FD v Director of Public Prosecutions
[2025] VSC 519
•26 August 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0140
| IN THE MATTER of an appeal against sentence pursuant to s 424 of the Children, Youth and Families Act 2005 | |
| FD | Applicant |
| -and- | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 August 2025 |
DATE OF SENTENCE: | 26 August 2025 |
CASE MAY BE CITED AS: | FD v DPP |
MEDIUM NEUTRAL CITATION: | [2025] VSC 519 |
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CRIMINAL LAW – Sentence – Appeal against sentencing decision of the President of the Children’s Court – Sentence set aside – Rehearing – Charge of intentionally cause serious injury in circumstances of gross violence – Guilty plea – Accused 17 years old at time of offending – Mental health – Autism Spectrum Disorder – Attention Deficit Hyperactivity Disorder – Severe disadvantage – Reduced moral culpability – Positive prospects of rehabilitation – Verdins – Bugmy – Sentenced to a youth justice supervision order for a period of 16 months – Children, Youth and Families Act 2005 ss 360–362, 387(1), 414, 424, 426(1), 430I.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D De Witt | Dotchin Tan |
| For the Respondent | Mr T Crouch | Office of Public Prosecutions |
HER HONOUR:
Introduction
This is an appeal of the sentencing decision of the President of the Children’s Court to the Supreme Court of Victoria, under s 424(b) of the Children, Youth and Families Act 2005 (‘the Act’).
On 30 May 2025, FD[1] pleaded guilty before the Children’s Court to one charge of intentionally cause serious injury in circumstances of gross violence.
[1]A pseudonym, pursuant to Children, Youth and Families Act 2005 (Vic), s 534.
On 26 June 2025, the President sentenced FD to a total effective sentence of 28 months detention in a youth justice centre, with 175 days declared as pre-sentence detention. Pursuant to s 362(1) of the Act, his Honour declared that, had FD not pleaded guilty, he would have sentenced him to a period of 34 months’ detention in a youth justice centre.
Pursuant to s 426(1) of the Act, an appeal under s 424 must be conducted as a rehearing and FD is not bound by the plea entered in the Children’s Court. Section 426(2) of the Act provides that the appellate court must set aside the sentence of the Children’s Court and may impose any sentence the court considers appropriate, and which the Children’s Court could have imposed.
On 26 August 2025, I set aside the sentence imposed by the Children’s Court and instead made orders releasing FD on a youth supervision order for 16 months.
Circumstances of the offending
The offending relates to an incident that occurred on 3 December 2024 in the Melbourne CBD. FD was 17 years of age at the time; the second accused, Jayden Curtis was 18; and the third accused, MS was 17. The victim was 16 and he was not known to the accused.
At approximately 6:30pm, the victim and three males (‘the victim group’) exited a tram on Bourke Street near Southern Cross station. FD, Mr Curtis and MS,[2] together with two underage, unidentified females (‘the offending group’), had been travelling on the same tram as the victim group and got off at the same stop.
[2]Ibid.
After exiting the tram, the two groups became involved in an altercation during which the victim dropped his mobile phone. The offending group walked off in the direction of Southern Cross station and were pursued by the victim group, under the impression that someone from the offending group had taken the victim’s phone.
The two groups had a further altercation inside of Southern Cross station during which FD wrestled the victim to the ground and attempted to punch him in the head, and the victim punched FD a number of times. MS stood to the side of the melee and removed a ‘zombie knife’ from a sheath in his pants. He charged at the victim group with the weapon in his right hand and chased them away.
At approximately 6:59pm, the victim group entered a Woolworths supermarket at Southern Cross station in an attempt to hide from the offending group. Upon seeing the offending group enter the supermarket, the victim group fled through a through an exit door. However, the victim became trapped when he attempted to exit through an entry-only door.
The victim ran down an aisle of the supermarket before being confronted by the offending group. Mr Curtis punched him twice to the head, causing him to fall to the ground, and MS attempted to punch him as he was falling. While the victim was incapacitated on the ground, FD stabbed him in the upper thigh with the zombie knife. The victim wrestled the knife from FD and laid on top of it, before FD mounted him and punched him in the head multiple times. After retrieving the knife, FD and others continued to assault the victim with punches, kicks and stomps to his body and head. The offending group left the supermarket soon afterwards.
