Criminal division – sentencing

In R v Azzopardi, R v Baltatzis, R v Gabriel [2011] VSCA 372, the applicants, who were all aged 19 at the time of their offending, had engaged in persistent and grave criminal conduct, including multiple counts of armed robbery and of intentionally causing serious injury. All pleaded guilty. Azzopardi & Baltatzis pleaded guilty to 46 counts committed in 21 separate incidents on 11 different evenings over an 8 week period and involving 34 separate victims. Gabriel pleaded guilty to 10 counts committed in 5 separate incidents on the one evening. They were sentenced respectively to IMP 18y6m/13y6m, 16y6m/10y6m & 9y9m/6y. Their appeals principally raised the question whether the mitigating influence of their youth had been expunged because of the extent and seriousness of their criminality and whether, upon a proper understanding of the principle of totality, the imposition of lesser sentences was required. Their appeals were allowed and they were re-sentenced respectively to IMP 16y/10y6m, 12y/7y & 7y/4y.

At [34]-[36] Redlich JA (with whom Coghlan & Macaulay AJJA agreed) reiterated and expanded upon the considerations underlying the primacy of an offender’s youth as a sentencing consideration:

“Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’: R v McGaffin [2010] SASCFC 22, [69]. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’: DPP v TY (No 3) (2007) 18 VR 241, 242. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK & GAS [2002] VSCA 131 at [61]:

‘In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.’

Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’: R v McGaffin [2010] SASCFC 22, [69]. 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’: R v Tran (2002) 4 VR 457, 462. 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 {DPP v TY (No 3) (2007) 18 VR 241, 242; R v Marshall [2003] NSWSC 448, [15]}, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. As stated in R v Lam & Ors [2005] VSC 495, [8]:

‘A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing there is thus a broad public interest in taking into account the youth of the offender.’

Thirdly, courts sentencing young offenders are cognizant 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: R v McGaffin [2010] SASCFC 22, [69]. 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: R v Lam & Ors [2005] VSC 495, [8]. 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: R v Hatfield [2004] VSCA 195, [10] (Chernov JA). As Fox J stated in R v Dixon (1975) 22 ACTR 13, 19–20:

‘The reasons are obvious enough: the prisoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals…

When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again.’”

His Honour went on at [37]-[40] to discuss “the tension between the mitigating influence of an offender’s youth and the increased need for deterrence in the case of very serious violent offending” – in short the tension between the judgments of Batt JA in R v Mills [1998] 4 VR 235, 241 and DPP v Lawrence (2004) 10 VR 125, 132 – before concluding at [44]:

“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth: see also IE v The Queen (2008) 183 A Crim R 150 [16] (Latham J; Spigelman CJ and Hulme J agreeing). But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished: cf. DPP v Terrick (2009) 24 VR 457,470-71.^”
See also R v Filippi, Kosterman and Vergados [2011] VSCA 438 at [78] per Warren CJ with whom Nettle & Ashley JJA agreed.
In R v Boland [2007] VSCA 242 the Court of Appeal allowed an appeal against a sentence of 43 months imprisonment with a non-parole period of 24 months imposed on the appellant in respect of 8 counts of indecent assault committed by him on a person under the age of 16, the offences having been committed 24-29 years ago at times when the appellant was aged 14-19. At [16] Nettle JA, with whom Ashley & Dodds-Streeton JJA agreed, said:

“Decisions of this Court in R v Nutter (unreported, 08/11/1995, Charles & Callaway JJA & Vincent AJA) and R v Better [2003] VSCA 71 (Charles, Buchanan & Vinccent JJA) recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.”

The above dicta was applied by the Court of Appeal in R v Miller [2011] VSCA 143 at [67].