CDirector of Public Prosecutions v XY (a pseudonym)
[2025] VSC 661
•23 October 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0154
| Commonwealth Director of Public Prosecutions | Appellant |
| v | |
| XY (a pseudonym) | Respondent |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 October 2025 |
DATE OF RULING: | 23 October 2025 |
CASE MAY BE CITED AS: | CDPP v XY (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 661 |
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CRIMINAL LAW — Procedure — Appeal by Director against a sentence imposed by the President of the Children’s Court — Whether general deterrence applies to the sentencing of children for federal offences in the Children’s Court — Application by Director to reserve questions of law for determination by the Court of Appeal pursuant to s 430VA of the Children, Youth and Families Act 2005 (Vic) — Whether questions should be reserved — Application refused — Children, Youth and Families Act 2005 (Vic) ss 360, 361, 362, 430VA; Judiciary Act 1903 (Cth) ss 68, 79(1); Crimes Act 1914 (Cth) ss 16A(2)(ja), 19B(1)(b), 20C; Chief Commissioner of Police v Crupi (2023) 72 VR 280; [2023] VSCA 245; LS v CDPP [2020] VSC 484; CNK v The Queen (2011) 32 VR 641; [2011] VSCA 228; Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23; Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47; Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8; Newman v A (a Child) (1992) 9 WAR 14; Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; [2003] HCA 49; Commissioner of Taxation v Baffsky (2001) 164 FLR 375; [2001] NSWCCA 332.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr Nick Robinson KC with Ms Ruth Champion | Office of the Director of Public Prosecutions (Cth) |
| For the Respondent | Mr Patrick Doyle SC with Ms Julia Kretzenbacher | Victoria Legal Aid |
HER HONOUR:
Introduction
This is an appeal against sentence by the Commonwealth Director of Public Prosecutions (‘Director’) from a sentence imposed by the President of the Children’s Court. On 3 August 2024, XY[1] was charged that between 31 July and 3 August 2024, he attempted to possess a commercial quantity of a border controlled drug, namely methamphetamine, contrary to s 307.5(1) of the Criminal Code 1995 (Cth).[2] XY was 17 years old.
[1]I have adopted the pseudonyms used by the Children’s Court.
[2]The dates were later amended to between ‘1 August 2024 and 3 August 2024’.
On 20 June 2025, XY was sentenced to an 18-month youth supervision order, without conviction, pursuant to s 360(1)(g) of the Children, Youth and Families Act 2005 (Vic) (‘CYFA’).
On 17 July 2025, the Director appealed the sentence pursuant to s 427 of the CYFA. While any appeal is conducted as a de novo rehearing,[3] the Notice of Appeal (‘Notice’) must nonetheless state the general grounds of appeal.[4] The grounds of appeal as stated are:
Ground 1: The sentencing judge erred by failing to apply general deterrence as embodied in s 16A(2)(ja) of the Crimes Act 1914 (Cth) in sentencing the respondent.
Ground 2: The sentence was manifestly inadequate because no conviction was entered.
(The Crown will not seek to persuade the Court to impose a custodial sentence.)
[3]Children, Youth and Families Act 2005 (Vic) s 426(1) (‘CYFA’).
[4]Ibid s 428(3)(a).
The Notice further stated that pursuant to s 430VA of the CYFA, before determination of the grounds, the Director will apply to the Trial Division of the Supreme Court to reserve to the Court of Appeal the following question of law that arises by Ground 1:
Does s 16A(2)(ja) of the Crimes Act 1914 (Cth) apply to the sentencing of a young person for a federal offence under the Children, Youth and Families Act 2005 (Vic)?
By way of written submissions filed prior to the hearing, the Director submitted the appeal in fact gives rise to two questions, and the following two questions should be reserved for determination by the Court of Appeal prior to determining the appropriate sentence on appeal:
(i) Does s 16A(2)(ja) of the Crimes Act 1914 (Cth) apply such that general deterrence is a relevant consideration?
and
(ii) Does s 19B(1)(b) of the Crimes Act 1914 (Cth) prescribe the relevant matters the court must have regard to in determining whether or not to impose a conviction?
The question for me, pursuant to s 430VA(1) of the CYFA, is whether it is in the interests of justice to reserve one or both questions for determination by the Court of Appeal. It was common ground that the questions raise common issues, and either both questions should be referred, or neither. I proceed on that basis.
The offending
In April 2024, unknown parties arranged the importation into Australia of methamphetamine, with the drugs arriving into the Port of Melbourne on 3 June 2024. They were concealed inside a large piece of steel machinery. On 13 June, the Australian Federal Police (’AFP’) deconstructed the shipment and found 306 one‑kilogram packages of methamphetamine. Later analysis found the methamphetamine had a pure weight of at least 190.79 kilograms. The drugs were substituted and an AFP controlled operation commenced. The shipment was delivered to a storage shed in West Footscray, and after storage fees were settled, the shipment was collected on 26 July by a transport truck and taken to premises in Malcolm Place, Campbellfield, where it was off‑loaded by a crane and placed inside a warehouse (‘the premises’).
On 31 July, a co‑offender, MKE, together with two other co‑offenders attended the premises. MKE, aged 18, was XY’s friend and flatmate at the time. The other two co‑offenders were aged 19 and 20.
