Dale Cairns (a Pseudonym) v The Queen
[2018] VSCA 333
•7 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0101
| DALE CAIRNS (a Pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To prevent identification of the applicant, who was under 18 at the time of the offences, this judgment has been anonymised by the adoption of a pseudonym.
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| JUDGES: | PRIEST, BEACH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 November 2018 |
| DATE OF JUDGMENT: | 7 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 333 |
| JUDGMENT APPEALED FROM: | DPP v Dale Cairns (a Pseudonym) (Unreported, County Court of Victoria, Judge Chettle, 11 May 2018) |
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CRIMINAL LAW — Appeal — Sentence — Culpable driving causing death and associated offences — Driving at high speed to evade police — Applicant aged 17 at time of offences — Mild intellectual disability — Unfortunate upbringing — Sentence of 8 years’ imprisonment with non-parole period of 5 years — Whether sentence manifestly excessive — Whether double punishment — Appeal allowed — Resentenced to 6 years’ imprisonment with non-parole period of 4 years — Children, Youth and Families Act 2005 s 362 — CNK v The Queen (2011) 32 VR 641; DPP v Anderson (2013) 228 A Crim R 128; Fuller (a Pseudonym) v The Queen [2013] VSCA 186.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood and Mr L D J Cameron | Emma Turnbull Lawyers |
| For the Respondent | Mr R L Gibson | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA
WEINBERG JA:
The applicant’s history
The applicant, now aged 18 years,[2] has an IQ of 63, which places him in the mildly intellectually disabled range of intelligence. In September 2017, when he was aged 17 — and regarded by the law as a child[3] — he committed a series of offences, the most serious of which was culpable driving causing death on 19 September.
[2]He was born on 6 January 2000.
[3]Section 3(1) of the Children, Youth and Families Act 2005 relevantly provides:
child means—
(a) in the case of a person who is alleged to have committed an offence, a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court; …
The applicant has, since the age of 11 years, been regularly before the Children’s Court. His record demonstrates that his conduct has, over a number of years, been remarkably anti-social. Hence, on 10 October 2011, he was before that court on charges of unlawful assault; theft; and criminal damage; and was released on an accountable undertaking. On 7 November 2011, he was dealt with for theft, and was again released on an accountable undertaking. In 2012, in August and October respectively, he was dealt with for criminal damage and theft from a shop, for which he received an accountable undertaking and a good behaviour bond. A little over two years later, on 24 November 2014, the applicant faced eight charges of burglary; eight charges of theft; possessing a graffiti implement; marking graffiti on property; and assaulting and resisting police; and was placed on a 12 month youth supervision order. Fewer than two months later, on 13 January 2015, he was released on a good behaviour bond for intentionally damaging property. On 10 November 2015, he was once more before the court on seven charges of theft of a motor vehicle; aggravated burglary; two charges of theft; burglary; possessing cannabis; and failing to provide data under warrant. A little over two months later, on 19 January 2016, the applicant was sentenced to 12 months’ detention in a youth justice centre for multiple offences of robbery; aggravated burglary; burglary; theft; theft from a shop; theft of motor vehicles; handling stolen goods; dealing with the proceeds of crime; obtaining financial advantage by deception; obtaining property by deception; arson; recklessly causing injury; resisting an emergency worker on duty; resisting police; unlicensed driving; and bail and other offences. Four months later, on 20 May 2016, he was sentenced to 45 days’ detention for the theft of a motor vehicle. And on 26 September 2016, the applicant was sentenced to four months’ detention on charges of burglary; dealing with the proceeds of crime; theft; obtaining property by deception; tampering with a motor vehicle; and acting prejudicially to the good order of a gaol. He was released from detention in November 2016.
The applicant’s parents separated when he was aged about four years. He has had no contact with his father since that time. Child protection authorities have had a long history dealing with the applicant and his family. Early Child Protection reports relating to the applicant’s circumstances express concerns about environmental neglect; a failure to ensure safety; a failure to provide adequate food and fluid; substantial emotional trauma; the effect of substance misuse on the child; and a lack of parental capacity to protect him. The applicant was removed from his mother’s care at the age of five. He lived in two foster placements, and at the age of nine entered Child and Family Services residential care. Thereafter, until he was aged 12, the applicant was in a number of placements. He returned to his mother’s care in 2012. On his mother’s side the applicant has six half-siblings, and on his father’s side he has three.
