DPP v SL

Case [2016] VSC 714 29 November 2016

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2016 0134

DIRECTOR OF PUBLIC PROSECUTIONS

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 & 8 October, 24 November 2016
DATE OF RULING:	29 November 2016 (revised 28 February 2017)
CASE MAY BE CITED AS:	DPP v SL
MEDIUM NEUTRAL CITATION:	[2016] VSC 714

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CRIMINAL PROCEDURE – human rights of child defendant charged with serious crimes in superior court – attempted murder and other charges brought against child aged 15 years in Supreme Court of Victoria – plea of guilty – defendant in detention on remand – identifying suitable arrangements for child’s detention when at court and procedures for conduct of directions and sentencing hearings having regard to child’s age – segregating defendant as child in detention from adult prisoners when at court – avoiding intimidation, humiliation and distress and ensuring child’s effective participation in criminal process – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8(3), 17(2), 23(1),(2) and (3), 25(3), International Covenant on Civil and Political Rights arts 10(2)(b), 14(4) and 24(1), Convention on the Rights of the Child arts 37(c), 40(1) and (2).

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APPEARANCES:	Counsel	Solicitors
For the prosecution	Mr P Rose QC	Office of Public Prosecutions Victoria
For the defence	Mr J Fitzgerald	Victoria Legal Aid

HIS HONOUR:

SL[1] is aged 15 years and charged with attempted murder, burglary and committing an indictable offence (that burglary) whilst on bail. These charges are being heard and determined in this court because the Children’s Court of Victoria does not have jurisdiction with respect to six offences actually or potentially relating to the death of a person of which attempted murder is one.[2] The charges of burglary and committing an indictable offence whilst on bail are related to the charge of attempted murder and therefore the three charges are being heard together in this court. As there has been a plea of guilty to these charges, the function of the court will be to determine what sentence should be imposed upon SL, who is in detention on remand pending this sentence.
[1]In view of the age of the defendant, this judgment has been anonymised and is expressed in gender-neutral language. ‘SL’ is a pseudonym.
[2]The offences that the Children’s Court cannot hear and determine are murder, attempted murder, manslaughter, child-homicide, arson causing death and culpable driving causing death: s 516(1)(b) of the Children, Youth and Families Act 2005 (Vic).

If the charges had been issued in the Children’s Court, as would normally have been the case with a defendant who is a child,[3] the proceeding would have been conducted under the Children, Youth and Families Act 2005 (Vic), which (among other things) is exclusively directed towards the hearing and determination of criminal charges against, and the sentencing of, children. As the charges are to be heard and determined in, and SL is to be sentenced by, this court, the proceeding will have to be appropriately…

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.

Continue reading DPP v SL

Details

AGLC: DPP v SL [2016] VSC 714
Case: [2016] VSC 714
Decision Date: 29 November 2016 (revised 28 February 2017)

CaseChat Overview and Summary

The case of DPP v SL involves the Director of Public Prosecutions prosecuting a 15-year-old defendant, SL, who had been charged with attempted murder and other serious offences in the Supreme Court of Victoria. SL had entered a plea of guilty and was in detention on remand. The central issue before the court was to determine suitable arrangements for the defendant’s detention and procedures for conducting the directions and sentencing hearings with due regard to the defendant’s age and status as a child. The court was required to ensure that the child would not be intimidated, humiliated or distressed during the proceedings and that they could effectively participate in the criminal process. This involved considering legislative provisions under the Charter of Human Rights and Responsibilities Act 2006 (Vic) and international conventions such as the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

The court examined the rights of child defendants under the Charter of Human Rights and Responsibilities Act 2006 (Vic), which mandates that the rights of a child must be respected and protected, and that the best interests of the child are to be a primary consideration. The court also considered international obligations, including the right to be treated with humanity and respect, the prohibition of discrimination and the protection of the juvenile from the adult criminal justice system. In light of these legal standards, the court ruled that the child defendant should be segregated from adult prisoners when at court to avoid potential intimidation, humiliation, and distress. The court further held that measures should be in place to ensure the child’s effective participation in the criminal process, including providing appropriate support and resources to facilitate their understanding and involvement in the proceedings.

The court concluded that the child defendant’s detention and court proceedings should be managed in a manner that aligns with their status as a child and their human rights. The court ordered that segregation from adult prisoners would be maintained, and additional measures would be implemented to support the child’s participation in the hearings. This includes ensuring that the child has access to legal representation, psychological support, and other necessary resources to effectively engage in the criminal process. The court’s decision reflects a commitment to upholding the rights of child defendants in the criminal justice system, ensuring that their dignity and best interests are prioritised throughout their legal proceedings.

Orders