On 1 August, XY was seen with MKE at a tool shop in Clayton. The pair then went to the premises, and the other two co‑accused also attended. XY remained mostly outside in the car as a ‘lookout’. On 2 August, after attending Kennard’s Hire, XY and MKE returned to the premises. XY, MKE and the other two co‑offenders were seen to enter and exit the premises throughout the afternoon. On 3 August, the group was again seen by police at the premises, gathering around the shipment. Sparks were seen to be coming from the shipment, and XY was seen to be wearing protective face equipment. Shortly after noon, police entered the premises and arrested XY, MKE and the two co‑offenders. Police saw a mobile phone positioned such that the camera was facing the shipment. The shipment was never accessed.
XY was interviewed by police and made full and frank admissions. He said he became involved through MKE, who told him his role would be to sit in the car and be a lookout. That changed when he was asked to go inside and start cutting into the steel. MKE was sick and did not want to do it, and XY said he did not want to do it either, but he was told by MKE that ‘they’ had his (MKE’s) identification. XY knew he was dealing with ‘the Mexicans’. He was to be paid $1,000. He was suspicious about what the shipment contained, and thought it could be cash or drugs of some sort. He agreed with the proposition that, in the circumstances, it could not be anything else but drugs. XY reacted with shock and distress when he was shown photographs of the type and quantity of drugs involved.
XY was charged and remanded into custody. He has no criminal history and found the experience confronting. Youth Justice assessed XY as vulnerable in a custodial environment and were supportive of his release on bail. On 9 August 2024, XY was placed on Youth Justice Supervised Bail.
Reserving a question of law – legislation and legal principles
Section 430VA of the CYFA states:
(1) If on the hearing of an appeal to the County Court or the Trial Division of the Supreme Court from the Children’s Court a question of law arises, the County Court or the Trial Division of the Supreme Court (as the case may be) may reserve the question for determination by the Court of Appeal if the County Court or the Trial Division of the Supreme Court is satisfied that it is in the interests of justice to do so, having regard to—
(a) the extent of any disruption or delay to the hearing that may arise if the question of law is reserved; and
(b) whether the determination of the question of law may—
(i) render the hearing unnecessary; or
(ii) substantially reduce the time required for the hearing; or
(iii) resolve a novel question of law that is necessary for the proper conduct of the hearing.
(2) Subsection (1) does not apply if the Children’s Court was constituted by the Chief Magistrate who is a dual commission holder.[5]
[5]This sub-section has no relevance here. The President of the Children’s Court is a dual commission holder and a County Court Judge, meaning an appeal is to be heard by the Trial Division of this Court — see s 424 of the CYFA.
The section mirrors s 302 of the Criminal Procedure Act 2009 (Vic) which was recently considered by the Court of Appeal in Chief Commissioner of Police v Crupi.[6] The following principles may be extracted from that decision:
[6]Chief Commissioner of Police v Crupi (2023) 72 VR 280; [2023] VSCA 245 (Emerton P, Niall and Taylor JJA) (‘Crupi’).
(a) The purpose of answering the reserved question is not the correction of error, as at that point in time there will have been no determination by the primary court.[7]
(b) Reserving a question of law does not provide the occasion for the determination of hypothetical questions that are not tied to facts either found or assumed.[8]
(c) It is the existence of relevant facts that grounds the controversy and ensures that the reservation of questions does not trespass into the realm of seeking advisory opinions.[9] The reserved questions cannot be too abstract or divorced from the facts.[10]
[7]Ibid 292 [35], citing Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Bathurst CJ and Bell P).
[8]Ibid 296 [55], citing Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 (Gleeson CJ, Gaudron J, McHugh J, Gummow J, Kirby J, Hayne J, Callinan J).
[9]Ibid 296 [55].
[10]Ibid 296, 297 [56].
In some cases, there may be a real issue as to whether the reserved question is one of law or one of fact. That issue does not arise here.
The jurisdiction of the Children’s Court
The Children’s Court has exclusive jurisdiction to hear and determine summarily all indictable charges brought against children in Victoria (subject to exceptions that are not relevant here).[11] The Children’s Court must hear and determine the charge summarily unless, at any stage, the Court considers that the charge is unsuitable to be determined summarily by reason of ‘exceptional circumstances’.[12] If a State offence proceeds in the Children’s Court, any application of the Sentencing Act 1991 (Vic) is excluded by the terms of that Act.[13]
[11]CYFA s 516(1)(b).
[12]CYFA s 356(3)(b).
[13]Sentencing Act 1991 (Vic) s 4.
Sentencing of children in the Children’s Court is conducted pursuant to Part 5.3 of the CYFA. Section 360 lists the available sentences and s 362 identifies matters which must, as far as practicable, be taken into account. Those matters are not exhaustive; for example, the nature and seriousness of the offending is not referred to, but such matters would form part of the sentencing exercise.
Sections 68(1) and (2) of the Judiciary Act 1903 (Cth) (‘Judiciary Act’) state:
(1)The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a)their summary conviction; and
(b)their examination and commitment for trial on indictment; and
(c)their trial and conviction on indictment; and
(d)the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.