Charges and sentences
On 23 March 2018, the applicant pleaded guilty in the County Court to a number of charges, including a charge of culpable driving (which the Children’s Court had no jurisdiction to hear and determine);[4] then, on 7 May 2018, the applicant’s plea was heard by another judge of the County Court. Less than a week later, on 11 May 2018, the judge sentenced the applicant to a total effective sentence of eight years’ imprisonment, with a non-parole period of five years, according to the following table:
[4]See s 516(1) of the Children, Youth and Families Act 2005, which gives the Children’s Court jurisdiction to hear and determine summarily all charges against children for indictable offences, other than murder, attempted murder, manslaughter, child homicide, arson causing death and culpable driving causing death.
Charge Offence Sentence Cumulation 1 Theft[5] 6 months 2 months 2 Theft 3 months 3 Driving dangerously or negligently while being pursued by police[6] 6 months 2 months 4 Conduct endangering persons[7] 9 months 2 months 5 Culpable driving causing death[8] 7 years Base 6 Failing to stop and render assistance[9] 18 months 4 months 7 Theft 6 months 2 months Relevant summary offences 9 Failing to stop[10] 7 days 13 Unlicenced driving[11] 3 months 17 Dangerous driving[12] 1 month Total effective sentence 8 years’ imprisonment Non-parole period 5 years Pre-sentence detention 235 days Section 6AAA statement 10 years’ imprisonment, with 7 years non-parole Other orders Disqualified from driving for 7 years; forfeiture and disposal orders [5]Crimes Act 1958, s 74. The maximum penalty is 10 years’ imprisonment.
[6]Crimes Act 1958, s 319AA. The maximum penalty is 3 years’ imprisonment.
[7]Crimes Act 1958, s 23. The maximum penalty is 5 years’ imprisonment.
[8]Crimes Act 1958, s 318. The maximum penalty is 20 years’ imprisonment.
[9]Road Safety Act 1986, s 61(3). The maximum penalty is 10 years’ imprisonment (or a fine of 1200 penalty units).
[10]Road Safety Act 1986, s 61(5). The maximum penalty is a fine of 5 penalty units or 14 days’ imprisonment for a first offence.
[11]Road Safety Act 1986, s 18(1). The maximum penalty is a fine of 25 penalty units or 3 months’ imprisonment.
[12]Road Safety Act 1986, s 64(2). The maximum penalty is a fine of 240 penalty units or 2 years’ imprisonment.
The offending
In order to understand some of the issues raised by the present application, it is necessary to summarise the applicant’s offending.
Sometime between 6 and 17 September 2017, the applicant took possession of a stolen Hiace van (charge 1 — theft of motor vehicle). At that time, he had no regular place of abode, having been forced to leave his residence in Ballarat East in the weeks prior.
On 18 September 2017, at about 11.15 pm, the applicant stole number plates from a parked vehicle outside a private address in Geelong (charge 2 – theft of number plates). He then fitted the stolen number plates to the Hiace van.
Shortly after 1.30pm on 19 September 2017, the applicant drove the stolen Hiace van to an address in Ballarat North. He walked down the driveway and entered the garage which had been left open. The resident disturbed him, so the applicant returned to the Hiace van and drove away. Jacqueline Vodden, aged 16 years, who had developed a relationship with the applicant, was his passenger. The resident had obtained a partial registration of the van and provided a description of the applicant, which was given to police. As a result, police units patrolled the area looking for the Hiace van.
At about 2.10 pm, an unmarked police vehicle was parked on the side of Geelong-Ballan Road. Police observed the Hiace van drive past travelling north. They performed a ‘U’ turn, intending to intercept the Hiace van. The applicant accelerated away and turned left into Inglis Street by crossing on the wrong side of the road. The police vehicle followed with its lights and sirens activated. The Police Communications Centre was informed of the pursuit at 2.14 pm.
