental health unit, without evidence of the type and adequacy of treatment available, is insufficient to defeat the exception. Section 5(2H)(e) does not impose a burden on the offender to prove on the balance of probabilities the existence of substantial and compelling circumstances; that is an evaluative judgment for the sentencing judge.
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