11.CRIMINAL DIVISION – SENTENCING
11.1Sentencing principles & sentencing orders
11.1.1Sentencing models
11.1.2Sentencing of adults
11.1.3Sentencing of juveniles
11.1.4Sentencing principles
11.1.5Sentencing orders - Sentencing hierarchy
11.1.6The community supervisory orders detailed and compared
11.1.7No power to impose an aggregate sentence of detention under the CYFA
11.1.8Restitution/Compensation/Costs
11.1.9Additional orders includingdisqualification & forfeiture
11.1.10Struck out
11.1.11Children’s Court has no direct power to impose community work/service
11.1.12Order for forensic procedure on finding of guilt
11.1.13Sentencing powers of Supreme Court or County Court
11.1.14Sentencing court not bound by agreement between Crown and defence
11.1.15Procedural fairness
11.1.16Relevance of United Nations Convention on the Rights of the Child
11.1.17Sentencing for conspiracy compared with sentencing for completed offence
11.1.18Offending in a custodial setting is a relevant sentencing consideration
11.2Selected cases on sentencing
11.2.1Young adults & children sentenced under the Sentencing Act
11.2.2Children and young persons sentenced under the CYPA & CYFA
11.2.3Sentencing hierarchy
11.2.4Factual basis of sentencing
11.2.5Purpose of a Youth Justice Centre sentence [formerly YTC]
11.2.6Parity of sentencing
11.2.7Double jeopardy
11.2.8Effect of guilty plea,admission of offence and/or assistance to the authorities
11.2.9Relevance of risk tooffender’s safety while in custody /
Relevance of protective custody
11.2.10Effect of forgiveness by the victim
11.2.11Effect of mental illness / mental disorder
11.2.12Effect of intellectual disability
11.2.13Effect of ill health and/or age
11.2.14Effect of delay
11.2.15Relevance of gambling addiction
11.2.16Relevance of drug addiction
11.2.17Relevance of intoxication
11.2.18Relevance of hardship on offender's family
11.2.19Relevance of Aboriginality
11.2.20Relevance of recall or risk of recall by Parole Board
11.2.21Relevance of likely forfeiture under the Confiscation Act
11.2.22Sentencing for manslaughter / defensive homicide / attempted murder / murder
11.2.23Sentencing for culpable driving / dangerous driving causing death
11.2.24Sentencing for intentionally / recklessly / negligently causing serious injury, affray/riot / reckless endangerment
11.2.25Sentencing for drug trafficking / cultivation / importation
11.2.26Sentencing for armed robbery
11.2.27Sentencing for burglary / aggravated burglary
11.2.28Sentencing for rape
11.2.29Sentencing for offences against the person committed on public transport
11.2.30Sentencing for attempting to pervert the course of justice
11.3Some mechanics of sentencing
11.3.1“Instinctive synthesis” or “two-tiered approach”
11.3.2Use of sentencing statistics and sentencing snapshots
11.3.3The Sex Offenders Registration Act 2004 and its relevance to sentencing
11.3.4Power to direct time held in detention before trial be reckoned as already served
11.3.5Exercise of mercy
11.3.6Conviction or non-conviction
11.4Material admissible in sentencing hearings under the CYFA
11.4.1Pre-sentence & group conference reports
11.4.2Report, submission & evidence on behalf of child
11.4.3Prior finding of guilt
11.4.4Prosecutor’s submissions & duty
11.4.5Victim impact statements
11.5Deferral of sentencing
11.6Group Conference
11.6.1Restorative justice
11.6.2The Victorian Group Conference program
11.6.3Goal
11.6.4Consultation with Youth Justice
11.6.5Mechanics
11.6.6Conference Outcomes
11.7Criminal Division Statistics
11.7.1Victorian statistics
11.7.2Australian & world statistics
11.8Parole & Remissions
11.8.1Parole
11.8.2Remissions
11.9Temporary leave from detention
11.10Transfers between custodial institutions
11.11Further custodial sentence imposed on detainee
11.12Breach of sentencing orders made under the CYFA
11.12.1“Generic” provisions governing commencement, hearing and transfer of breach proceedings
11.12.2Powers upon proof of breach of CYFA sentencing order (other than fine default)
11.12.3Fine defaults
11.13Breach of sentencing orders made under the Sentencing Act
11.14Sunset provision for Children's Court priors
11.15The “ROPES” Program
11.15.1The program
11.15.2The target group & eligibility criteria
11.15.3The aims & objectives of the program
11.15.4The content of the program
11.15.5The consequence of a positive completion of the program
11.16The MAPPS Program
11.17Sentencing of adults for child abuse
11.17.1Sexual abuse
11.17.2Use of the internet to procure sex
11.17.3Possession/production of child pornography
11.17.4Other sexual offending against children
11.17.5Relevance of consent in sentencing for unlawful sexual activity with a child
11.17.6Physical abuse
11.17.7Causing death
11.18Sentencing of adults for offence against protective worker
Produced by Magistrate Peter Power for the Children's Court of Victoria
Last updated 12 July 201211.1
11.1Sentencing principles & sentencing orders
"Juveniles are less mature - less able to form moral judgments, less capable of controlling impulses, less aware of the consequences of acts, in short they are less responsible and therefore less blameworthy than adults. Their diminished responsibility means that they 'deserve' a lesser punishment than an adult who commits the same crime…Lesser punishment means not only more sparing use of detention but it also means significantly shorter terms of detention, bonds and periods of licence disqualification, because time has a wholly different dimension for children than it does for adults."