(2)The several Courts of a State or Territory exercising jurisdiction with respect to:
(a)the summary conviction; or
(b)the examination and commitment for trial on indictment; or
(c)the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
Section 20C of the Crimes Act 1914 (Cth) (‘Crimes Act (Cth)’) states:
A child or young person who, in a State or Territory, is charged with or convicted of an offence against a law of the Commonwealth may be tried, punished or otherwise dealt with as if the offence were an offence against a law of the State or Territory.
Section 68(2) of the Judiciary Act confers federal jurisdiction on State courts. It is concerned with the ambit of the jurisdiction rather than the content of the powers to be exercised under it.[14] Section 68(2) confers federal jurisdiction on the Children’s Court to hear and determine federal offences. In Newman v A (a Child),[15] a decision of the Supreme Court of Western Australia, Murray J held that s 39(2) of the Judiciary Act invested State courts of summary jurisdiction with federal jurisdiction.[16] His Honour relied on s 39(2)(d), which has since been repealed.[17] However, his Honour also observed that the provisions of ss 39(2) and 68 are in consistent terms.[18] His Honour then referred to s 20C of the Crimes Act (Cth) and said it was not a provision which itself confers federal jurisdiction on a State court.[19] His Honour stated:
The provision, in its terms, is concerned to make it clear that the law to be applied by a State court, upon which jurisdiction has been conferred to deal with charges of federal offences against children, is State law.[20]
[14]Solomons v District Court (NSW) (2002) 211 CLR 119; [2002] HCA 47, 134 [19] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ) (‘Solomons’).
[15](1992) 9 WAR 14 (‘Newman’).
[16]Ibid 17.
[17]Section 39(2)(d) existed until 6 December 2006. It was repealed by the Judiciary Legislation Amendment Act 2006 (Cth).
[18]Newman 18.
[19]At the time, s 20C was s 20C(1) but was identical.
[20]Newman 18.
It follows that s 20C of the Crimes Act (Cth) alone is insufficient to confer federal jurisdiction on the Children’s Court. Jurisdiction is conferred by the Judiciary Act, and s 20C makes clear that State law is to be applied. It was not suggested by the Crown that only the sentencing options found in the CYFA, but not the sentencing principles, were picked up by s 20C. The Crown accepted that s 20C picks up and applies as surrogate federal law Part 5.3 of the CYFA, subject to any inconsistency with Commonwealth laws.
Here, the federal offence with which XY was charged carries a maximum penalty of life imprisonment. It is not a charge that could be determined summarily if the offender were an adult.[21] The only reason the charge was able to be determined summarily was because it was heard in the Children’s Court.
[21]Crimes Act 1914 (Cth) s 4J(1).
The Crown accept that none of the sentencing dispositions found in the Crimes Act (Cth) would be available to the Children’s Court when sentencing for a federal offence. The only available dispositions are those found in s 360 of the CYFA. However, they do not accept that the principles found in Part 1B of the Crimes Act (Cth) have no application.
The decision of LS v CDPP
It is convenient at this point to say something about the decision of LS v CDPP (‘LS’),[22] a decision of this Court in which Beale J considered whether general deterrence is relevant when sentencing a child in the Children’s Court for federal offences. Prior to LS, in a 2011 decision of CNK v The Queen,[23] the Court of Appeal had determined that s 362(1) of the CYFA excluded considerations of general deterrence when sentencing a child under the CYFA. The Court was dealing with State offences only.
[22][2020] VSC 484.
[23]CNK v The Queen (2011) 32 VR 641; [2011] VSCA 228.
In LS, the Crown submitted that CNK v The Queen is limited in application to State offences. The Crown argued that general deterrence is one of the sentencing considerations found in s 16A(2) of the Crimes Act (Cth), which regulates the sentencing of persons charged with federal offences, and therefore general deterrence applies when sentencing a child for a federal offence. Effectively, the Crown argued that to the extent that s 16A of the Crimes Act (Cth) is inconsistent with the principles found in s 362(1) of the CYFA, s 16A must be preferred.
The Crown submitted there was nothing in s 20C of the Crimes Act (Cth) which compels a court sentencing a child under the CYFA to disregard general deterrence. It should be noted that the Crown argument in LS made no reference to any part of the Judiciary Act.
In the course of his reasons, his Honour stated:
[O]n a natural reading of s 20C, if general deterrence is taken into account when sentencing a child for a federal offence under the CYF Act, it is difficult to see how it can be accurately claimed that the child was ‘punished or otherwise dealt with as if the offence were an offence against the law of [Victoria]’.[24]
[24]LS 14 [64].
His Honour ruled against the Crown and held that he was not required to take general deterrence into account when sentencing a child under the CYFA.
The Children’s Court hearing
In this matter, at the hearing below, the Crown sought to ‘uplift’ the matter to the County Court pursuant to s 356(3)(b) of the CYFA. On 12 May 2025, the Children’s Court refused the application. XY subsequently entered a plea of guilty to the (amended) charge on 23 May 2025. XY had previously indicated his intention to plead guilty at a mention in December 2024.
At the plea hearing, the Crown submitted that general deterrence was a relevant sentencing consideration. They submitted that the decision of LS was wrongly decided, as that decision did not consider whether, by virtue of s 79(1) of the Judiciary Act, the operation of s 362(1) of the CYFA, precluding general deterrence, was not picked up because s 16A(2)(ja) of the Crimes Act (Cth) ‘otherwise provided’. However, the Crown accepted that LS was binding on the Children’s Court. His Honour Judge Vandersteen considered the argument and held that LS was not only binding on the Children’s Court, but plainly correct. The Crown also submitted that XY should receive a period of detention and a conviction. Both submissions were unsuccessful. As stated above, XY received a without conviction 18‑month youth supervision order.
