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Judgment handed down in Akoka v The Queen

25 August 2017

The Court of Appeal (Chief Justice Warren, Justice Kyrou and Justice Redlich) today allowed an appeal against a total effective sentence of 6 years’ imprisonment for armed robbery, aggravated burglary, trafficking methylamphetamine and related offences on the basis that the sentencing judge failed to moderate the sentence on account of 12 months spent by the applicant in a residential rehabilitation facility (Odyssey House) prior to sentence.

The applicant pleaded guilty to 10 charges on two indictments, one arising from an armed robbery in June 2015 and the other arising from an aggravated burglary six months later. The armed robbery involved the applicant entering a flat armed with an extendible baton, stealing a range of items, threatening to kill the occupant and brandishing the baton. The aggravated burglary involved the applicant, armed with a hammer, and two accomplices, one armed with a knife, entering a house through an unlocked back door and threatening to stab the occupant or bust his knee caps with the hammer while demanding drugs and money and stealing a number of items.

At the time of the offending, the applicant was 21 and 22 years old, had relevant prior convictions, was on bail and was the subject of a community correction order.  He was using methylamphetamine daily and trafficking regularly. However, he made significant progress towards drug rehabilitation during a 12 month stay at Odyssey House prior to sentence.

Prior to this appeal, the Court of Appeal had not directly considered the issue of how the punitive nature of residency at a rehabilitation facility is to be taken into account in the exercise of the sentencing discretion. The Court held that the approach adopted by the New South Wales Court of Criminal Appeal and the Supreme Court of the Australian Capital Territory is correct and should be followed in Victoria. That approach involves taking into account time spent as a resident in a rehabilitation facility as time spent in ‘quasi-custody’.

The Court held that sentencing courts in Victoria must take into account the punitive element of residency in a rehabilitation facility, separately and in addition to the rehabilitation achieved during that residency. The extent of the credit to be given will depend on the circumstances of each case, including the duration of the residency and the nature and severity of the restrictions to which an offender has been subject. However, residency at a rehabilitation facility, no matter how restrictive, is not equivalent to time spent in custody and will not ordinarily result in a deduction of the entire period of residency from a custodial sentence.

The Court of Appeal concluded that the judge misapprehended the real significance of the punitive element of the applicant’s residency at Odyssey House and accordingly fell into error.

The Court also considered the principle of mercy and how it may inform the sentencing range. The Court held that while there must always be a place for the exercise of mercy where the circumstances warrant it, it is important to recognise that ‘just’ punishment and proportionality do not permit the imposition of a merciful sentence that is plainly inadequate. In the present case, the judge did not err in refusing to make a community correction order.

The Court of Appeal resentenced the applicant to a total effective sentence of 5 years’ imprisonment with a non-parole period of 2 years and 6 months.

Read the Court's full judgment on AustLII (External link)

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