Judge Newman (South Australian Youth Court)
South Australian Youth Court Advisory Committee, Annual Report 1983, pp.6-7
"The risk that a period of detention will be counter-productive for an offender – and hence for the community – is never higher than in relation to a young offender who has not previously been in custody. Research to which the Chief Scientist of New Zealand has recently drawn attention has highlighted the potential for the immature brain to respond to punitive punishments in such a way as to make recidivism more rather than less likely."
Victorian Court of Appeal in CNK v The Queen[2011] VSCA 228 at [77]
per Maxwell P, Harper JA & Lasry AJA citing Laurence Steinberg, ‘Adolescent Development and Juvenile Justice’ (2009) Annual Review of Clinical Psychology 47, 65–68, cited in Improving the Transition: Reducing Social and Psychological Morbidity During Adolescence, Report to Prime Minister of New Zealand by Chief Scientific Advisor (May 2011), 28.
"[S]entencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision.”
High Court of Australia in Pearce v The Queen (1998) 194 CLR 610, 624 per McHugh, Hayne &Callinan JJ cited with approval in DPP (Vic) v Yeomans [2011] VSCA 277 at [66]
Only a small percentage of offences involving child defendants are contested and a significant proportion of these are found proved in any event. It follows that the major task for a judge or magistrate in the Criminal Division of the Children’s Court is the sentencing of juvenile offenders. InRv Lanteri [2006] VSC 225 at [6] Gillard J explained the sentencing process for adult offenders:
“My task is to determine the facts and, applying the principles of sentencing law, to determine in the exercise of my discretion, what is a proportionate and appropriate sentence in all the circumstances. In relation to the sentencing process, I refer to what the Court of Appeal said in R v Storey [1998] 1 VR 359 at 366:
“Sentencing is not a mechanical process. It requires the exercise of a discretion. There is no single ‘right’ answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the ‘instinctive synthesis’ which takes account of the various purposes for which sentences are imposed - just punishment, deterrence, rehabilitation, denunciation, protection of the community - and which pays due regard to the principles of totality, parity, parsimony, and the like.”
The process for sentencing juvenile offenders is the same although the weight given by the sentencing judge to the various factors involved in the ‘instinctive synthesis’ is likely to be quite different in most juvenile cases.
11.1.1Sentencing models
There are two sentencing models which, in one combination or another, underpin the sentencing of persons, whether adult or juvenile, in most jurisdictions. In his Keynote Address at the Youth Justice Conference in September 2000: "Managing a New World in Transit", the Chief Justice of Singapore said of these models in relation to youth sentencing:
"National responses in many countries to youth offending throughout the 20th century have fluctuated between the 'welfare' and the 'justice' models: broadly whether young offenders are seen as being primarily in need of care and rehabilitation, or deserving of correction or punishment. Both approaches have received their share of criticism."
11.1.2Sentencing of adults
In sentencing an adult offender a court is required, by s.5(1) of the Sentencing Act 1991 (Vic), as far as practicable-
to punish the offender;
to deter the individual offender ['specific deterrence'];
to deter the community generally ['general deterrence'];
to rehabilitate the offender;
to denounce the offender; and
to protect the community.
This is predominantly a 'justice' model, only item falling squarely within the 'welfare' model. In R v Tuan Quoc Truong [2005] VSCA 147 at [17]-[18] the Court of Appeal emphasized that the principle of general deterrence {item } was not to be used to convey a message to a specific ethnic community but to members of the community generally. See also R v Reth Mao [2006] VSCA 36 at [38]-[42].
In R v Merrett & Ors [2007] VSCA 1 Maxwell P, with whom Chernov JA & Habersberger AJA agreed, said at [49]:
“As I said in The Queen v Tiburcy [2006] VSCA 244, the sentencing court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this Court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.”
In DPP v Samarentsis [2007] VSCA 20 a very experienced judge had sentenced an offender who had demonstrated “a complete turn around” in his life in a way that gave much greater weight to the offender’s prospects of rehabilitation than it did to factors such as denunciation and deterrence. In refusing the DPP appeal Eames JA at [5] and Kellam AJA at [34] approved and applied dicta of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-213:
“Prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when a judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.”
11.1.3Sentencing of juveniles
By contrast, the focus of the Children, Youth and Families Act 2005 (Vic) [No.96/2005] ('the CYFA') - like its predecessor the Children and Young Persons Act 1989 (Vic) [No.56/1989] (‘the CYPA’) - inrelation to the sentencing of Victorian juvenile offenders is predominantly - although not completely -'welfare'-oriented, that is rehabilitative. In Fox and Freiberg, Sentencing: State and Federal Law in Victoria, 2nd ed. 1999, Oxford University Press South Melbourne, the authors characterize Victoria's legislative scheme as an attempt to blend the two sentencing models: 'welfare' and 'justice'. In the Second Reading Speech the objectives of the CYPA were said (at p.1150) to include the provision of:
an adequate and constructive response to children and young people who have been charged with and found guilty of committing offences;
an extended and more flexible range of dispositions in each of the divisions of the Court, which seek to enable children to remain at home wherever practicable and appropriate.
The rehabilitative focus is reinforced by the requirement (at p.1151) to give priority to child protection where there are both protective and criminal matters in respect of the one child: see s.18(2) of the CYPA [now s.522(2) of the CYFA]. It is clear that when enacting the sentencing provisions of the CYPA & the CYFA, Parliament - like its counterparts in most other countries in the world – didnot consider children and young persons merely to be little adults. In CNK v The Queen [2011] VSCA 228 at [76] the Court of Appeal – referring to the cases of MerrettTiburcy–treated the young applicant’s rehabilitation as “a primary consideration”. See also R v Azzopardi, R v Baltatzis, R v Gabriel [2011] VSCA 372 at [34]-[44]; DPP v McGuigan [2012] VSCA 121.
11.1.4Sentencing principles
In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [18] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said: “At common law the exercise of the sentencing discretion is the subject of established principles. These include proportionality {Veen v The Queen [No 2] (1988) 164 CLR 465}, parity {Lowe v The Queen (1984) 154 CLR 606}, totality {Mill v The Queen (1988) 166 CLR 59} and the avoidance of double punishment {Pearce v The Queen (1998) 194 CLR 610}.”
In R v Jongsma [2004] VSCA 218 Gillard AJA said at [47]: "The sentencing process involves an exercise of a discretionary judgment. The principles have been stated often and I refer to the leading authority of House v The King (1936) 55 CLR 499 at 504-5. As it is an exercise of discretion, there is room for difference of opinion as to what is the appropriate sentence…I discussed the principles in Rv. David Matthew Langdon [2004] VSCA 205 at [60]-[76]." In Pandevski [2007] VSCA 84 at [36], Maxwell P reiterated the discretionary nature of sentencing: “Itis obvious that on particular matters different judges might come to slightly different views. That is the nature of the sentencing process. That is why it is done by judges, not by machines.”
A convenient starting point in the determinationof an appropriate sentence for both adult and child offenders is the seriousness of the offence and the level of culpability of the offender, as discussed by Vincent & Weinberg JJA and Mandie AJA in DPP v Weidlich [2008] VSCA 203 at [17]-[18]:
[17] “The seriousness to be attributed to a breach of the criminal law in any given case is, of course, dependent upon a number of factors including the intention of the perpetrator and the consequences of its commission: see Mallinder v R (1986) 23 A Crim R 179; R v Pota [2007] VSCA 198 at [28]; DPP v Fevaleaki [2006] VSCA 212 at [15] and R v Buckle [2005] VSCA 98 at [25]…
[18] Generally, the measure of culpability of an offender under the criminal law rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences. Little thought is required to appreciate that the greater the level of insight and understanding possessed by him or her concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved.”
