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Residential rehab and mitigation: Akoka v R [2017] VSCA 214

Akoka v The Queen [2017] VSCA 214

On 25 August 2017, the Court of Appeal (Warren CJ, Kyrou and Redlich JJA) allowed an appeal against a TES of source site 6 years’ 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 bdswiss com demo 5 years’ imprisonment with a non-parole period of 2 years and 6 months

Supreme Court – Judicial Registrar role

As at Monday 29 May 2017 the Supreme Court (Criminal Procedure) Rules 2008 have been amended to expand the role and authority of the Judicial Registrar in the Criminal Trial Division of the Supreme Court. Judicial Registrar Pedley will conduct post-committal directions hearings and directions hearings where a matter has not been allocated to a trial judge. A Notice to Profession (002) on the changes is attached. 

County Court – amended criminal Practice Note

The County Court Criminal Division Practice Note PNCR 1-2015 (21.10.15) has been updated. Please note changes to the following sections, in particular:'A=0 Family Violence Checklist 
The new Family Violence Checklist was developed as a result of a recommendation made by the County Court in its submission to the Royal Commission into Family Violence. The checklist is designed to identify matters which involve family violence, to facilitate improved case management and ensure that alternative arrangements are canvassed early on in the proceedings. The Criminal Division has developed this new checklist which will be filed in all matters committed to the County Court in collaboration with the Office of Public Prosecutions, Criminal Bar Association, Law Institute of Victoria and Victoria Legal Aid. 
binäre optionen strategie ema See Sections 4.3(d), 6.3(d), 7.5(e)(3), Attachment 4. 

il trading di autopzionibinarie fa operazioni in automatico Plea Hearing Requirements 
As a result of feedback from the profession, the Criminal Division has updated the Plea Hearing section to make it clear that the requirements in this section apply where an accused is committed for trial after entering a plea of guilty in the Magistrates’ Court and where a jury have returned a verdict of guilty following a trial. Furthermore the Defence filing requirement section has been updated to provide further guidance around the content of a Defence Outline of Submissions.
buscar mujeres solteras argentina See Sections 7.1-7.2, 7.5(c), 7.13, 7.14-7.15. 

Vale Jim Bessell

The CBA salutes the passing of Jim Bessell, a respected colleague.  Jim passed away early last week.  Jim was beloved by many as a companion and friend.  Professionally, Jim was a fair and balanced prosecutor, eloquent in understatement, and very effective.  Young barristers opposed to Jim were always nurtured and supported.  He was a credit to the Bar.  We will remember him and miss him.

CBA (England and Wales) – questioning young witnesses

A Question of Practice

The CBA of England and Wales has project-led the production of a short film on the questioning of young and/or vulnerable witnesses and defendants. Using court-room demonstrations and interviews with practitioners and judges, the film shows how prosecution and defence advocates can adapt their questioning of these witnesses so that it is developmentally appropriate. It also explores the circumstances in which the judge may decide that an advocate need not ‘put his case’ to the witness and alternative ways in which challenges to the witness’s evidence can be made. You can access the material here.

Free public lecture “Addressing the Phenomenon of Foreign Fighters”

The Castan Centre, in conjunction with Holding Redlich, is holding a free public lecture on Wednesday 4th February.

Professor Andrew Clapham

Professor of Public International Law at the Graduate Institute of International and Development Studies, Geneva

a Holding Redlich Distinguished Visiting Fellow

‘Addressing the Phenomenon of “Foreign fighters”‘

Date: Wednesday 4 February 2015
Time: 6pm – 7.15pm
Venue: Monash University Law Chambers, 555 Lonsdale Street, Melbourne
RSVP: or telephone 03 9905 3327
Public lecture – All welcome

The lecture will focus on the phenomenon of “foreign fighters”, in light of the security measures being taken across the world against nationals fighting in foreign wars, particularly in Syria and Iraq. What are the international law and policy issues related to withdrawal of citizenship for those representing a security risk to Western countries, and other constraints on “foreign fighting”? This issue has become sadly more relevant after the revelation of the prior activities of the perpetrators of the recent terrorist attacks in France. Broader questions of “foreign fighting” will also be addressed, as the label can be applied in different ways. For example, issues arise regarding the prosecution of foreigners detained in Guantanamo, as well as abuses by private security companies.

Andrew Clapham is Professor of Public International Law at the Graduate Institute of International and Development Studies, Geneva. He was the first Director of the Geneva Academy of International Humanitarian Law and Human Rights (June 2006 – July 2014). He teaches international human rights law and public international law. Prior to coming to the Institute in 1997, he was the Representative of Amnesty International at the United Nations in New York. Andrew Clapham has worked as Special Adviser on Corporate Responsibility to High Commissioner for Human Rights Mary Robinson, and Adviser on International Humanitarian Law to Sergio Vieira de Mello, Special Representative of the UN Secretary-General in Iraq.

