Melbourne’s Justice Problem

Despite an ongoing crimewave, Melbourne was recently named the world’s best city by Time Out magazine, to a mix of celebratory headlines, crowing by the Victorian state government, and general bemusement among everyone else. Sure enough, just two days later, the city reminded the world of its recent sad decline.  

On 13 March, Vietnamese international student Bao Phuc Cao pleaded guilty to secretly filming a woman under the cubicle walls in the toilets of a shopping centre in the city’s Docklands area. His camera was found to have similarly intrusive images and videos of more than 100 women on it. Their identities are unknown. And he was already on a community correction order (a form of community-based punishment involving monitoring and other conditions) from two previous prosecutions for similar offences. The victim in this case has been left anxious and traumatised. While Cao pleaded guilty and has reportedly abided by his order, at the time of his arrest he also apparently offered the baffling excuse that he was in the women’s toilets because he was “unsure” about his gender. Despite all this, Cao was not sentenced to prison, much less deported from Australia (though his visa is reportedly being reviewed); in fact, no conviction was recorded, and Cao was released into the community with no further punishment at all, beyond an undertaking of good behaviour and continued compliance with his existing order. The seemingly bizarre leniency of the judgement raises larger questions about the administration of criminal justice in Victoria, the alignment of the judiciary with public standards and expectations and the function of criminal law.

There is a longstanding philosophical dispute about why some acts are deemed to warrant society’s strongest sanctions. One answer is that the distinguishing feature of crime is that it is an offence against both victims and the public. Civil wrongs involve only the parties to the immediate dispute, but crimes contravene the basic standards and values of society, and for this reason, the state generally takes responsibility for prosecuting criminals and imposes severe punishments like incarceration that are unavailable to the civil law. It is this public and moral aspect of the criminal law that underlies the controversy when lenient sentences defy common sense, because this suggests that the judiciary neither share nor care about the values of the public encoded in the criminal law itself.

At sentencing, Magistrate Michelle Mykytowycz made two revealing comments about how the purposes and principles of sentencing are interpreted. First, Victorian law states that sentences can only be imposed for the purposes of punishment, deterrence, rehabilitation, protection of the community, and denunciation—i.e. showing that we hold such acts to be abhorrent. On this, Mykytowycz reportedly said, “[The] court has to send a message to the community that they denounce this offending and (reinforce) the protection of women who are entitled and must feel safe in public utilities.”

But denunciation is not just a matter of words: it is communicated through the sentence itself. In a case involving repeated, highly invasive offending against unknown victims, the magistrate’s decision to merely reinforce the orders Cao was already under did little to communicate the seriousness of his offending. Moreover, while the magistrate gestured towards women’s safety, her sentence did not address public disquiet about the treatment of women’s rights by law and policy. Even if Cao were genuinely experiencing gender dysphoria, and even if it were acceptable for biological men to use women’s toilets, this would not change the nature or extent of his offending. The other purposes of sentencing, like rehabilitation, are legitimate, but reducing the importance of denunciation undermines the court’s public credibility.

Secondly, an established principle of sentencing is totality, which holds that where an offender is sentenced for multiple offences, the sentence should be appropriate to the overall pattern of offending. The idea is to avoid an unduly harsh punishment if sentences are stacked on top of one another. It does not mean that new offences cannot be punished; rather, it requires that all offences be considered together when determining the overall penalty. In this case, the magistrate apparently accepted the defence’s argument that Cao’s offence was part of the same pattern of offending for which he had already been tried and convicted in 2025, and that taking the offences together would not have changed his sentence. That is, Cao’s offence in this specific case did not make his overall pattern so much worse that he deserved a harsher punishment than he had already received.  

But this is a confusing application of the principle. Totality is not supposed to elide repeat offending altogether. In the sentencing mix ought to be the fact that Cao had offended multiple times, which would properly be seen as an aggravating factor, and made worse by the addition of this offence. By invoking totality as a reason not to make Cao’s punishment more severe, the magistrate implied that the offending in the case before her did not, by itself, amount to much. It makes sense to punish offenders for their pattern of offending, but each offence also needs to be treated seriously, in the name of both victims and society.

