CNK v The Queen
[2011] VSCA 228
•10 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0070
CNK Applicant v THE QUEEN Respondent ---
JUDGES MAXWELL P, HARPER JA and LASRY AJA WHERE HELD MELBOURNE DATE OF HEARING 7 June 2011 DATE OF ORDERS 24 June 2011 DATE OF JUDGMENT 10 August 2011 MEDIUM NEUTRAL CITATION [2011] VSCA 228 JUDGMENT APPEALED FROM DPP (Vic) v Hills [2011] VSC 87 (Kaye J) ---
CRIMINAL LAW – Appeal – Sentence – Child offender tried in Supreme Court for attempted murder – Acquitted of attempted murder, convicted of aggravated burglary, kidnapping, recklessly causing serious injury and reckless conduct endangering serious injury – Sentenced in Supreme Court with adult co-offenders – Applicability of Children, Youth and Families Act 2005 (Vic) – General deterrence – Whether excluded by statutory regime for sentencing children – Whether Supreme Court bound by Children’s Court sentencing limits – Delay – Rehabilitation – Appeal allowed – Resentenced to youth supervision order – Children, Youth and Families Act 2005 (Vic) ss 3, 356(3), 362(1), 413(2), 516(1), 586; Sentencing Act 1991 (Vic) s 32(3).
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APPEARANCES: Counsel Solicitors
For the Applicant Mr L Carter with Robert Stary & Associates Mr S Bayles For the Crown Mr R A Elston QC with Mr C Hyland, Solicitor for Public Prosecutions Mr M Roper MAXWELL P
HARPER JA
LASRY AJA:Summary
1 This application for leave to appeal raises important questions about the sentencing of children under the Children, Youth and Families Act 2005 (Vic) (‘CYF Act’). The applicant had just turned 15 at the time of the offending for which he was sentenced and hence was a ‘child’ within the meaning of the CYF Act.[1]
[1]Under the definition in s 3 of the CYF Act, a child is a person who was between the ages of 10 and 18 at the time of the commission of the (alleged) offence.
2 The applicant was sentenced in the Supreme Court, however, rather than in the Children’s Court, because he (together with several others, to whom reference will be made) had been tried on a count of attempted murder. He was acquitted of that charge but convicted of aggravated burglary, kidnapping, recklessly causing serious injury and reckless conduct endangering serious injury. He received a total effective sentence of 3 years’ detention in a youth justice centre. (The sentences imposed on all six co-offenders are set out in the table as Attachment 1.)
3 On the plea, counsel for the applicant submitted – and the judge accepted – that the sentencing should be done in accordance with the provisions of the CYF Act. Counsel submitted that general deterrence was not a factor to be taken into account in sentencing children, alternatively that CNK was not an appropriate vehicle for general deterrence. In a detailed ruling, his Honour rejected the contention that general deterrence was irrelevant to the sentencing exercise.
4 After considering the arguments advanced on the appeal, we concluded that on the proper construction of the CYF Act general deterrence was excluded from consideration in the sentencing of children. The appeal therefore had to be allowed and the applicant resentenced. On 24 June 2011, we made the following orders:
The sentences of detention in a youth justice centre imposed below are quashed. In lieu thereof, the appellant is convicted on each count and sentenced as follows:
Count 1 – 194 days’ detention in a youth justice centre.
Count 2 - 194 days’ detention in a youth justice centre.
Count 3 - 194 days’ detention in a youth justice centre.
Count 4 – released on a youth supervision order for a term of 18 months, commencing on the date of these orders.
(The Court notes that, as a consequence of s 33 of the Sentencing Act 1991 (Vic), the terms of detention imposed on Counts 1, 2 and 3 are to be served concurrently.)
5 These are our reasons for making those orders.
A. GENERAL DETERRENCE AND THE SENTENCING OF CHILDREN
The text of the provision
6 The relevant provision is s 362(1) of the CYF Act, which provides as follows:
(1)In determining which sentence to impose on a child, the Court must, as far as practicable, have regard to—
(a)the need to strengthen and preserve the relationship between the child and the child's family; and
(b) the desirability of allowing the child to live at home; and
(c)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; and
(d)the need to minimise the stigma to the child resulting from a court determination; and
(e) the suitability of the sentence to the child; and
(f)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; and
(g)if appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.
7 In our view, the language of s 362(1), and the nature of the matters to which regard must be had, are such as to preclude any consideration of general deterrence. Our reasons are as follows.
8 We start with the opening words of the subsection. Not only is the language imperative (‘the Court must’) but the words ‘as far as practicable’ operate, in context, as words of emphasis. Since the word ‘practicable’ means ‘feasible’ or ‘able to be done or accomplished,’ the phrase ‘as far as practicable’ means as far as it is possible to go.[2] Hence the sentencing court must have regard to each of the specified matters to the maximum extent possible. And the statutory obligation to ‘have regard to’ a specific matter requires the Court to give the matter weight ‘as a fundamental element in the decision-making process.’[3] Moreover, as explained below, the specified matters are not matters of fact but statements of policy. They identify the policy objectives which must – to the maximum extent possible – govern the sentencing of young offenders.
[2]Owen v Crown House Engineering Limited [1973] 3 All ER 618, 622–3.
[3]Commissioner of Police v Industrial Relations Commission of New South Wales (2009) 185 IR 458, 469 [73] and the authorities there cited.
9 Secondly, the matters to which regard must be had are – without exception – directed at a consideration of the effect of the proposed sentence on the child. This is true even of para (g) which, although expressly referring to the need to protect the community, directs attention to what will deter, or prevent, the particular child from engaging in ‘violent or other wrongful acts’.
10 The language of para (g) is particularly significant. Plainly enough, this paragraph is concerned with the protection of the community through specific deterrence, that is, deterrence of the particular child offender. General deterrence has traditionally been regarded as an important sentencing consideration at common law precisely because it, too, is conducive to community protection. The deliberate use of language in para (g) which deals only with specific deterrence, and which says nothing about the need to deter others from committing ‘violent or other wrongful acts’, is a clear indication of legislative intention, in our view. As will appear, the same conclusion was reached by the Full Court of the Supreme Court of South Australia, in construing almost identical legislation.[4]
[4]R v S (A Child) (1982) 31 SASR 263. See [21]–[23] below.
11 Thirdly, what s 362(1) obliges the sentencing court to do ‘as far as practicable’ is to impose a sentence which fits the young offender as much as – or perhaps even more than – it fits the crime. Thus the Court must, as far as practicable, impose a sentence which is suitable to the child (para (e)) and must, as far as practicable, impose a sentence which will achieve the following policy objectives:
·strengthen and preserve the child’s relationship with his/her family;
·allow him/her to live at home;
·allow him/her to continue with education, training or employment; and
·result in the minimum stigma to the child.
12 General deterrence as a sentencing consideration is entirely foreign to a scheme of this character. For, unlike all other sentencing considerations, general deterrence is unconnected with the particular offender. Rather, the principle of general deterrence treats the offender as a means to an end, as an instrument for effecting a broader community interest.[5] The Court must ask itself what sentence should be imposed on the offender in order to deter other persons who might be minded to engage in similar offending.
[5]Jeremy McGuire, ‘Deterrence in sentencing: Handle with care’ (2005) 79 Australian Law Journal 448, 457.
13 It is accepted that, where the principle of general deterrence applies, it may necessitate the imposition of a higher sentence than would be necessary if that principle were not applicable. (As will appear, the sentencing judge in the present case felt constrained by the need for general deterrence to reject a less stringent sentencing option put forward by the defence.[6]) By contrast, the unambiguous command of s 362(1) is that no greater sentence should be imposed on the child than the nature and circumstances of the child’s offending require. It would, in our view, be wholly inconsistent with this intention were the sentencing court to be obliged – where necessary – to impose a heavier sentence, not because of any aspect of the child’s offending or personal circumstances but because of the need to deter others from engaging in similar conduct.
[6]See [66]–[67] below.
14 Put another way, if a sentence were increased – for the purpose of general deterrence – beyond what would otherwise have been imposed on the child, the sentencing court would have breached its obligation to secure ‘as far as practicable’ the objectives set out in s 362(1). More particularly, to treat a child as a vehicle for general deterrence would amount to ‘making an example’ of the child, for the purpose of deterring others. This would, in our view, be in direct conflict with the Court’s obligation under s 362(1)(d) to ‘minimise the stigma to the child’ resulting from the Court’s determination.
15 For the reasons we have given, the language of the statute conveys a clear legislative intention to exclude general deterrence. Whilst that intention is not made explicit, it is necessarily implied by the terms in which s 362(1) prescribes the sentencing court’s task.[7]
[7]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40.
16 There is, in those circumstances, no necessity to refer to any extrinsic materials.[8] Counsel for the applicant did, however, place considerable reliance on the legislative history of s 362(1) of the CYF Act, to which we now turn. As will appear, the conclusion we have reached accords with the recommendations of the expert committee on which the predecessor of the CYF Act was based.
[8]Catlow v Accident Compensation Commission (1989) 167 CLR 543, 550; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46–47 [47]; cf R v Boucher [1995] 1 VR 110.
The extrinsic materials
17 Section 362 of the CYF Act replicates s 139 of the Children and Young Persons Act 1989 (Vic) (‘1989 Act’). The 1989 Act itself was enacted in response to the Child Welfare Practice and Legislation Review, chaired by Dr Terry Carney of Monash University (‘Committee’), which reported to the Victorian Government in 1984.
18 Chapter 6 of the Report of the Committee dealt with the sentencing of young offenders. It set out the following principles:
(a) Basic Principles of Justice
The adult standard of punishment must constitute the outer limit for juvenile dispositions. This standard is expressed in the following sentencing principles:
(i)Determinate. Every sentence should have a fixed maximum period. The setting of a clear limit is a statement by society of the measure of punishment appropriate to a particular offence. It tells offenders when their debt to society has been paid.
(ii)Specific. All offenders have a right to know the precise nature of the punishment being imposed. Vague sanctions, such as simply to be of ‘good behaviour’, fail to tell young people what is acceptable and unacceptable behaviour. Punishment which is not specific is also unfair.
(iii)Proportional. Punishment should fit the crime. Proportional punishment is the measure of a given society’s gradation of criminal behaviour. The seriousness of a crime should be reflected in the nature of the punishment imposed.
(iv)Reviewable. A system of punishment must be applied consistently and equally. Ensuring that a punishment is reviewable keeps the system healthy and prevents decision makers ordering inappropriate punishments in individual cases.
(b) Additional Principles for Sentencing Juveniles
The sentencing framework for young offenders must incorporate the universal principles of sentencing discussed above. It must also be guided by considerations which reflect the particular needs of young people. When determining dispositions the Children’s Court should consider:
(i)The need to strengthen and preserve the relationship between the child and the parents and other members of their family;
(ii)The desirability of leaving the child in their own home;
(iii)The desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
(iv)The need to minimise the stigma to the child both now and in the future;
(v)The suitability of the disposition for the child, bearing in mind the above factors plus any particular requirements or vulnerabilities of the child;
(vi)Where appropriate, the need to ensure that the child accepts responsibility for their actions; and
(vii)Where appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.[9]
[9]Child Welfare Practice and Legislation Review Committee, Equity and Social Justice for Children, Families and Communities, Report (1984) Vol 2, 441 (‘Report’).
19 This section of the Report concluded as follows:
All these principles are critical for good decision-making in the Children’s Court. The Committee has therefore written into the draft Bill the universal principles of adult justice, together with specific principles appropriate to young offenders. Clause 185 of the draft Bill is modelled on legislation in other States.[10]
The footnote to the final sentence in this extract was in these terms:
Community Welfare Act 1982 (NSW) s 123(1); Children’s Protection and Young Offenders Act 1979 (SA) s 7; Family and Community Development Bill 1984 (Qld) cl 311. General deterrence is excluded by this formulation. R v S (A Child) (1982) 31 SASR 263. Under the Committee’s proposal, however, general deterrence may be considered when the Children’s Court declines jurisdiction or (with the consent of the judge) adult imprisonment is imposed; contrast R v Amanatidis (1983) 34 SASR 129; R v Wilson (1984) 35 SASR 200.[11]
[10]Ibid 442 (emphasis added).
[11]Ibid n 2 (emphasis added).
20 It is clear from this footnote that the members of the Committee had formulated their recommendations, and prepared their draft Bill, in the knowledge and with the intention that the proposed statutory ‘formulation’ would exclude general deterrence. The authors sought to achieve this objective by adopting, almost verbatim, the relevant phraseology from the equivalent South Australian legislation (Children’s Protection and Young Offenders Act 1979 (SA)) and by explicitly relying on the interpretation of those provisions by the Full Court of the South Australian Supreme Court in R v S (A Child).[12]
[12](1982) 31 SASR 263.
21 The provision of the South Australian Act referred to in the footnote was s 7, which provided as follows:
7In any proceedings under this Act, any court, panel or other body or person, in the exercise of its or his powers in relation to the child the subject of the proceedings, shall seek to secure for the child such care, correction, control or guidance as will best lead to the proper development of his personality and to his development into a responsible and useful member of the community and, in so doing, shall consider the following factors:
(a)the need to preserve and strengthen the relationship between the child and his parents and other members of his family;
(b)the desirability of leaving the child within his own home;
(c)the desirability of allowing the education or employment of the child to continue without interruption;
(d)where appropriate, the need to ensure that the child is aware that he must bear responsibility for any action of his against the law; and
(e)where appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.
22 In R v S (A Child), the defendant had received a 3 year suspended sentence of imprisonment for unlawful shooting with intent to cause grievous bodily harm. The Attorney-General appealed against the leniency of the sentence. King CJ (with whom Zelling J agreed) drew attention to s 7(e) and said:
Where is it appropriate to have regard to the protection of the community, it must be the protection of the community ‘from the violent or other wrongful acts of the child’, not the criminal acts of others who might be deterred by the treatment accorded to the child before the court. The legislature has quite clearly eschewed the concept of general deterrence in the treatment of persons under the age of 18 years.[13]
[13]Ibid 266.
23 Matheson J dissented. In his Honour’s view, even if the legislature had intended to remove general deterrence as a sentencing factor, this objective had not been achieved:
Such a curtailment of the fundamental principles of the law relating to punishment of offenders required … a clear expression of legislative intent. In my view, there is no such expression in [the section] …[14]
[14]Ibid 269. The decision was applied by a subsequent Full Court, which nevertheless criticised the legislative exclusion of general deterrence: R v Wilson (1984) 35 SASR 200.
24 Clause 185 of the draft bill in the Committee’s Report was in these terms:
(1)In determining which penalty to impose on a child the Court shall have regard to—
(a)the need to strengthen and preserve the relationship between the child and the child’s family;
(b) the desirability of allowing the child to live at home;
(c)the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance;
(d)the need to minimise the stigma to the child (presently and in the future) resulting from a court determination;
(e)the suitability of the disposition to the child, bearing in mind all the above factors;
(f)where 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; and
(g)where appropriate, the need to protect the community, or any person, from the violent or other wrongful acts of the child.
(2)Without limiting the meaning of sub-section (1), in deciding which penalty to impose the Children’s Court and any other court dealing with proceedings against a child by consent of the child shall not have regard to any question of general deterrence.
25 Two points should be noted. First, the Parliament enacted the language of paras (a) to (g) of cl 185(1) virtually unchanged in the 1989 Act. That same language is now found in s 362(1)(a)–(g) of the CYF Act. It was that language which the authors considered – based on the interpretation by the South Australian Supreme Court – would have the effect of excluding general deterrence by necessary implication. Secondly – and somewhat inexplicably in the circumstances – the Committee included in the draft Bill a provision (cl 185(2)) which expressly excluded general deterrence. No such provision was included in the 1989 Act, however, and there is, of course, no such provision in the CYF Act.
26 The Crown’s submission on this appeal was that, by not legislating in the terms of cl 185(2) as proposed by the Committee, the Parliament must be taken to have made a deliberate decision ‘not to abrogate the operation of the sentencing principle of general deterrence’ in relation to the sentencing of children. We disagree. It is just as likely, in our view, that Parliament took the same view as the Committee, namely, that the language of cl 185(1) – enacted as s 139(1) of the 1989 Act – was itself sufficient to exclude general deterrence, and on that basis concluded that there was no need for an express provision to that effect. Certainly there is nothing in the Second Reading Speech for the Bill enacted as the 1989 Act to suggest any intention to depart from the Committee’s recommendation that general deterrence be excluded.
27 In the end, however, we need not resolve this question. As the High Court has repeatedly emphasised in recent times, Parliament’s intention is to be discerned from the words used in the statute.[15] In the present case, that intention is clear and unambiguous and could not be controverted by extrinsic materials.[16]
[15]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46–7 [47]; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 264–5 [31]–[32] (‘Saeed’); Commissioner of Taxation (Cth) v BHP Billiton Ltd [2011] HCA 17, [47] (‘BHP Billiton’).
[16]Saeed (2010) 241 CLR 252, [31]–[33], citing (amongst others) Re Bolton; ex parte Beane (1987) 162 CLR 514, 518, Catlow v Accident Compensation Commission (1989) 167 CLR 543, 550 and Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 459; see also BHP Billiton [2011] HCA 17, [47].
The judge’s ruling
28 The sentencing judge noted that appellate decisions in Victoria had consistently treated general deterrence and denunciation as relevant considerations in sentencing child offenders. In what follows we adopt his Honour’s summary of the four decisions to which he referred.
29 In R v PP,[17] the Court of Appeal had before it an appeal against a sentence of 6 years’ imprisonment for manslaughter. At the time of sentence, the applicant was 15 years of age. In determining the appeal, Callaway JA (with whom Winneke P and Buchanan JA agreed), stated that there was no ‘bright line distinction’ between child offenders and others.[18] His Honour then stated:
The difficulty was that all the relevant purposes of sentencing (in respect of the applicant) could not be achieved by three years’ detention in a youth training centre … Just punishment, tempered by reference to the applicant’s immaturity, was required and general deterrence was not irrelevant. There is a public interest in deterring violent fights and the use of lethal weapons …[19]
[17](2003) 142 A Crim R 369.
[18]Ibid 374 [8].
[19]Ibid 375–6 [13].
30 Director of Public Prosecutions (Vic) v SJK[20] concerned an appeal by the Director of Public Prosecutions against sentences for manslaughter imposed on two respondents who, at the time of sentencing, were 16 and 17 years of age respectively. In allowing the appeal, the court[21] stated:
There have … been few equally serious, but probably no more serious, examples of this offence (manslaughter) before the courts of this state for many years. It was incumbent upon the sentencing judge to reflect that level of seriousness and to express the denunciation of the community of the conduct of the respondents in the sentences handed down.
These remarks are not intended to diminish in any way the considerable significance to be accorded to youth and rehabilitation as factors to be taken into account in the determination of the appropriate sentence to be imposed on a youthful offender. They are intended, however, to emphasise that these factors constitute only some of a number of matters that must be taken into account and that, even in the case of a young offender, there are occasions on which they must give way to the achievement of other objectives of the sentencing law.
In this case, given the seriousness of the offence and the offending and the lack of any real remorse shown by the respondents in relation to their crimes and given that there is little evidence to show that they have reasonable prospects of rehabilitation in the near future, the principles of general and specific deterrence and the need for the court to express denunciation of the crime assume considerable significance for sentencing purposes so there is correspondingly less scope for leniency on the count of the respondents’ youth …[22]
[20][2002] VSCA 131.
[21]Phillips CJ, Chernov and Vincent JJA.
[22]DPP (Vic) v SJK [2002] VSCA 131, [64]–[66].
31 In R v PDJ,[23] the applicant sought leave to appeal against a sentence for murder of imprisonment for 16 years. At the time of sentence in 2001, he was 17 years of age. The offence was committed in September 1999. Thus, at the relevant time, the applicant was a ‘child’ under the applicable legislation. In dismissing the application, O’Bryan AJA (with whom Chernov JA and Eames JA agreed) noted that the crime was a very brutal and callous murder, calling for most severe punishment.[24] His Honour stated:
The youthful offender can no longer expect to trade on his or her youth in such cases for the elements of deterrence, condemnation and just punishment are significant matters.[25]
[23](2002) 7 VR 612.
[24]Ibid 629 [80].
[25]Ibid 629 [83].
32 Finally, in Director of Public Prosecutions (Vic) v TY (No 2),[26] the Court of Appeal had before it an appeal by the Director of Public Prosecutions against a sentence imposed for murder on a respondent who, at the time of offending, was 14 years of age. In imposing sentence, the sentencing judge gave careful consideration to the relevant principles in sentencing a child. His Honour concluded that the crime was of such objective gravity that it warranted both unequivocal denunciation by the court and a sentence which would be sufficient to constitute a general deterrent to others.[27] The Director of Public Prosecutions appealed from that sentence. In dismissing the Director’s appeal, the court observed that, in its view, the sentencing judge’s sentencing remarks were ‘exemplary’.[28]
[26](2009) 24 VR 705.
[27]DPP (Vic) v TY (No 3) (2007) 18 VR 241, 245 [52] (Bell J).
[28]DPP (Vic) v TY (No 2) (2009) 24 VR 705, 724 [88].
33 In the present case the judge said:[29]
The foregoing review of the authorities discloses that on at least four occasions the Court of Appeal had before it appeals, which related to offenders who were, at the relevant time, children. On each occasion, the court, either directly or (in the case of TY) by inference, regarded sentencing factors, such as general deterrence and condemnation, to be relevant to the determination of the appropriate sentence for such an offender. The relevant provisions of the Children and Young Persons Act 1989 which were then in operation were in identical form to s 362 of the Act.
[29]DPP (Vic) v Hills(Ruling No 1) [2011] VSC 88, [10].
34 With respect, we do not regard any of those authorities as standing in the way of the conclusion we have come to. First, as counsel for the applicant pointed out in this Court, in none of those cases was the sentencing court (or the Court of Appeal) proceeding on the basis that the applicable sentencing principles were to be found in the Children’s Court legislation (at that time, the 1989 Act). In contrast to the present case, the child offender in each of those cases was being sentenced for murder or manslaughter, crimes which fall outside the exclusive jurisdiction of the Children’s Court.[30]
[30]CYF Act s 516(1)(b).
35 Secondly, as counsel also pointed out, in each of those cases the sentence under consideration by the Court of Appeal was a sentence of imprisonment. That is a sentence which can only be imposed under the Sentencing Act 1991 (Vic).[31] Imprisonment was not a sentencing option available under the 1989 Act nor is it available under s 360(1) of the CYF Act. A sentence of imprisonment imposed under the Sentencing Act 1991 (Vic) may, in accordance with s 5(1) of that Act, be imposed for the express purpose of general deterrence[32] (as well as for any of the other sentencing purposes there defined).
[31]Section 7(1).
[32]Section 5(1)(b).
36 Thirdly, none of the appellate decisions referred to addressed the present question. Because the sentencing was not governed by the Children’s Court legislation, there was no occasion for any such consideration to occur. The point was raised subsequently in R v Angelopoulos[33] but the Court there found it unnecessary to decide the question. It follows that, so far as Victorian appellate authority is concerned, we are unconstrained.
[33][2005] VSCA 258, [52]–[56].
37 The judge also considered that, on a proper analysis of the sentencing provisions of the CYF Act, the factors set out in s 362(1) were not intended to be exclusive and, in particular, did not preclude considerations such as general deterrence and denunciation. His Honour said:
As a matter of orthodox statutory construction, s 362 must be construed in the light of the general law which was then applicable. Under long standing common law principles of sentencing, general deterrence and denunciation are important factors, which often are given predominant weight, particularly in the case of mature offenders. Although it has, for many decades, been recognised that in the case of a youthful or young offender, those factors are of less weight, nevertheless the authorities make it plain that they are not irrelevant to the determination of the proper sentence of such an offender. Section 362 does not, by its terms, expressly exclude those considerations as being applicable to the determination of a sentence to impose on a child. Nor is there any indication in s 362, or in the Act, that it is a necessary implication of s 362 that such factors are excluded from consideration in determining such a sentence.
In particular, it is relevant that s 362(1) does not expressly refer to, or incorporate, a number of factors, which, on any sensible view, would be relevant to determining the sentence to be imposed on any offender, whether a child or an adult. Those factors would include the gravity of the offence, the remorse of the offender, whether the offender has pleaded guilty, the offender’s character and antecedents, and the impact of the offence on the victim. Some of those considerations might, indirectly, come into operation by virtue of one or more of the subparagraphs of s 362(1) of the Act. However, they are not, necessarily, rendered relevant by the express terms of any of the eight subparagraphs contained in that subsection. It would be extraordinary to suggest that any of those factors, to which I have just referred, would be excluded, by a process of necessary implication, from consideration in determining the sentence of a child, on the basis that they are not expressly referred to in s 362(1).
…
Thus, there are a number of sentencing factors, either implicit in, or assumed by, other provisions of the Act, which do not necessarily fall within any of the categories described in s 362(1). That consideration strongly supports the conclusion that s 362(1) was not intended to constitute an exclusive and exhaustive statement of the factors, to which the court must have regard in determining the sentence to impose on the child. Rather, it would seem clear that the purpose of s 362(1) is to ensure that, in determining a sentence in accordance with established sentencing principles, the court must take into account the specified factors, each of which are particularly relevant to the personal circumstances of a young offender. Thus, s 362(1) has the effect of giving emphasis to the factors specified. However, it does not do so to the exclusion of the ordinary sentencing considerations, including general and specific deterrence, rehabilitation and denunciation.[34]
[34]DPP (Vic) v Hills (Ruling No 1) [2011] VSC 88, [12]–[13], [15].
38 As will be apparent from what was said earlier, our conclusion does not depend upon s 362(1) being treated as an exhaustive statement of the sentencing considerations to be applied where a child is being sentenced. Rather, the analysis turns on the singularity of general deterrence as a sentencing consideration and what we see as its incompatibility with the clear objectives and plain language of s 362(1).
39 We respectfully agree with his Honour 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.
Interstate authority
40 Our attention was drawn to decisions of other intermediate courts of appeal on comparable legislation. A similar argument about the exclusion of general deterrence was rejected by the Western Australian Court of Appeal in JA (A Child) v The State of Western Australia.[35] In that case, the offender was a 12-year-old girl who had pleaded guilty to aggravated burglary and multiple counts of burglary and was sentenced to a period of detention. The relevant legislation – the Young Offenders Act 1994 (WA) – provided as follows:
[35][2008] WASCA 70 (‘JA’).
7.General principles of juvenile justice
The general principles that are to be observed in performing functions under this Act are that —
…
(b)a young person who commits an offence is to be dealt with, either formally or informally, in a way that encourages the young person to accept responsibility for his or her conduct;
…
(d) the community must be protected from illegal behaviour;
…
(h)detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary;
…
(j)punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;
…
46.Principles and considerations to be applied to young offenders
(1)When dealing with a young person who has been found guilty of an offence, the court, in disposing of the matter, is to apply —
(a)the principles applying generally for disposing of charges of offences, except as those principles are modified by this Act; and
(b)the general principles of juvenile justice.
41 The Court (Wheeler JA, with whom Martin CJ and Miller JA agreed) held that, although the rehabilitation of a child offender was always an important, if not dominant, consideration, both general and personal deterrence ‘still have a role to play, albeit, generally, a tempered role.’[36] The Court said:
It is well established that deterrence has a role to play in minimising the incidence of crime, to a greater or lesser extent, and, in that way, protecting the public.
…
There is nothing in the language or purpose of the Act to suggest that deterrence must be completely excluded as a sentencing consideration when dealing with youthful offenders.[37]
[36]JA [2008] WASCA 70, [30].
[37]Ibid [34]–[35].
42 The Court referred to the earlier decision in MC (A Child) v The Queen,[38] which had distinguished the Western Australian legislation from its South Australian equivalent on this point. Whereas the South Australian Act spoke of ‘the need to protect the community … from the violent or other wrongful acts of the child’,[39] the corresponding provision of the Western Australian Act stated as an applicable general principle that ‘the community must be protected from illegal behaviour’. In MC, McLure J (with whom Steytler and Pullin JJ agreed) said:
Unlike the South Australian legislation, s 7(d) is not confined to community protection from the acts of the child being sentenced. If the Parliament of Western Australia intended to exclude general deterrence as a relevant consideration in the sentencing of young offenders, it is to be expected that such an intention would be clearly and expressly manifested. It is not.[40]
[38][2003] WASCA 205 (‘MC’).
[39]See Children’s Protection and Young Offenders Act 1979 (SA) s 7(e), reproduced at [21] above.
[40]MC [2003] WASCA 205, [17].
43 In R v GDP,[41] the New South Wales Court of Criminal Appeal examined the legislative guidelines applicable to the treatment of young offenders. Section 6 of the Children (Criminal Proceedings) Act1987 (NSW) provided as follows:
[41](1991) 53 A Crim R 112.
A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.
44 The Court noted an earlier view that the principle of general deterrence might ‘properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation’, but concluded that considerations of general deterrence ‘should not be ignored completely when sentencing young offenders’.[42] Senior counsel for the Crown drew attention to a decision of Bell J in R v NMTP,[43] where the statements of principle in GDP were applied.
[42]Ibid 116.
[43][2000] NSWSC 1170.
45 There are, as can be seen, material differences between the NSW provision and s 362(1). In particular, s 6(e) of the NSW Act appears to assume that all of the sentencing principles applicable to adult sentencing will also apply to the sentencing of children.
B. THE SENTENCE APPEAL
46 In view of our conclusion on the question of general deterrence, it was not necessary for us to consider the other grounds of appeal. In explaining our decision on the resentencing, it is necessary first to describe the offending for which the applicant was sentenced. (What follows is adapted from the reasons of the sentencing judge.[44])
[44]DPP (Vic) v Hills [2011] VSCA 87 (‘Reasons’).
The circumstances of the offending
47 There were six participants in the offending. Apart from the applicant, the participants were:
·Karen Hills, then 38 years old, the applicant’s mother;
·Craig Hills, then aged 43, the brother of Karen Hills and the applicant’s uncle;
·Brodie Cooper, then aged 18, an associate of the applicant;
·Kylie Meulenbrock, then aged 19, the girlfriend of Brodie Cooper; and
·a child, referred to in the judgment as RAC, then aged 15, an associate of the applicant.
48 On the evening of 9 December 2008, the offenders drove in two vehicles to East Brunswick. They went to the home of the victim, Leah Freeman, a long-time friend of Karen Hills. According to the sentencing judge, ‘there was evidence of some issues which had arisen’ between the two in more recent times but there was no ‘overt hostility’ between them at the time of the offending.
49 Craig Hills knocked on the door of the house. Leah Freeman was then home alone. When she opened the door, all six forced their way in. Craig Hills and Karen Hills then physically assaulted Ms Freeman. Karen Hills made a threat to kill Ms Freeman, stating ‘You’re going to die, Leah, do you understand that? You’re going to die today. Do you understand?’ Craig Hills then told Leah Freeman that she was to be placed in the boot of his car. A struggle ensued, in which she was overpowered by Craig Hills.
50 With the assistance of Cooper, RAC and the applicant, Ms Freeman was forcefully abducted from her home, notwithstanding her protestations and struggles. Cooper and Hills carried Ms Freeman to the street, and then forced her to walk. She was then placed in the boot of Meulenbrock’s vehicle. Throughout the ordeal, Ms Freeman resisted her abduction, and resisted being forced into the boot of the vehicle. She was overpowered, however, and the boot of the vehicle was closed.
51 At some stage before Ms Freeman was placed in the boot, Cooper punched her in the face. By its verdict, the jury was satisfied beyond reasonable doubt that Ms Freeman suffered serious injury as a consequence of the assaults inflicted on her during her abduction and kidnap. The medical evidence disclosed that she suffered multiple bruising and abrasions, particularly to the face and head. In addition, she sustained a fracture of the nasal process of the left maxilla.
52 Cooper, Meulenbrock and the applicant then got into Meulenbrock’s vehicle, with Cooper driving. Craig Hills, Karen Hills and RAC got into the other vehicle. They both then drove to East Keilor and parked a short distance from the banks of the Maribyrnong River. Ms Freeman was forcibly removed from the boot of Meulenbrock’s vehicle. The six offenders then forced her through the bush to the river. En route she was further assaulted and kicked.
53 When they reached the banks of the river, Craig Hills threw Leah Freeman in. Freeman managed to pull Hills in with her. He then struck her, and commenced to dunk her head forcefully under the water on a number of occasions. She kept forcing herself to the surface, only to be pushed under again. During that terrifying ordeal, the applicant, Cooper and RAC were standing close to the water, in order to ensure that Ms Freeman would not be able to escape. Karen Hills was standing nearby with Ms Meulenbrock. While Leah Freeman’s head was being forced under the water, Karen Hills voiced encouragement to Craig Hills, calling out ‘Drown the slut’ more than once. The applicant repeated similar words.
54 On the last occasion on which Craig Hills forced Ms Freeman’s head under water, she had to fight hard to force herself to the surface again. She thought she heard another motor vehicle. At the same time, one of the offenders said ‘We’ve gotta go’. The applicant and RAC helped Craig Hills out of the water. Cooper then threatened Leah Freeman, saying that he would find her and ‘put one’ in her, and said ‘I’ll knock your family too’.
55 After the offenders had departed, Ms Freeman struggled up the bank. She was assisted by two people who had parked their vehicle in the car park. They escorted her to a local service station and from there she was taken by ambulance to the Sunshine Hospital.
56 The sentencing judge said he was satisfied on the evidence that the blows which caused the serious injury to Ms Freeman were struck by Craig Hills and by Cooper. His Honour then said:
By its verdict, the jury was satisfied beyond reasonable doubt that you, Karen Hills, acted in concert with, and/or aided and abetted, Craig Hills and Brodie Cooper in the infliction of those blows, and, in doing so, you intended that Leah Freeman suffer serious injury. The verdicts of the jury also indicate that the jury was satisfied beyond reasonable doubt that you, NKC aided and abetted, and/or acted in concert with, Craig Hills and Cooper in the infliction of those blows, and that, in doing so, you were reckless, in the sense that you knew that the amount of violence being inflicted on Leah Freeman would probably result in her suffering serious injury, although that was not your specific intention. Finally, the jury was not satisfied, beyond reasonable doubt, that you, RAC, were criminally implicated, by acting in concert with, or aiding and abetting, Craig Hills and Cooper, in the infliction of violence on Leah Freeman at East Brunswick, which would have caused her to suffer injury.[45]
[45]Reasons, [19].
57 In relation to the attempt by Craig Hills to drown Ms Freeman, the judge noted the jury’s verdict in relation to Karen Hills and Cooper, that each had been found guilty of reckless conduct endangering Ms Freeman’s life. His Honour then said:
The jury was thus satisfied, beyond reasonable doubt, that you each acted in concert with, and/or aided and abetted, Craig Hills, in conduct which endangered Leah Freeman’s life, and that, in doing so, you each acted recklessly, knowing that the actions of Craig Hills would probably create a real and appreciable risk to Leah Freeman of death by drowning. The jury found you, NKC, and you, RAC, each guilty of the lesser alternative charge of reckless conduct endangering the person, arising out of the actions of Craig Hills at the Maribyrnong River. In doing so, the jury was satisfied, beyond reasonable doubt, that you each acted in concert with, and/or aided and abetted, Craig Hills, in actions by which he placed Leah Freeman, at the least, at an appreciable risk of serious injury, and that you each acted recklessly, in that you knew that Craig Hills’ actions would probably create an appreciable risk of serious injury to Leah Freeman.[46]
[46]Ibid [20].
58 Turning to consider the respective roles of the co-offenders, his Honour said it was clear that the principal participants were Craig Hills, Karen Hills and Cooper. His Honour accepted that Craig Hills:
·was the principal decision-maker;
·had the primary motive for participating in the events which led to the conviction of all of the offenders;
·decided that Ms Freeman should be kidnapped from her home; and
·assaulted Ms Freeman and, with Cooper, forcibly removed her from her home.
59 His Honour said he was satisfied that Craig Hills was ‘in large measure, the ringleader of each of you.’ His Honour went on to say, however, that each of the others was a ‘willing participant’ in the events. His Honour described the applicant and RAC as having ‘provided lesser, but nonetheless willing, assistance to [the abduction].’ Referring to events at the river, his Honour found that it was Craig Hills who had taken the lead, telling Ms Freeman ‘what was to happen to her at the river bank.’ He was ‘the principal actor in the events which occurred at the river, during which Ms Freeman’s head was repeatedly forced under water. At the same time:
·Karen Hills had given ‘strong vocal support’ to her brother’s actions; and
·Cooper, RAC and the applicant had all ‘stood by, intentionally blocking any escape by Leah Freeman’.
60 The judge characterised the seriousness of the offending in these terms:
The offences, in respect of which each of you have been convicted, are particularly serious. The maximum sentences for the offences of kidnapping and aggravated burglary are each 25 years’ imprisonment. The circumstances, in which those two offences were committed in this case, are particularly disturbing. At the time of the commission of the offences, Ms Freeman was defenceless and hopelessly outnumbered. Craig Hills was a mature adult, and you, Brodie Cooper, have a large physique. The offence of aggravated burglary involved the violation of the basic right of Leah Freeman to enjoy the security of her own home. The offence of kidnapping is even more serious. It offends against the person’s right to freedom in our society. It is a frightening offence. It is an offence fraught with danger, often resulting in serious physical and psychological harm to the victim. The circumstances, in which Leah Freeman was physically assaulted and bundled into the boot of the car, and driven, for some thirty minutes or so, to the destination at Keilor, were calculated to terrify her. It is not surprising that she has suffered ongoing psychological injury as a result of those events, from which she has not recovered.
The events, which occurred at the Maribyrnong River, are no less serious. You each subjected your victim to the frightening experience of being taken to a secluded location, where she was again outnumbered, brutally manhandled, and forced into the river, where her head was held repeatedly under water. Although the jury acquitted each of you of the charge of attempted murder, it is fully understandable that, at the time, Leah Freeman genuinely thought that she was going to die. By the jury’s verdict, you, Karen Hills, and you, Brodie Cooper, each knew that Craig Hills was probably exposing Leah Freeman to an appreciable risk that she would die by drowning. You, NKC, and you, RAC, each knew that Craig Hills’ actions would probably create an appreciable risk that Leah Freeman would suffer serious injury.
As I have already stated, as a result of the blows struck to Leah Freeman’s face by Craig Hills and by you, Brodie Cooper, at East Brunswick, Leah Freeman suffered a displaced fracture to the left side of her face. You, Karen Hills, and you, Brodie Cooper, were each found guilty of intentionally causing serious injury to Leah Freeman by those blows. The maximum sentence for that offence is 20 years’ imprisonment. Recent decisions of the Court of Appeal have emphasised that the offence is particularly serious. You, NKC, were also criminally implicated in those blows, in that you aided and abetted them, knowing that Leah Freeman would probably suffer serious injury as a result. In addition to the fracture to her cheek bone, Ms Freeman also suffered multiple cuts, bruises and abrasions, and a substantial amount of her hair was ripped from her skull, from which she has not made a full recovery.
Ms Freeman has also suffered a severe psychological reaction, which was diagnosed by her general practitioner as a post traumatic stress disorder. In her victim impact statement, Ms Freeman has set out, in some detail, the psychological and emotional pain and anguish, which she is still suffering as a result of the events, to which you each subjected her. That statement demonstrates that Ms Freeman is still, more than two years later, significantly traumatised by the terrifying events in which you each participated. Her victim impact statement is a suitable reminder of the substantial and long standing harm she has suffered, caused by the actions in which you each involved yourselves.
The conduct of each of you on the night of 9 December 2008 was outrageous and entirely unacceptable, and struck at the fundamental norms of a decent and civilised society. By acting together in a pack of six, you each proved yourselves to be callous and craven cowards. The aggravated burglary, with which the events commenced, was premeditated. While the plans of Craig Hills seemed to change during the evening, nevertheless you each readily attached yourselves to them. By your convictions for the offence of aggravated burglary, the jury were satisfied that you each, at the time you entered into Ms Freeman’s premises in East Brunswick, intended that violence would ensue against the occupant of those premises.[47]
[47]Reasons, [27]–[31].
61 We respectfully agree with, and adopt, his Honour’s assessment of the offending.
The applicant’s personal circumstances
62 The judge described the applicant’s personal circumstances in the following terms:
You are now 17 years of age. At the time of the offending, you had just celebrated your 15th birthday. You do not have any previous convictions.
Your personal background is set out in the pre-sentence report, which was provided to the court. I have already touched on your background, when detailing the circumstances of your mother. As I noted, you are the second son of Karen Hills and Tony Carnevale. They had a troubled relationship, and, after their separation, you remained in your mother’s care. For a number of years, you lived with your mother and her father, your grandfather. As I have already noted, your mother has experienced ongoing problems with the abuse of alcohol over a long period of time. Your mother has also had a difficult relationship with her second partner, Frank Marijancevic, and, as I have stated, she has now separated from him.
It would appear that you came to the attention of the Child Protection authorities from quite an early age. The file notes, which are referred to in the pre-sentence report, indicate that the principal concerns at the time related to domestic violence, your mother’s mental health issues, and her lack of adequate parenting skills. The Child Protection authorities had difficulty rendering appropriate assistance to you, because of the lack of cooperation of your grandfather, your mother and yourself.
At one stage, in about 2006, you commenced living in Sunbury with your grandfather, your uncle (Craig Hills) and your mother. Subsequently, at the beginning of last year, you commenced to reside with your father’s mother (your grandmother) and her family.
Your own father had a long standing heroin problem, and last year he died because of a drug overdose. Understandably, your father’s death came as quite a shock to you, and I have no doubt that you suffered emotionally as a result of it.
You have a limited education, having been expelled from school during Year 8. Since leaving school, you have had little by way of gainful employment. For some time, you have been acting as a carer for your uncle, Craig Hills, who has experienced a series of health issues over the last four years.
Following your conviction in December last year, you have been remanded at the Melbourne Youth Justice Centre. According to the pre-sentence report, your unit coordinator has stated that you have maintained positive behaviour during your period of detention, and you have not been involved in any incidents. You have participated in a number of programs including music, art, information technology, radio, general education and gymnasium.
It is a matter of concern that you have little by way of education, and that you have no apparent employment skills. It is important that, during the balance of the period of the sentence, which I am to impose upon you, you receive appropriate counselling, and that your lack of appropriate employment skills be addressed. Your involvement in the offending in this case, and indeed your behaviour in court during the lengthy trial, indicate to me that you are an impressionable and immature person, who is easily led. It is important that counselling equip you with the personal skills, which are necessary to enable you to avoid future conflict with the law.
In this respect, it has been drawn to my attention that you have some convictions, which are subsequent to your offending in this case. I do not take those matters into account, as matters adverse to your sentence. However, they are relevant, because they demonstrate that, unless you take stock of yourself, and learn not to follow the bad example of others, you will continue to land yourself in considerable trouble with the law. As a result of your offending in the present case, you stand convicted for some of the most serious offences known to our law. It would be hoped that your conviction of those offences, and the sentence which you are to undergo, will teach you a sharp lesson as to the painful consequences which will inevitably follow, unless you learn to think independently for yourself, and set yourself positive goals for your life in the community.[48]
[48]Reasons, [62]–[70].
63 His Honour accepted that the applicant was able to rely on a number of mitigating circumstances. The first of these was his age. The judge said:
I take into account your particularly young age at the time of the offending. In that context, it is significant that you offended in the presence of two adults, who were more than twice your age. It is even more significant that one of those adults was your own mother, and the other was your uncle. While you were foolish to follow their leadership, nevertheless the inescapable fact is that you were under the influence of two mature aged persons, to whom you are closely related.[49]
As will appear, we concluded that these matters were of particular significance in the resentencing of the applicant.
[49]Ibid [71].
64 The judge also took into account the fact that the applicant’s offending (like that of his co-accused, RAC) was at ‘a substantially lower level’ than the offending of Craig Hills, Karen Hills and Brodie Cooper. In his Honour’s view, the evidence showed that the applicant had played ‘a significantly lesser role in the offending’ than those three.
65 His Honour also took into account the fact that the applicant had not been involved in any offending since the night of this incident. He had noted subsequent convictions, but they related to offences committed prior to that date. His Honour said:
Your ability to remain out of trouble from the age of 15 until your present age (17 years) is a positive factor pointing to your rehabilitation.
We respectfully agree. This was also a matter of particular significance in the resentencing, as was the delay of over two years between the date of the offence and the date of sentencing. That was also a matter which his Honour viewed as a relevant mitigating circumstance.