Computer bootcamp – book now

The Bar and CBA present the first of a series of lunchtime tutorials to assist barristers who are challenged in the use of information technologies. The Bar’s Alison Rock will help members with the use of Outlook for email and Word to create and edit documents. If you have a laptop please bring it with you. Places are limited and bookings are essential.

For more information and/or to make a booking please contact; CPD co-ordinator, May Lim 9225 7985 or or CBA Vice-Chair, Michael Cahill 9225 8151 or

Victorian Bar expresses concern over proposed ‘coward punch’ laws

The Criminal Bar Association welcomes the media release issued by the Victorian Bar today expressing concern about the operation and effect of the Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Bill 2014 which would require judges to impose a mandatory minimum non-parole periods of 10 years imprisonment for ‘one punch’ manslaughter cases.

The Criminal Bar Association opposes mandatory sentencing in all its guises. Mandatory sentencing is ineffective, inefficient, is likely to lead to unjust outcomes and undermines the judiciary and the court system.

Malaysian sedition conviction is disheartening

The Criminal Bar Association is disheartened to learn of the conviction for sedition of Karpal Singh in the Kuala Lumpur High Court on 21 February.  Karpal Singh is a respected legal colleague, as well as being an opposition politician.  His crime was to express a legal opinion, as lawyers must; in Malaysia, such comment would normally be protected section 10(1)(a) of the Constitution, but Karpal Singh was prosecuted under the colonial-era Sedition Act.  This Act was to be repealed; unfortunately, it remains in use.  Karpal Singh faces imprisonment and political ruin.

It is of grave concern that senior, respected lawyers are charged for daring to suggest that local rulers’ decisions may be reviewable in court.  The rule of law is of great importance, not merely on principle, but because it underpins a rational and just society.  There are no fair markets without the rule of law.

The CBA supports Karpal Singh, and respectfully asks that political leaders consider the damage done to the rule of law when harsh prosecutions are launched.  The law comes into disrepute, and the society which relies on it suffers.

Case management vs right to silence

There is a good new post on by Kyle McDonald about resisting the pressures placed on an accused in the name of case management. Petty v Maiden is good law and when acting for an accused, care should be taken to respond to the court as required but to stop short of disclosing the defence – according to instructions.

New sentencing power – suspending licences for any charge

Since 30 September 2013, courts have wider powers under s 89A of the Sentencing Act 1991. The court can now suspend or cancel a driver licence for any offence:

“89A Suspension or cancellation of driver licence or learner permit and driver disqualification—any offence

(1) If a person is found guilty or convicted of any offence the court may—
(a) if the person is the holder of a driver licence or learner permit—
(i) suspend that licence or permit for the period of time that the court specifies; or
(ii) cancel that licence or permit and disqualify him or her from obtaining a further one for the period of time that the court specifies…

The provision was introduced by the Road Safety and Sentencing Acts Amendment Act 2013 and applies to offences commited on or after 30 September 2013. It obviously creates issues with licences (assessment reports/ interlocks) too. In many (most?) cases when such orders may be made, people will not qualifiy for VLA and may not receive proper advice, and the consequences are potentially devestating to employment/ famlies

ABA Advanced Trial Advocacy Course (Jan 2014)

The eighth course will be held on 20 – 24 January 2014 at the Supreme Court of Queensland. Places are available for only 42 barristers.  Seniority of at least two years at the private bar is a pre-requisite. The cost is $3,700 + airfares. Click here for full details.

Please note that the Bar will provide a substantial subsidy (around half) to one CBA member should you wish to enrol in the course.  Please contact Michael Cahill (x 8151) for further details.

Prison overcrowding update

We understand this continues to be a concern for members.  Our Chair appeared on the ABC News in relation to this issue last Friday and we continue to do what we can to advance the issue.  Below are a number of articles in relation to the issue published in the past week:

 Please continue to send your reports in relation to these matters to Michelle Mykytowycz ( 

CPD tonight – Interpretation of Forensic Reports

Wednesday, 25 September 2013
Interpretation of Forensic Reports – a word of caution
Speaker(s): Dr Morris O’Dell, Senior Forensic Physician, Victorian Institute of Forensic Medicine; Chair: Michael Cahill
Interpretation of Forensic Reports
1 CPD point: Professional Skills / Substantive Law
Time: 5.30pm – 6.30pm
Where: Neil McPhee Room, Level 1, Owen Dixon Chambers East, 205 William St, Melbourne