How Does Imprisonment Combined with a Community Correction Order Compare with Imprisonment Only?

In the case of Greatorex v The Queen (10 June 2016), the Victorian Court of Appeal considered the relative severity of sentences that combine imprisonment with a community correction order (CCO) versus imprisonment with a non-parole period.

The offender had pleaded guilty to one charge of recklessly causing serious injury, and had been sentenced to 15 months' imprisonment combined with a two-year CCO.

The offender appealed against this sentence on the basis that the 15-month imprisonment sentence was more severe than necessary to meet the purposes of sentencing, and that the total length of the combined sentence was ‘manifestly excessive’.

In making these arguments, the offender sought to mathematically compare the combined sentence with a hypothetical ‘straight’ sentence of imprisonment. The offender argued that the imprisonment term in the combined sentence was too long, because when combined with the CCO term, the entire duration of the sentence was longer than the imprisonment term that would have been given had the judge decided to impose a sentence of imprisonment alone (and to fix a non-parole period).

The Court of Appeal rejected this argument. It decided that when considering whether a sentence is excessive, the combined sentence must be viewed in its entirety. The court said that it is ‘not appropriate to assign individual sentencing aims to one or the other component of a combined sentence so as to determine whether that component viewed in isolation was outside the range reasonably open to the judge’.

In making its decision, the court referred to Boulton v The Queen (the first guideline judgment in Victoria) which provided guidance to courts on the use of CCOs as a sentencing option. The guideline judgment emphasised the capacity of the CCO to be a punitive sanction, both when imposed as a sentence in its own right and when imposed in combination with imprisonment. The guideline judgment also made it clear that there is no correlation between a prison term and a CCO term.

In applying this guidance to the appeal in Greatorex, the Court of Appeal confirmed that the correct approach to imposing combined sentences of imprisonment is to consider whether the entire sentence ‘in its totality’ is outside the range of sentencing options reasonably open to the judge.

This decision is significant. A recent Council report on CCO use post Boulton v The Queen found that the guideline judgment has resulted in Victorian courts increasingly imposing imprisonment sentences combined with CCOs. Between the December quarter of 2014 and the December quarter of 2015, the percentage of all offenders receiving this combined order increased from 1.7% to 2.4% in the Magistrates’ Court, and from 12.2% to 25.8% in the County and Supreme Courts.

In deciding the appeal in Greatorex, the Court of Appeal also discussed whether a longer or more onerous CCO is more or less severe than a shorter term of imprisonment. This was in the context of whether a court ought to give a warning to any offender launching an appeal against his or her sentence that the sentence resulting from the appeal might be more severe than the original sentence (as is required when an offender appeals).

The court concluded that, having regard to the purpose of that warning, any variation of a combined sentence that increased the duration of either the CCO or the prison component should be viewed as a potentially more severe sentence, therefore warranting such a warning.