Looming over all this is Cao’s visa status. Under Australian law, visas are mandatorily cancelled for anyone given a prison sentence of twelve months or more. Consistent with Victorian law, Mykytowycz noted his lack of family in Australia as one factor influencing her decision not to record a conviction. Beyond this, Victoria’s sentencing manual states that the prospect of deportation is considered relevant to how severe a sentence will be for an offender, but that artificially lowering sentences with this in mind is an “error.”  However, it was reported in 2024 that magistrates had been advised at a training day to avoid the twelve-month threshold, so that offenders might not be subject to deportation.

Cases like Cao’s therefore raise an ongoing concern: that the courts might treat visa holders more leniently than citizens. If they decide that a punishment would be too harsh because it might lead to deportation—a consequence that obviously does not arise in the case of citizens—then, in effect, they are imposing a lighter sentence than the offence really warrants because the offender is on a visa.

The mistake here is treating potential deportation as part of the punishment, rather than as a separate process triggered by a breach of the visa terms. This sits uneasily with the principles of proportionality (the severity of punishment should match the seriousness of the offending) and parity (that similar sentences should be imposed for similar offences) because it gives weight to a characteristic of visa holders (being at risk of deportation) that is neither relevant to the gravity of their offending nor shared by most of the community. As a matter of principle, and contrary to current practice, offenders’ visa status should play no part in sentencing.

Cases like Cao’s therefore raise an ongoing concern: that the courts might treat visa holders more leniently than citizens. If they decide that a punishment would be too harsh because it might lead to deportation—a consequence that obviously does not arise in the case of citizens—then, in effect, they are imposing a lighter sentence than the offence really warrants because the offender is on a visa.

The connecting thread here is a shift in focus from the public to the offender. Cao’s case can be understood as an example of what is often called individualised justice, the idea that sentencing ought to consider the circumstances of offenders’ lives.

By itself, this notion is not especially controversial. Laws are generally written quite broadly, and judgement is required to determine how they apply to the facts of specific cases. So, in the criminal law, judges have some discretion about how they apply sentencing principles to the cases before them. For example, in Cao’s case, the judge had to determine the extent and severity of his offending and weigh his prospects of rehabilitation against the public’s right to protection from crime. There is also some evidence that the public understand this. Studies have found that people who are inclined to favour harsh punishment in principle tend to moderate their views when given more concrete details about a case.

But, taken too far, individualisation in sentencing runs counter to the principle that justice requires that like cases be treated alike, which goes to the universality and hence morality of the law and to its function in creating a predictable and stable society. Individualised justice can only work if the public trust the judiciary and its value judgements. People’s trust in the criminal justice system—which, according to surveys, is already quite low in Australia—is shaken by cases that suggest that the judiciary and public do not agree on what factors are relevant to assessing the harm caused by offenders, their culpability, and how they ought to be treated.

Driving this growing gap between the judiciary and the public is a shift in how crime is understood. Rather than being seen as an offence against victims and the public, crime has come to be treated as a social problem to be managed through policy. The demographic factors that courts now consider in sentencing reflect this redefinition away from punishment and denunciation and towards explaining crime in terms of offenders’ circumstances. The result is an expectation that judges will consider the overall picture of crime in society, not just the cases before them.

While this approach might be partly motivated by a desire to reduce the number of people in prison, to avoid being overly harsh and save money for the public purse, it has a wider effect. Society is no longer seen as adversely affected by crime but as at least partly responsible for it. This can lead courts to place less emphasis on the public’s sense of being wronged, and more on their own assessment of what is best for society—in, for example, how much weight they give to an offender’s visa status. This view can bias judges against issuing punishments, like prison, that are not primarily rehabilitative (or “restorative”), and even calls into question the legitimacy of the criminal law itself, which, stripped of its moral basis, becomes at best just a blunt instrument for social management and at worst an arbitrary expression of power.

The broader issue in a case like Cao’s, then, is not just that the judiciary may reach different conclusions from the public, but that it is working from a different understanding of the purpose of the criminal law and moving even further away from the views of ordinary people.