Several individuals, including a bystander and staff, provided first aid to the victim. Emergency services were contacted and he was transported to hospital with serious injuries, including a stab wound to the right posterior thigh, significant internal bleeding in the pelvic region, a likely bladder or urethral injury and clot in the bladder, and lacerations to the scalp, arms and hands.
On 6 December 2024, each of the accused were arrested and charged. FD has been in custody in a youth justice centre since his arrest.
Victim Impact Statements
I received victim impact statements from the victim and his mother, which I have read and considered.
The victim states that he continues to experience emotional distress as a result of the attack, including lingering anger, sleep disturbances and increased paranoia. He sustained serious injuries requiring multiple surgeries, extended hospital stays and treatment including the use of a catheter for two and a half months, a wheelchair and crutches, and regular physiotherapy. He faces potential long term complications, including damage to his bladder and reproductive system. He has been unable to work, drive and play touch rugby, which had been helping him build friendships.
The victim’s mother wrote that witnessing her son’s suffering has been deeply traumatic, affecting her emotional wellbeing and causing her anxiety, panic attacks and sleepless nights. She states that the financial burden has been significant, having had to work reduced hours to care for her son, while also covering hospital expenses and purchasing medical equipment.
The victim impact statements provide insight into the harrowing nature of the attack and its physical and emotional consequences on both the victim and his mother. It is difficult to comprehend how terrifying it was for the victim and the ongoing, possibly lifelong, effects he now faces.
Personal circumstances
FD was born in Italy in 2007. In 2008, he migrated to Australia with his parents and younger brother.
FD grew up in a volatile and unstable environment, primarily due to his mother’s mental health issues and his father’s excessive discipline. His mother was diagnosed with schizophrenia and delusional order. She received hospital-based treatment throughout FD’s childhood and early adolescence. Her current condition is reportedly more stable and her relationship with FD has improved as a result.
In 2016, Child Protection intervened because of concerns about family violence (perpetrated by both of his parents), neglect, exposure to parental mental health, and his own behaviour. He was removed from the family home and placed in residential care, and later moved between his family home, temporary out-of-home placements, and periods where his whereabouts were unaccounted for.
As he entered his late teens, FD’s behavioural issues escalated. This coincided with his disengagement from school and his association with older peers. At school, he experienced difficulties with concentration, language barriers and the curriculum. He moved between a number of schools because of disciplinary issues and ultimately ceased formal schooling at the end of 2022. After leaving school, he worked as a concreter and later as a labourer with his father.
FD started using cannabis regularly at around 13 or 14, and by 16 he was experimenting with MDMA and drinking alcohol daily. His mental health and substance use worsened after the loss of a close friend in a car accident in April 2022.
He has recently been diagnosed with a number of neurodevelopmental conditions, including Attention Deficit Hyperactivity Disorder (ADHD), Autism Spectrum Disorder (ASD) Level 1 and Severe Developmental Language Disorder.
Expert evidence
Dr Sarah Sherwell, Senior Clinical Neuropsychologist at Orygen Youth Forensic Mental Health Service (‘Orygen’), assessed FD in February of this year.
In her report, Dr Sherwell noted that FD experiences particular difficulties with information processing, sustained attention, planning and impulse control. She placed FD’s full-scale IQ in the Very Low range.[3]
[3]Neuropsychology assessment report of Dr Sarah Sherwell dated 16 April 2025, 5.
Dr Sherwell noted that a multidisciplinary team, led by Consultant Psychiatrist Dr Ren Assini, confirmed FD’s diagnoses of ADHD and ASD Level 1.[4]
[4]Ibid, 7.
Ms Steeley, Senior Speech Pathologist at Orygen, assessed FD in February of this year. She said that his ability to understand and use language is significantly impacted by a combination of trauma, disrupted education, unsupported ASD and ADHD, and a severe developmental language disorder.[5]
[5]Speech, language and communication report of Ms Laura Steeley dated 10 March 2025, 7.
In her report, Ms Steeley explained that FD struggles to develop relationships and to express himself clearly. These challenges have to led to misunderstandings and, at times, physical altercations. She was of the opinion that FD is highly vulnerable to the influence of others and that he often behaves in ways that he thinks will impress his peers, but which ultimately get him in trouble.[6]
[6]Ibid, 5.
