Criminal division – sentencing

“Prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when a judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.”

11.1.3 Sentencing of juveniles

By contrast, the focus of the Children, Youth and Families Act 2005 (Vic) [No.96/2005] ('the CYFA') - like its predecessor the Children and Young Persons Act 1989 (Vic) [No.56/1989] (‘the CYPA’) - in relation to the sentencing of Victorian juvenile offenders is predominantly - although not completely -'welfare'-oriented, that is rehabilitative. In Fox and Freiberg, Sentencing: State and Federal Law in Victoria, 2^nd ed. 1999, Oxford University Press South Melbourne, the authors characterize Victoria's legislative scheme as an attempt to blend the two sentencing models: 'welfare' and 'justice'. In the Second Reading Speech the objectives of the CYPA were said (at p.1150) to include the provision of:

• 
  an adequate and constructive response to children and young people who have been charged with and found guilty of committing offences;
  
• 
  an extended and more flexible range of dispositions in each of the divisions of the Court, which seek to enable children to remain at home wherever practicable and appropriate.
  

The rehabilitative focus is reinforced by the requirement (at p.1151) to give priority to child protection where there are both protective and criminal matters in respect of the one child: see s.18(2) of the CYPA [now s.522(2) of the CYFA]. It is clear that when enacting the sentencing provisions of the CYPA & the CYFA, Parliament - like its counterparts in most other countries in the world – did not consider children and young persons merely to be little adults. In CNK v The Queen [2011] VSCA 228 at [76] the Court of Appeal – referring to the cases of Merrett & Tiburcy – treated the young applicant’s rehabilitation as “a primary consideration”. See also R v Azzopardi, R v Baltatzis, R v Gabriel [2011] VSCA 372 at [34]-[44]; DPP v McGuigan [2012] VSCA 121.

11.1.4 Sentencing principles

In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [18] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said: “At common law the exercise of the sentencing discretion is the subject of established principles. These include proportionality {Veen v The Queen [No 2] (1988) 164 CLR 465}, parity {Lowe v The Queen (1984) 154 CLR 606}, totality {Mill v The Queen (1988) 166 CLR 59} and the avoidance of double punishment {Pearce v The Queen (1998) 194 CLR 610}.”
In R v Jongsma [2004] VSCA 218 Gillard AJA said at [47]: "The sentencing process involves an exercise of a discretionary judgment. The principles have been stated often and I refer to the leading authority of House v The King (1936) 55 CLR 499 at 504-5. As it is an exercise of discretion, there is room for difference of opinion as to what is the appropriate sentence…I discussed the principles in R v. David Matthew Langdon [2004] VSCA 205 at [60]-[76]." In Pandevski [2007] VSCA 84 at [36], Maxwell P reiterated the discretionary nature of sentencing: “It is obvious that on particular matters different judges might come to slightly different views. That is the nature of the sentencing process. That is why it is done by judges, not by machines.”
A convenient starting point in the determination of an appropriate sentence for both adult and child offenders is the seriousness of the offence and the level of culpability of the offender, as discussed by Vincent & Weinberg JJA and Mandie AJA in DPP v Weidlich [2008] VSCA 203 at [17]-[18]:

[17] “The seriousness to be attributed to a breach of the criminal law in any given case is, of course, dependent upon a number of factors including the intention of the perpetrator and the consequences of its commission: see Mallinder v R (1986) 23 A Crim R 179; R v Pota [2007] VSCA 198 at [28]; DPP v Fevaleaki [2006] VSCA 212 at [15] and R v Buckle [2005] VSCA 98 at [25]…

[18] Generally, the measure of culpability of an offender under the criminal law rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences. Little thought is required to appreciate that the greater the level of insight and understanding possessed by him or her concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved.”
The philosophies of "home & family preservation" & "constructiveness" differentiate the sentencing of juveniles from that of adults. The philosophies are enshrined in the principles in s.362(1) of the CYFA to which the Court must have regard, as far as practicable, in determining what sentence to impose on a child. This is predominantly a 'welfare' model, only principles (e), (f) & (g) having a 'justice' component. Principles (a) & (c) have parallels in the Family Division in ss.10(3)(b) & 10(3)(o) of the CYFA.