The applicant drove along Inglis Street towards Ballan followed by the police vehicle, which had flashing emergency lights and siren operating. When close to the Hiace van, the driver of the police vehicle flashed the high-beams and sounded the car horn. Apparently undeterred, the applicant drove through the main street of Ballan making several turns. At the roundabout at Stead Street, he turned right on the wrong side of the road. The speed of the Hiace van fluctuated above the 50 kph speed limit.
As the applicant headed back towards the Geelong-Ballan Road, he increased speed. He drove north for a short distance and then drove onto the Western Freeway and travelled west on the Freeway. The Western Highway is a dual carriageway with a speed limit of 110 kph. On each side of the road there is a bitumen shoulder which allows for vehicles to be able to stop in an emergency. The applicant travelled along the Western Highway with police in pursuit for approximately two kilometres in the right lane, reaching a speed of 130 kph (charge 3 — dangerous or negligent driving while pursued by police).
Shortly before the fatal collision which resulted in the charge of culpable driving, a ‘B Double’ prime mover, about 32 metres in length, was travelling in the left lane at about 100 kph or less. It was being passed gradually in the right lane by a dark station wagon. As he approached the prime mover, the applicant veered the Hiace van suddenly across the left lane into the emergency lane on the left of the prime mover in an attempt to pass it.
Two VicRoads workers were seated in a stationary work vehicle in the emergency lane, partially on the grass verge, facing west. The VicRoads vehicle was a large dual cab Isuzu Tipper, which had orange flashing lights attached to its roof and a ‘flip up’ style illuminated orange warning board. On the rear tailgate a sign, ‘Caution vehicle frequently stopping’, was affixed. The two VicRoads workers were road maintenance personnel. They were seated in the truck in the process of inspecting the road. The passenger side front of the Hiace van — travelling at about 130 kph — collided with the rear driver area of the stationary VicRoads truck (charge 4 — reckless conduct endangering persons).
The impact caused extensive damage to the VicRoads truck and devastated the passenger side of the Hiace van. Jacqueline Vodden was thrown clear and landed in a grassed area a short distance in front of the VicRoads truck, which had been forced forward by the impact. She suffered injuries from which she died (charge 5 — culpable driving causing death).
Extensively damaged, the Hiace van then struck the passenger’s side of the prime mover, but the applicant continued driving west in the left lane and emergency lane for about 200 metres. He then turned off the freeway to the left and into the grass verge and came to a stop.
The applicant had received only minor injuries. He climbed from the wreckage and ran south towards open paddocks adjoining Bostock Reservoir. Jacqueline Vodden had sustained multiple severe injuries to the head, chest, pelvis and limbs, and died at the scene. The applicant failed to render any assistance to her (charge 6 — failing to stop and render assistance). Police, who had been trying to intercept the Hiace van for about four minutes, drove to the wreckage and chased the applicant on foot. The applicant ran towards a farm house located on Old Melbourne Road. He found a black Hyundai sedan unlocked with the ignition keys in it. The applicant got into the Hyundai and drove away towards Ballarat (charge 7 — theft).
In Gregory Street, Wendouree, the applicant travelled at an excessive speed on the wrong side of the road. He turned right into Gillies Street, failed to give way to oncoming traffic and drove into the path of a grey Toyota, causing the front passenger side of that vehicle to strike the rear driver’s side of the black Hyundai (related summary offence, charge 17 — dangerous driving). The applicant did not stop and did not attempt to render assistance or exchange details with the driver of the Toyota (related summary offence, charge 9 — failing to stop after accident). He drove away at a fast speed. At no time has the applicant ever held a driving licence (related summary offence, charge 13 — unlicenced driving).
The applicant drove to an address in Willow Grove, Wendouree, where he knew the occupants. He went inside, showered and changed his clothes, and then covered the black Hyundai with blankets and other items to prevent it being located, having first removed the number plates. Occupants from the house notified police of the applicant’s whereabouts. Police attended and attempted to gain entry to a bedroom where the applicant was hiding. As police entered the room by force, the applicant tried to flee by climbing out the window. He was arrested and conveyed to the Ballarat Base Hospital. His behaviour was erratic, so he was sedated and observed. A sample of the applicant’s blood was taken and analysed for alcohol and drugs. It indicated the presence of methylamphetamine (0.11 mg/L); amphetamine (0.04 mg/L); droperidol (307 ng/mL); and lignocaine.