Submissions of the parties on s 430VA of the CYFA
The Prosecution submitted that this Court can be satisfied the reservation of the questions is in the interests of justice because:
(a) there will be minimal disruption to the hearing of the appeal as the reservation has been sought at the outset;
(b) it will substantially reduce the amount of time required for the hearing, because it is the substance of the appeal; and
(c) it will resolve novel questions of law that are necessary for the proper conduct of the hearing.
Further, the Crown submitted that this Court will be asked to consider the correctness of LS, which they submit was wrongly decided, and it is appropriate that arguments on that issue be heard by the Court of Appeal.
When asked at the hearing why this Court should not determine both questions, Mr Robinson KC argued that they will be submitting that LS is wrong, and were this Court to find the contrary, there would be two conflicting decisions bearing on the operation of federal sentencing law. The question of whether or not general deterrence has application would be uncertain. The Crown accepted that I was not bound by the decision of LS, and here, unlike LS, the Crown argument relies substantially on s 79(1) of the Judiciary Act. Nonetheless, the Crown maintained the questions should be reserved, to avoid there been two competing single judge decisions on an important matter that impacts federal sentencing in the Children’s Court.
When asked whether, even if I were to answer ‘yes’ to both questions, if on my view of the materials the respondent would nonetheless receive a without conviction youth supervision order, then the answers would lack utility and it would not be appropriate to reserve the questions for the Court of Appeal.[25] Mr Robinson submitted that in such a scenario, the questions should nonetheless be reserved, as there would still be two conflicting single judge decisions on what is a very significant question impacting federal sentencing of children in Victoria. Mr Robinson did not agree that in such a scenario, reserving the questions would be akin to asking the Court of Appeal for an advisory opinion, as the questions still arise from the facts of the case.
[25]See Orr v Cobar Management Pty Ltd (2020) 383 ALR 352; [2020] NSWCCA 220, where a five‑member bench of the NSW Court of Criminal Appeal (Bathurst CJ, Bell P, Johnson, Garing and Lonergan JJ) considered when a question of law should be reserved for answer by the Court of Appeal pursuant to equivalent NSW State legislation. At [115], Bathurst CJ and Bell P observed that instances where it may be not appropriate for an appellate court to answer the question is where ‘any answer would lack utility’.
In written submissions, the respondent accepted that many of the criteria found in s 430VA appeared to be satisfied, given the way the Crown puts its case. However, in oral submissions, Mr Doyle SC submitted there were two reasons why the questions should not be reserved:
(a) There is insufficient doubt about the correctness of LS. The Crown’s argument is ‘foredoomed to fail’ and this is the ‘single greatest obstacle’ standing in the way of reservation of the questions.
(b) If I reached the view that, irrespective of whether the questions are answered ‘yes’ or ‘no’, the respondent would receive a without conviction disposition, then reserving the questions would lack utility and should not occur.
In reply, Mr Robinson accepted that were this Court to form the view that the Crown’s arguments had insufficient prospects of success, that would be a factor that weighed in favour of not reserving the questions.
Both parties agreed that in order to properly assess the weight to be afforded to that factor, I would need to hear from both parties as to the substance of their arguments concerning the two questions, which I proceeded to do.
Both parties provided detailed written submissions and relied on a significant number of authorities. The oral submissions occupied most of one day. Given this ruling concerns only whether the questions should be reserved, I will not summarise the arguments of the parties at this time in any detail. I will refer to them only briefly.
The likely answer to the questions
Relevant statutory provisions
Section 68 of the Judiciary Act and s 20C of the Crimes Act (Cth) are set out above. The latter in particular is relevant when considering the answer to the questions that the Crown seek to have reserved.
Section 79(1) of the Judiciary Act states:
The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
Part 1B of the Crimes Act (Cth) deals with the sentencing, imprisonment and release of federal offenders. Section 16A is found in ‘Division 2 – General sentencing principles’. Section 16A(2) sets out a non‑exhaustive list of matters which a court must take into account, insofar as they are relevant. Pursuant to s 16A(2)(ja), a court must take into account the deterrent effect that any sentence or order under consideration may have on any other person; that is, general deterrence. The inclusion of general deterrence in s 16A effected no change to the law.[26] Prior to this, sentencing courts proceeded on the basis that general deterrence was a relevant sentencing factor when sentencing for federal offences.
[26]Aitchinson v The Queen [2015] VSCA 348, 12–19 [57]–[70] (Santamaria JA). Section 16A(2)(ja) became effective on 27 November 2015.
Section 19B allows a sentencing judge to discharge an offender without proceeding to conviction, commonly called a ‘19B bond’. Pursuant to s 19B(1)(b) of the Crimes Act (Cth), where a person is charged with a federal offence and:
(b)the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, age, health or mental condition of the person;
(ii)the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
(c)dismiss the charge or charges in respect of which the court is so satisfied; or
(d)discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
The section goes on to detail the conditions, which are not relevant here.
