A recent Victorian Supreme Court case, Lewis & Anor v Mangano & Mangano, highlights the principles that apply in relation to appeals against sentence.

The case involved unlawful vegetation removal, contrary to the applicable planning scheme.

Despite a maximum penalty of in the order of $170,000 for each offence charged, the Magistrates’ Court imposed a penalty of $500 on each of the two accused persons (Accuseds) and ordered them to pay $2,000 each in professional costs.

The Council unsuccessfully appealed against this sentence, alleging it was:

  • manifestly inadequate
  • not open to the Magistrate in all of the circumstances.

While this course of action is open to a prosecution (s 272 of the Criminal Procedure Act 2009 provides that any party to a criminal proceeding in the Magistrates’ Court may appeal to the Supreme Court on a question of law – which manifest inadequacy is), this case provides a timely reminder that:

  • sentencing involves the application of discretion
  • Magistrates have a wide discretion in terms of the sentence to be imposed
  • the test is not whether the Supreme Court would have imposed a different sentence. Rather, whether the Magistrate made a legal error in the exercise of discretion
  • while current sentencing practices are relevant, every case will turn on its own facts and circumstances, including aggravating and mitigating factors.

Other factors of relevance to sentencing in this case were:

  • the Accuseds claimed in the Magistrates’ Court that they had sought advice from a council officer and been told that they could clear in a particular part of their land
  • each of the Accuseds had agreed to pay $2,000 in legal costs.

In summing up, the Magistrate said:

I have lowered the fines substantially from what I would otherwise order because I don’t think there was an ulterior or financial motive, or other motive involved, it was simply a mistake and you should have taken more care. I have had regard to the fact that there is a significant amount of costs involved and I have borne in mind the figure of costs when setting the level of the fine.

The key points to be taken from this case are to:

  • be prepared to make submissions to the Magistrates’ Court about the seriousness of the offence and any aggravating factors
  • gather whatever information is available regarding current sentencing practices in relation to the offence charged, and be prepared to identify factors that distinguish those cases from the present case
  • be prepared to dispute, by cross-examination if necessary, any claims made in mitigation which you do not agree are true.