	PRINCIPLE		MODEL
(a)	STRENGTHENING FAMILIES	The need to strengthen and preserve the relationship between the child and the child's family.	WELFARE
(b)	LIVE AT HOME	The desirability of allowing the child to live at home.	WELFARE
(c)	EDUCATION ETC UNDISTURBED	The desirability of allowing the education, training or employment of the child to continue without interruption or disturbance.	WELFARE
(d)	MINIMISE STIGMA	The need to minimise the stigma to the child resulting from a court determination.	WELFARE
(e)	SUITABILITY OF SENTENCE	The suitability of the sentence to the child.	WELFARE/ JUSTICE
(f)	ACCOUNTABILITY	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.	JUSTICE/ WELFARE
(g)	COMMUNITY PROTECTION	If appropriate, the need to protect the community, or any person, from the violent or wrongful acts of the child.	JUSTICE

While – unlike s.5 of the Sentencing Act 1991 – there is no explicit mention in s.362(1) of punishment, denunciation or deterrence (either specific or general), in appropriate cases punishment or specific deterrence may be justified by the "accountability" principle of s.362(1)(f) or the "suitability" principle of s.362(1)(e). However, while stating that "broadly speaking, normal sentencing principles" are also applicable to youthful offenders, the Court of Appeal has emphasised that the sentencing of children is under a very different regime from that of adults. In his judgment in R v Dwayne Andrew Evans [2003] VSCA 223 (with which Ormiston & Batt JJA agreed on this issue), Vincent JA said at [44]:

"An elaborate system has been developed to deal with the problem of offending by children and young persons in our community, with a separate court, separate detention facilities, supervision systems and so forth. Whilst broadly speaking, normal sentencing principles can be said to remain applicable when dealing with youthful offenders, as a matter of law and practice it is recognised that the respective weight to be given to relevant factors will vary. In addition the Children and Young Persons Act 1989 (Vic.) sets out [in s.139] a number of matters to which a sentence in the Children’s Court must have regard and which differ in kind and emphasis from roughly similar provisions in s.5 of the Sentencing Act 1991 (Vic.). Underlying this system is the attribution of considerable significance to the generally accepted immaturity of the young people who appear before the Children’s Court and the need, in the interests of the community and the young persons concerned, to endeavour to divert them from engagement in anti-social conduct at that early stage of their lives: see R v Homer (1976) 13 SASR 377. These considerations can and do lead to dispositions which would be regarded as entirely inappropriate in the case of older and presumably more mature individuals."
See also the judgment of Southwell AJA (with whom Phillips CJ & Callaway JA agreed) in R v Angus [unreported, 01/02/1996] at pp.6-7, citing with approval dicta of Lush J in the Court of Criminal Appeal in R v Wilson [unreported, 28/02/1983].
In CNK v The Queen [2011] VSCA 228 at [39] the Court of Appeal (Maxwell P, Harper JA & Lasry AJA) summed up the principles involved in sentencing a child under the CYFA as follows:

“We respectfully agree with [the sentencing judge] that a court sentencing a child would – as in any other sentencing process – be required to consider the gravity of the offence, the remorse of the offender, whether or not the offender had pleaded guilty, the offender’s character and antecedents and the impact of the offence on the victim. Unlike general deterrence, however, those considerations are all directed at an assessment of the particular offending, and of the particular offender, and they inform the determination of a sentence which is properly reflective of all of those features. The statutory directive in s 362(1) (to take the specified matters into account ‘as far as practicable’) is an acknowledgment that the Court’s ability to do so may be affected by those various factors.”

The principles of "proportionality" & "totality" are primarily discussed below in the case law in relation to adults but are equally applicable to children and young persons. The Court of Appeal has held that the principle of “general deterrence” has no relevance to the sentencing of young persons under the CYFA.