A forensic physician, Dr Morris Odell, expressed the opinion that the description of the circumstances of the collision — which involved speeding and a dangerous overtaking attempt — were in keeping with the effects of methylamphetamine on a driver; and that methylamphetamine was a drug capable of rendering a person incapable of having proper control of a motor vehicle at the blood concentration found in this case.
The applicant was released into the custody of police on 20 September 2017 and was taken to the Ballarat Police station. He was assessed by the forensic physician and was deemed fit for interview, but he answered ‘no comment’ to all questions.
Grounds of appeal
The applicant seeks leave to appeal against his sentence on three grounds:
1. The sentencing judge erred by considering general deterrence to be the dominant sentencing consideration when determining the sentence in relation to the charge of culpable driving, and by failing to temper the weight given to general deterrence by reference to circumstances personal to the applicant.
2. The sentencing judge erred by treating facts that constituted other charges before the sentencing court as aggravating features of the charge of culpable driving, in circumstances where:
(a) General deterrence was not a relevant sentencing consideration in relation to the determination of the appropriate punishment for those other charges and the behaviour that informed them;
(b) His Honour had regard to those facts when considering the objective gravity of the charge of culpable driving and [the applicant’s] moral culpability; and
(c) The principal sentencing consideration to which his Honour had regard when determining the sentence on that charge, in light of that objective gravity and [the applicant’s] moral culpability, was general deterrence.
3. The sentence imposed on the charge of culpable driving, the total effective sentence and the non-parole period fixed are each manifestly excessive.
We consider that for the following reasons the application for leave to appeal should be granted and the appeal allowed. The applicant should be re-sentenced to a total effective sentence of six years’ imprisonment, with a non-parole period of four years, in the manner later set out.[13]
[13]See [44] below.
Discussion
As we have indicated, the applicant was a child[14] when sentenced on 7 May 2018. At that time, s 362 of the Children, Youth and Families Act 2005 (‘the CYF Act’) — which spells out specific matters which must be taken into account when ‘the Court’ is sentencing a child — was expressed in the following terms:[15]
[14]See footnote 2 above.
[15]Section 362 has since been amended by s 24, Division 2, Part 4 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017. The amendments ‘apply to the hearing of a charge or the sentencing of an offender (as the case requires) for an offence alleged to have been committed on or after the commencement of that Part’. (See cl 1(1) of Schedule 6 of CYF Act). The commencement date of s 24 was 5 April 2018. Section 362 is now in the following form (emphasis shows the amendments):
362 Matters to be taken into account
(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) the need to protect the community, or any person, from the violent or other wrongful acts of the child—
(i) in all cases where the sentence is for a Category A serious youth offence or Category B serious youth offence; or
(ii) in any other case—if it is appropriate to do so.
(h) if appropriate, the need to deter the child from committing offences in remand centres, youth residential centres or youth justice centres.
362 Matters to be taken into account
(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.
A written outline of defence submissions on the plea was provided to the sentencing judge. Among other things, it was acknowledged that, by virtue of s 516 of the CYF Act, the charge of culpable driving had to be heard in the County Court, so that the sentencing principles in the Sentencing Act 1991 were engaged. It was also submitted, citing KMW,[16] that the sentencing principles in s 362 of the CYF Act ‘can be used as guidance by the Court’. Section 362 applied, it was submitted, to all of the charges other than culpable driving ‘provided a term of adult imprisonment is not deemed appropriate’.[17] And it was submitted that ‘if a term of imprisonment in adult custody is deemed appropriate, it is unclear whether s 362 principles apply’.[18]
[16]R v KMW [2002] VSC 93, [57] (Coldrey J).
[17]Citing CNK v The Queen (2011) 32 VR 641; JPR v The Queen [2012] VSCA 50, [36].
[18]Citing Fuller (a Pseudonym) v The Queen [2013] VSCA 186, [34]–[35].