The broader issue in a case like Cao’s, then, is not just that the judiciary may reach different conclusions from the public, but that it is working from a different understanding of the purpose of the criminal law and moving even further away from the views of ordinary people.

Realigning the judiciary with the public will not be easy. One possibility is the reintroduction of mandatory sentencing. The state’s previous scheme was considered unworkable by the judiciary and was largely repealed by the current government in its first term. The attraction of mandatory sentencing is that it corrects a tendency towards undue leniency. Conversely, the argument against mandatory sentencing is that by reducing judicial discretion it risks sentences that are disproportionately harsh and, over time, drives an unnecessary and costly increase in the prison population. But with Victoria’s incarceration rate at an historic low, this argument might not carry much weight. In addition, there is emerging evidence that Victoria’s judiciary has become more lenient. Over the past ten years, the median sentence in Victoria has increased from 3.5 to 5 years, but this is because many offenders who would previously have been sentenced to shorter spells in prison are receiving non-custodial sentences instead.

However, mandatory sentencing is a blunt tool. A more targeted approach would be to strengthen, and make more use of, the existing mechanism for correcting outlier cases. In Victoria, the Director of Public Prosecutions can appeal against sentences handed down in the County Court and Supreme Court on the grounds that they are “manifestly inadequate,” while sentences in the Magistrates’ Court can be appealed in County Court in de novo proceedings. The DPP has a policy of using its appeal powers rarely, out of respect for the authority of the courts and the principle of double jeopardy for accused persons, while resource constraints also limit its practical ability to appeal. Additional proceedings also increase the burden placed on victims, for whom the prosecution process can already be gruelling. In 2024–25, the DPP initiated just 25 appeals against sentence. (It is not clear how many sentences in the Magistrates’ Court were appealed.)

Yet an increase in the number of Crown appeals would be a positive change. If the DPP is not minded to do it, this could be achieved by amending the law to give the Attorney General, the Victims of Crime Commissioner, or even victims themselves greater power to initiate appeals. This would ensure that in those cases that shock the public and raise questions about the values and discretion of the judiciary, the public could at least be confident that the system contains a mechanism for conveying their concerns to the judiciary. Moreover, if courts knew that overly lenient sentences were more likely to be appealed, they might be more willing to take public sentiment into account in the first place. Strengthening the Crown appeals process would therefore improve the system. Even if most appeals did not advance beyond a preliminary hearing, the judiciary would still receive important feedback from the public and its representatives about its sentencing practices.

Ultimately, though, procedural fixes will be meaningless if members of the judiciary remain at odds with the public. The next government will have to take any opportunity to turn over the judiciary. Since judges in Victoria are never removed for political reasons, in practice this would likely mean looking outside normal career paths, firms, and chambers for replacement appointees and, more controversially, perhaps even using political litmus tests, implicit or otherwise. It might also mean creating new positions, which would likely be desirable anyway given the state’s population growth and rising crime. The state’s longstanding Labor government (in power for all but four years since 1999) has appointed approximately 90 percent of full-time magistrates and judges: 139 of 164 magistrates, 68 of 69 County Court judges, and 51 of 55 Supreme Court judges. There has also been a significant increase in the number of magistrates, up from 103 a decade ago.

It would be too simplistic to say that this explains the values gap between the judiciary and the public—after all, Labor has been in power so long because it keeps winning elections in Victoria. But such a sustained period of effective one-party rule is likely to influence how judges understand their roles and responsibilities to society. Victoria may not be quite in the same position as El Salvador, but Nayib Bukele was right when he commented, “If you don’t impeach the corrupt judges, you cannot fix the country.” When judges substitute their own values for those of the people, they are abusing their power and retreating from the animating principle of the criminal law, namely, not only to act in the interests of victims, but to protect society itself.

The case of Bao Phuc Cao highlights the tension between individualised justice and the essentially public character of the criminal law, while raising difficult policy questions about how to secure a connection between the judiciary and the sentiments of the public. Nonetheless, getting this right ought not to be beyond the world’s best city.