The parties’ submissions
The focus of the Crown’s submission was s 79(1) of the Judiciary Act. In summary, the Crown argued that Part 5.3 of the CYFA is picked up by s 79(1) of the Judiciary Act and operates as surrogate federal law, ‘except as otherwise provided’ by a law of the Commonwealth. Here, the relevant Commonwealth law that has ‘otherwise provided’ is Part 1B of the Crimes Act (Cth), particularly ss 16A and 19B. To the extent there is an inconsistency between the CYFA (a State law) and Part 1B of the Crimes Act (Cth) (a Commonwealth law), the latter prevails.
The Crown argued that s 19B of the Crimes Act (Cth) sets out what must be considered when a court is determining whether to impose a non‑conviction penalty for a federal offence. Section 19B creates a ‘two‑stage’ process, requiring a court to first consider the matters found in s 19B(1)(b) and then consider whether to make an order provided for by s 19B(1)(c) or (d). The Crown relied on the decision of Commissioner of Taxation v Baffsky[27] in support of this submission, a decision of the NSW Court of Criminal Appeal. The Crown argued that while the Children’s Court cannot impose a s 19B bond, the matters found in ss 19B(1)(b)(i)–(iii) set out the factors that must first be identified (the first stage), and in this way they ‘otherwise provide’ for what must be taken into account by a court when determining whether or not to impose a conviction. The second stage, which is found in the remaining words of s 19B(1)(b), concerns the determination of ‘inexpediency’ and is not relevant when sentencing under the CYFA. The Crown argued the CYFA is either silent on the question of what factors must be taken into account on the question of conviction or non‑conviction, or if it does provide guidance, ss 19B(1)(b)(i)–(iii) — a Commonwealth law — ‘otherwise provides’ and therefore any inconsistent State law is not picked up. In written submissions, the Crown described s 19B as having ‘covered the field regarding non‑conviction’ and thus it applies in all courts where a federal offence is being dealt with.
[27](2001) 164 FLR 375; [2001] NSWCCA 332.
The central argument of the respondent was that s 79(1) of the Judiciary Act has a narrow application and operates to fill a gap in the actual exercise of federal jurisdiction. Here, there is no gap and s 79(1) has no work to do. Section 20C of the Crimes Act (Cth) makes clear that if a child is dealt with for a federal offence in the Children’s Court, the law to be applied is State law, relevantly Part 5.3 of the CYFA.
The respondent argued that the definition of ‘sentence’ found in s 3 of the CYFA includes ‘the recording of a conviction’. The matters found in s 362 of the CYFA therefore apply when considering whether a conviction should be imposed. A conviction is not a separate penalty. The respondent also argued that the Crown submission does not adequately address or explain, by way of reference to authority or otherwise, how it is that the Children’s Court would not have the power to impose a s 19B bond, but would nonetheless be required to consider part of that section when determining the sentence to be imposed on a child.
Consideration
Section 68(1) of the Judiciary Act provides for State laws with respect to procedure to apply ‘so far as they are applicable’.[28] Section 68(1) does not apply a State law to the extent that, applied as a Commonwealth law, it would be inconsistent with another Commonwealth law.[29] It is settled that s 68(1) applies to sentencing laws.[30] I also note the following:
(a) Section 68(1) must displace s 79(1) to the extent of any inconsistency in the translation of State laws. Section 68(1) is the more specific of the two provisions, and giving priority to s 68(1) is harmonious with the purposes of both provisions.[31]
(b) Section 68(1) applies the text of a State law without change to its meaning. Where a particular provision of State law is an integral part of a State legislative scheme, s 68(1) cannot operate to pick up some but not all of it, if to do so would give the text a substantively different legal operation.[32]
[28]Solomons [19] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ).
[29]Attorney-General (Cth) v Huynh (2023) 280 CLR 341; [2023] HCA 13, 363 [58] (Kiefel CJ, Gageler and Gleeson JJ) (‘Huynh’), citing Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8, 179 [7] (Gleeson CJ), 189 [41] (Gummow and Heydon JJ), 215 [121] (Callinan J) (‘Putland’).
[30]Williams v The King (No 2) (1934) 50 CLR 551, [1934] HCA 19, 560; Putland 178-179 [4] (Gleeson CJ); Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, 527 [21] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[31]Huynh 365, 366 [64] (Kiefel CJ, Gageler and Gleeson JJ).
[32]Huynh 366 [65]–[66] (Kiefel CJ, Gageler and Gleeson JJ); Putland 188 [37] (Gummow and Heydon JJ).
Section 79 of the Judiciary Act has narrow application. The leading authority is Rizeq vWestern Australia (‘Rizeq’),[33] a decision of the High Court concerning whether s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), which creates a State criminal offence, was ‘picked up’ by s 79 of the Judiciary Act in circumstances where the appellant, a resident of NSW, was tried interstate. In Rizeq, the appellant was convicted in the District Court of Western Australia by a majority verdict. It was not in issue that the District Court was exercising federal jurisdiction under s 75(iv) of the Constitution. The High Court unanimously held that s 79 of the Judiciary Act did not pick up and apply the text of s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) as a law of the Commonwealth, and thus the jury verdict was not required to be unanimous. However, s 114(2) of the Criminal Procedure Act 2004 (WA), a State law providing for majority verdicts, was incapable of applying of its own force. That left a gap in the laws regulating the trial, which was filled by s 79(1) of the Judiciary Act picking up the text of s 114(2) and applying it as a law of the Commonwealth.