The prosecutor referred the sentencing judge to Anderson,[19] which he submitted ‘deals in some way’ with the ‘dichotomy’ between the CYF Act and the Sentencing Act 1991. He submitted that imprisonment was the only appropriate sentence on the charge of culpable driving, but that the applicant fell to be sentenced on all of the other charges pursuant to the sentencing principles set out in s 362 of the CYF Act, ‘that is, absent general deterrence’. The judge, the prosecutor submitted, ‘needs to be mindful of that when sentencing [the applicant] for the balance of the indictment’, although ‘specific deterrence and protection of the community still apply’.
[19]DPP v Anderson (2013) 228 A Crim R 128, 140 [47].
In his reasons for sentence, the judge stated that the sentencing principles in s 5 of the Sentencing Act 1991 applied to the sentence imposed for the charge of culpable driving, but that the principles in s 362 of the Act applied to all of the other charges. The judge said that he ‘had regard to all of the s 362 factors and principles’ in sentencing the applicant. He observed that ‘general deterrence is not a factor for those offences’ other than culpable driving, but said:
Clearly, general deterrence is the principal sentencing factor in culpable driving offences. Community is totally traumatised by the carnage that occurs on our roads. Those who behave as you did, need to clearly understand that lengthy terms of imprisonment will be imposed on persons who kill others with a motor vehicle.
The court can only hope that the sentence imposed on you will cause other young drivers to refrain from speeding, driving under the influence of drugs and taking stupid risks whilst driving. To deter others is to save other parents and friends the devastation you have caused [the victim’s] family.
There is also a clear need to deter you specifically from future offending. Your prior dreadful criminal record shows that you have not been deterred from serious offending by the past sentences you have received. I must finally express the community’s denunciation for your offending and protect the community from you.
The judge went on to say that the applicant’s offending was too serious for a sentence of detention in a youth justice centre, and that the Court of Appeal ‘has emphasised the importance of general deterrence in culpable driving charges, even in cases of young offenders’. His Honour cited from several cases[20] and said:
It follows that your age is less significant in relation to your culpable driving offence. General deterrence is the dominant sentencing consideration.
I have, however, significantly reduced the sentence I am about to impose to reflect your youth and as far as possible the other factors urged in mitigation. I have significantly reduced the sentences to be imposed for the other offences you committed to reflect the s 362 principles I have previously referred to.
That said, your prior history and the nature of your offending dictates that terms of imprisonment must be imposed with modest cumulation appropriate to reflect the principles of totality.
[20]The cases included: DPP v Hill (2012) 223 A Crim R 285; R v Withers (2003) 40 MVR 178; R v Gany (2006) 163 A Crim R 322; R v Williamson (2009) 21 VR 330; and R v Tran (2002) 4 VR 457.
In CNK,[21] the Court had cause to consider the effect of s 362 of the CYF Act on the sentencing of children dealt with in courts other than the Children’s Court. The applicant in that case was a child of 15, who had been tried for attempted murder — which the Children’s Court had no jurisdiction to hear — and other offences. He was acquitted of attempted murder, but was convicted of aggravated burglary, kidnapping, recklessly causing serious injury and reckless conduct endangering a person (all of which otherwise would have fallen within the jurisdiction of the Children’s Court). When sentencing the applicant, the trial judge accepted that the CYF Act was applicable, but rejected the contention that general deterrence was not a factor to be taken into account. The judge imposed a sentence of three years’ detention in a youth justice centre.
[21]CNK v The Queen (2011) 32 VR 641 (Maxwell P, Harper JA and Lasry AJA) (‘CNK’).
The Court in CNK appears to have proceeded on the assumption that, upon his acquittal of the attempted murder charge, the sentencing provisions of the CYF Act were attracted; in particular, the principles in s 362. Importantly, it was held that, ‘on the proper construction of the CYF Act general deterrence was excluded from consideration in the sentencing of children’.[22] Thus the appeal had to be allowed.[23] The Court observed that 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.[24] Of significance, the Court observed:[25]
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. 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. 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.
[22]Ibid, 643 [4].
[23]In the result, the applicant was resentenced to 194 days’ detention in a youth justice centre (which represented time already served) and to a youth supervision order for 18 months.
[24]CNK, 660 [68].
[25]Ibid, 663 [82].