Ms Steeley considered that FD’s ‘ability to understand situational rules and expectations appears compromised’, leading to frustration and misbehaviour.[7] She said he tends to misinterpret the behaviour and communication of others as negative towards him, making him ‘both a victim and an aggressor’.[8]
[7]Ibid, 6.
[8]Ibid.
Both Ms Steeley and Dr Sherwell recommended that FD apply for NDIS support and engage in speech pathology, occupational therapy, psychological care, and drug and alcohol support to help manage his daily challenges and improve his mental health.
FD was assessed by Ms Cidoni, Consultant Psychiatrist, in February and July of this year. Her conclusions echoed the findings of Dr Sherwell and Ms Steeley.[9]
[9]Psychological assessment report of Ms Gina Cidoni dated 3 March 2025, [85].
Ms Cidoni considered that FD’s substance use has exacerbated his cognitive issues, noting that he meets the criteria for cannabis, stimulant and opioid use disorders.[10] She highlighted that on the night of the offending, FD had consumed a significant amount of substances and experienced symptoms of psychosis for the first time.[11]
[10]Ibid, [88]-[90]
[11]Ibid, [54].
Ms Cidoni formed the view that FD’s history of trauma, hypervigilance, intrusive thoughts and avoidance behaviours lead to a potential diagnosis of Post-traumatic Stress Disorder (PTSD). Although her diagnosis was initially complicated by FD’s heavy substance use, the diagnosis was confirmed following a sustained period of abstinence in custody and further testing.[12]
[12]Supplementary psychological assessment report of Ms Cidoni dated 25 July 2025, [19].
Ms Cidoni noted that FD is taking Sertraline (an anti-depressant), Clonidine to assist with sleep, and Vyvanse for his ADHD, and that he felt more focused and better able to manage his thoughts as a result.[13]
[13]Ibid, [6].
Ms Cidoni concluded that FD is a high risk of reoffending.[14] However, she pointed to a number protective factors, including strong family support, potential employment upon release, and a desire to address his substance use and disengage from negative influences.
[14]Report of Ms Cidoni dated 3 March 2025, [99].
Notably, Ms Cidoni stated that incarceration is not a rehabilitative environment capable of addressing FD’s long-standing issues.[15] While he is receiving some support in custody, she said that ‘detention limits access to ongoing, individualised psychiatric care and therapeutic interventions’, leaving his mental health conditions inadequately addressed.[16]
[15]Ibid, [103].
[16]Ibid, [104].
Youth Justice
A Youth Justice Pre-sentence Report was ordered by the President ahead of sentencing. The report, dated 27 May 2025, was prepared by FD’s then-case manager, Ms Tracey Duurland.
Ms Duurland noted that FD’s ‘involvement in the offences has a direct correlation with [his] substance use and negative peer associations in addition to poor consequential thinking and decision-making skills’.[17] She considered that FD was able to reflect on the incident and its impact on the victim, but further support was needed to help improve his understanding of how his actions affect the broader community.[18]
[17]Youth Justice Pre-sentence Report dated 27 May 2025, 3.
[18]Ibid.
Having regard to FD’s young age, the serious nature of his offending, his extensive care team and community supports, the availability of full time work, and his time in custody, Ms Duurland recommended that FD be placed on a youth supervision order.[19] She considered that this would allow for the ongoing supervision and support of Youth Justice and other professionals, and assist him to address the causes of his offending and work towards stability in the community.
[19]Ibid, 7.
The Court was also provided with a Youth Justice Progress Report dated 19 August 2025. The report was prepared by FD’s current case manager, Mr Zen Tobias-Quigley, who also gave evidence on the appeal.
Since assuming the role of FD’s case manager in May 2025, Mr Tobias-Quigley has seen him on a weekly to fortnightly basis. He confirmed that FD’s earliest possible parole date is 10 November 2025, and that he will be remain FD’s case manager upon release, whether that be on parole or under a youth supervision order.
Mr Tobias-Quigley is responsible for convening FD’s care team, which includes clinicians and support workers from various rehabilitation services. While in custody, FD has engaged in mental health care, disability support, and drug and alcohol treatment. He has participated in the Knife Crime Intervention Program with Youth Justice and the Family Functional Therapy program with Anglicare Victoria alongside his father.[20] Mr Tobias-Quigley confirmed that FD’s care team will continue to support him upon release, with its membership shifting to more community-based services.[21]
[20]Youth Justice Progress Report, 4-6.
