May-Jordan v The Queen
[2017] VSCA 30
•28 February 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0185
| JEREMY MAY-JORDAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 February 2017 |
| DATE OF JUDGMENT: | 28 February 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 30 |
| JUDGMENT APPEALED FROM: | DPP v May-Jordan (Unreported, County Court of Victoria, Judge Tinney, 19 August 2016) |
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CRIMINAL LAW – Sentence – Applicant pleaded guilty to charges of intentionally causing serious injury and theft – Applicant aged 18 when offences committed – Victim of stabbing suffered severed artery, massive blood loss and ongoing nerve damage – Applicant sentenced to three years and ten months’ imprisonment with two year non-parole period – Whether sentence manifestly excessive – Whether Community Correction Order coupled with term of imprisonment should have been imposed – Sentence not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Mr B Kissane QC with Ms D Piekusis | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA
FERGUSON JA:
Introduction
On 18 August 2016, the applicant pleaded guilty to charges of intentionally causing serious injury and theft. Both offences were committed when the applicant was on bail. The first charge arose out of an incident at a McDonald’s restaurant when the applicant stabbed a youth in the arm which caused a serious injury. The theft occurred some months before this when the applicant stole two bottles of vodka from a Liquorland store.
On 19 August 2016 the applicant was sentenced to three years and 10 months on the charge of intentionally causing serious injury and seven days on the charge of theft.[1] The sentencing judge fixed a non-parole period of two years.
[1]No cumulation was ordered so that the total effective sentence was three years and ten months. Had the applicant not pleaded guilty, the judge would have sentenced him to six and a half years’ imprisonment and would have fixed a non-parole period of four and a half years.
The applicant seeks leave to appeal. At the time he committed the offences, he was 18 years old. When he was sentenced, he was 19. He maintains that the sentence imposed upon him was manifestly excessive and, given his youth and the surrounding circumstances, a term of imprisonment coupled with a community correction order (‘CCO’) was the most appropriate disposition of the charges.
The stabbing at McDonald’s
The substance of this appeal concerns the sentence imposed on the charge of intentionally causing serious injury. On 16 March 2016 at about 3.30pm, the applicant and his girlfriend, Ms Sharna Cutting, were sitting at a bus stop outside a shopping centre in Traralgon. They saw a group of three youths which included the victim, 16 year old Hayden McDonald, meet at the bus stop. The applicant was angry at the group because he believed that they had been spreading rumours about Ms Cutting, and that one of them had tried to ‘pick her up’ several weeks before. The applicant followed the group into a nearby McDonald’s restaurant. Ms Cutting initially went with him. She told him to stop, but he would not listen. Ms Cutting then left. The applicant sat down in the McDonald’s to watch the group. He was armed with a kitchen knife, which a witness saw him remove from a pocket and hide under his sleeve before returning it to his pocket.
At approximately 3.55pm, the youths were leaving the McDonald’s. The applicant approached them and asked if they knew what time it was. One of the youths told him the time. The applicant then extended his hand to Mr McDonald and asked him his name. Mr McDonald shook the applicant’s hand and started to walk away. As he did, the applicant produced the knife and stabbed him in the upper right arm, then fled on foot. The applicant was arrested later that day.
The single stab wound passed through Mr McDonald’s arm and severed an artery, causing massive blood loss and nerve damage. He was airlifted to hospital for surgery. There was concern that he would lose his arm. He continues to face serious consequences as a result of the stabbing. He was not able to complete a work experience placement, can no longer engage in activities he previously enjoyed such as riding his motorbike or playing football, and has difficulty completing simple tasks such as tying his shoelaces. His fine motor skills have been compromised. He continues to undergo physiotherapy and occupational therapy.
The theft
The second offence of theft was committed some months earlier on New Years’ Eve 2015. On that occasion, the applicant went to a Liquorland outlet in Traralgon and while the cashier was serving another customer, he took two bottles of vodka and left the store without paying (Charge 2).
The applicant was on bail for charges related to burglary when he committed both of the offences which are the subject of this application for leave to appeal.
Sentencing Remarks
On 7 July 2016, the applicant pleaded guilty to both charges. The plea hearing took place on 18 August 2016.
The sentencing judge emphasised that the stabbing was a very serious attack, which the applicant had persisted with despite his girlfriend’s attempt to dissuade him.[2] It was an attack using a weapon in broad daylight, and the applicant had not attempted to resolve his grievance verbally.[3] The sentencing judge also set out the significant impact the attack had had on Mr McDonald,[4] who no longer felt safe[5] and could no longer participate in activities he had engaged in before the attack.[6]
[2]DPP v May-Jordan, Reasons for Sentence (Unreported, County Court of Victoria, 19 August 2016) (‘Reasons’) [4].
[3]Ibid [5]–[6].
[4]Ibid [10].
[5]Ibid [9].
[6]Ibid [8].
The judge then set out the applicant’s personal circumstances. The applicant was educated to the start of year 11.[7]
[7]Ibid [15].
The applicant’s parents had separated when he was young. He had fallen out with his father in 2013 and left home. At about this time the applicant was involved in what the judge characterised as ‘serious enough’ criminal offending.[8]
[8]Ibid [14].
The applicant’s relevant criminal history, included previously causing serious injury and involvement in a robbery and an armed robbery. The judge described that offending as a ‘nasty joint attack’.[9] It involved a group assault with the victim sustaining a broken leg having been knocked to the ground, kicked and stomped on until he was unconscious. The sentencing judge observed that the applicant’s prior criminal offending took place in the context of disengagement from school and family, which had led him to be negatively influenced by his peers.[10] The applicant had had a ‘big problem for many years’ with drug use, but the sentencing judge was told he had detoxed while in custody.[11] The sentencing judge considered it was ‘something of a worry’ that the offence before him had occurred while the applicant was on bail.[12]
[9]Ibid.
[10]Ibid [16].
[11]Ibid.
[12]Ibid.
The sentencing judge then turned to the applicant’s psychiatric health. The applicant had reported feeling anxious and overwhelmed, and had been diagnosed with an anxiety disorder.[13] However, the judge did not consider there was any psychiatric evidence which explained the offending or reduced the applicant’s culpability.[14] Indeed, the applicant’s counsel conceded on the plea hearing that none of the limbs in R vVerdins,[15] was enlivened.
[13]Ibid.
[14]Ibid [17].
[15](2007) 16 VR 269.
The judge set out the matters which were raised in mitigation, including the applicant’s cooperation with police, his early guilty plea, his remorse, his relatively short criminal history, that he had the support of his family, and that he had completed a number of courses in prison which suggested he had strong prospects of rehabilitation.[16] The sentencing judge observed that the applicant had made full admissions to the police and that his experiences before the court may have been traumatic given his youth.[17] He noted the utilitarian value of the early guilty plea, which had spared the community the cost of a contested hearing, and had spared the victim the experience of coming to court.[18] The judge accepted that the applicant was genuinely remorseful.[19] He stated that while the applicant’s youth and prospects of rehabilitation were not unimportant, he must attach less weight to them given his criminal history and the seriousness of the offence.[20] The judge noted the difficulty in assessing prospects of rehabilitation, but said that he believed the applicant could change.[21] The judge ultimately found that the applicant has quite realistic prospects of rehabilitation.[22]
[16]Ibid [11].
[17]Ibid [20].
[18]Ibid.
[19]Ibid [21].
[20]Ibid.
[21]Ibid [23].
[22]Ibid.
The judge then considered current sentencing practice. He noted that he had considered the Sentencing Advisory Council’s Snapshot for the crime of intentionally causing serious injury, which disclosed a median sentence of four and a half years for the offence.[23] The judge also considered the Judicial College of Victoria’s Sentencing Manual[24] and the case of Sianas v The Queen,[25] which was brought to his attention by the applicant’s counsel. In that case, the applicant was sentenced to 22 months’ imprisonment with a three year CCO, a sentence which was affirmed on appeal. Sianas was 18 years old at the time he committed the offences of intentionally causing serious injury and armed robbery.[26] In an unprovoked attack, Sianas kicked a 17 year old in the head, struck him in the forehead with a beer bottle, causing it to break, and thrust the broken bottle into the victim’s chin, just below the lip.[27] The victim in this attack suffered lifelong scarring and required plastic surgery.[28] Sianas then placed another 17 year old in a headlock and threatened him with a beer bottle, demanding and stealing money from him.[29] The offending was described as ‘very serious’.[30] This Court considered that although Sianas’ ‘youth and positive steps towards rehabilitation were important’, his offending was ‘so serious that considerations of general deterrence, specific deterrence and just punishment demanded the imposition of a sentence of imprisonment.’[31] Priest JA stated that the judge ‘reflected [Sianas’] youth and prospects of rehabilitation in a sentence of imprisonment of relatively modest length, coupled with a CCO.’[32]
[23]Ibid [24].
[24]Ibid [25].
[25][2016] VSCA 84 (‘Sianas’).
[26]Ibid [2].
[27]Ibid [7].
[28]Ibid [13].
[29]Ibid [8].
[30]Ibid [6].
[31]Ibid [37] (Priest JA, Osborn JA agreeing).
[32]Ibid.
The sentencing judge in the present case observed some distinguishing features in the applicant’s case from those in Sianas. Sianas had not previously been charged with causing serious injury nor had he been detained under sentence (although he had a significant criminal history).[33]
[33]Reasons [25].
The judge noted the limitations of using sentencing statistics and other cases, and said that he must pass the sentence which was appropriate in the case before him.[34]
[34]Ibid [27].
The judge considered, and counsel for the applicant conceded, that the attack against Mr McDonald was ‘extremely serious offending.’[35] He considered the attack to be a premeditated offence with a serious impact,[36] although he said it could not be characterised as near the worst category of injury seen by the court.[37] The judge did not consider the charge of theft to be a serious crime and said little about it.[38]
[35]Ibid.
[36]Ibid [30]–[32].
[37]Ibid [33].
[38]Ibid [28].
The sentencing judge set out the various considerations he had taken into account in determining a sentence, including community protection, rehabilitation and general and specific deterrence.[39]
[39]Ibid [34]–[37].
The applicant relied on Boulton v The Queen[40] and submitted that it was open to the judge to impose a term of imprisonment with a CCO attached. The judge said that ‘not every offender for every crime’ can or should be given such an order, and that there were some crimes where the purposes of sentencing cannot be given adequate weight through the use of a CCO.[41] He stated that he did not believe a CCO was appropriate in the circumstances. The offending was far too serious and demanded an immediate term of imprisonment of such length as precluded the imposition of a CCO combined with a term of imprisonment.[42] The judge noted that a CCO can only be used in conjunction with a prison term of up to two years, and that he believed a more substantial term of imprisonment was warranted.[43]
[40][2014] VSCA 342 (‘Boulton’).
[41]Ibid [43].
[42]Ibid [42]–[49].
[43]Ibid [40], [50]–[53].
Grounds of Appeal
The applicant relies on two grounds of appeal:
1.The sentence was manifestly excessive in light of the full admissions made to police, early plea of guilty, remorse, youth, family support and all the circumstances of the offence.
2.The judge erred in failing to impose a term of imprisonment followed by a CCO in light of the applicant’s youth and in all the circumstances of the case.
Given the closely related nature of the two grounds, it is convenient to deal with them together.
The overarching submission by the applicant is that the judge too readily discarded his youth as a strong mitigating factor and failed to pay due regard to his youth when assessing the seriousness of the offence. The result, so he maintains, is that the judge imposed a sentence that is manifestly excessive.
The applicant submits that (in addition to his youth) there were a range of other factors in mitigation (as set out above). He contends that having regard to all of these factors, and that the offending was serious but not in the most serious category, the sentence was manifestly excessive. He contends that it is only when the offence is both particularly serious and persistent that the role that youthfulness has to play in sentencing is diluted. Here, he maintains that his offending, whilst an unprovoked attack, was not wantonly vicious. There were not, for example, multiple stab wounds; rather, just the one.
The applicant’s counsel submits that the judge analysed the facts to determine that the stabbing was an intentional act, but did not analyse why the applicant acted as he did and contended that the judge downplayed the role of the applicant’s background and circumstances. Counsel submits that the offence was committed by the applicant as a youth. Counsel contends that part of the relevant background was the difficult childhood endured by the applicant and that the applicant is chronically anxious. He felt aggrieved at the youths, angry and resentful. He lashed out in a situation where he was unable to cope and did not know what to say. So, his counsel says, this was a display of impulsive and immature behaviour. He was shocked and remorseful when he realised the consequences.
The applicant submits that the sentence must be assessed on the basis that he may have to serve every day of the head sentence (that is, three years and 10 months). On that basis, in the applicant’s submission, the sentence is not commensurate with the offending, and there were compelling reasons to prefer a CCO to a parole period. The applicant points to the certainty of a release date in such a combination order as a matter which could facilitate his rehabilitation and emphasised the ability of the court to mould the CCO to his needs. The applicant described his youth, strong prospects of rehabilitation and the positive steps he has already taken towards rehabilitation as compelling reasons why the judge should have preferred a CCO to a parole period. He also maintains that given the non-parole period was fixed at two years, the sentencing judge’s comments regarding the reasons for not imposing a CCO lack cogency. Having determined that the appropriate non-parole period was two years (that being the period which justice required him to serve in custody) the applicant submits that the sentencing judge erred in imposing a sentence which created the possibility of him serving a much longer period in custody. In conclusion, the applicant submits that the decision to impose a non-parole period rather than a CCO failed to give sufficient weight to his youth and prospects of rehabilitation.
The Crown points to the difficulty of sustaining a complaint of manifest excess,[44] and submits that the sentence was not wholly outside the range of available sentencing options open to the judge. The Crown contends that the sentencing judge had regard to the factors set out in the grounds of appeal, and appropriately balanced them against the seriousness of the attack and the significant maximum penalties for the offending before him. The Crown observed that the sentencing judge correctly stated the principle regarding the need to take into account the youth of the offender but that youthfulness does not apply equally in every case.[45] In this regard, the Crown maintained that this was an appropriate observation given factors such as the prevalence of young people carrying and using knives in the Latrobe Valley area, which increased the need for general deterrence.
[44]See R v Abbott (2007) 170 A Crim R 306 [13]–[14].
[45]Reasons [21].
The Crown submitted that the applicant had first observed the group of youths, had followed them, had used a ruse to gain the attention of Mr McDonald and, through that ruse, had taken him by surprise before stabbing him.
The Crown submitted that if the judge had not taken into account the applicant’s youth, a longer sentence would likely have been imposed. The Crown acknowledged that sentencing statistics have their limitations but noted that the sentence that was imposed was less than the median for the offence.
If ground two is a standalone ground (which the Crown does not accept), it submits that there is no error in the sentencing judge’s decision not to include a CCO as part of the sentence. The Crown contended that the sentencing judge carefully considered the decision in Boulton,[46] and appropriately balanced the relevant sentencing factors.
[46][2014] VSCA 342.
Conclusion
As has been said repeatedly, to succeed, the applicant must establish that the sentence that was imposed was wholly outside the range of sentencing options available to the judge. What sentence we might have imposed had we been given the task of sentencing is not relevant unless that first hurdle is passed. Here, the applicant has failed to overcome that obstacle. In our view, the sentences were within the range of sentencing options that were available.
So far as the applicant’s youth is concerned, it is first noteworthy that at the plea hearing, his counsel (who did not represent him on his application for leave to appeal) observed that it is common in the Latrobe Valley for young people to carry knives. The applicant’s counsel conceded that in light of this, general deterrence was a significant aspect of the sentence despite the applicant’s youth. She also conceded that the applicant’s offending was extremely serious offending. Second, whilst sentencing statistics have their limitations, including that the circumstances of the offender and the offence are not discernible, the fact that the offending was very serious and the fact that the sentence that was imposed was less than the median sentence does not immediately suggest that the sentence was manifestly excessive.
When sentencing young offenders, the offender’s youth is a powerful mitigating factor. In Azzopardi v R[47] Redlich JA summarised the underlying reasons for this as follows:
First, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct….
Secondly, courts ‘recognise the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending….
Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community….[48]
[47](2011) 35 VR 43 (‘Azzopardi’).
[48]Ibid 53–54 [34]–[36] (footnotes omitted).
Redlich JA went on to consider the effect that crimes which are particularly serious or persistent have on these matters.[49] In doing so, his Honour quoted the following passage from the reasons of Batt JA in Director of Public Prosecutions v Lawrence:[50]
… with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a ‘back seat’ to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both.[51]
[49]Ibid 55-56 [37]–[40].
[50](2004) 10 VR 125 (‘Lawrence’).
[51]Ibid 132 [22] (footnotes omitted).
Lawrence concerned a 20 year old offender who was under the influence of drugs and alcohol. He brutally attacked his companion by knocking him out, dragging him across a road to a park, kicking him repeatedly to the head and body at least ten times whilst he was on the ground and by stabbing him at least three times in the lower back and other parts of the body with a broken stubby. The offender left the victim in the park. The victim sustained very serious injuries including a brain contusion, a depressed fracture of the skull, multiple fractures of the skull (to the face and neck bones), multiple deep lacerations to the face and three stab wounds to the lower back, with glass found in one of the neck wounds. The victim was in a coma for three to four days and it was initially thought he may not survive.
As the applicant submits, what was said by Batt JA is best considered in the context of the facts with which he was dealing. Nevertheless, and albeit that the attack in the present circumstances is less vicious than that in Lawrence, it is still true that the very serious nature of the offence is a matter that may lessen the impact of the offender’s youth in determining the sentence that may be imposed. It is not that youthfulness is disregarded. Rather, it is simply that other sentencing considerations may weigh more heavily in the particular circumstances of the case. In this regard, the judge having referred to the matters raised in Azzopardi said:
Your youth is not unimportant, I do not ignore it, I bear it constantly in mind. However, you have committed a serious offence, intentionally causing serious injury, and you have done so in the context of having a relevant criminal history and I must necessarily attach less weight to your youth and rehabilitation in all of the circumstances of this case. Other sentencing factors must also be given greater weight and your counsel concedes that. She concedes the prevalence of the carriage of knives by young people in this community, and you both carried and used one in a most startling fashion. I do not lose sight of your youth but I am afraid it is not the only matter that I have to consider. Far from it.[52]
[52]Reasons [21].
We detect no error on the judge’s part. General deterrence had to weigh more heavily in the sentencing exercise in this case than it might in others. It is very concerning that young people in the Latrobe Valley may think that it is normal and acceptable to carry a knife with the possibility that it may be used to attack another human being. It is not. It is important that young people in that community know that it is not. One way of bringing this home to the community is to pay sufficient regard to general deterrence as a sentencing consideration. Of course that is not to say that it entitled the judge to ignore the applicant’s youth. But as the passage set out above discloses, he did not do that.
We would reject the applicant’s submission that it is only where the offence is both particularly serious and persistent that an offender’s youth does not apply in the same way that it would in other cases. In fact, in our view, the offender’s youth will always be an important factor; but its importance and force cannot help but be affected by other sentencing considerations which are likely to include either the seriousness of the offending or its persistence or both.
We reject the applicant’s contention that the judge downplayed the applicant’s background and the reason why he committed the offence. It is unsurprising that the judge analysed whether the attack had some element of premeditation. The reason for this is that on the plea the applicant’s counsel devoted time to a description of Mr McDonald’s behaviour and suggested that the offence was not premeditated. The judge was satisfied that the applicant had some plan to use the knife in some unspecified way. The judge was aware of the reason that the applicant gave for the attack and recorded it in his reasons. He did not ignore this. Nor did the judge ignore the applicant’s background and circumstances. He accepted what he was told about that by the applicant’s counsel. The judge saw no reason to restate the detail in his reasons. Rather he referred to the detail provided in the applicant’s written outline on the plea (which was an exhibit) and to the report of psychologist, Mr Jeremy Parker which disclosed that the applicant suffers from an anxiety disorder.[53]
[53]Reasons [13]–[16].
As the applicant submits, the sentence must be approached on the basis that the whole term may be served. It does not follow that because a CCO may be combined with a sentence of less than two years and because a non-parole period of two years was fixed, the judge was required to set a lesser term of imprisonment combined with a CCO. Without deciding the point and assuming for the purposes of the argument that that may have been one of the options that was open to the judge, the fact that the non-parole period is two years does not lead to the conclusion that the sentence imposed was not another sentencing option that was open to him. The non-parole period merely reflects the minimum period that must be served. It does not follow that this is the total period that should be served. When it comes time for a decision to be made as to his release from prison, it will be for the Adult Parole Board to determine whether that should occur and, if so, on what conditions. In Kumova v R,[54] Redlich and Osborn JJA stated:
like the head sentence, the non-parole period must also reflect the objective gravity of the offence so that the non-parole period should constitute the minimum period of imprisonment that justice requires the prisoner to serve.[55]
[54](2012) 37 VR 538.
[55]Ibid [27].
We do not take their Honours to be suggesting anything other than that the non-parole period is a minimum. The sentence must reflect the total period that is required to be served. As has been said before, courts should not fashion sentences in an attempt to bring them below the two year limit for imprisonment simply so that a CCO may be imposed.[56] The whole sentence must reflect the gravity of the offending.
[56]Director of Public Prosecutions v Basic [2016] VSCA 99 [31]–[32].
The applicant points to Sianas as evidence that a CCO would have been appropriate in his case. However, it is worth noting that in Sianas the focus was on whether the judge had erred in sentencing Sianas to adult imprisonment rather than to a Youth Detention Order. It was common ground that the judge had made two errors; first as to the number of sessions Sianas had attended with a Youth Justice case worker and second, as to the timing of his counselling sessions with a psychologist (which took place after, not before, the commission of the offences). The Court held that the errors were not material and that the sentence was not manifestly excessive. The fact that the sentence in Sianas was found to be one open to the judge in that case, does not mean that the sentence in Sianas must necessarily be imposed here, nor that the sentence that was imposed here must be manifestly excessive. Leaving to one side for the moment the distinguishing features between Sianas and the present case, as the judge observed, it is not in any event a precedent.[57]
[57]Reasons [27].
In Boulton,[58] this Court observed that a CCO can be used to rehabilitate and punish simultaneously and that this ‘significantly diminishes the conflict between sentencing purposes, particularly acute in relation to young offenders.’[59] So much may be accepted. However, it does not follow that wherever a young offender is concerned, a CCO (either on its own or in combination with a prison term) will be apt. Rather, the circumstances of the offender and the offence and other sentencing considerations control that decision. Importantly, as part of this process, before imposing a term of imprisonment, the sentencing judge will need to consider whether the purposes of sentencing can be achieved by a CCO with conditions attached.[60] In this case, the judge was satisfied that imprisonment was the only option.[61]
[58][2014] VSCA 342.
[59]Ibid [186].
[60]Sentencing Act 1991 s 5(4C).
[61]Reasons [37]–[39].
The judge considered all of the matters relevant to his sentencing task. He gave each the weight that he thought it deserved. The sentence which resulted from this process does not disclose any error on his part. The judge dealt appropriately with all of the mitigating factors raised by the applicant and weighed them with the gravity of the offence and other sentencing considerations. In particular, when regard is had not only to the applicant’s youth but also to the seriousness of the offence, that it was committed whilst the applicant was on bail, that he had a prior conviction for a ‘nasty joint attack’[62] and that not only specific but also general deterrence had a particular role to play, the sentence that was imposed was a sentencing option that was open to the judge.
[62]Ibid [14].
The application for leave to appeal against sentence will be refused.
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