[33](2017) 262 CLR 1; [2017] HCA 23 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Rizeq’).
The High Court held that s 79 does not operate to ‘pick up’ and apply as ‘surrogate federal law’ any and all kinds of State law. Section 79 has a more modest role. As Kiefel CJ concluded:
Section 79 of the Judiciary Act is directed to courts. Its purpose is to fill the gaps created by a lack of Commonwealth law governing when and how a court exercising federal jurisdiction is to hear and determine a matter and the inability of a State law to apply directly to that court whilst exercising federal jurisdiction. In such a case it is necessary that s 79 adopt the State provision and apply it. Section 114(2) of the Criminal Procedure Act is a provision of this kind. Section 6(1)(a) of the [Misuse of Drugs Act] is not. Its application was unaffected by the fact that the offence it created was tried in federal jurisdiction. It was not necessary for s 79 of the Judiciary Act to adopt it. Section 6(1)(a) of the [Misuse of Drugs Act] applied directly. It follows that s 80 of the Constitution was not engaged.[34]
[34]Rizeq 18 [32].
The plurality held:
[Section 79] fills a gap in the law governing the actual exercise of federal jurisdiction which exists by reason of the absence of State legislative power. The section fills that gap by picking up the text of a State law governing the exercise of State jurisdiction and applying that text as a Commonwealth law to govern the manner of exercise of federal jurisdiction. The section has no broader operation.[35]
[35]Ibid 26 [63].
In the course of their reasons, the plurality noted that a matter in federal jurisdiction may be resolved entirely through the application of State law.[36] They also referred with approval to an earlier statement by Kitto J in Pedersen v Young[37] that s 79 ‘does not purport to do more than pick up State laws with their meaning unchanged’.[38]
[36]Ibid 24 [55].
[37](1964) 110 CLR 162; [1964] HCA 28.
[38]Rizeq 32 [81], citing Pedersen v Young (1964) 110 CLR 162; [1964] HCA 28, 165.
The expression ‘except as otherwise provided’ has been equated with the concept of inconsistency in s 109 of the Constitution.[39] Importantly, s 79 is concerned with filling the gap which exists ‘absent other applicable Commonwealth law by reason of the absence of State legislative power to govern what a court does in the exercise of federal jurisdiction’.[40]
[39]Masson v Parsons (2019) 368 ALR 583; [2019] HCA 21, 580 [43] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
[40]Rizeq 36 [90] (Bell, Gageler, Keane, Nettle and Gordon JJ).
Here, the relevant State law to be applied is provided for by s 20C of the Crimes Act (Cth). Section 20C is a particular and specific piece of federal legislation that provides for the application of State laws to children charged with federal offences. Section 20C — a Commonwealth law — picks up the CYFA by permitting a child, charged with or convicted of a federal offence, to be ‘tried, punished or otherwise dealt with as if the offence were an offence against a law of the State or territory’. It is not necessary to have recourse to s 79 of the Judiciary Act, as there is no lack of Commonwealth law governing when and how the Children’s Court, exercising federal jurisdiction, is to hear and determine the matter. There is no gap to be filled, and s 79 has no role to play.
It may be there is a tension between ss 16A and 20C of the Crimes Act (Cth), but if so, it is not resolved by s 79(1) of the Judiciary Act. Arguably, s 16A(2) may be characterised as ‘general’ and s 20C as ‘specific’, attracting the principle of statutory construction that the general provision is subordinate to the specific provision.[41]
[41]Purcell v Electricity Commission (NSW) (1985) 59 ALJR 689; [1985] HCA 54, 693 (Deane J).
Another way of approaching the question is found in the reasoning of Gummow J in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd.[42] In that case, proceedings were brought by the appellant against the respondent in the Supreme Court of Queensland under two pieces of federal legislation, the Customs Act 1901 (Cth) and the Excise Act 1901 (Cth). Gummow J found that both pieces of federal legislation stipulated that the prosecution was to proceed in accordance with the usual practice and procedure of the Supreme Court of Queensland in civil cases.[43] In considering s 79(1) of the Judiciary Act, Gummow J stated that s 79(1) operates ‘except as otherwise provided by … the laws of the Commonwealth’.[44] His Honour considered that exception applied to exclude any application of s 79(1) in the case, as there were ‘other such laws of the Commonwealth which make specific provision for the “picking up” of certain State laws’.[45] Here, s 20C makes specific provision for the picking up of State laws. Applying the reasoning of Gummow J, any operation of s 79(1) would be excluded.
[42](2003) 216 CLR 161; [2003] HCA 49.
[43]Ibid [40].
[44]Ibid [38].
[45]Ibid [39].
Further, even if s 79(1) did apply in some way to pick up the CYFA, it cannot operate to pick up some but not all of a State legislative scheme.[46] Section 79 does not operate to give a State law a new or extended meaning when it is made applicable in the federal jurisdiction.[47] In Solomons v District Court (NSW), Kirby J stated:
Nothing in [the Judiciary Act] purports to authorise a court to perform significant surgery on the State law concerned. Were that required or permitted, it might take the judiciary, exercising federal jurisdiction, into an impermissible legislative function. It might produce a hybrid to which the Judiciary Act would not attach. It could create impermissible uncertainty about the applicable law. The Judiciary Act cannot be used to pick up bits and pieces of a State law in such a way as to alter its meaning.[48]
[46]Solomons 135 [24] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ), citing Commonwealth v Mewett (1997) 191 CLR 471; [1997] HCA 29, 556 (Gummow and Kirby JJ).