[21]T29.2–6.
FD is currently being assessed by Youth Justice’s clinical services team, Statewide Rehabilitation Services (SRS), to determine his treatment needs and eligibility for offence-specific programs. Mr Tobias-Quigley said that SRS’s preliminary view is that FD is suitable for an adolescent violence intervention program which, in the community, would involve weekly to twice-weekly sessions with a forensic psychologist over a period of about six months.[22]
[22]T24.2–21.
FD is currently subject to a Therapeutic Treatment Order with conditions to engage in treatment.[23] FD commenced the Sexual Abuse Counselling and Prevention Program delivered by Kids First Australia in May 2025, but ceased due to the challenges of delivering the program in a custodial setting. Mr Tobias-Quigley explained that plans are underway for further engagement with the program following the outcome of these proceedings.
[23]Youth Justice Progress Report, 4; T30.
In his Progress Report, Mr Tobias-Quigley noted that since FD’s admission, he has participated in 43 incidents ranging from non-compliance with staff directions, possession of contraband, sexualised behaviours and physical assaults.[24] Of these incidents, 11 involved physical altercations – with FD listed as a participant in seven and a victim in four – and two involved assaults on staff. FD has been linked with the Behaviour Support Specialist team to address these problematic behaviours.
[24]Ibid, 3
Mr Tobias-Quigley told the Court that it remained Youth Justice’s recommendation that FD be placed on a youth supervision order.[25] In questioning by counsel for the respondent, Mr Tobias-Quigley acknowledged that Ms Duurland’s report had a number of inaccuracies, but said that Youth Justice’s recommendation had not shifted.[26]
[25]T38.1–5.
[26]T43.5–10.
At a later stage in the hearing, counsel for the respondent raised further details about particular incidents involving FD based on phone recordings and CCTV footage from within the youth justice centre. Broadly speaking, these incidents indicated to some extent that FD has maintained contact with gang-affiliated peers, has – or at least believes that he has – a position of influence in a gang, and that he made a serious threat to another detainee.
The respondent submitted that these incidents are relevant to the assessment of FD’s prospects of rehabilitation, his remorse, and his experience of custodial pressures. The appellant contended that they merely reflect the corrosive environment of youth custody, describing FD’s conduct as bravado, exaggeration and bluster which is consistent with the observations of medical professionals about the way in which FD navigates a custodial environment in the context of his cognitive and mental health issues.
Mr Tobias-Quigley was recalled to give further evidence in relation to these matters. He stated that he was aware of many, if not all, of the incidents raised by the respondent. While these incidents gave him some cause for concern, Mr Tobias-Quigley told the Court that Youth Justice’s position remained the same.
Sentencing factors
Seriousness of offending
FD is charged with intentionally causing serious injury in circumstances of gross violence, which carries a maximum sentence of 20 years imprisonment. In exercising the jurisdiction of the Children’s Court, the Supreme Court can impose a maximum of three years detention for a single offence.[27] Nevertheless, the fact that the offence is otherwise punishable by up to 20 years’ imprisonment remains an indication of its gravity and is a matter that I have had regard to.
[27]The Act, s 413(2).
The charged offence covers a wide range of conduct and circumstances of differing degrees of seriousness. It is therefore necessary to consider where FD’s crime sits in the spectrum of seriousness and for what reason.
FD’s counsel conceded the index offending is serious and involves several aggravating features. It was accepted that the victim’s injuries were ‘undoubtedly serious’, and had a significant impact on him. Notwithstanding this, it was submitted that the injuries are distinguishable from more serious examples of serious injuries, such as permanent disfigurement, loss of a limb, permanent brain damage and quadriplegia.
FD’s offending has serious features. While the attack was not premeditated or planned, FD appeared to engage in this conduct as an act of retaliation. He was aware that one of the co-accused was carrying a knife, and he took possession of it at some point before deciding to pursue the victim. The offending was brazen, occurring in full view of CCTV cameras and in a public place populated by shoppers.
