In Sentencing Older Offenders in Victoria (Sentencing Advisory Council, September 15, 2021), the Sentencing Council report studies “sentencing outcomes from 2010 to 2019 for offenders sentenced when aged 60 and over in Victoria. The report reviews the relevance of age to sentencing and investigates the prevalence of sentenced older offenders in the state. It analyses the offence types and sentence outcomes for older offenders in both the Magistrates’ Court and the higher courts, including older offenders’ prior offending. The report uncovers issues relating specifically to older offenders, including the suitability of available sentencing orders”.

A portion of the report considers the relevance of the offender’s age in imposing sentence.

The Relevance of Age in Sentencing:

The Council indicated that its “analysis of cases that considered advanced age at sentencing revealed that” (at page 4):

• advanced age is relevant to sentencing, usually as a mitigating factor. Advanced age is rarely relevant to an offender’s culpability for an offence unless, for example, the offender’s judgment or self-control was affected by an age-related disorder such as dementia;

• advanced’ age is not defined. Most cases involved offenders aged 70 or over, but age was found to be relevant to an offender as young as 46 with a reduced life expectancy due to ill health;

• advanced age is often accompanied by other sentencing considerations, particularly ill health and delay between the offence and sentence. Advanced age may also be accompanied by issues relating to financial hardship, which is particularly relevant to the imposition of fines;

• advanced age is relevant to the consideration of sentence type and length (for example, the length of a term of imprisonment and non-parole period);

• advanced age is relevant to the purposes of sentencing (such as community protection and specific deterrence) and to the consideration of whether a sentence is ‘crushing’; and

• advanced age does not justify imposing an inappropriately low sentence and may be of little relevance where the offending is particularly serious.

The Council concluded (at page 10):

Advanced age is a relevant sentencing consideration and, in some cases, may warrant a particularly merciful sentence. However, it does not dominate the sentencing exercise; it does not override factors relating to offence seriousness and other sentencing considerations, such as the need for punishment or denunciation, nor does it justify an unacceptably lenient sentence. Consistent with these principles, this report found that overall, advanced age did not appear to dominate the sentencing of older offenders in the higher courts. For example, in sex offence cases, offenders sentenced aged 60 and over had higher imprisonment rates than those aged under 60. Further, of those sentenced to imprisonment for sex offences, older offenders received longer terms of imprisonment than did their younger counterparts.