In determining that s 362 was applicable, and in construing s 362 so as to exclude general deterrence as a relevant sentencing principle, the Court made no express reference to the definition of ‘Court’ in s 3(1) of the CYF Act: ‘In this Act … Court means The Children’s Court of Victoria’. And although the Court made distinct reference to s 586 of the CYF Act,[26] there was no reference to s 521, which provides (as it did then):[27]
[26]Section 586 was (and is) in the following terms:
586 Supreme Court or County Court may exercise sentencing powers of Children’s Court
The powers that the Supreme Court or the County Court may exercise in sentencing a child for an indictable offence include the power to impose any sentence which the Children’s Court may impose under this Act but an order that the child be detained in a youth residential centre or youth justice centre must be made in accordance with Subdivision (4) of Division 2 of Part 3 of the Sentencing Act 1991.
[27]Emphasis added.
521 Application of Act to other Courts
Except for the purposes of appeals this Act applies, with any necessary modifications, in relation to an order[[28]] made by the Supreme Court or the County Court of a type that could be made by the Children’s Court under this Act, whether the order was made on appeal or under section 586 or otherwise, as if it were an order made by the Children's Court.
[28]By s 3(1), in relation to the Criminal Division of the Children’s Court, ‘order’ was defined as including ‘judgment and conviction’. See also the definition of ‘sentence’.
JPR[29] was a case where a 17 year old ‘child’ pleaded guilty in the Supreme Court to manslaughter (charge 2) and recklessly causing injury (charge 1), for which he received a total effective sentence of six years’ imprisonment, with a non-parole period of four years. Although the charge of recklessly causing injury (for which the judge imposed and individual sentence of 18 months’ imprisonment) was capable of being dealt with in the Children’s Court, the charge of manslaughter (for which the sentence was six years’ imprisonment) was not. By a majority,[30] the Court allowed the appeal and resentenced the appellant to three years’ detention in a youth justice centre.
[29]JPR v The Queen [2012] VSCA 50 (Buchanan and Bongiorno JJA, and Hollingworth AJA) (‘JPR’).
[30]Hollingworth AJA, with whom Buchanan JA agreed (at [1]); Bongiorno JA dissenting (at [2]–[5]).
As is apparent from the judgment in JPR, however, the Crown had conceded that it was reasonably arguable that the judge had not (as he should have) sentenced on charge 1 in accordance with the CYF Act, that charge not being within the exclusive jurisdiction of the Supreme Court.[31] And as is also apparent from the judgment, the Court assumed that s 362 applied to charge 1 — so that, in light of CNK, the sentencing judge was wrong to take into account general deterrence when sentencing on that charge[32] — without considering the meaning of ‘the Court’ in s 362, or adverting to s 521 of the CYF Act.
[31]JPR, [9].
[32]Ibid, [31]–[33].
In a later case, Anderson,[33] a charge of intentionally causing serious injury against the respondent, aged 17 years and 10 months, was heard in the County Court pursuant to s 356(3) of the CYF Act, the Children’s Court having declined to deal with the charge. The respondent, who was on youth parole, and had a significant criminal history of violent offences, caused life-threatening wounds to a supermarket employee — who had offered him no provocation — with a knife. Following the respondent’s pleas of guilty to theft (of condoms, lubricant and lip balm), recklessly causing injury (to another supermarket employee) and intentionally causing serious injury, a judge of the County Court sentenced him to a total effective sentence of four years’ imprisonment, with a non-parole period of two years. On an appeal by the Director of Public Prosecutions, this Court imposed a total effective sentence of six years’ imprisonment, with a non-parole period of three and a half years.
[33]DPP v Anderson (2013) 228 A Crim R 128 (Maxwell P, Neave JA and Kaye AJA) (‘Anderson’)
When discussing CNK, the Court said:[34]
There was debate on the plea about whether general deterrence was a relevant sentencing consideration. Reference was made to the decision of this Court in CNK v The Queen, where it was held that in a case where a young offender was being sentenced under the provisions of the CYF Act, general deterrence was excluded as a sentencing consideration. Where, on the other hand, a person is sentenced in accordance with the Sentencing Act 1991 (Vic), general deterrence is expressly identified by s 5(1)(b) as a purpose for which sentence may be imposed.
