Criminal division – sentencing

11.1 Sentencing principles & sentencing orders

"Juveniles are less mature - less able to form moral judgments, less capable of controlling impulses, less aware of the consequences of acts, in short they are less responsible and therefore less blameworthy than adults. Their diminished responsibility means that they 'deserve' a lesser punishment than an adult who commits the same crime…Lesser punishment means not only more sparing use of detention but it also means significantly shorter terms of detention, bonds and periods of licence disqualification, because time has a wholly different dimension for children than it does for adults."

Judge Newman (South Australian Youth Court)

South Australian Youth Court Advisory Committee, Annual Report 1983, pp.6-7
"The risk that a period of detention will be counter-productive for an offender – and hence for the community – is never higher than in relation to a young offender who has not previously been in custody. Research to which the Chief Scientist of New Zealand has recently drawn attention has highlighted the potential for the immature brain to respond to punitive punishments in such a way as to make recidivism more rather than less likely."

Victorian Court of Appeal in CNK v The Queen [2011] VSCA 228 at [77]

per Maxwell P, Harper JA & Lasry AJA citing Laurence Steinberg, ‘Adolescent Development and Juvenile Justice’ (2009) Annual Review of Clinical Psychology 47, 65–68, cited in Improving the Transition: Reducing Social and Psychological Morbidity During Adolescence, Report to Prime Minister of New Zealand by Chief Scientific Advisor (May 2011), 28.
"[S]entencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision.”

High Court of Australia in Pearce v The Queen (1998) 194 CLR 610, 624 per McHugh, Hayne & Callinan JJ cited with approval in DPP (Vic) v Yeomans [2011] VSCA 277 at [66]

Only a small percentage of offences involving child defendants are contested and a significant proportion of these are found proved in any event. It follows that the major task for a judge or magistrate in the Criminal Division of the Children’s Court is the sentencing of juvenile offenders. In R v Lanteri [2006] VSC 225 at [6] Gillard J explained the sentencing process for adult offenders:

“My task is to determine the facts and, applying the principles of sentencing law, to determine in the exercise of my discretion, what is a proportionate and appropriate sentence in all the circumstances. In relation to the sentencing process, I refer to what the Court of Appeal said in R v Storey [1998] 1 VR 359 at 366:

“Sentencing is not a mechanical process. It requires the exercise of a discretion. There is no single ‘right’ answer which can be determined by the application of principle. Different minds will attribute different weight to various facts in arriving at the ‘instinctive synthesis’ which takes account of the various purposes for which sentences are imposed - just punishment, deterrence, rehabilitation, denunciation, protection of the community - and which pays due regard to the principles of totality, parity, parsimony, and the like.”

The process for sentencing juvenile offenders is the same although the weight given by the sentencing judge to the various factors involved in the ‘instinctive synthesis’ is likely to be quite different in most juvenile cases.

11.1.1 Sentencing models

There are two sentencing models which, in one combination or another, underpin the sentencing of persons, whether adult or juvenile, in most jurisdictions. In his Keynote Address at the Youth Justice Conference in September 2000: "Managing a New World in Transit", the Chief Justice of Singapore said of these models in relation to youth sentencing:

"National responses in many countries to youth offending throughout the 20^th century have fluctuated between the 'welfare' and the 'justice' models: broadly whether young offenders are seen as being primarily in need of care and rehabilitation, or deserving of correction or punishment. Both approaches have received their share of criticism."

11.1.2 Sentencing of adults

In sentencing an adult offender a court is required, by s.5(1) of the Sentencing Act 1991 (Vic), as far as practicable-

 to punish the offender;

 to deter the individual offender ['specific deterrence'];

 to deter the community generally ['general deterrence'];

 to rehabilitate the offender;

 to denounce the offender; and

 to protect the community.

This is predominantly a 'justice' model, only item  falling squarely within the 'welfare' model. In R v Tuan Quoc Truong [2005] VSCA 147 at [17]-[18] the Court of Appeal emphasized that the principle of general deterrence {item } was not to be used to convey a message to a specific ethnic community but to members of the community generally. See also R v Reth Mao [2006] VSCA 36 at [38]-[42].

In R v Merrett & Ors [2007] VSCA 1 Maxwell P, with whom Chernov JA & Habersberger AJA agreed, said at [49]:

“As I said in The Queen v Tiburcy [2006] VSCA 244, the sentencing court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this Court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.”

In DPP v Samarentsis [2007] VSCA 20 a very experienced judge had sentenced an offender who had demonstrated “a complete turn around” in his life in a way that gave much greater weight to the offender’s prospects of rehabilitation than it did to factors such as denunciation and deterrence. In refusing the DPP appeal Eames JA at [5] and Kellam AJA at [34] approved and applied dicta of King CJ in R v Osenkowski (1982) 30 SASR 212 at 212-213: