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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
CNK v The Queen [2011] VSCA 228
Case
[2011] VSCA 228
Decision Date
CaseChat Overview and Summary
CNK, a young offender, appealed against their sentence in the Supreme Court of Victoria after being convicted of aggravated burglary, kidnapping, recklessly causing serious injury, and reckless conduct endangering serious injury. The original case was heard in the Supreme Court, as CNK was tried alongside adult co-offenders for the attempted murder of a police officer, from which they were acquitted. The legal issues at hand revolved around the applicability of the Children, Youth and Families Act 2005 (Vic) to the sentencing of CNK, and whether the Supreme Court was bound by the sentencing limits imposed by the Children’s Court under this statutory regime. Additionally, the court considered the principles of general deterrence, delay, and rehabilitation in the sentencing process.
The Court of Appeal held that the statutory regime for sentencing children, as outlined in the Children, Youth and Families Act 2005 (Vic), precluded the Supreme Court from imposing a sentence that would have general deterrence as its primary purpose. The court found that the original sentencing process had not adequately considered the specific provisions and objectives of the statutory regime, particularly in relation to the rehabilitation of young offenders. Furthermore, the appeal court determined that the Supreme Court was not bound by the sentencing limits of the Children’s Court, and was empowered to impose a sentence that was appropriate under the statutory framework. As a result, the appeal was allowed, and CNK was resentenced to a youth supervision order in accordance with the Act.
The Court of Appeal's decision highlights the importance of adhering to the statutory framework when sentencing young offenders and the need for courts to consider the specific objectives and provisions of the Children, Youth and Families Act 2005 (Vic). The court's emphasis on rehabilitation, as opposed to general deterrence, reflects the legislative intent to provide young offenders with opportunities for rehabilitation and reintegration into society. The final orders of the Court of Appeal allowed the appeal and resentenced CNK to a youth supervision order, in line with the statutory provisions and objectives for sentencing children.