The philosophies of "home & family preservation" & "constructiveness" differentiate the sentencing of juveniles from that of adults. The philosophies are enshrined in the principles in s.362(1) of the CYFAto which the Court must have regard, as far as practicable, in determining what sentence to impose on a child. This is predominantly a 'welfare' model, only principles (e), (f) & (g) having a 'justice' component. Principles (a) & (c) have parallels in the Family Division in ss.10(3)(b) & 10(3)(o) of the CYFA.
PRINCIPLE / MODEL(a) / STRENGTHENING
FAMILIES / The need to strengthen and preserve the relationship between the child and the child's family. / WELFARE
(b) / LIVE AT HOME / The desirability of allowing the child to live at home. / WELFARE
(c) / EDUCATION ETC UNDISTURBED / The desirability of allowing the education, training or employment of the child to continue without interruption or disturbance. / WELFARE
(d) / MINIMISE
STIGMA / The need to minimise the stigma to the child resulting from a court determination. / WELFARE
(e) / SUITABILITY OF SENTENCE / The suitability of the sentence to the child. / WELFARE/
JUSTICE
(f) / ACCOUNTABILITY / If appropriate, the need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law. / JUSTICE/
WELFARE
(g) / COMMUNITY
PROTECTION / If appropriate, the need to protect the community, or any person, from the violent or wrongful acts of the child. / JUSTICE
While – unlike s.5 of the Sentencing Act 1991 – thereis no explicit mention in s.362(1) of punishment, denunciation or deterrence (either specific or general), in appropriate cases punishment or specific deterrence may be justified by the "accountability" principle of s.362(1)(f) or the "suitability" principle of s.362(1)(e). However, while stating that "broadly speaking, normal sentencing principles" are also applicable to youthful offenders, the Court of Appeal has emphasised that the sentencing of children is under a very different regime from that of adults. In his judgment in R v Dwayne Andrew Evans [2003] VSCA 223 (with which Ormiston & Batt JJA agreed on this issue), Vincent JA said at [44]:
"An elaborate system has been developed to deal with the problem of offending by children and young persons in our community, with a separate court, separate detention facilities, supervision systems and so forth. Whilst broadly speaking, normal sentencing principles can be said to remain applicable when dealing with youthful offenders, as a matter of law and practice it is recognised that the respective weight to be given to relevant factors will vary. In addition the Children and Young Persons Act 1989 (Vic.) sets out [in s.139] a number of matters to which a sentence in the Children’s Court must have regard and which differ in kind and emphasis from roughly similar provisions in s.5 of the Sentencing Act 1991 (Vic.). Underlying this system is the attribution of considerable significance to the generally accepted immaturity of the young people who appear before the Children’s Court and the need, in the interests of the community and the young persons concerned, to endeavour to divert them from engagement in anti-social conduct at that early stage of their lives: see R v Homer (1976) 13 SASR 377. These considerations can and do lead to dispositions which would be regarded as entirely inappropriate in the case of older and presumably more mature individuals."
See also the judgment of Southwell AJA (with whom Phillips CJ & Callaway JA agreed) in R v Angus [unreported, 01/02/1996] at pp.6-7, citing with approval dicta of Lush J in the Court of Criminal Appeal in R v Wilson [unreported, 28/02/1983].
In CNK v The Queen [2011] VSCA 228 at [39] the Court of Appeal (Maxwell P, Harper JA &LasryAJA) summed up the principles involved in sentencing a child under the CYFA as follows:
“We respectfully agree with [the sentencing judge] that a court sentencing a child would – as in any other sentencing process – be required to consider the gravity of the offence, the remorse of the offender, whether or not the offender had pleaded guilty, the offender’s character and antecedents and the impact of the offence on the victim. Unlike general deterrence, however, those considerations are all directed at an assessment of the particular offending, and of the particular offender, and they inform the determination of a sentence which is properly reflective of all of those features. The statutory directive in s 362(1) (to take the specified matters into account ‘as far as practicable’) is an acknowledgment that the Court’s ability to do so may be affected by those various factors.”
The principles of "proportionality""totality" are primarily discussed below in the case law in relation to adults but are equally applicable to children and young persons. The Court of Appeal has held that the principle of “general deterrence” has no relevance to the sentencing of young persons under the CYFA.
11.1.4.1General deterrence
In R v Angelopoulos [2005] VSCA 258 the Court of Appeal raised – without deciding – whether general deterrence was relevant to the sentencing of young offenders under the CYPA even though it is not specifically mentioned in s.139(1): per Callaway JA at [2] & Eames JA at [56]. However in the Appeal of JD(unreported, County Court of Victoria, 22/02/2008) Judge Strong held at [12]: