RAC v The Queen

[2011] VSCA 294

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0188
RAC	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and HARPER JJA
WHERE HELD	MELBOURNE
DATES OF HEARING	27 and 28 September 2011
DATE OF JUDGMENT	28 September 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 294
JUDGMENT APPEALED FROM	DPP v Hills & Ors [2011] VSC 87 (Kaye J)

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CRIMINAL LAW – Appeal – Sentence – Aggravated burglary, kidnapping and reckless conduct endangering the person – Sentenced in Supreme Court with adult co-offenders – Applicability of Children, Youth and Families Act 2005 (Vic) – General deterrence – Whether excluded by statutory regime for sentencing children – Parity with youthful co-offender – Appeal allowed – Resentenced to youth supervision order – Children, Youth and Families Act 2005 (Vic) s 362(1).

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Appearances:	Counsel	Solicitors
For the Applicant	Mr W B Lindner	Dowling & McGregor Pty Ltd
For the Crown	Mr R A Elston SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. I invite Harper JA to deliver the first judgment.

HARPER JA:

1. On 9 December 2008, the applicant, who was then 15 years old, joined four adults and a youth also aged 15 in kidnapping a female victim.  During the course of a particularly vicious episode, the victim suffered serious injury as, with the passive assistance of the applicant and the active assistance of the other young offender, she was dragged from her home, punched, and forced into the boot of the car which was to transport her to the Maribyrnong River.  After the journey began, she attempted to call for assistance by using a mobile telephone which she had with her.  While doing this, she was overheard by the other occupants of the car.  The car stopped, the boot was opened, and one of the adults together with the other youth removed the phone before the journey continued.  After the party arrived at the river, the victim was thrown in.  As her head was being forced under water, the other youth called for her to be drowned.  Both youths stood by the river bank to block her escape from the water.

1. As will be appreciated from this brief account of very serious offending, the applicant’s part was comparatively minor, and less than that of his youthful counterpart.  On the other hand, the other young offender had no criminal history, whereas the applicant had convictions which included burglary, robbery, recklessly causing serious injury, and intentionally damaging property. 

1. Following a trial in the Supreme Court of the applicant and all but two of his co-offenders, each of the then accused, including the other youth, was convicted of a number of offences. On count 1 (aggravated burglary), and on a separate count of reckless conduct endangering the person, each youth was sentenced to 18 months’ detention in a youth justice centre;  and on count 2 (kidnapping), each of the two was sentenced to two years and six months such detention.  The youthful co-offender was sentenced, in addition, to 12 months’ detention on a count of recklessly causing serious injury. 

1. Both youths, however, received the same total effective sentence: three years’ detention in a youth justice centre. The judge directed that 6 months of the applicant’s, and six months of the youthful co-offender’s, sentence on the count of reckless conduct endangering the person be served cumulatively with the two years and six months’ detention imposed on each offender in relation to count 2.  Otherwise, their sentences were to be served concurrently.

1. The applicant now seeks to appeal on the ground that the sentencing judge erred in taking into account general deterrence when applying s 362(1) of the Children, Youth and Families Act 2005.  That sub-section provides as follows:

(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.

1. In a ruling given before pronouncing sentence, the sentencing judge held that the purpose of s 362(1) is to ensure that, in determining – in accordance with established sentencing principles – what is an appropriate sentence, the Court must take into account the factors specified in that provision. Each such factor is, as his Honour said, particularly relevant to the personal circumstances of a young offender. But this, his Honour also held, was not to the exclusion of ordinary sentencing considerations. These included general deterrence. His Honour sentenced each of the youths accordingly. He did so on the basis that, while the other youthful offender had played a more active part in the offending than had the applicant, he – unlike the applicant – did not have any prior convictions. It was against this background that his Honour noted the importance of issues of parity, and that the greater involvement in the offending of the one was, as his Honour held, balanced by the previous convictions of the other.

1. The co-offender has since appealed successfully against his sentence.  On 24 June 2011, the Court of Appeal announced that, for reasons to be given at a later date, the application for leave to appeal, and the appeal itself, would be allowed, the sentences previously pronounced would be quashed, and the co-offender re-sentenced.  The effect of the re-sentencing was, first, that his period of detention in a youth custody centre was reduced so as to expire on that day, 24 June; and, secondly, to release him on a youth supervision order for a term of 18 months commencing on that day.

1. On 10 August 2011, the Court delivered its reasons for allowing the appeal and making the above orders.[1] The Court held that the nature of the matters to which regard must be had pursuant to s 362(1) of the Act were such as to preclude any consideration of general deterrence in relation to youthful offenders. It was on this basis that the co-offender’s appeal was allowed. Given the finding of specific sentencing error, the sentencing discretion was re-opened and the co-offender was re-sentenced as described above. Given, too, that the co-offender was released on a youth supervision order with a duration of 18 months, commencing on the date on which the orders were made (24 June 2011), the co-offender’s supervision order will expire on 24 January 2013.

   [1]CNK v The Queen [2011] VSCA 228.

1. The respondent concedes that the decision in CNK v The Queen is applicable in considering the proper disposition of this application.  Consistently with this, the Crown further accepts that the application should succeed, that the appeal should be

allowed, and that the applicant should to be re-sentenced both in accordance with the judgment in CNK and so as to preserve the parity which the sentencing judge intended.

1. These concessions are properly made.  It follows that the application for leave to appeal should be granted, the appeal treated as instituted and heard instanter, and allowed.  The sentences of detention in a youth justice centre imposed below are quashed.  In lieu thereof, the applicant is convicted on each count and sentenced as follows:

On the count of aggravated burglary – 382 days’ detention in a youth justice centre.

On the count of kidnapping – 382 days’ detention in a youth justice centre.

On the count of reckless conduct endangering the person – released on a youth supervision order commencing on 28 September 2011 and expiring on 23 December 2012.

(The Court notes that, as a consequence of s 33 of the Sentencing Act 1991, the terms of detention imposed on these counts are to be served concurrently).

1. These orders require some explanation.  They have been framed so as to ensure, with one exception, parity between the applicant and CNK.  The latter had served 96 days pre-sentence detention as at the date of his being sentenced on 18 March this year.  But the applicant had by then served 188 days of pre-sentence detention.  The difference between 188 and 96 is 92.  If absolute parity were to be maintained, the applicant’s period of youth supervision should expire 92 days before that of CNK, that is, on 25 October 2012.  In my opinion, however, it is appropriate, given the applicant’s prior convictions, that he remain under the youth supervision order until 23 December 2012.

NETTLE JA:

1. I agree. 

1. The orders of the Court are as follows: 

1.     The application for leave to appeal is allowed.

2.     The appeal is treated as instituted and heard instanter and is allowed.

3.The sentences imposed below of detention in a youth justice centre order are quashed and in lieu thereof the applicant is convicted on each count and sentenced as follows: 

(a)     on the count of aggravated burglary, to 382 days detention in a youth justice centre.

(b)    on the count of kidnapping, to 382 days detention in a youth justice centre.

(c)     on the count of reckless conduct endangering person, to be released on a youth supervision order for a term commencing on 28 September 2011 and expiring on 23 December 2012.

The Court notes for the sake of completeness that, as a consequence of s 33 of the Sentencing Act 1991, the terms of detention imposed by these orders are to be served concurrently.

The Court further notes that, in formulating these orders, it has taken into account that the number of days already served under the sentence is 382 days not including this day.

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