[47]Solomons 146 [60] (McHugh J), citing Australian Securities & Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, 611 [134] (McHugh J).
[48]Solomons 151–152 [81] (citations omitted).
The Children’s Court is a specialist court dealing with matters related to children. Insofar as the criminal division is concerned, it establishes a unique sentencing scheme. This regime comprises all the matters found in Division 1 of Part 5.3 of the CYFA. The sentencing options cannot and should not be divorced from the sentencing principles that the court must consider when determining the appropriate sentence. In selecting the appropriate penalty, the court must have regard to the matters found in s 362 and is bound by the principle of parsimony expressed in s 361. In my view, to take some of the principles found in s 16A(2) of the Crimes Act (Cth) and apply them when sentencing pursuant to the CYFA, in the way contended for by the prosecution, would produce a hybrid sentencing scheme to which the Judiciary Act would not attach.
The words of s 20C must be given their plain meaning. The plain meaning of s 20C is that a federal offence may be dealt with as if it were a State offence. The words ‘as if’ mean no more than ‘as would be the case’. If a child is sentenced in the Children’s Court for a federal offence ‘as if it were a State offence’, the only applicable sentencing legislation is the CYFA. If any person, adult or child, is being punished in Victoria for a State criminal offence, there is no room for a sentencing court to apply any part of the Crimes Act (Cth). To do otherwise would be to fall into error.
In my view, s 79 of the Judiciary Act does not operate in the way contended for by the Crown, and the Crown’s argument is incompatible with the plain meaning of s 20C of the Crimes Act (Cth). There is very considerable merit in the respondent’s submission that the appellant’s arguments as to the applicability of ss 16A(2)(ja) (general deterrence) and 19B(1)(b) of the Crimes Act (Cth) (non‑conviction penalties) to the sentencing of children for federal offences in the Children’s Court have little prospect of success. It follows that there is also very considerable merit in the respondent’s argument that questions 1 and 2 are very unlikely to be answered ‘yes’.
In my view, there are additional difficulties with the Crown’s submissions concerning s 19B, but it is not necessary to address them in any detail at this stage. Spigelman CJ’s characterisation of s 19B creating a ‘two‑stage process’ did not mean the identification of a factor (or factors) found in ss 19B(1)(b)(i)–(iii) is divorced from the question of inexpediency. As his Honour stated, by ‘reason of s 16A(2), a matter which is not relevant under one of the subparagraphs of s 19B(1)(b), may be relevant to the issue of inexpediency’.[49] Section 19B(1)(b) goes on to state that if a court concludes that it is inexpedient to inflict punishment, or inexpedient to inflict more than nominal punishment, or expedient to release the offender on probation, then the court may dismiss the charge(s) or release the offender on a non‑conviction bond. In reaching that conclusion, the court may have regard to more than the factors found in the subparagraphs of s 19B(1)(b).
[49]Commissioner of Taxation v Baffsky (2001) 164 FLR 375; [2001] NSWCCA 332, 384 [33] (Spigelman CJ).
The two stages identified by Spigelman CJ are both found within s 19B(1)(b). His Honour concluded:
Section 19B provides for an order. That s 16A encompasses such an order is confirmed by the express reference to s 19B(1) in s 16A(3 ). The scope of considerations relevant to the exercise of the power in s 19B(1) encompasses each of the matters identified in s 16A(2). These matters arise at what I have described as the second stage.[50]
[50]Ibid 381 [15].
In my view, his Honour’s analysis does not support the Crown’s submission that identification of one or more of the factors found in ss 19B(1)(b)(i)–(iii) (the ‘first stage’) can be separated from the balance of s 19B(1)(b), and then applied when deciding whether to impose a non‑conviction or conviction penalty on a child under the CYFA.
Given the view I have reached concerning s 79 of the Judiciary Act, I have concluded, overall, that the Crown’s argument concerning both questions is very unlikely to succeed. This is a factor that weighs against reserving the questions for the Court of Appeal. I say this mindful, of course, that the Court of Appeal sits above the Trial Division. However, I do not regard the arguments as finely balanced; they appear destined to lead to both questions being answered ‘no’.
Section 430VA of the CYFA
I turn now to the matters set out in s 430VA of the CYFA. Dealing with paragraph (a), the delay to the hearing if the questions of law are reserved is somewhat unknown, but I note that the respondent is not in custody, there is no urgency attaching to the matter, and the respondent’s sentence does not expire until late 2026. Given the workload of the Court of Appeal, it may be that the reserved questions would not be answered this year.
Turning to the matters found in ss 430VA(b)(i) and (ii), the determination of the questions will not render the hearing unnecessary. However, given the questions have already largely, if not completely, been litigated before me, the overall time required for the balance of the hearing has already been substantially reduced. It would take no more than half a day.