In the present case, her Honour pointed out — correctly — that, once she had concluded that sentencing dispositions under the CYF Act were inadequate and that a sentence of adult custody was necessary, the provisions of the CYF Act had no application and, accordingly, general deterrence was applicable. At the same time, her Honour accepted the defence submission that, under those circumstances, general deterrence should play ‘an ameliorated role, taking into account [Anderson’s] youth’, and that rehabilitation was still a significant consideration.
[34]Ibid 140 [46]–[47] (footnotes omitted).
Fuller[35] involved charges of culpable driving causing death, negligently causing serious injury and theft, committed by an applicant aged 14 years and 10 months, who had an IQ that placed him in the lowest two per cent of the population. The applicant was sentenced in the County Court to an aggregate sentence of five years and ten months’ imprisonment, with a non-parole period of three years. Ultimately, his appeal against that sentence was allowed, and he was resentenced to a total effective of three years and nine months’ imprisonment, with a non-parole period of one year and nine months’ imprisonment. In the course of his reasons for judgment, Ashley JA set out the text of s 362 of the CYF Act and said:[36]
Those considerations, it has been held, preclude consideration of general deterrence as a sentencing consideration in proceedings to which the provision applies.
In this case, s 362(1) would have applied had the charges (that is, other than the offence of culpable driving) been dealt with in the Children’s Court.
A question arises whether the preclusion against taking account of general deterrence applies to the charges which might have been dealt with in the Children’s Court, but which were in fact dealt with by the County Court.
Section 362(1) refers to matters to which the Children’s Court is to have regard. But it has been held that, in some circumstances, provisions in the [CYF Act] relating to sentences are to be applied when an offender is sentenced in a superior court.
It is not clear to me that s 362(1) will apply to an exercise of jurisdiction by the Supreme Court or the County Court in a case in which the child has objected to the exercise of jurisdiction by the Children’s Court. Moreover, Anderson suggests that the section will not apply once a superior court decides that punishment exceeding that available under the Children’s Act, or under s 32(3)(b) of the Sentencing Act, is necessary.
It is unnecessary, however, for me to resolve what I perceive to be that uncertainty in this case. By reason of the appellant’s age at time of offending, his level of intellectual and psychological disability at that time, and the injuries which he sustained, general deterrence cannot be regarded as a factor of any significance in the sentencing synthesis.
[35]Fuller (a Pseudonym) v The Queen [2013] VSCA 186 (Ashly and Hansen JJA).
[36]Ibid [30]–[35] (footnotes omitted).
Returning to the present case, we note that both the CYF Act[37] and the Sentencing Act 1991[38] contemplate that a sentence of detention in a youth justice centre may, depending on the circumstances, be served concurrently or cumulatively with a sentence of imprisonment. Plainly, however, once the sentencing judge resolved to impose a sentence of imprisonment on the culpable driving charge in excess of three years — the maximum period of detention in a youth justice centre that the County Court could then impose[39] — it would have been somewhat impractical to have sentenced the applicant to be detained in a youth justice centre on any of the other charges.[40]
[37]See, eg, s 475(3), 477(2).
[38]See, eg, s 33(3).
[39]At the time that the applicant was sentenced, the maximum period of detention in a youth justice centre that the County Court could impose was three years: s 32(2)(b) of the Sentencing Act 1991. It is now four years: see Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017, s 58; and Sentencing Act 1991, s 161(2).
[40]Section 33(3) of the Sentencing Act 1991 provides:
(3) A sentence of detention imposed on a young offender which is to be served concurrently with a sentence of imprisonment must be served as imprisonment in a prison until the young offender has served the sentence of imprisonment.
By s 471 of the CYF Act, the Adult Parole Board may direct that a person under 21 years who is serving a term of imprisonment be transferred to a youth justice centre.
As we have mentioned, in sentencing the applicant on all but the culpable driving charge the judge purported to apply the principles in s 362 of the CYF Act. Notwithstanding that this is so, however, he imposed periods of imprisonment on those charges of a length exceeding that of equivalent periods of detention that the Children’s Court might have been expected to impose. Moreover, the imposition of a sentence of imprisonment would appear to us to be incompatible with the application of s 362, since, first, the County Court is not ‘the Court’ as contemplated by s 362; and, secondly, even if it be assumed for the sake of argument that s 521 of the CYF Act might in some circumstances pick up a sentencing order made by the County Court (or Supreme Court) — and thus the considerations in s 362 — a sentence of imprisonment is not an order ‘of a type that could be made by the Children’s Court under this Act’.[41]
[41]Section 360 of the CYF Act spells out the sentencing orders that may be made under the Act. A sentence of imprisonment is not one of them.