66 After referring to his rejection of the submission that general deterrence was irrelevant, his Honour said:
The offending, in which you had become involved, is particularly serious. It is necessary that I impose a sentence, which is not only a lesson to you, but which, hopefully, might discourage like minded individuals from indulging in the same type of violent and outrageous conduct. It is also important, in the interests of the community, that the sentence imposed upon you properly reflects your level of wrongdoing, and thus expresses the condemnation by the community, and this Court, of your unacceptable conduct.
On the other hand, I do accept that, in light of your young years, it is important that substantial weight be given to your rehabilitation. In my view, that consideration should operate to significantly reduce the sentence, which I would otherwise impose on a person who was of more mature years. As I have already noted, it is not only in your interest, but in the community’s interest, that I impose a sentence, which will maximise the opportunities for you to be rehabilitated into the community as a law abiding and worthwhile citizen of this country. The sentence, which I shall impose on you, will be calculated by reference primarily to the need for your adequate rehabilitation. However, I do not consider that such a goal can be properly achieved by imposing on you a supervision order, as contended for by Mr Bayles. To impose such a sentence would, in my view, fail to teach you adequately the seriousness of the offences, in which you were a willing participant. Further, it would fail to properly reflect the seriousness of your wrongdoing, and it would fail to act as a deterrent to other persons, who are minded to act in the manner in which you did on the evening of 9 December 2008.[50]
[50]Ibid [72]–[73].
67 His Honour here made clear that one of the considerations which he regarded as precluding the imposition of a youth supervision order (‘YSO’) was that it would not adequately serve the purpose of general deterrence. For the reasons we have given, general deterrence was not a matter to be taken into account in sentencing the applicant.
The resentencing
68 When the Supreme Court (or the County Court) is sentencing a child for an indictable offence, s 586 of the CYF Act gives the Court the power to impose ‘any sentence which the Children’s Court might impose’ under the CYF Act itself. The sentencing judge approached the task on that basis. In particular, his Honour evidently treated himself as bound by the statutory direction in s 361, which encapsulates the principle of parsimony in these terms:[51]
The Court must not impose a sentence referred to in any of the paragraphs of s 360(1) unless it is satisfied that it is not appropriate to impose a sentence referred to in any preceding paragraph of that section.
[51]Cf Sentencing Act 1991 (Vic) ss 5(3)–(4).
69 On the plea, counsel for the applicant submitted that the judge should consider releasing the applicant on a YSO under s 387 of the CYF Act. As noted earlier, his Honour concluded that such an order was not appropriate, in part because of the need to impose a sentence which would deter others.
70 With great respect to his Honour, we think there was a very strong case for the imposition of a supervision order rather than a custodial sentence. By the time of the resentencing, the applicant had already served some 96 days’ pre-sentence detention and 98 days of his original sentence of detention in a youth justice centre. We were therefore constrained to reimpose sentences of detention (in a youth justice centre) of that length. Had we been re-exercising the sentencing discretion as at the date of sentence, however, we would have released the applicant on a YSO immediately. Applying the ‘double negative’ language of s 361, we would not have been satisfied ‘that it [was] not appropriate to impose’ such a sentence.
71 There are several key considerations which lead to this conclusion. First, the applicant was a very young offender – barely 15 years old at the time – and very immature, as the sentencing judge observed. That must, necessarily, make him significantly less blameworthy for the conduct than an adult who had behaved in the same way would be. Secondly, the applicant’s participation in these horrifying events was entirely reactive. There was no suggestion that he had taken the initiative in any respect. On the contrary, he had followed the lead of his uncle and his mother, joining in an enterprise entirely initiated by them. Indeed, it seems quite inconceivable that the applicant would ever have embarked on such a thing on his own.
72 Of course, as the sentencing judge pointed out to defence counsel on the plea, things would have been quite different if the applicant ‘had had the good sense not to follow’. Defence counsel responded by acknowledging that the criminal law ‘places an onus and a responsibility on individuals to remove themselves from events if they arise’. Counsel correctly pointed out, however, that at least after the applicant was in the car, his ability to withdraw was limited. Counsel said:
Here you have got a 15-year-old in the company of his mother and his uncle, who’s out in motor vehicles. He doesn’t have a licence. He doesn’t drive. He’s a long way from home … What means has he really got to remove himself from that situation in all of those circumstances?
73 In our view, the culpability of a young offender who, like the applicant, gets drawn into something on which his mother and another close adult relative are embarking is very different from that of a young offender who, alone or in company, initiates a course of unlawful, violent activity.[52] In this second respect, in our view, his culpability is materially reduced.
[52]Cf DPP (Vic) v SJK [2002] VSCA 131.
74 Thirdly, the role played by the applicant (and by RAC) was minimal. Their presence made no practical difference of any kind. As far as the evidence reveals, the course of events would have been the same whether they had been present or not. It is true that both the applicant and RAC were in a position to prevent Ms Freeman escaping from the water but there is nothing to suggest either that she attempted to escape or that any of the three bystanders prevented her from doing so. Instead, it appears that she was being repeatedly forced under the water by Craig Hills right up to the moment when he left the water. In the circumstances, in our view, there needed to be a very marked sentencing differential between the applicant, on the one hand, and Craig Hills and Karen Hills, on the other, even allowing for the mitigating factors (plea of guilty, mental impairment) which reduced the sentence imposed on Craig Hills.[53]
[53]DPP (Vic) v Hills [2011] VSC 238.
75 Fourthly, the applicant’s prospects of rehabilitation were, in the circumstances, quite exceptional. As defence counsel argued on the plea, it was a matter of great significance that, during the period of two years that the applicant had been on bail for this offending, he had remained ‘completely out of trouble’. Counsel rightly pointed to the obvious risk factors affecting the applicant during that period, arising from his difficult and unstable childhood and from his peer and family associations, and argued that his having not re-offended during ‘such impressionable years’ was possibly the single most significant factor bearing on the sentencing.
76 As noted earlier, the judge rightly approached the sentencing task on the basis that the applicant’s rehabilitation was a primary consideration. Given the applicant’s exemplary conduct during the long period between charge and sentence, it was appropriate for the sentencing court to reward and encourage the efforts which the applicant was obviously making towards his own rehabilitation.[54] His Honour concluded, however, that the goal of rehabilitation could not be ‘properly achieved’ by the imposition of a supervision order, because it would ‘fail to teach you adequately the seriousness of the offences, in which you were a willing participant’.
[54]R v Merrett (2007) 14 VR 392, 403 [49]; R v Wright [2009] VSCA 27, [60]; Tiburcy v The Queen [2010] VSCA 307, [13].
77 These are, of course, the kinds of judgments about which reasonable minds can differ, and his Honour had the distinct advantage of observing the applicant during the trial. With respect, however, we came to a different conclusion. The risk that a period of detention will be counterproductive 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.[55]
[55]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.
78 Finally – and it is a related point – the period of delay was very significant. As this Court has often pointed out, delay by itself can be a powerful mitigating factor, raising as it does considerations of rehabilitation and fairness.[56] There was no challenge on the plea to the defence submission that there had been
a degree of stress and anxiety in [the applicant] having these [charges] hanging over his head in terms of what’s happening with his life and what he can do with his life and getting on with his life …
[56]DPP (Vic) v WRJ [2009] VSCA 174, [15]–[20].
79 In these circumstances, in our view, there was considerable force in the submission made on behalf of the applicant – both on the plea and on the appeal – that it would be in the community’s interest, as well as the applicant’s, for him to be supervised in the community. This would provide full opportunity for any risk factors to be addressed. In our view, the YSO option was the appropriate sentencing disposition, having regard to the sentencing court’s obligation to secure so far as practicable the objectives set out in s 362(1).
Different sentencing regimes
80 The sentencing judge in the present case faced an extraordinarily difficult task in sentencing two very young offenders at the same time as he was sentencing adult offenders for participation in the same offending. As s 4 of the Sentencing Act 1991 (Vic) makes clear, the sentencing framework for adults has no application to the sentencing of children in the Children’s Court. And the sentencing regimes are strikingly different, as this Court has remarked previously,[57] such that there is considerable difficulty in ensuring parity between co-offenders when one is sentenced as an adult and the other as a child.
[57]In R v Neket (Unreported, Supreme Court of Victoria Court of Appeal, Winneke P, Brooking JA and Ashley AJA, 28 May 1997), 6.
81 That issue arose in R v Evans.[58] Vincent JA (with whom Batt JA agreed) said:
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 Act1989 (Vic) sets out 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 the Sentencing Act1991 (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. 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.
It is against this background that the various statements of this Court and its predecessor have been made. They rest upon the recognition of the importance and extent of the differences in the principles and practices of the separate systems and, to some extent, on the inability to make valid comparisons between the dispositions ordered in the cases of co-offenders who have been dealt with under such different regimes.[59]
[58][2003] VSCA 223.
[59]Ibid [44]–[45] (emphasis added). See also R v A, D [2011] SASCFC 5, [80].
82 As explained earlier, the applicant came to be sentenced in the Supreme Court because he had been presented on a charge of attempted murder, in respect of which this Court has exclusive jurisdiction.[60] Following his acquittal on that count, however, the charges of which the applicant stood convicted were all matters within the jurisdiction of the Children’s Court.[61] In those circumstances, it was both appropriate and necessary, in our view, that the sentencing of the applicant be approached as if the sentencing were exclusively governed by the provisions of the CYF Act.
[60]The Supreme Court of Victoria is a court of unlimited jurisdiction: Constitution Act 1975 (Vic), s 85. The jurisdiction of the other Victorian courts is limited and does not extend to attempted murder: (Magistrates’ Court) Magistrates’ Court Act 1989 (Vic), s 25; (Children’s Court) CYF Act s 516; (County Court) County Court Act 1958 (Vic), s36A(1)(c).
[61]CYF Act s 516.
83 The policy of the CYF Act is clear. The Criminal Division of the Children’s Court has jurisdiction to hear and determine summarily all charges against children for indictable offences, apart from a small group of excluded offences including murder and attempted murder.[62] If a child is charged before the Court with an indictable offence (other than an excluded offence), the Court under s 356(3) ‘must hear and determine the charge summarily’ unless either the child objects or
at any stage the Court considers that the charge is unsuitable by reason of exceptional circumstances to be determined summarily.[63]
[62]Section 516(1)(b). The other excluded offences are child homicide, defensive homicide, arson causing death and culpable driving causing death.
[63]Section 356(3)(b).
84 Referring to the equivalent ‘exceptional circumstances’ provision in the 1989 Act,[64] Vincent J said in DL (A Minor by his Litigation Guardian) v A Magistrate of the Children’s Court (Duncan Reynolds):[65]
[I]t must be borne in mind that a legislative scheme has been devised with respect to conduct of criminal proceedings involving young persons. There is no need in this judgment to set out its detail. It is sufficient, I think, to state that for very good reasons, our society has adopted a very different approach to both the ascertainment of and response to criminality on the part of young persons to that which is regarded as appropriate where adults are involved. It is only where very special, unusual, or exceptional, circumstances exist of a kind which render unsuitable the determination of a case in the jurisdiction specifically established with this difference in mind, that the matter should be removed from that jurisdiction to the adult courts.
[64]Section 134(3).
[65]Unreported, Supreme Court of Victoria, 9 August 1994.
85 Senior counsel for the Crown submitted that, if the applicant had been charged before the Children’s Court with the indictable offences of which he was ultimately convicted, that Court might have felt constrained by the sentencing limits under the CYF Act and decided that the charges were therefore ‘unsuitable … to be determined summarily’. We disagree. Given the clear policy of the CYF Act, we have no doubt that that court would have proceeded to hear and determine the charges. (We ignore for present purposes the issue of a joint trial, although we note that in Re A Child[66] Cummins J expressed the view that ordinarily the need for a joint trial should not be a consideration justifying the removal of a matter from the Children’s Court to an adult court.) Having regard to the low level of the applicant’s culpability, there was nothing in the circumstances of this offending which would have attracted the ‘exceptional circumstances’ provision.
[66]Unreported, Supreme Court of Victoria, 24 February 1992.
86 That being so, the applicant was entitled to be sentenced in accordance with the provisions of the CYF Act, and subject to the limitations which it imposed. We are conscious that, by force of s 586 of the CYF Act, when the Supreme Court sentences a child to detention in a youth justice centre the applicable maximum is 3 years, as set by s 32(3)(b) of the Sentencing Act 1991 (Vic), not 2 years as set by s 413(2) of the CYF Act. In the circumstances, however, the applicant was entitled to the benefit of the 2 year maximum. Any other result would have the effect of treating the applicant unequally with any other child in like circumstances, solely because he had been proceeded against, unsuccessfully, for attempted murder.
87 For these reasons, the submission of the prosecutor on the plea – that the full range of adult penalties was available – was erroneous, in our view. The prosecutor cited the decision of Coghlan J in R v AO,[67] but that was a case of manslaughter which, as explained earlier, raises entirely different considerations.
[67][2009] VSC 13.
88 Circumstances like this will, doubtless, arise very infrequently. Given the very great difficulty of sentencing co-offenders under such different sentencing regimes, we would think it desirable in future that a wholly separate hearing be held to deal with the sentencing of the child offender(s).
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ATTACHMENT 1
| Offender | Craig Hills | Karen Hills | CNK | Brodie Cooper | RAC | Kylie Meulenbrock | |||||||
| Age at date of offending | 43 | 38 | 15 | 18 | 15 | 19 | |||||||
| Plea | PG | PNG | PNG | PNG | PNG | PG (with undertaking to cooperate) | |||||||
| Priors | Yes: aggravated burglary; RCI x 3 (suspended sentence); RCESI | Yes, but not for violence | No | Yes: RCI x 2; RCESI x 2 | Yes: burglary, robbery, RCSI, criminal damage (He was on probation for these offences) | None relevant | |||||||
| Offence | Maximum | Sentence | Cumulation | Sentence | Cumulation | Sentence | Cumulation | Sentence | Cumulation | Sentence | Cumulation | Sentence | Cumulation |
| Aggravated Burglary | 25 | 2y | 2y 6m | 1y 6m | 2y 6m | 1y 6m | |||||||
| Kidnapping | 25 | 4y 6m | Base | 6y | Base | 2y 6m | Base | 5y | Base | 2y 6m | Base | 2y 6m | Base |
| Threat to kill | 10 | 6m | |||||||||||
| ICSI | 20 | 2y | 6m | 3y | 6m | 3y | 6m | ||||||
| RCSI | 15 | 1y | 1y | 6m | |||||||||
| RCEL | 10 | 3y | 1y 6m | 4y | 1y 6m | 3y | 6m | ||||||
| RCESI | 5 | 1y 6m | 6m | 1y 6m | 6m | ||||||||
| TES | 6y 6m | 8y | 3y (Youth Justice Centre) | 6y | 3y (Youth Justice Centre) | 3y (wholly suspended) | |||||||
| NPP | 3y 6m | 5y | N/A | 3y | N/A | N/A | |||||||
| 6AAA TES/NPP | 8y/5y | PNG | PNG | PNG | PNG | 5y/3y 6m (also reflects s 5(2AB) cooperation discount) | |||||||
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