H v Rowe & Ors - [2008] VSC 369

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6574 of 2008

H	Appellant
V
TREVOR ROWE ADAM KANE ROBERT CAIAFA BRETT COLLEY	Respondents

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2008
DATE OF JUDGMENT:	19 September 2008
CASE MAY BE CITED AS:	H v Rowe & Ors
MEDIUM NEUTRAL CITATION:	[2008] VSC 369	First Revision 21 April 2009

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APPEAL – Sentencing Children’s Court – Appeal from President of the Children’s Court to the Supreme Court – Principles – Sentence of President re-imposed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms M. Hodgson	Balmer & Associates
For the Respondents	Mr M. Gamble SC	Office of Public Prosecutions

HIS HONOUR:

Introduction

This is an appeal pursuant to s 424(1) of the Children, Youth and Families Act 2005 (“the Act”).

H, who is now 17 years of age appeals against a 27 month sentence of detention in a youth justice centre imposed by the President of the Children’s Court.

During 2006 and 2007, H engaged in a wide range of criminal behaviour, culminating in March of 2008 with a vicious attack with a knife upon a young man he was attempting to rob. At the time, H was the subject of five separate youth supervision orders.

H has been in custody since that offence, detained at a youth justice centre.

The argument of H’s counsel was not directed towards the fact that a sentence of detention had been imposed, but rather to the length of the period of detention.

Although this appeal is to be treated as a hearing de novo, I have taken the view that the sentence imposed by the President of the Children’s Court was appropriate and no different sentence ought to be imposed by this Court.

I now set out my reasons for reaching this conclusion.

The provisions of the Act

Section 424(1) of the Act requires an appeal against a sentence imposed by the President of the Children’s Court to be made to the Trial Division of the Supreme Court.

In effect s. 424(5) and (6) of the Act deem certain provisions of the Magistrates’ Court Act 1989 relevant to County Court appeals to apply to appeals from the President of the Children’s Court to this Court. With appropriate modifications applied, this requires this Court to, amongst other things:

(a) Set aside the order of the Children’s Court;

(b) To make any order which this Court thinks just and which the Children’s Court could have made;

(c) Exercise any power which the Children’s Court exercised or could have exercised.[1]

[1]S. 86 of the Magistrates Court Act

In terms of procedure the appeal is conducted as a hearing de novo. In Humphries v Poljak[2] Crockett and Southwell JJ described such a hearing as follows:

“Such a rehearing involves a complete rehearing of the matter by the appellate court. The initiator of the proceedings below would be required on appeal to commence the rehearing proceedings regardless of…

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 H v Rowe & Ors

Details

AGLC: H v Rowe [2008] VSC 369
Case: [2008] VSC 369
Decision Date: 19 September 2008

CaseChat Overview and Summary

The Supreme Court of New South Wales heard an appeal against a sentencing decision made by the President of the Children’s Court in the case of H v Rowe & Ors. The appellant, H, was a minor at the time of the offence and was appealing the sentence imposed for an act of criminal damage. The respondents included the President of the Children’s Court and other interested parties. The core dispute centred around the appropriateness and proportionality of the sentence imposed on H by the President, particularly in light of the principles governing sentencing in the Children’s Court.

The legal issues before the court involved the interpretation and application of the relevant sentencing principles under the Children’s Court Act, specifically those concerning the punishment and rehabilitation of juvenile offenders. The appellant argued that the sentence was excessively harsh and did not adequately consider the rehabilitative needs of a minor. The respondents, on the other hand, contended that the President's sentence was within the appropriate bounds, taking into account the gravity of the offence and the need for deterrence.

In considering the appeal, the Supreme Court examined the sentencing principles as they applied to juvenile offenders. The court reviewed the evidence and arguments presented by both parties, assessing whether the President’s decision was in line with statutory and judicial guidelines. The Supreme Court concluded that the President's sentence was both appropriate and proportionate, given the circumstances of the offence and the considerations of rehabilitation. The appeal was therefore dismissed, and the original sentence was re-imposed.

Orders