FD and the co-accused chased the victim and hunted him down, rendering him helpless by repeatedly punching and kicking him. Once the victim was incapacitated on the ground, FD stabbed him once to the upper right thigh. He then sat on top of the victim and punched him eight times to the head with what appeared to be significant force. The attack continued with further punches and stomps to the victim’s head by the co-offenders.
In my view, the injuries sustained by the victim fall at the higher end of ‘serious injury’. I also consider that this is a serious example of ‘circumstances of gross violence’.
Moral culpability
Given he was 17 years old at the time of offending, I accept that FD bears significantly less blame for his conduct than an adult might in similar circumstances.[28] The law recognises that children often lack the foresight, insight, judgment and self-control that develops with adulthood, particularly when a crime is committed impulsively. Young people are prone to ill-considered, rash decisions, and may not fully appreciate the nature or consequences of their actions.
[28]R v Mills [1998]4 VR 235,241 (Batt JA).
I accept that FD’s young age to some extent reduces his moral culpability. While this does not excuse his serious and harmful actions, it explains, in part, why he behaved as he did on that day.
I have had regard to FD’s early home life, which was marked by volatility and ongoing periods of instability, including the involvement of Child Protection in 2016, his removal from his parents’ care, and subsequent placement in residential care.
The impact of disadvantage is complex and not easily measured. The High Court has recognised that serious childhood deprivation is likely to make an offender less morally culpable than an offender whose formative years were not damaged in that way. As Dawson J said in Postiglione v The Queen, ‘[e]qual justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them’.[29]
[29](1997) 189 CLR 295, 301.
The extent to which social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered, and whether the effects of disadvantage could be seen to be in any way explanatory of the offending.[30]
[30]Sabbatucci v The Queen (2021) 98 MVR 256, 259 (Maxwell P and Emerton JA).
In the present case, I consider that the instability and distressing experiences of FD’s childhood make him less morally culpable than an offender whose childhood years were not marred in that way. I would go as far as to say that there is a nexus between his childhood disadvantage and the offending behaviour.
Ms Cidoni concluded that FD’s history of trauma has led to maladaptive coping mechanisms, including impulsive aggression when confronted with perceived threats.[31] This, together with his cognitive limitations, substance abuse, young age and neurodevelopmental immaturity, impaired his ability to exercise sound judgment, de-escalate conflict, and assess the long-term consequences of his actions.[32] Considering this, I am satisfied that FD’s offending conduct can to some extent be explained by his severe disadvantage. It is open for me to conclude that his childhood experiences contribute to his difficulties with making good decisions, which intensifies when he is using drugs.
[31]Report of Ms Cidoni dated 3 March 2025, [97].
[32]Ibid, [98].
On the day of the offending, FD made the terrible decision to take a knife from one of the offending group and follow the victim – seemingly to intimidate and hurt him – in response to a minor altercation. FD agreed to be a part of the attack, and clearly failed to consider the consequences of his actions. These traits and behaviours, as Ms Cidoni said, find their genesis in his childhood experiences and mental health vulnerabilities, which have not until recently been treated.
In addition, it was submitted that FD’s ASD and ADHD contributed to the offending and therefore reduce his moral culpability. This is said to enliven the first limb of Verdins.[33]
[33]R v Verdins [2007] VSCA102; 92007) 16 VR269 (‘Verdins’) at [32].
FD had consumed seven capsules of MDMA in the hours leading up to the attack. Ms Cidoni said that MDMA is known to cause increased emotional reactivity, perceptual distortions, and heightened aggression in some individuals, particularly when consumed in excess. She went on to say that beyond acute intoxication, FD’s underlying mental health vulnerabilities and developmental history further compromised his capacity for rational decision-making.[34]
[34]Report of Ms Cidoni dated 3 March 2025, [96].
I accept that FD’s has significant underlying mental health vulnerabilities. However, I am not satisfied that there was a realistic connection between his actions and his mental health vulnerabilities that justifies any reduction in his moral culpability. FD willingly consumed a large amount of drugs; there is no doubt that this significantly affected him. Even if I could disentangle the impact of FDs’ mental health vulnerabilities on his conduct, given his drug use I would give it little or no weight in assessing his moral culpability.
FD’s counsel submitted that his diagnoses enliven limbs 2, 4, 5 and 6 as articulated in Verdins. These limbs call for mitigation of his sentence to reflect that a sentence will prove more burdensome due to his mental health. I accept that his time in custody will be more onerous because of his mental health and that this ought to mitigate his sentence. At the same time, any mitigation must be suitably tempered by an understanding that he is receiving treatment for the escalation of his symptoms for the first time. A positive response to treatment is understood to reduce the perceived burden.[35]
[35]Verdins, [83].
Guilty plea
I consider that FD is entitled to a sentencing discount on account of his guilty plea, which was entered at an early opportunity. His plea facilitates the course of justice and serves a utilitarian value, avoiding the need for what could have been lengthy contested hearings which would have been very distressing for the victim and his family.
Remorse
I accept that FD has developed genuine remorse for his actions in the index offending. He has demonstrated insight into the profound impact his conduct has had on the victim. He has also expressed a desire to disassociate himself from peer groups he was previously associated with and to work full time with his father.
Rehabilitation
I emphasise that in determining FD’s sentence, I have not taken into account, by way of aggravation, his involvement in a number of incidents while in custody. However, those incidents are relevant to assessing his prospects of rehabilitation.
FD has used his time in custody productively despite finding it confronting and traumatic. Mr Tobias Quigley described him as forthcoming, polite and cooperative. He remains compliant with his prescribed medication and has engaged in a range of programs and treatment while in custody, some of which have involved the participation of family. FD has maintained contact with his family, who visit him weekly.
Importantly, FD is undergoing forensic assessment to determine his treatment needs and program eligibility. He has been linked with a senior AOD clinician, Mr Hugh Crossman and has been meeting with him regularly while in custody. Mr Crossman reported that FD is working on a Lapse Prevention Plan which is progressing positively. I have also had regard to the fact that FD is subject to a Therapeutic Treatment Order with conditions to engage in treatment, and that he is expected to be linked to a program delivered by Kids First Australia and allocated to a Clinical Practitioner.
Parity
It is of limited use in the sentencing exercise in this case to have regard to the sentences of FD’s co-accused as they were charged with lesser offences. MS pleaded guilty to one charge of Affray and one charge of Intentionally Cause Injury. He was placed on probation by the Geelong Children’s Court for a period of 8 months. A special condition to not use any non-prescribed drugs of dependence applied to the order.
Mr Curtis has entered a plea of not guilty to one charge of Intentionally Cause Injury. He is yet to be sentenced.
As set out in the circumstances of the offending, neither co-accused used a knife and have been charged with lesser offences.
Legislative considerations
Section 360(1)(a)-(j) of the Act lists a hierarchy of sentences that may be imposed upon a child, escalating in severity. The final and most serious, found at subsection (j), provides that a court may convict the child and order that they be detained in a youth justice centre under s 412 of the Act.
In line with the principle of parsimony, s 361 of the Act provides that a court must not impose any sentence set out in s 360(1), unless satisfied that it is not appropriate to impose a sentence referred to in a preceding paragraph of that section.
Section 362(1) of the Act provides that, in determining which sentence to impose, 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 a 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.
When sentencing a child, general deterrence[36] and denunciation are not relevant sentencing considerations.[37] The need to protect the community, or any person, from the violent or wrongful acts of the child must be considered in all cases where the sentence is for a Category A or B serious youth offence.[38]
[36]Castillo (A Pseudonym) v The King [2023] VSCA 150.
[37]CNK v R [2011] VSCA 228 at [7]-[15].
[38]The Act, s 362 (1)(g)(i).
While community protection is an important consideration, in my view it is firmly linked to FD’s rehabilitation, which I consider can be achieved through targeted programs and protective factors. In my view, FD’s prospects of rehabilitation are positive despite the seriousness of his offending and his mental health vulnerabilities. He is young and will mature; in fact, he has shown signs of maturation in the last 8 months while in custody.
FD has a close relationship with his family and they have demonstrated a commitment to support him upon release. His father has indicated that he will provide FD with employment in his concreting business and make allowances for him to participate in treatment and programs as required. There is much more clarity now in relation to his needs and the assistance he will require given his diagnoses of ASD, ADHD, and PTSD.
FD has been in custody now for over eight months and I accept that this has had a salutary effect on him.
I have also had regard to FD’s criminal history. While he has no prior convictions, he has engaged in violent, weapon-related offending. His prior offending is in a relatively confined timeframe, and this offending is a significant escalation. I note that FD was on bail at the time of the alleged offending for serious alleged matters, demonstrating a disregard for court ordered conditions.
Foremost in the statutory list of factors to be considered in sentencing children are the needs of the child. Sections 362(1)(a)-(c) of the Act expressly mention the child’s need to maintain a relationship with their family; the desirability of living at home; and the benefit of continuing in education, training, or employment. This cluster of ‘needs’ is associated with the social development and educational development of the child. The priority given to this cluster of needs in the legislation supports the contention that non-custodial sanctions are to be preferred to custodial ones. This proposition is supported by the hierarchy of sentencing orders found within the legislation itself. Of course, the cluster of needs is to be considered alongside the nature and gravity of the offending, but the latter should not prevail.
The suitability of any sentence imposed on a child needs to consider the developmental level of the child and their needs.
The respondent submitted that, in the circumstances, the Court should impose a youth justice centre order. FD has already served just over eight months of his sentence, and will be eligible for parole on 10 November 2025, at the earliest. The respondent submitted that the youth parole board is best placed to determine if and when he should be paroled, and any conditions of parole.
It was also submitted that this course may be of some benefit to FD, in that young offenders on parole have priority access to services, and the conditions of parole would provide a stricter regime of compliance, with orders requiring him to work. Notwithstanding this, there was no suggestion that FD would not have access to necessary services if he is placed on a youth supervision order. Perhaps more importantly, there is no evidence before the Court that his risk factors and the community’s protection are better served by keeping him incarcerated until he is eligible for parole.
Even if an individual on parole has priority access to services, resource limitations are not a proper basis to keep a child incarcerated. Supporting FD’s rehabilitation within the community, while living with his family, is clearly in the long term interests of the community and best serves the goal of community protection. In this sense, a youth supervision order appropriately achieves the sentencing objectives outlined in the Act.
The respondent submitted that Youth Justice’s recommendation for a youth supervision order was misguided given the pre-sentence report contained several errors, including FD’s involvement with Child Protection and his criminal history. While I accept that the report lacked important information, it was not authored by Mr Tobias-Quigley. As I noted earlier, Mr Tobias-Quigley confirmed that Youth Justice’s position has remained unchanged since the report was prepared in May 2025. I am satisfied that, in his role as FD’s case manager, Mr Tobias-Quigley has thoroughly considered all relevant matters, including those omitted from the report, in forming his recommendation.
Finally, the respondent submitted that I should order a new pre-sentence report. I note that s 430I provides that the appellate court must order a pre-sentence report if it is considering making a youth residential centre order or a youth justice centre order. However, on my reading of the legislation, ordering a pre-sentence report is not mandatory if the appellate court imposes a less severe sentence, such as a youth supervision order.
Sentence
Pursuant to s 426(2)(a) of the Act, I set aside the sentence imposed by the Children’s Court on 26 June 2025.
Instead, on the charge of intentionally cause serious injury in circumstances of gross violence, I impose a youth supervision order with conviction for a period of 16 months, pursuant to s 387(1) of the Act. I order that the youth supervision order is to commence on the date of my sentence.
In addition to the core conditions specified in s 389 of the Act, the youth supervision order contains the following special conditions:
(a) FD is not to use any non-prescribed drugs of dependence;
(b) FD is to engage in assessments and forensic treatment as recommended by Youth Justice;
(c) FD is to engage in assessments and treatment for alcohol and drug use as recommended by Youth Justice; and
(d) FD is to engage in assessments and treatment services for mental health/disability supports as recommended by Youth Justice.
I confirm that FD has consented to the order being made.[39]
[39]The Act, s 387(2)(b).
Pursuant to s 381(3) of the Act,[40] I indicate that my reason for imposing the special conditions is to ensure that FD receives the necessary assessments and treatment for him to understand and manage his various diagnoses and substance use, which will reduce the risk of him committing further violent offences.
[40]Section 389(3) picks up and applies s 381(3) of the Act.
Finally, pursuant to s 362A of the Act, I am not required to state the sentence I would have imposed but for the plea of guilty.[41] While s 362A(2) provides that the Court may state the sentence it would have imposed but for the plea of guilty, I decline to do so.
[41]The Act, s 362A(1).
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