It is difficult to conclude other than that the sentencing discretion miscarried in this case. As we have said, the judge purported to sentence on all of the charges apart from charge 5 as if — because of the operation of s 362 — general deterrence was not a relevant sentencing consideration, yet a number of the individual sentences are at odds with that expressed intention. As we have noted, imprisonment is not an option available to the Children’s Court. And we acknowledge that detention in a youth justice centre cannot readily be compared to confinement in an adult prison. But we consider the conclusion inescapable that, had the applicant been sentenced in the Children’s Court on those charges otherwise within that Court’s jurisdiction, he would not have attracted sentences of detention of anything like the same length as the sentences of imprisonment imposed on him by the sentencing judge. In particular, we consider it to be unlikely that the three charges of theft (charges 1, 2 and 7), and the charge of failing to stop and render assistance (charge 6) would have attracted sentences of detention as long as the periods of imprisonment imposed. We also note that the judge imposed the maximum sentence of imprisonment available on the summary charge of unlicenced driving, in circumstances where there appears to be no justification for having done so.
Furthermore, we consider that there was an element of double punishment in the way in which the judge approached what he saw as the aggravating features of the culpable driving charge. In his reasons for sentence, he said:
So far as your culpable driving is concerned, as I said on your plea, your offending represents a high level example of the offence of culpable driving. Your counsel conceded as much.
Firstly, it had occurred in the context of a police pursuit. You chose to flee at speed rather than stop as required.
Secondly, you had a young passenger on your car.
Thirdly, you were driving a stolen vehicle.
Fourthly, you were under the influence of methylamphetamine.
Fifthly, you drove at excessive speed and in a grossly negligent manner.
Sixthly, you demonstrated a complete lack of contrition by failing to stop, running away and committing further offences in an attempt to save yourself.
Finally, you were unlicensed and should not have been driving at all.
In our view, the first of those aggravating features is largely subsumed within the circumstances of charge 3 (driving dangerously or negligently whilst pursued by police); and the sixth feature of aggravation is subsumed to a considerable extent within the circumstances of charge 6 (failing to stop and render assistance).
For these reasons, we consider that much of ground 2 has been made out; that by reason of specific error the exercise of the sentencing discretion is vitiated; and that the applicant should be resentenced. We would therefore grant leave to appeal, and allow the appeal, on that ground. In those circumstances, it is unnecessary to separately consider the first and third grounds.
In resentencing the applicant, the fact that this was a very bad case of culpable driving cannot be ignored. The victim impact statements speak eloquently of the effect that the applicant’s outrageous conduct has had. Further, we acknowledge that for the purposes of sentencing a youthful offender, generally speaking, the greater the seriousness of the crime, the more the mitigating influence of youth is diminished (although not completely eliminated).
In imposing sentence on the applicant, we principally take into account in mitigation that he was a child when he offended; his cognitive disability; his unfortunate upbringing; and his early pleas of guilty.
We would make orders so as to achieve a total effective sentence of six years’ imprisonment, upon which we would fix a non-parole period of four years, in accordance with the following table:
Charge Offence Sentence Cumulation 1 Theft 2 months Nil 2 Theft 7 days Nil 3 Driving dangerously or negligently while being pursued by police 3 months Nil 4 Conduct endangering persons 6 months Nil 5 Culpable driving causing death 6 years Base 6 Failing to stop and render assistance 3 months Nil 7 Theft 2 months Nil Relevant summary offences 9 Failing to stop 7 days Nil 13 Unlicenced driving 1 month Nil 17 Dangerous driving 1 month Nil Total effective sentence 6 years’ imprisonment Non-parole period 4 years Section 6AAA statement 8 years’ imprisonment, with 6 years non-parole
All other orders made by the County Court, including for licence disqualification and forfeiture, will be confirmed.
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