Criminal division – sentencing

[35] In determining for how long a licence is to be cancelled, this Court has held:

the Court should have regard to two separate considerations. They are first the need for the period of cancellation itself to serve its part as a punitive element in the context of the total punishment imposed, and secondly, the need to provide protection to the public from the dangers of possible future lawless motor vehicle driving by the offender. Those two considerations have each to be given such weight as the Court considers is appropriate bearing in mind it is their combined effect which will determine the ultimate length of the disqualification: R v George (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 21 September 1989, Crockett, O’Brian and Gray JJ).

[36] Imposing a disqualification period only for the period of imprisonment adds little to the punishment of the offender and nothing to the protection of the public, if it is determined that such protection is required. It is only after release that ‘the disqualification will ‘come home’ to the offender’: R v Birnie (2002) 5 VR 426, [30]. It will be a matter to be assessed in each case in accordance with sentencing principles including due consideration of the rehabilitation of the offender. Given that disqualification is mandatory in culpable driving cases, the legislature must have intended for it to continue beyond the term of imprisonment where the sentencing court thought it appropriate: R v Wootton [2002] VSCA 165, [27].

[37] That said, the disqualification should not inhibit the offender’s rehabilitation too greatly [R v Tantrum (1989) 11 Cr App R (S) 348, 349; R v Tran (2002) 4 VR 457], particularly where it is determined that there is no need to protect the public [R v Bazley (Unreported, Supreme Court of Victoria, Court of Appeal, 21 August 1997, Phillips CJ, Batt JA and Vincent AJA)]. That rehabilitation is heavily dependent upon the offender’s ability to obtain employment. When the appellant leaves prison, and due to the nature of his trade, he will doubtless need to have a driver’s licence to gain employment which in turn would be important to his rehabilitation.

[38] In this case, the appellant’s licence was cancelled as a condition of his bail and as such it may be considered that this element to the punishment has to some extent been endured.

[39] The sentencing judge found the appellant to be genuinely remorseful, with good prospects of rehabilitation and employment after imprisonment. I do not consider there is a high risk of re-offending. Therefore given the particular characteristics and circumstances of the appellant, the pre-sentence disqualification, the significant period of imprisonment and the importance of facilitating the appellant’s rehabilitation, it may well be arguable that the appellant should be allowed to apply for his driver’s licence upon release on parole. However, the question is whether error has been made out. In my view, no error is revealed. The sentencing judge was entitled to order as he did. I do not find this ground made out.”
In R v Nguyen [2009] VSCA 64 the 28 year old appellant had been sentenced to 3y3m imprisonment with a non-parole period of 2y6m on charges of attempted armed robbery and theft and had been disqualified from driving for 3y. The Court of Appeal allowed his appeal, reducing the sentence to 3y1m imprisonment with a non-parole period of 2y. It also amended the disqualification period in relation to which Williams AJA (with whom Dodds-Streeton & Weinberg JJA agreed) said:

[70] “In Lefebure (2000) 112 A Crim R 41 the Court held that the disqualification has a punitive element which requires an assessment of the extent to which, in the context of the overall punishment, it is needed to reflect the community’s dissatisfaction with the offence. The length of any period of imprisonment is relevant and sometimes the disqualification period should be longer to achieve its objectives. The convicted person’s dependency on a driving licence is also relevant in order not to undermine prospects of rehabilitation: (2000) 112 A Crim R 41, 44, [7]-[8] (Tadgell JA, Chernov and Hedigan JJA agreeing).

[71] Whilst there was no direct evidence as to the appellant’s future need for a licence or as to whether he would have any access to a car, I assume the likelihood that his rehabilitation prospects would be enhanced by the ability to obtain a licence once he is released on parole.

[72] Bearing in mind the punitive nature of the order, I consider that he should be disqualified from obtaining a driver’s licence for the period commencing on 20 September 2007 and ending two months after the date of his release from custody on parole or at the expiration of his sentence.”

See also R v Charles [2011] VSCA 399 at [196]-[209].

11.1.9.2 Forfeiture & other orders

The Criminal Division of the Children's Court has jurisdiction under the Confiscation Act 1997 (Vic) to make forfeiture, restraining and/or pecuniary penalty orders in relation to certain property in which a defendant has an interest: see e.g. ss.3 & 12 and Parts 2, 3 & 8 of that Act. There are no reported decisions involving such applications in respect of the property of child defendants.
The approach to be taken in respect of adult defendants has been discussed in a number of cases, including R v Tran [2004] VSC 218 at [9]-[11] per Warren CJ; R v Galek (1993) 70 A Crim R 252 at 258; R v Wealand (2002) 136 A Crim R 159; Taylor v Attorney General of South Australia (1991) 53 A Crim R 166 at 175-179 per Debelle J; DPP v Smith [2007] VSC 98 per Mandie J; DPP v Phan Thi Le [2007] VSCA 18; Winand (a decision of the Victorian Court of Criminal Appeal referred to in R v Tran at [12]-[13]); DPP (Vic) v Nikolaou [2008] VSC 111 per Kaye J; DPP v Nguyen; DPP v Duncan [2009] VSCA 147; DPP v Khoda Ali & Dounia Ali [2009] VSCA 162; Re Moran, Armour and Environmental Concrete Constructions Pty Ltd [2011] VSC 377.
In DPP v Phan Thi Le (No.2) [2007] VSCA 57 the Court of Appeal held, citing Rose v Hvric (1963) 108 CLR 353, that the Court is not precluded by s.133A of the Confiscation Act 1997 (Vic) from awarding costs to a successful applicant for an order excluding property from automatic forfeiture.

11.1.10 Struck out

It is common for a prosecuting agency to apply to withdraw one or more charges, informations or notices to appear. However, an order striking out an initiating document is not a sentencing order for it is not a curial determination of the merits of the case and therefore does not put an end to the proceedings. Until such time as the court determines the case on its merits and records an order finding the defendant guilty or dismissing the case, a striking out order is no more than a direction to remove the case from the list of matters for hearing and determination by the Court: see R v McGowan & Another; ex parte Macko & Sanderson [1984] VR 1000 at 1002 per Kaye J; Willis v Magistrates' Ct Vic & Buck [Sup Ct Vic, {MC9/97}, 02/12/1996] per Smith J; DPP v Sabransky [2002] VSC 143 at [33]-[37] per Kellam J; DPP v Moore [2003] VSCA 90 at [20] per Batt JA.
Conversely, where an application by the prosecution for an adjournment of an information is not allowed, a plea of not guilty is entered and the prosecution calls no evidence, the Court must dismiss the information on its merits, not strike it out. See Douglas v Birt [Supreme Court of Victoria, {MC1/93}, 01/10/1992] per Hedigan J.

11.1.11 Children’s Court has no direct power to impose community work/service

It may sound like an abundance of riches to have up to nine sentencing orders available in any case (nine rather than ten because YRC & YJC are mutually exclusive alternatives). However, there is at least one large gap. There is no sentencing order pursuant to which the Children’s Court can order a child to perform unpaid community work or service, that is there is no equivalent to a adult Community-based Order. One of the mandatory conditions of a YSO is that "the person must participate in a community service program or any other program" but that condition only applies if the person is "so directed by the Secretary" [s.389(1)(g); see also ss.389(6) & 389(7)]. Likewise, one of the mandatory conditions of a YAO [s.399(1)(h)] is that the person carry out the reasonable and lawful directions of the Secretary …under ss.406 & 407(1)" and s.407(1) requires the person to "engage in community service or other activities as directed by the Secretary". Further, s.360(6) prohibits the Court from imposing any condition or requirement on a non-party without that person or body's consent. This all means that the Court has no power to impose a community work condition on either a YSO or a YAO. Nor has the Children’s Court any other sentencing power to require a child to perform unpaid community work or service. Yet there are many offences - of which graffiti is a prime example - in which a good way to ensure that an offending child is held accountable (that is made aware that he or she must bear a responsibility for any action against the law [s.362(1)(f)]) is to require the child to clean up his or her own mess or some other person's mess. It is all very well to give the Court the power under s.360(3)(a) to order a child to make restitution or pay compensation but, as already indicated, a child rarely has the means and ability to pay.

11.1.12 Order for forensic procedure on finding of guilt

Section 464ZF(2) of the Crimes Act 1958 (Vic) [as amended] provides that if on or after 1 July 1998 a court finds a person guilty of-

(a) a forensic sample offence [i.e. any offence specified in Schedule 8]; or

(b) an offence of conspiracy to commit, incitement to commit or attempting to commit a forensic sample offence-

a member of the police force, at any time following that finding but not later than 6 months after the expiration of any appeal period or the final determination of any appeal (whichever is the later), may apply to the court for an order directing the person to undergo a forensic procedure for the taking of a sample from any part of the body and the court may make an order accordingly. Under s.464ZF(2AA) this 6 month period is extended to 12 months in certain circumstances.

The sample ordered may be either intimate or non-intimate: s.464ZF(4) The most common order for a child is for an intimate sample by way of buccal swab. Any such order must not be executed unless the appeal period has expired or an appeal (if any) has been finally determined and the conviction for the forensic sample offence upheld: s.464ZF(6). If an appeal on conviction for the forensic sample offence is quashed, an order for forensic procedure ceases to have effect: s.464ZF(7).
Section 464ZF(3) provides that if at any time before 1 July 1998 a person has been found guilty by the Court of a forensic sample offence and the person is serving a term of imprisonment or detention, a member of the police force may apply to the Children's Court for an order directing the person to undergo a forensic procedure.
There is a conflict of authority as to whether s.464ZF(3) – and so by implication s.464ZF(2) - excludes any requirement that notice be given to the subject and excludes any right in the subject to be heard. In Lednar & Ors v The Magistrates' Court & Anor [2000] VSC 549 Gillard J held that it did. In Pavic v Chief Commissioner of Police [2003] VSC 99 at [3]-[4] Nettle J took the opposite view, holding that s.464ZF(3) does not exclude a subject's right to be heard. However, parliament made its intention clear in the Crimes (Amendment) Act 2004 (Vic) [No.41/2004] when-

• 
  in s.21 it validated earlier orders made without notice or without affording a right to be heard; and
  
• 
  in s.16 it introduced a new s.464ZF(5) which permits an application under ss.464ZF(2) or 464ZF(3) in respect of an adult person to be made without notice to any person.
  

However, in s.16 it also introduced new ss.464ZF(5A) & 464ZF(5B) which set up a slightly less stringent regime for applications made in respect of children under 18:

• 
  notice of the application must be served on the child and a parent or guardian of the child;
  
• 
  the child is not a party to the application;
  
• 
  the child may not call or cross-examine any witnesses;
  
• 
  the child may not address the court other than in respect of any matter referred to in ss.464ZF(8)(a) or 464ZF(8)(b) or in response to inquiries made by the court under s.464ZF(8)(c).
  

Section 464ZF(8) provides that a court hearing an application for a forensic procedure-

(a) must take into account the seriousness of the circumstances of the forensic sample offence;

(b) must be satisfied that, in all the circumstances, the making of the order is justified; and

(c) may such inquiries on oath or otherwise as it considers desirable.
Although it is a pre-condition to the making of an order under s.464ZF that the person has been found guilty of a forensic sample offence, a finding of guilt alone is not sufficient to justify the making of the order. This is clear from R v Abebe [1998] VSC 214 where, in refusing a forensic procedure order, Harper J said-

"Parliament has not said that a conviction for murder necessarily results in the success of an application…In this case the application is not supported by any material of any kind. If the conviction for murder is not itself sufficient the position therefore is that I have nothing upon which to be satisfied in all the circumstances the making of the order is justified."

See also R v Lagona [1998] VSC 220.
By contrast, in Lednar & Ors v The Magistrates' Court & Anor [2000] VSC 549 Gillard J at [268] said-

"It is important in my opinion to note that where there is a serious forensic sample offence committed in the past in the majority of cases the granting of an order will follow without much further consideration. If the forensic sample offence is serious and there is evidence which demonstrates that the prisoner by his past conduct is a repeat offender and likely to offend in the future then it is hard to see what arguments could be put forward to rebut the finding that in all the circumstances the making of the order is justified."

And in R v Heriban and Brunner [2005] VSC 76 at [7] Whelan J, although approving the dicta of Harper J in R v Abebe, did so in a very qualified way-

“It seems to me that Abebe and Lagona do not stand for the proposition that evidence of matters in addition to the circumstances of the offence itself must be led before an order can be made. Whilst it is correct, as those cases make clear, that a mere conviction in itself is not sufficient, an order may be justified in a particular case by the seriousness of the offence itself and the circumstances in which it occurred. The issue in every case is whether the order is justified, and in considering that issue the court must take the seriousness of the circumstances of the offence into account.”

If a court makes an order for a compulsory procedure in relation to a child, s.464ZF(9) requires it-

(a) to give reasons for its decision and cause a copy to be served on the child and a parent or guardian of the child; and

(b) to inform the child that a member of the police force may use reasonable force to enable the procedure to be conducted.
An order under s.464ZF must be made in open court: see Lednar's Case. The only avenue of 'appeal' is by an application for judicial review pursuant to O.56 of the Supreme Court Rules. In R v Akin Sari [2008] VSCA 137 at [107]-[108] Lasry AJA said that an order under s.464ZF was not a penalty or a sentence and accordingly such orders are not part of a sentencing order and are therefore not amenable to challenge on an appeal against sentence.
Section 464ZFB(1) of the Crimes Act 1958 (Vic) [as amended] provides, inter alia, that if on or after 1 July 1998-

(a) a forensic procedure is conducted on a child in accordance with s.464U(7) or 464V(5); and

(b) a court finds the person guilty of-

(i) the offence in respect of which the forensic procedure was conducted; or

(ii) any other offence arising out of the same circumstances; or

(iii) any other offence in respect of which evidence obtained as a result of the forensic procedure had probative value-

a member of the police force, at any time following that finding but not later than 6 months after the expiration of any appeal period or the final determination of any appeal (whichever is the later), may apply to the court for an order permitting the retention of any sample taken and any related material and information and the court may make an order accordingly.
In R v Heriban and Brunner [2005] VSC 76 Whelan J proceeded at [6] on the basis that the same considerations applied to applications under s.464ZFB(1) as to applications under s.464ZF(2).
Section 464ZFC(1) imposes an obligation on the Chief Commissioner of Police without delay to destroy, or cause to be destroyed, any forensic sample taken and any related material and information if no application was made for its retention under s.464ZFB within the specified period or if a court refuses to make an order under s.464ZFB.

11.1.13 Sentencing powers of Supreme Court or County Court

In s.3 of the Sentencing Act 1991 (Vic) [as amended] "young offender" is defined as "an offender who at the time of being sentenced is under the age of 21 years". Prior to an amendment introduced by Act No.48 of 1997, "young offender" had been defined as one "who at the time of being sentenced is aged 17 or more but is under the age of 21 years". This amendment and a number of related amendments appear to have been spurred by criticisms of the legislation made by the Court of Appeal in R v Hill [1996] 2 VR 496 and in order to resolve a conflict between the judgment of Hampel J in R v G [Supreme Court of Victoria, unreported, 16/09/1994] and of Cummins J in R v F [Supreme Court of Victoria, unreported, 05/12/1995].
Thus it is now clear:

• 
  that the sentencing powers of the Supreme Court & County Court in respect of a child found by such court to be guilty of an offence include power to make any of the sentencing orders detailed in s.7(1) of the Sentencing Act 1991 (Vic) [as amended]: see e.g. DPP v SJK & GAS [2002] VSCA 131; and
  
• 
  that in the exercise of those powers, the sentencing guidelines in s.5 of that Act are relevant.
  

However, in addition to those powers, s.586 of the CYFA authorises the Supreme Court or County Court, in sentencing a child for an indictable offence, to exercise the power to make any sentencing order which the Children's Court may make under the CYFA save that an order that the child be detained in a YRC or YJC must be made in accordance with Subdivision (4) of Division 2 of Part 3 (ss.32-35) of the Sentencing Act 1991 (Vic). And it appears from the judgment of Nettle J in R v PP [2002] VSC 578 at [28] that the sentencing principles set out in s.362(1) of the CYFA are also relevant to the sentencing of young persons by superior courts.

11.1.14 Relevance to sentencing of agreement between Crown and defence

An agreement between prosecuting authorities and an offender which affects the course of proceedings before a sentencing judge has been recognised as a significant factor in sentencing: see R v Ioannou [2007] VSCA 277 at [22]-[23]; Malvaso v R (1989) CLR 277; DPP v Waack (2001) 3 VR 194, 200-6.
However, it remains a matter for the sentencing judge whether he or she forms the same view as that encapsulated in a plea bargain between Crown and defence. In R v G Williams [2007] VSC 490 King J did not agree with the Crown and defence submission that a wholly suspended term of imprisonment would be an appropriate sentence. At [6]-[7] her Honour said-

“[I]t is ultimately for the court to determine what sentence is appropriate. The court is not bound, in any way, by the negotiations between counsel as to the appropriateness or otherwise of a sentence. That is clearly the role and function of the court. It is, however, extremely important that the court take heed of what has been agreed and if possible, within the proper principles of sentencing, to give effect to, or at the minimum to give considerable weight to such agreements…[Whilst] it is important, it is also to be noted as Coldrey J stated in R v Kenneth Charles Jarrett [Supreme Court of Victoria, 30/06/1994], when the Crown had submitted that a wholly suspended sentence was appropriate for Mr Jarrett, his Honour said- ‘It is, however, only one aspect of the broader sentencing considerations to which the court must have regard.’”

An appeal was dismissed by the Court of Appeal: see R v George Williams [2008] VSCA 95 at [27] where Osborn AJA, with whom Buchanan & Vincent JJA agreed, said:

“The real question is whether the reasons of the sentencing judge demonstrate that she failed to have proper regard to the Crown’s concession. When her Honour’s reasons are read as a whole they demonstrate…that she accepted that it was ‘extremely important that the Court take heed of what has been agreed’ and that she indicated she would pay it ‘significant regard’.”

See also Kapkidis v The Queen [2013] VSCA 35 at [20].

11.1.15 Procedural fairness

In R v Alexandridis [2008] VSCA 126 the Court of Appeal held that the failure of a sentencing judge to give an unrepresented offender the opportunity to adduce evidence or make submissions that he had been provoked when he slashed a victim’s face was a denial of procedural fairness. At [17] Redlich JA, with whom Buchanan & Nettle JJA agreed, said: