Application of the adult summary crime guidelines

Application of the adult summary crime guidelines

Our adult summary Criminal law guidelines for grants of legal assistance were last changed in 2013. Since then, there have been a number of changes in sentencing legislation and practises, including the abolition of suspended sentences, an increased focus on family violence and the Court of Appeal guideline judgment concerning community corrections orders. These changes, along with our own compliance activity may have resulted in some practitioners applying the guidelines in an inconsistent or overly cautious way.

Our self-certification system for assistance relies upon your professional judgement to make evidence-based decisions about eligibility for grants of legal assistance. We want to assist practitioners to interpret and apply the summary guidelines to ensure people who are eligible for a grant of assistance get legal aid funding.

Summary crime guideline interpretation

Assessing whether ‘a conviction is likely to result in a term of imprisonment’

When considering eligibility, you must assess whether the accused would be likely to receive a term of imprisonment, if convicted. This question should be answered in the context of the likely outcome without consideration of how legal submissions may assist the accused to avoid imprisonment.

Application of the guideline judgment

Some practitioners have asked about the impact of the guideline judgment on the assessment of eligibility for assistance. We encourage you to assess if your client is likely to receive a term of imprisonment in circumstances where, if not for the guideline judgment, the client would otherwise qualify for assistance under the adult summary Criminal law guidelines or Traffic offence guideline.

The longer term impact of the guideline judgment upon sentencing practices in the Magistrates Court is still not fully understood, particularly around combination community corrections orders and imprisonment sentences. Furthermore, there is a body of appellate authority that is still emerging in which the application of the guideline judgment is being clarified both through the Director of Public Prosecutions and defence appeals.

Existing grants of legal assistance in place under these guidelines will remain in place and clients will continue to be eligible where a community corrections order is successfully argued by the practitioner in light of the guideline judgment.

Family violence offences

Offenders are sentenced to imprisonment more often than in the past. Although each matter turns on its facts circumstances likely to result in a term of imprisonment include:

  • where the accused has a history of family violence offending
  • if the alleged offending behaviour is serious, or
  • there are multiple family violence related offences.

Differing court approaches

Different Magistrates may impose different sentences for similar offences. However it is important that your decisions in applying the funding guidelines supports consistency in access to justice.

You are encouraged to rely upon your experience and knowledge of current sentencing practices when making assessments about eligibility for legal assistance and should not include in your decision-making the perceived leniency or otherwise of individual magistrates. It is important that you retain a record on the file of prior matters and any other matters that support the reasoning behind the recommendation for assistance, in the event that the file is later compliance checked. 

What if my client does not get a jail sentence?

The assessment for eligibility is based upon your professional view about what the accused is likely to receive by way of sentence with reference to objective criteria such as the offence, its seriousness and the accused’s criminal history. Effective representation of the accused may well result in a lesser penalty, whether due to careful analysis of the evidence that leads to the withdrawal of charges, or to putting appropriate plea material before the court. 

This does not result in a grant of assistance being terminated. Nor does it suggest that the decision to recommend assistance in the first instance was wrong. Each matter needs to be assessed on its own merits.

Example 1

Joan is 48 years old and has been charged with deception offences. She has admitted to stealing $20K from her employer over a 12 month period. Although Joan does not have any prior convictions, the quantum of the theft together with the fact that it occurred over a protracted period and breached her employer’s trust, means that Joan would satisfy the summary crime guidelines for a grant of legal assistance. This takes into account current sentencing practices and Court of Appeal authority around such offences.

An application for a grant of legal assistance can be made based on an objective assessment that Joan remains likely to receive a term of imprisonment even though the guideline judgment means that a community corrections order may more readily be considered within the range of appropriate punishments for this type of offending.

Example 2

Adam is 24 years old and has been charged with robbery where he is alleged to have pushed a high school student at a tram stop demanding her mobile phone and money before grabbing her phone and running off with it. He has two prior convictions for theft where he has received a six month community corrections order for the most recent conviction. Although at the lower end of the scale of seriousness for such offending, there are aggravating features to the offending and Adam has relevant prior convictions where there appears to be an escalation in his offending. This means that Adam would satisfy the summary crime guideline for a grant of legal assistance.

This judgment is based on an objective assessment that the client remains likely to receive a term of imprisonment even though the guideline judgment means that a community corrections order may more readily be considered within the range of appropriate punishments for this type of offending.

Contact

Any questions in relation to our guidelines should be directed to:

Assignments Criminal Law
Email: assignmentscrime@vla.vic.gov.au
Phone: (03) 9606 5351