Dealing with s 430VA(b)(iii) and whether the questions of law are ‘novel’ and necessary for the proper conduct of the hearing, I accept that there is no appellate authority dealing with the questions. The decision of LS did not address the application, if any, of s 79(1) of the Judiciary Act. It also did not address the ‘s 19B argument’. In those circumstances, the questions may be described as ‘novel’.
In this matter, I have had the benefit of reading the Crown’s material, including a detailed 113‑page Statement of Facts; Prosecution Submissions on Uplift filed in the Children’s Court; Prosecution Submissions on Plea filed in the Children’s Court; and Prosecution Submissions on Plea filed in this Court. On behalf of the respondent, I have read an Outline of Submissions Opposing Uplift and for Plea, together with an addendum to that Outline, both filed in the Children’s Court; a Defence Outline of Plea Submissions filed in the Children’s Court; 45 pages of Youth Justice Bail Service Reports; a Youth Justice Pre‑Sentence report; a letter dated 6 October 2025, authored by the respondent’s Advanced Case Manager, addressing the respondent’s progress on his order to date; a psychological assessment report; a letter from Ozchild, who engaged with the respondent and his mother as part of the Multisystemic Therapy program; and a letter from Youth Support and Advocacy Service (‘YSAS’) confirming the respondent’s engagement with, and discharge from, drug and alcohol counselling. Finally, I have read the detailed sentencing reasons of his Honour Judge Vandersteen dated 8 July 2025.[51]
[51]CDPP v XY (a pseudonym) [2025] VChC 1.
In my view, even if both questions were, contrary to my analysis, answered ‘yes’, it would make no difference to the outcome. I would still impose a without conviction youth supervision order in light of the following:
·XY is a young offender with excellent prospects of rehabilitation. He was aged 17 at the time of the offending and turned 18 in February this year.
·He has no prior convictions and no outstanding matters.
·The offence is an extremely serious one, but XY played a limited role for a short period of time.
·The offending occurred when XY was at a low and vulnerable point in his life. He had recently experience the deaths of three key family members and a friend. He was living out of home and not welcome back. He was using cannabis regularly, which is not something he had done previously.
·The psychological and other material gives rise to consideration of both Bugmy[52] and Verdins[53] principles, appropriately moderated.
·XY’s motivation to engage in the offending was partly financial, but he was also acting out of loyalty and trying to assist MKE, who had become involved in this offending.
·XY made full and frank admissions to police, and pleaded guilty at the first reasonable opportunity.
·XY’s compliance with bail over a lengthy period was impeccable. His progress to date on his youth supervision order is excellent. He has attended all appointments punctually and in‑person. He maintains positive engagement with his case manager.
·XY attended YSAS to receive support for alcohol and other drug issues in late 2024. He attended all appointments and engaged positively. XY self‑reported abstinence and appeared substance free at each session. At the time, XY was working full‑time as an apprentice mechanic and part‑time on weekends in a fish and chip shop. YSAS concluded that ‘such was [XY’s] positive progress’ they would look to close XY’s file, which duly occurred.
·XY has an excellent work ethic. He remains employed full‑time as an apprentice mechanic. He no longer works at the fish and chip shop on weekends, and instead does extra shifts as a mechanic. He also remains engaged in the TAFE requirements of his apprenticeship. He is motivated to learn new skills and complete his apprenticeship, which he enjoys.
·He has remained living at home, despite having a somewhat difficult relationship with his mother and siblings. He has respect for his mother, despite the difficulties.
·He is currently supported by Youth Justice to obtain his own property and transition to independent living.
[52]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (French CJ, Hayne J, Crennan J, Kiefel J, Bell J, Gageler J, Keane J) (‘Bugmy’).
[53]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (Maxwell P, Buchanan JA, Vincent JA) (‘Verdins’).
Even if general deterrence had application, it would carry less weight than when sentencing an adult. The principles governing the sentencing of children generally would continue to apply, and given XY’s young age, the importance of rehabilitation would continue to be at the forefront of the sentencing exercise despite the seriousness of the crime. Additionally, general deterrence must give way to proportionality; a court cannot impose a disproportionately harsh sentence to deter unknown future offenders.[54]
[54]Bifel v The Queen [2013] VSCA 82, [4] (Harper JA).
Similarly, even if the part of s 19B addressing when to impose a conviction did have application, the sentencing court may still have regard to the character, antecedents, age, health or mental condition of the person. Again, the principles governing the sentencing of children generally would continue to apply, including the need to minimise the stigma to the child resulting from a court determination.[55]
[55]CYFA s 362(1)(f).
The application of sentencing principles is not a ‘counting exercise’, where the application of one principle may favour a sterner sentence, only to be counteracted by the application of a different principle, which favours a more lenient sentence.[56] No single matter is fundamental to the fixing of a sentence. Each matter may inform the instinctive synthesis but none is determinative of the ultimate result.
[56]Director of Public Prosecutions (Vic) v Herrmann (2021) 290 A Crim R 110; [2021] VSCA 160, 128 [84] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). The comment was made in the context of dealing with notions of ‘double counting’ and ‘overlap’ when considering the application of both the Verdins and Bugmy principles.
In the circumstances here, reserving the questions would lack utility. They may be novel, but they are not necessary for the proper conduct of the hearing, as even answers favourable to the Crown would not result in the outcome they seek.
Conclusion
It is not in the interests of justice to reserve the questions of law for determination by the Court of Appeal. The application is refused.
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